B-167352, AUG. 14, 1969

B-167352: Aug 14, 1969

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CIVIL PAY - OVERTIME COMPENSATION WHERE EMPLOYEE CLAIMS COMPENSATION FOR VOLUNTARY OVERTIME WORK FOR DEPARTMENT OF THE ARMY PRIOR TO TRANSFER TO AIR FORCE BUT ADMINISTRATIVE RECORDS SHOW THAT COMPENSATORY HOURS WORKED WERE TAKEN CLAIM MUST BE DISALLOWED SINCE IN CASE OF DISAGREEMENT BETWEEN FACTS STATED BY CLAIMANT AND THOSE PRESENTED BY AGENCY. FACTS PRESENTED BY AGENCY ARE CONTROLLING. THE ISSUE IS WHETHER THE SERVICE WAS AUTHORIZED OR APPROVED FOR PURPOSES OF OVERTIME COMPENSATION OR COMPENSATORY TIME OFF OR WHETHER THE SERVICE WAS PERFORMED ON A VOLUNTARY BASIS. SINCE UNDER THE AGENCY POLICY EMPLOYEES IN YOUR GRADE LEVEL WERE AUTHORIZED COMPENSATORY TIME IN LIEU OF OVERTIME. SUCH ZERO BALANCE WOULD VERIFY THAT FULL COMPENSATION WAS GIVEN TO YOU FOR ALL OVERTIME HOURS WORKED PRIOR TO JANUARY 1965.

B-167352, AUG. 14, 1969

CIVIL PAY - OVERTIME COMPENSATION WHERE EMPLOYEE CLAIMS COMPENSATION FOR VOLUNTARY OVERTIME WORK FOR DEPARTMENT OF THE ARMY PRIOR TO TRANSFER TO AIR FORCE BUT ADMINISTRATIVE RECORDS SHOW THAT COMPENSATORY HOURS WORKED WERE TAKEN CLAIM MUST BE DISALLOWED SINCE IN CASE OF DISAGREEMENT BETWEEN FACTS STATED BY CLAIMANT AND THOSE PRESENTED BY AGENCY, FACTS PRESENTED BY AGENCY ARE CONTROLLING.

TO MR. SAMUEL NEFF:

THIS REFERS TO THE LETTER OF MAY 12, 1969, AND ENCLOSURES THEREWITH, AND WITH THE SUBSEQUENT LETTER OF JUNE 23, 1969, FROM THE NATIONAL REPRESENTATIVE IN YOUR BEHALF.

THE LETTER OF MAY 12 REQUESTS OUR DECISION CONCERNING OUR OFFICE SETTLEMENT DATED MARCH 13, 1969, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF OVERTIME COMPENSATION FOR 626 HOURS OF SERVICE RENDERED BY YOU AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, GENERAL STAFF, ASSIGNED TO THE DEPUTY CHIEF OF STAFF FOR LOGISTICS (DCSLOG), WASHINGTON, D.C., DURING THE PERIOD JANUARY 1964 THROUGH MARCH 1968.

REGARDING THE SECOND PARAGRAPH OF THE LETTER OF MAY 12, THE ISSUE IS WHETHER THE SERVICE WAS AUTHORIZED OR APPROVED FOR PURPOSES OF OVERTIME COMPENSATION OR COMPENSATORY TIME OFF OR WHETHER THE SERVICE WAS PERFORMED ON A VOLUNTARY BASIS. IN THIS RESPECT THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS ADVISED US ON NOVEMBER 14, 1968, THAT THE OFFICIAL LEAVE RECORDS (COPIES FURNISHED US) SHOW THAT YOU HAD A ZERO BALANCE FOR COMPENSATORY TIME CARRYOVER FROM 1964. SINCE UNDER THE AGENCY POLICY EMPLOYEES IN YOUR GRADE LEVEL WERE AUTHORIZED COMPENSATORY TIME IN LIEU OF OVERTIME, SUCH ZERO BALANCE WOULD VERIFY THAT FULL COMPENSATION WAS GIVEN TO YOU FOR ALL OVERTIME HOURS WORKED PRIOR TO JANUARY 1965. ALSO, THE RECORD SHOWS THAT PRIOR TO YOUR TRANSFER TO THE DEPARTMENT OF THE AIR FORCE ON MARCH 31, 1968, TO COMPENSATE YOU FOR THE RECORDED BALANCE OF 116 HOURS OF REPORTED OFFICIAL OVERTIME HOURS WORKED BY YOU -- REPRESENTING COMPENSATORY TIME DUE YOU -- THE AGENCY AUTHORIZED AND YOU USED THOSE 116 HOURS BETWEEN MARCH 3 AND 30, 1968.

