B-166081, MAR 20, 1970

B-166081, MAR 20, 1970

PRECIS-UNAVAILABLE

ROBERT N. ANDERSON AND LAURENCE H. AXMAN, ATTORNEYS AT LAW:

THIS REFERS TO YOUR LETTERS OF DECEMBER 16, 1969, AND JANUARY 8, 1970, WITH ENCLOSURES, CONCERNING THE CLAIM FOR OVERTIME COMPENSATION OF 67 CIVILIAN GUARDS FOR 30 MINUTES EACH WORKDAY AS MEMBERS OF THE CIVILIAN GUARD FORCE AT THE WESTERN VIRGINIA AREA OFFICE (WVAO) CORPS OF ENGINEERS, BERRYVILLE, VIRGINIA.

THAT PART OF THE CLAIMS FOR OVERTIME COMPENSATION FOR PERIODS PRIOR TO TEN YEARS FROM THE DATE OF RECEIPT OF THE CLAIMS IN OUR OFFICE IS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. THE CLAIMS OF THE GUARDS WERE DISALLOWED BY OUR OFFICE ON THE GROUND THAT THE RECORD SHOWS THAT THE OVERTIME SERVICES FOR WHICH COMPENSATION IS CLAIMED WERE NOT OFFICIALLY ORDERED OR APPROVED BY AN OFFICIAL AUTHORIZED TO APPROVE OVERTIME AS REQUIRED BY 5 U.S.C. 911 (NOW 5 U.S.C. 5542). IT WAS ALSO STATED IN OUR DISALLOWANCES THAT THE MERE EXISTENCE OF A PRACTICE TO REPORT 15 MINUTES EARLY AND TO DEPART 15 MINUTES LATE EACH DAY FROM THE GUARD ROOM WAS NOT TANTAMOUNT TO EXPRESS OR IMPLIED ORDERS BY AN AUTHORIZED OFFICIAL FOR THE GUARDS TO WORK OVERTIME.

THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS CPR H2 HOURS OF WORK (1959 AND 1962 ISSUES) PROVIDED IN PERTINENT PART AS FOLLOWS:

"DELEGATION OF AUTHORITY

"1-3. AUTHORITY FOR ESTABLISHING AND CHANGING THE TOURS OF DUTY OF CIVILIAN EMPLOYEES IS DELEGATED TO THE COMMANDING OFFICER OF ANY ACTIVITY EMPLOYING CIVILIAN PERSONNEL. THE EXERCISE OF THIS AUTHORITY WILL BE SUBJECT TO THE REQUIREMENTS OF APPLICABLE LAWS AND OF THESE REGULATIONS.

"OVERTIME HOURS

"2-4. OVERTIME SERVICES OF CIVILIAN EMPLOYEES MAY BE UTILIZED ONLY IN THE EVENT OF UNUSUAL EMERGENCY. FOR THIS PURPOSE 'UNUSUAL EMERGENCY' REFERS TO UNFORESEEABLE SITUATIONS INVOLVING PRESERVATION OF HEALTH, WELFARE, AND SAFETY OF PERSONNEL, OR PROTECTION OF GOVERNMENT PROPERTY; TEMPORARY PEAK WORKLOADS OR SEASONAL REQUIREMENTS WHEN OVERTIME IS MORE ECONOMICAL THAN HIRING ADDITIONAL STAFF; OR UNIQUE OPERATING REQUIREMENTS WHEN OVERTIME IS MORE ECONOMICAL THAN DEMURRAGE OR OTHER CHARGES. WHEN OVERTIME IS SO UTILIZED, ON EITHER AN IRREGULAR OR REGULAR BASIS, IT WILL BE RESTRICTED TO THE ABSOLUTE MINIMUM REQUIRED BY THE 'UNUSUAL EMERGENCY.' SEE ALSO PARAGRPAH 2-9.

"AUTHORITY TO ORDER OVERTIME

"B. THE AUTHORITY TO ORDER OR APPROVE OVERTIME, IN ACCORDANCE WITH THE POLICY SET FORTH ABOVE, IS DELEGATED TO ARMY COMMANDERS AND CHIEFS OF DEPARTMENT OF THE ARMY STAFF AGENCIES AND MAY BE REDELEGATED TO INSTALLATION COMMANDERS. COMMANDERS MAY EXERCISE SUCH AUTHORITY THROUGH PRIOR APPROVAL OF THE SPECIFIC CIRCUMSTANCES UNDER WHICH USE OF OVERTIME IS CONSIDERED APPROPRIATE AND BY SPECIFIC DESIGNATION OF THE INDIVIDUALS EMPOWERED TO DETERMINE THAT SUCH CIRCUMSTANCES EXIST. THE SIGNATURE OF EITHER THE APPROPRIATE COMMANDER, OR OF A DESIGNATED INDIVIDUAL, ON THE TIME AND ATTENDANCE REPORT WILL SATISFY THE REQUIREMENT THAT THE OVERTIME SHOWN THEREON HAS BEEN DULY ORDERED OR APPROVED.

