B-166409, APR. 17, 1969

B-166409: Apr 17, 1969

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THE CLAIMS FOR OVERTIME COMPENSATION DURING LUNCH PERIODS THE CLAIMANTS ALLEGED THAT THEY WERE REQUIRED TO STAND BY AND BE ON CALL WERE DISALLOWED ON THE BASIS OF A REPORT FROM THE ADMINISTRATIVE OFFICE THAT OFFICERS WHOSE LUNCH PERIODS ARE INTERRUPTED BY AN EMERGENCY CALL ARE EITHER RESCHEDULED FOR AN ADDITIONAL FULL HALF-HOUR BREAK AT ANOTHER TIME DURING THEIR TOUR OF DUTY OR THEY ARE COMPENSATED FOR THE HALF-HOUR REGARDLESS OF THE PORTION OF THE TIME REQUIRED FOR THE EMERGENCY. YOU NOW SUBMIT AFFIDAVITS FROM EACH OF THE 24 CLAIMANTS TO THE EFFECT THAT THEY HAVE NOT RECEIVED RESCHEDULED LUNCH PERIODS OR COMPENSATION FOR A LUNCH PERIOD WHICH WAS INTERRUPTED BY AN EMERGENCY CALL ON ANY DAY SUBSEQUENT TO JANUARY 27.

B-166409, APR. 17, 1969

TO MR. ALAN J. WHITNEY:

YOUR LETTER OF FEBRUARY 27, 1969, WITH ENCLOSURES, REQUESTS RECONSIDERATION OF OUR SETTLEMENTS OF DECEMBER 4, 1968, DISALLOWING THE CLAIMS FOR OVERTIME COMPENSATION FOR WORK IN EXCESS OF 8 HOURS A DAY SUBSEQUENT TO JANUARY 27, 1965, OF 24 EMPLOYEES OF THE POLICE BRANCH, WASHINGTON NATIONAL AIRPORT, FEDERAL AVIATION ADMINISTRATION.

THE CLAIMS FOR OVERTIME COMPENSATION DURING LUNCH PERIODS THE CLAIMANTS ALLEGED THAT THEY WERE REQUIRED TO STAND BY AND BE ON CALL WERE DISALLOWED ON THE BASIS OF A REPORT FROM THE ADMINISTRATIVE OFFICE THAT OFFICERS WHOSE LUNCH PERIODS ARE INTERRUPTED BY AN EMERGENCY CALL ARE EITHER RESCHEDULED FOR AN ADDITIONAL FULL HALF-HOUR BREAK AT ANOTHER TIME DURING THEIR TOUR OF DUTY OR THEY ARE COMPENSATED FOR THE HALF-HOUR REGARDLESS OF THE PORTION OF THE TIME REQUIRED FOR THE EMERGENCY.

YOU NOW SUBMIT AFFIDAVITS FROM EACH OF THE 24 CLAIMANTS TO THE EFFECT THAT THEY HAVE NOT RECEIVED RESCHEDULED LUNCH PERIODS OR COMPENSATION FOR A LUNCH PERIOD WHICH WAS INTERRUPTED BY AN EMERGENCY CALL ON ANY DAY SUBSEQUENT TO JANUARY 27, 1965. ON THE BASIS OF THIS ADDITIONAL INFORMATION FURNISHED, PAYMENT IS REQUESTED. BEFORE DISALLOWING THE ORIGINAL CLAIMS WE HAD ON FILE A SIMILAR AFFIDAVIT TO THE EFFECT THAT THE EMPLOYEES, SINCE JANUARY 28, 1965, WERE ON AT LEAST 60 PERCENT OF THEIR WORKING DAYS CALLED BACK TO DUTY DURING THEIR LUNCH PERIODS WITHOUT BENEFIT OF PAYMENT FOR THE ADDITIONAL TIME WORKED. THIS AFFIDAVIT WAS SENT TO THE ADMINISTRATIVE OFFICE AT THE TIME WE REQUESTED AN ADMINISTRATIVE REPORT ON THE BASIS OF WHICH REPORT WE DISALLOWED THE ORIGINAL CLAIMS.

THE EVIDENCE PRESENTED TO US DOES NOT SHOW, WITH ANY DEGREE OF CERTAINTY, THAT OFFICERS WHOSE LUNCH PERIODS WERE INTERRUPTED BY AN EMERGENCY CALL DID NOT GET A RESCHEDULED HALF-HOUR BREAK AT ANOTHER TIME DURING THEIR TOUR OF DUTY OR WERE NOT COMPENSATED FOR THE HALF HOUR. LIKEWISE, THERE APPEARS TO BE A CLEAR DISAGREEMENT BETWEEN THE AGENCY AND THE CLAIMANTS AS TO THE FACTS IN THE CASE. IN OUR VIEW, THE LACK OF CERTAINTY IN THE EVIDENCE PRESENTED IS SUCH THAT OUR OFFICE WOULD NOT BE WARRANTED IN AUTHORIZING ANY PAYMENT ON THE SUBMITTED CLAIMS. RATHER, WE MUST VIEW THE CLAIMS AS INVOLVING QUESTIONS OF LAW AND FACT WHICH CANNOT BE RESOLVED HERE. THE CLAIMANTS, THUS, ARE LEFT TO THEIR REMEDY BEFORE THE COURTS.

ON THE BASIS OF THE FOREGOING WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF THE CLAIMS.