THE PAPERS SUBMITTED WITH THE FEDERATION'S LETTER OF MAY 12 ARE SIMILAR - - THE SAME IN MOST RESPECTS -- AS ACCOMPANIED YOUR CLAIM OF JULY 24, 1968. IN THAT REGARD THE AGENCY ALSO INFORMED US AS FOLLOWS:

"C. RECORDS SUBMITTED BY MR. NEFF CONSIST OF UNOFFICIAL DATA MAINTAINED IN THE MATERIEL ANALYSIS BRANCH OF PEMA DEVELOPMENT DIVISION, OFFICE OF THE ASSISTANT DEPUTY CHIEF OF STAFF FOR LOGISTICS (PROGRAM AND BUDGET). WITH THE EXCEPTION OF AUTHORIZED PAID AND COMPENSATORY OVERTIME, DATA IS OBTAINED INFORMALLY FROM EACH INDIVIDUAL OF THAT OFFICE. ANY HOURS REPORTED WHICH ARE OVER AND ABOVE THAT WHICH HAS BEEN OFFICIALLY APPROVED AND RECORDED ON THE TIME AND ATTENDANCE (T AND-A) CARDS AS PAID OR COMPENSATORY HOURS ARE CONSIDERED AS VOLUNTARY OVERTIME. AS STATED IN (CHIEF OF STAFF REGULATION) CSR 690-555 * * *, EMPLOYEES ARE NOT ENTITLED TO COMPENSATION IN PAY OR COMPENSATORY LEAVE FOR VOLUNTARY OVERTIME WORKED ON THEIR OWN INITIATIVE. THIS POLICY IS IMPLEMENTED WITHIN THIS AGENCY BY MEANS OF A STAFF MEMORANDUM (SM), SUBJECT: -OVERTIME OF CIVILIAN AND MILITARY PERSONNEL.- DURING MR. NEFF'S EMPLOYMENT IN THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, SM 25 DATED 23 APRIL 1965 WAS IN EFFECT AND IS ATTACHED AS INCL 4. THIS MEMORANDUM HAS SINCE BEEN REVISED AND RENUMBERED AS SM 1 8 AND IS ALSO ATTACHED * * *. PARAGRAPH 4 (PAGE 3) OF SM 25 AND PARAGRAPH 5D (PAGE 4) OF SM 1-8 DIRECTS THAT OFFICIALLY REQUIRED MONTHLY REPORTS OF OVERTIME FOR MILITARY AND CIVILIAN PERSONNEL WITHIN ODCSLOG WILL INCLUDE VOLUNTARY HOURS WORKED.

"D. AR 37-105 (CHAPTER 8) REQUIRES THAT EMPLOYEES INITIAL THEIR T AND-A CARDS FOR ALL COMPENSATORY TIME WORKED AND TAKEN. COMPENSATORY TIME AUTHORIZATIONS (* * * DCSLOG FORM 191) MUST BE SUBMITTED TO FINANCE AND ACCOUNTS OFFICE, U.S. ARMY, WASHINGTON, D.C., WITH T-AND-A CARDS. ACCORDINGLY, ALL COMPENSATORY HOURS WORKED AND TAKEN BY MR. NEFF WERE INITIALLED OR SIGNED BY HIM AS BEING CORRECT.'