"INCIDENTIAL DUTIES

"2-7. INCIDENTAL DUTIES DIRECTLY CONNECTED WITH THE PERFORMANCE OF A GIVEN JOB ARE CONSIDERED ASSIGNED DUTIES, AND TIME SPENT IN THEIR PERFORMANCE IS TO BE INCLUDED IN THE DAILY SCHEDULE OF WORKING HOURS. THIS INCLUDES TIME SPENT IN TRAVEL WHICH IS AN INHERENT PART OF, AND INSEPARABLE FROM THE WORK ITSELF (SEE CPR P1.7). HOWEVER, TRAVEL FROM HOME OR LODGING PLACE TO WORK IS NOT CONSIDERED AS WORK TIME. EXAMPLES OF SITUATIONS INVOLVING INCIDENTAL DUTIES ARE OUTLINED BELOW.

"GUARDS

"A. WHERE IT IS NECESSARY FOR CIVILIAN GUARDS TO REPORT AT A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTIONS, UNDERGO INSPECTION, AND THEN PROCEED TO THEIR RESPECTIVE POSTS OF DUTY, THE DAILY TOUR OF DUTY IS CONSIDERED TO BEGIN AT THE TIME THEY ARE REQUIRED TO CHECK IN. SIMILARLY, WHERE SUCH PERSONNEL ARE REQURED TO CHECK OUT AT A CENTRAL LOCATION, THE DAILY TOUR WILL END AT THAT TIME. GENERALLY, SUCH DUTIES SHOULD NOT REQUIRE MORE THAN ONE-HALF HOUR EACH DAY."

THE EXTRA TIME ALLOTTED FOR THE PERFORMANCE OF INCIDENTAL DUTIES DID NOT OFFICIALLY BECOME PART OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE CIVILIAN GUARDS UNTIL ORDERED ON MARCH 30, 1966, EFFECTIVE APRIL 3, 1966, BY THE AREA ENGINEER, THE OFFICIAL TO WHOM AUTHORITY TO ISSUE SUCH AN ORDER HAD BEEN DELEGATED. YOU SAY THAT THE OVERTIME IN QUESTION PUT IN BY THE CIVILIAN GUARDS WAS AT THE DIRECTION AND ORDER OF THE SUPERVISOR OF THE INSTALLATION'S SECURITY SURVEILLANCE AND IS NOT SUCH OVERTIME AS IS REQUIRED TO BE APPROVED IN WRITING BY AN OFFICER OR EMPLOYEE AUTHORIZED TO DO SO. NOWHERE DOES IT APPEAR THAT THE GUARD SUPERVISOR EVER POSSESSED THE AUTHORITY TO PRESCRIBE TOURS OF DUTY OR TO ORDER THE PERFORMANCE OF OVERTIME, AND NEITHER DOES IT APPEAR THAT ANY PERSON TO WHOM SUCH AUTHORITY HAD BEEN DULY DELEGATED EVER ORDERED OR ACTIVELY INDUCED THE PERFORMANCE OF THE WORK FOR WHICH OVERTIME IS CLAIMED. WE CANNOT AGREE THAT THE REGULATION, QUOTED ABOVE, UNDER "GUARDS" CREATED TOURS OF DUTY FOR THE EMPLOYEES HERE INVOLVED TO INCLUDE THE EXTRA 30 MINUTES CLAIMED. RATHER OUR VIEW IS THAT TO LEGALLY CREATE SUCH TOURS IT WOULD HAVE BEEN NECESSARY THAT THE INSTRUCTIONS TO CHECK IN AT A CENTRAL LOCATION BE GIVEN OR APPROVED BY AN OFFICIAL WHO HAD AUTHORITY TO DO SO.

IN THE CASE OF BOWLING, ET AL V. UNITED STATES, 181 CT. CL. 968 (1967), THE PLAINTIFFS (GUARDS) WERE CLAIMING 20 MINUTES OVERTIME COMPENSATION PER DAY FOR REPORTING EARLY, THE COURT SAID:

"PLAINTIFFS RELY ON THE OFFICE MEMORANDUM ISSUED BY CHIEF MCPHERSON IN 1957 AND WHICH WAS POSTED ON THE BULLETIN BOARD IN THE STATION HOUSE OF 30 DAYS AS CONSTITUTING A WRITTEN ORDER IMPOSING DUTIES ON THEM WHICH, IN ORDER TO PERFORM IN APPROPRIATE MANNER, NECESSITATED THEIR REPORTING TO WORK 20 MINUTES BEFORE THEIR REGULAR 8-HOUR SHIFTS. HOWEVER, PLAINTIFFS HAVE FAILED TO SHOW (AND INDEED MADE NO ATTEMPT TO PROVE) THAT CHIEF MCPHERSON WAS AN OFFICIAL WHO WAS AUTHORIZED, BY THE DEPARTMENT OF THE NAVY OR THE APPROPRIATE OFFICIALS IN CHARGE OF THE MARE ISLAND NAVAL SHIPYARD, TO ISSUE ORDERS CONCERNING WORK HOURS AND TO COMMIT DEFENDENT TO THE PAYMENT OF OVERTIME COMPENSATION BY LENGTHENING THE WORK HOURS. APPROPRIATE ACTION BY AN OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME IS A CONDITION TO RECOVERY IN THIS TYPE OF CASE, FOR OBVIOUSLY NOT EVERY DEPARTMENTAL OFFICIAL IS EMPOWERED TO SO CHANGE THE WORK HOURS OF EMPLOYEES AS TO COMPEL THE PAYMENT OF OVERTIME, OR OTHERWISE TO APPROVE OVERTIME. BILLELLO, ET AL. V. UNITED STATES, 174 CT. CL. 1253 (1966); BANTOM, ET AL. V. UNITED STATES, 165 CT. CL. 312 (1964); CERT. DENIED, 379, U. S. 890 (196'); TABBUTT, ET AL. V. UNITED STATES, 121 CT. CL. 495 (1952). ***"

THE COURT GOES ON TO SAY THAT:

"THUS, THE MERE FACT THAT PLAINTIFFS MIGHT HAVE WORKED OVERTIME DURING THE PERIOD HEREIN INVOLVED IS NOT DETERMINATIVE OF THEIR RIGHT TO RECEIVE COMPENSATION THEREFOR. '*** THE COURT HAS NOT GIVEN JUDGMENT UNDER THIS TYPE OF OVERTIME LEGISLATION (RELATING TO FEDERAL EMPLOYEES) UNLESS THE WORK OR ACTIVITY WHICH IS THE BASIS OF THE CLAIM HAS BEEN AUTHORIZED, APPROVED, ORDERED OR CONFIRMED BY AN AUTHORITY EMPOWERED TO DO SO.' GAINES V. UNITED STATES, 158 CT. CL. 497, 500 (1962) CERT. DENIED, 371 U. S. 936 (1964)."

IN THE CASE OF BILELLO, ET AL. V. UNITED STATES, 174 CT. CL. 1253 (1966), THE COURT WAS PRESENTED WITH A FACTUAL SITUATION SIMILAR TO THE ONE HERE. THE COURT OF CLIAMS DENIED OVERTIME COMPENSATION TO CIVILIAN GUARDS WHO, FOR MORE THAN 11 YEARS, HAD BEEN VERBALLY ORDERED TO REPORT EARLY BY SUPERVISORY PERSONNEL. HOWEVER, THE REGULATIONS DID NOT GIVE SUPERVIOSRS AUTHORITY TO ORDER OR APPROVE OVERTIME, BUT RATHER REQUIRED THEM TO SUBMIT REQUESTS FOR OVERTIME FOR AUTHORIZATION AND APPROVAL. IN THAT CASE THE GUARDS WERE EVEN REPRIMANDED IF THEY FAILED TO REPORT EARLY. THE COURT HELD THAT:

"*** A REGULATION REQUIRING APPROVAL OF OVERTIME BY A DESIGNATED OFFICIAL BEFORE IT CAN BE PAID IS BINDING ON CLAIMANTS UNLESS THE REGULATION IS UNREASONABLE OR THE OFFICIAL WHO HAS WITHHELD FORMAL WRITTEN APPROVAL HAS NEVERTHELESS ACTIVELY INDUCED AND ENCOURAGED THE OVERTIME. MERE KNOWLEDGE ON HIS PART, WITHOUT AFFIRMATIVE INDUCEMENT OR WRITTEN SANCTION, WOULD NOT SEEM TO BE SUFFICIENT. ***"

CONSISTENT WITH THE FOREGOING AND THE FACT THAT THERE HAS BEEN NO EVIDENCE FURNISHED SHOWING THAT THE GUARDS IN QUESTION WERE REQUIRED TO PERFORM OVERTIME SERVICES BY PROPER AUTHORITY OR ACTIVELY INDUCED BY PROPER AUTHORITY TO PERFORM SUCH SERVICES OUR PRIOR ACTIONS IN DISALLOWING THE CALIMS MUST BE SUSTAINED.