B-167742, SEP 9, 1969

B-167742, SEP 9, 1969

CIVIL PAY - OVERTIME COMPENSATION - STANDBY DUTY DECISION TO ARMY CIVILIAN PILOT SUSTAINING SETTLEMENT DISALLOWING CLAIM FOR OVERTIME FOR PERIOD JUNE 19, 1967 - AUGUST 19, 1967. CIVILIAN PILOT WHO WHILE LIVING AT MILITARY POST WAS REQUIRED TO BE AVAILABLE FOR TELEPHONE CALLS AT RESIDENCE DURING OFF DUTY HOUR MAY NOT HAVE SUCH DUTY REGARDED AS CONSTITUTING "HOURS OF WORK" FOR ENTITLEMENT TO OVERTIME.

TO MR. JOE MURPHY:

THIS REFERS TO YOUR LETTER OF AUGUST 5, 1969, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF JUNE 30, 1969, WHICH DISALLOWED YOUR CLAIM FOR 456 HOURS OVERTIME COMPENSATION DURING THE PERIOD JUNE 19, 1967, THROUGH AUGUST 19, 1967, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

THE INFORMATION OF RECORD SHOWS THAT DURING THE PERIOD IN QUESTION YOU WERE ASSIGNED TO THE YUMA PROVING GROUND, YUMA, ARIZONA, AS AN AIRCRAFT PILOT AND HAD LIVING QUARTERS AT THE GOVERNMENT INSTALLATION. ONE OF YOUR DUTY REQUIREMENTS WAS THAT YOU SERVE AS AIRDROME OFFICER OF THE DAY AT LAGUNA ARMY AIRFIELD IN ACCORDANCE WITH A DUTY ROSTER MAINTAINED BY THE OPERATIONS OFFICER, LAGUNA ARMY AIRFIELD. AS AIRDROME OFFICER OF THE DAY YOU SAY YOU RECEIVED THE FOLLOWING INSTRUCTIONS:

"1. WHEN APPOINTED ON THE DUTY ROSTER AS AOD, PERSON APPOINTED WOULD PERFORM STANDBY PILOT FOR THE PURPOSE OF PERFORMING EMERGENCY FLIGHTS.

"2. AFTER NORMAL DUTY HOURS, PERSON APPOINTED AOD WOULD BE AVAILABLE AT ASSIGNED GOVERNMENT QUARTERS ON POST AND THAT, IF FOR ANY REASON, AOD DEPARTED HIS QUARTERS, HE WOULD NOTIFY THE STAFF DUTY NCO OF HIS LOCATION.

"3. THAT, IF FOR ANY REASON THE AOD HAD TO LEAVE YUMA PROVING GROUND, ARRANGEMENTS WOULD BE MADE FOR ANOTHER PILOT TO ASSUME THESE DUTIES AND THE PROPER PERSONS NOTIFIED OF THIS CHANGE BY THE AOD."

DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS 990-2, BOOK 610, PARAGRAPH S1-6E PROVIDE AS FOLLOWS:

"E. DESIGNATING EMPLOYEES FOR EMERGENCY DUTY.

(1) REQUIREMENTS. WHEN THE NATURE OF OPERATIONS IS SUCH THAT IT MAY BECOME NECESSARY AT ANY TIME TO CALL EMPLOYEES BACK TO DUTY TO COPE WITH AN EMERGENCY SITUATION, ACTIVITY COMMANDERS MAY DESIGNATE EMPLOYEES TO BE AVAILABLE FOR SUCH A CALL DURING WEEKENDS OR OTHER OFF DUTY TIME. DESIGNATION OF EMPLOYEES FOR THIS PURPOSE WILL BE SUBJECT TO THE FOLLOWING CONDITIONS:

"(A) THERE SHOULD BE A DEFINITE POSSIBILITY THAT A REQUIREMENT WILL ARISE FOR USE OF THE SPECIFIC SKILLS POSSESSED BY THE DESIGNATED EMPLOYEE OR EMPLOYEES.

"(B) EACH POTENTIAL EMERGENCY SITUATION AND THE SKILLS REQUIRED TO COPE WITH IT WILL BE DESCRIBED IN WRITING AND WILL BE BROUGHT TO THE ATTENTION OF ALL EMPLOYEES CONCERNED.

"(C) IF MORE THAN ONE EMPLOYEE POSSESSES THE REQUIRED SKILLS, DESIGNATIONS WILL BE MADE ON A ROTATING BASIS.

"(D) EMPLOYEES WHO ARE DESIGNATED FOR EMERGENCY CALL BACK DUTY MAY NOT HAVE THEIR FREEDOM OF MOVEMENT UNDULY RESTRICTED. ORDINARILY THE REQUIREMENT THAT THEY HOLD THEMSELVES AVAILABLE FOR EMERGENCY DUTY WILL NOT EXTEND BEYOND A REQUIREMENT THAT THEY LEAVE WORD AT THEIR HOMES AS TO WHERE THEY MAY BE REACHED.