THE SECOND PARAGRAPH OF OUR SETTLEMENT CERTIFICATE ADVISED YOU REGARDING THE "OFFICIALLY ORDERED OR APPROVED" REQUIREMENT IN SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT, AS AMENDED, 5 U.S.C. 911, NOW 5 U.S.C. 5542 (A). ALSO THERE MAY BE FOR CONSIDERATION IN YOUR CASE THE AGGREGATE COMPENSATION LIMITATION IN SECTION 209 OF THE ACT, NOW 5 U.S.C. 5547.

THE REFERENCE TO THE AGGREGATE PAY LIMITATION IS MADE TO POINT UP THAT EVEN IF SOME PART OF THE 626 HOURS IN QUESTION COULD BE CONSTRUED - WHICH WE DO NOT HERE -- TO HAVE BEEN OFFICIALLY AUTHORIZED OR INDUCED OVERTIME PAYMENT THEREFOR MAY BE PRECLUDED BY 5 U.S.C. 5547.

ALSO, WE REFER YOU TO THE CIVIL SERVICE COMMISSION'S REGULATION UNDER THE ACT (5 CFR 25, NOW 5 CFR 550) WHICH PROVIDES IN SECTION 550.114 AS FOLLOWS:

SEC. 550.114 COMPENSATORY TIME OFF FOR IRREGULAR OR OCCASIONAL OVERTIME WORK.

"/A) AT THE REQUEST OF AN EMPLOYEE, THE HEAD OF A DEPARTMENT MAY GRANT HIM COMPENSATORY TIME OFF FROM HIS TOUR OF DUTY INSTEAD OF PAYMENT UNDER SEC. 550.113 FOR AN EQUAL AMOUNT OF IRREGULAR OR OCCASIONAL OVERTIME WORK.

"/B) THE HEAD OF A DEPARTMENT MAY PROVIDE THAT AN EMPLOYEE WHOSE RATE OF BASIC PAY EXCEEDS THE MAXIMUM RATE FOR GS-10 SHALL BE PAID FOR IRREGULAR OR OCCASIONAL OVERTIME WORK WITH AN EQUIVALENT AMOUNT OF COMPENSATORY TIME OFF FROM HIS TOUR OF DUTY INSTEAD OF PAYMENT UNDER SEC. 550.113.

"/C) THE HEAD OF A DEPARTMENT MAY FIX A TIME LIMIT FOR AN EMPLOYEE TO REQUEST OR TAKE COMPENSATORY TIME OFF AND MAY PROVIDE THAT AN EMPLOYEE WHO FAILS TO TAKE COMPENSATORY TIME OFF TO WHICH HE IS ENTITLED UNDER PARAGRAPH (A) OR (B) OF THIS SECTION BEFORE THE TIME LIMIT FIXED, SHALL LOSE HIS RIGHT BOTH TO COMPENSATORY TIME OFF AND TO OVERTIME PAY UNLESS HIS FAILURE IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND HIS CONTROL.'

THE RECORD HERE DOES NOT INDICATE THAT YOUR FAILURE TO REQUEST THE USE OF OR PAYMENT FOR ANY ALLOWABLE PART OF THE 626 HOURS PRIOR TO YOUR TRANSFER ON MARCH 31, 1968, WAS DUE TO AN EXIGENCY OF THE SERVICE BEYOND YOUR CONTROL.

AS YOU WERE ADVISED IN THE SETTLEMENT CERTIFICATE, WHERE THERE IS DISAGREEMENT BETWEEN THE FACTS STATED BY THE CLAIMANT AND THOSE PRESENTED BY THE AGENCY CONCERNED, WE MUST ACCEPT THE FACTS AS PRESENTED BY THE AGENCY AS CONTROLLING.

IN THE CIRCUMSTANCES, AND FOR THE REASONS INDICATED ABOVE, THE SETTLEMENT OF MARCH 13, 1969, IS SUSTAINED.