"(2) COMPENSATION. THE DESIGNATION OF EMPLOYEES TO BE AVAILABLE FOR CALL CANNOT, IN ITSELF, SERVE AS A BASIS FOR ADDITIONAL COMPENSATION. ONLY IN THOSE CASES WHERE THE EMPLOYEES ARE REQUIRED TO REMAIN AT THEIR POST OF DUTY WITH THEIR TIME AND ACTIVITIES COMPLETELY UNDER THE CONTROL OF THE EMPLOYING ACTIVITY CAN ADDITIONAL COMPENSATION BE PAID. HOWEVER, IN THE EVENT OF AN ACTUAL CALL BACK TO DUTY, THEY WOULD BE ENTITLED TO A MINIMUM OF 2 HOURS OVERTIME COMPENSATION."

IN NUMEROUS CASES OUR OFFICE HAD CONSIDERED THE QUESTION OF WHETHER EMPLOYEES WHO ARE DIRECTED TO BE AVAILABLE FOR OFFICIAL TELEPHONE CALLS AT THEIR RESIDENCE DURING OFF-DUTY HOURS MAY RECEIVE OVERTIME COMPENSATION FOR SUCH DUTY. IN THE MAJORITY OF THOSE CASES THE EMPLOYEES WERE REQUIRED ONLY TO REMAIN WITHIN REACH BY TELEPHONE AND WERE NOT RESTRICTED TO THE CONFINES OF THEIR RESIDENCE. UNDER SUCH CIRCUMSTANCES WE HAVE HELD THAT OVERTIME COMPENSATION IS NOT PAYABLE FOR THE REASON THAT SUCH "ON-CALL" DUTY, WITHOUT MORE, DOES NOT CONSTITUTE "HOURS OF WORK" WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. IN THAT REGARD, OUR VIEWS ARE IN CONSONANCE WITH THOSE OF THE COURT OF CLAIMS AS EXPRESSED IN THE CASES OF RAPP AND HAWKINS V. UNITED STATES, 167 CT. CL. 852, AND MOSS V. UNITED STATES, 173 CT. CL. 1169.

YOU SAY THAT YOU WERE CONFINED TO THE MILITARY POST AND THAT YOU WERE UNDER THE CONTROL OF THE YUMA PROVING GROUND. YOUR RESIDENCE WAS ON THE MILITARY POST AND THE ADMINISTRATIVE OFFICE HAS ADVISED US THAT YOU WERE NOT REQUIRED TO REMAIN AT THE DESIGNATED POST OR DUTY STATION AND YOUR TIME AND ACTIVITIES WERE NOT COMPLETELY UNDER THE CONTROL OF YOUR EMPLOYER. ALSO, YOU YOURSELF STATE THAT YOU WOULD BE RELIEVED OF DUTY PROVIDED YOU OBTAINED ANOTHER EMPLOYEE TO ASSUME YOUR DUTIES. THEREFORE, THE TIME YOU WERE AT YOUR RESIDENCE ON CALL CANNOT BE CONSIDERED AS HOURS OF WORK UNLESS ACTUAL WORK WAS PERFORMED.

WE NOTE YOUR STATEMENT THAT DURING YOUR TOUR AS AIRDROME OFFICER OF THE DAY YOU WERE REQUIRED TO MAKE SEVERAL FLIGHTS WHICH WERE OUTSIDE OF YOUR NORMAL WORKING HOURS. WE ASSUME YOU WERE PAID OVERTIME FOR THIS DUTY AS THE ADMINISTRATIVE OFFICER STATES THAT IF YOU HAD BEEN CALLED TO DUTY YOU WOULD HAVE BEEN PAID. IN THE EVENT YOU DID NOT RECEIVE PAY FOR THESE FLIGHTS YOU MAY SUBMIT A CLAIM FOR OVERTIME COMPENSATION TO OUR CLAIMS DIVISION GIVING THE DATE OF THE FLIGHTS, THE TIME, AND OTHER PERTINENT INFORMATION. OTHERWISE, THE CONCLUSION REACHED IN OUR SETTLEMENT OF JUNE 30, 1969, MUST BE SUSTAINED.

CONCERNING YOUR QUESTION AS TO WHERE YOU MAY APPEAL THE ACTION TAKEN BY OUR OFFICE, IT MAY BE STATED THAT UNDER THE EXISTING LAW DECISIONS OF THE COMPTROLLER GENERAL ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND AGENCIES, BUT NOT UPON THE COURTS. SEE 28 U.S.C. 1491 AND 1346 AS TO ACTIONS COGNIZABLE BY UNITED STATES DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS.