B-168721, MAR. 10, 1970

B-168721, MAR. 10, 1970

COMPENSATION--OVERTIME--ADMINISTRATIVE APPROVAL REQUIREMENT DENIAL OF EMPLOYEE'S CLAIM FOR OVERTIME COMPENSATION ALLEGED DUE FROM JUNE 2, 1966 TO SEPT. 9, 1967 WHILE EMPLOYED AT TINKER AIR FORCE BASE IS SUSTAINED, OVERTIME COMPENSATION BEING PAYABLE IN ACCORDANCE WITH PRINCIPLE SET FORTH IN BILELLO V. UNITED STATES, 174 CT. CL. 1253, CITED BY CLAIMANT, ONLY IF TIME WORKED OVER 8 HOURS DAILY OR 40 HOURS WEEKLY IS ORDERED, ACTIVELY INDUCED OR ENCORAGED BY AUTHORIZED OFFICIAL AND UPON RECEIPT OF REPORT FROM AIR FORCE THAT THERE IS NO EVIDENCE TO SUPPORT CONTENTION THAT OVERTIME WAS EITHER INDUCED OR ENCOURAGED BY BASE COMMANDER, ONLY OFFICIAL VESTED WITH AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME AT TINKER AFB. REGULATIONS--EFFECTIVE DATE WHILE CERTAIN PARAGRAPHS OF AIR FORCE REGULATIONS CITED IN GAO SETTLEMENT OF JUNE 5, 1969 WHICH DISALLOWED EMPLOYEE'S CLAIM FOR OVERTIME COMPENSATION NOW HAVE BEEN SUPERSEDED BY REVISED VERSION OF REGULATION WHICH BECAME EFFECTIVE OCT. 31, 1968, FACT THAT PARAGRAPHS IN QUESTION WERE IN EFFECT DURING PERIOD COVERED BY CLAIM AND THAT SUCH PARAGRAPHS MAY HAVE BEEN AMENDED THEREAFTER OR OMITTED IN NO WISE EFFECTS PROPRIETY OF SETTLEMENT, AMENDED REGULATION BEING ONLY FOR CONSIDERATION ON OR AFTER DATE OF ISSUANCE.

TO MR. CHUCK CLARK:

WE REFER AGAIN TO YOUR LETTER OF JULY 14, 1969, IN BEHALF OF MR. AUBREY HANGER, WHEREIN REVIEW IS REQUESTED OF OFFICE SETTLEMENT OF JUNE 5, 1969, WHICH DISALLOWED MR. HANGER'S CLAIM FOR OVERTIME COMPENSATION ALLEGED TO BE DUE FOR THE PERIOD JUNE 2, 1966, TO SEPTEMBER 9, 1967, WHILE EMPLOYED AT THE TINKER AIR FORCE BASE.

PRIOR TO CONCLUDING OUR CONSIDERATION OF YOUR REQUEST FOR REVIEW IT WAS NECESSARY TO OBTAIN AN OFFICIAL REPORT FROM THE DEPARTMENT OF THE AIR FORCE RELATIVE TO CERTAIN AVERMENTS CONTAINED IN YOUR LETTER. THAT REPORT NOW HAS BEEN RECEIVED.

WE DO NOT FULLY UNDERSTAND THE PURPOSE OF THE THIRD PARAGRAPH OF YOUR LETTER IN WHICH YOU INVITE OUR ATTENTION TO THE FACT THAT CERTAIN PARAGRAPHS (8 AND 9) OF THE AIR FORCE REGULATIONS CITED IN OUR SETTLEMENT NOW HAVE BEEN SUPERSEDED BY A REVISED VERSION OF THE REGULATION WHICH BECAME EFFECTIVE OCTOBER 31, 1968. THE FACT IS THAT THE PARAGRAPHS IN QUESTION WERE IN EFFECT DURING THE PERIOD COVERED BY THE CLAIM AND THAT SUCH PARAGRAPHS THEREAFTER MAY HAVE BEEN AMENDED OR OMITTED IN NO WISE EFFECTS THE PROPRIETY OF THE SETTLEMENT. THE AMENDED REGULATION IS FOR CONSIDERATION ONLY ON AND AFTER THE DATE OF ISSUANCE.

THE PRIMARY BASIS UPON WHICH REVIEW OF THE SETTLEMENT IS REQUESTED IS SET FORTH IN PARAGRAPHS 4 AND 5 OF YOUR LETTER AS FOLLOWS:

"YOUR ATTENTION IS INVITED TO THE SECOND PARAGRAPH, PAGE 148, SECTION 5542 OF TITLE 5, UNITED STATES CODE. I REFERENCE BILELLO VS. U.S; 1966, 174 CT. CL. 1253. IT WAS HELD IN THIS CASE THAT THE EMPLOYEE WAS ENTITLED TO OVERTIME WITHOUT APPROVAL, BECAUSE THE OFFICIALS WHO HAD WITHHELD FORMAL APPROVAL HAD ACTIVELY INDUCED AND ENCOURAGED THE EMPLOYEE TO PERFORM OVERTIME WORK. THE SECURITY SUPERVISORS AT TINKER AIR FORCE BASE ORDERED, APPROVED AND CONDONED THE OVERTIME CLAIMED BY MR. HANGER.

"I MAINTAIN THAT MR. HANGER WAS ACTIVELY INDUCED AND ENCOURAGED BY SUPERVISION TO PERFORM OVERTIME, AS INDICATED IN HIS ORIGINAL CLAIM, DURING THE PERIOD 2 JUNE 1966 THROUGH 9 SEPTEMBER 1967 AND THEREFORE IS ENTITLED TO COMPENSATION FOR SUBJECT OVERTIME."

OVERTIME COMPENSATION IS PAYABLE IN ACCORDANCE WITH THE PRINCIPLE ENUNCIATED IN THE BILELLO CASE, 174 CT. CL. 1253, WHICH YOU CITE IN YOUR LETTER, ONLY IF THE TIME WORKED IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK IS ORDERED OR IS ACTIVELY INDUCED OR ENCOURAGED BY AN OFFICIAL TO WHOM AUTHORITY HAS BEEN DELEGATED TO AUTHORIZE OR APPROVE OVERTIME WORK. IN SUCH CONNECTION THE OFFICIAL REPORT RECEIVED HERE FROM THE DEPARTMENT OF THE AIR FORCE SAYS:

"THERE IS NO EVIDENCE TO SUPPORT THE CONTENTION THAT OVERTIME FOR WHICH PAYMENT IS CLAIMED WAS EITHER INDUCED OR ENCOURAGED BY MANAGEMENT OFFICIALS IN THE TINKER AIR FORCE BASE SECURITY POLICE DIVISION; NOR HAS THE RESPONSIBILITY FOR AUTHORIZING OR APPROVING OVERTIME BEEN DELEGATED TO THE CHIEF, SECURITY POLICE DIVISION. SUCH OVERTIME MUST BE AUTHORIZED AND APPROVED BY THE BASE COMMANDER."

YOUR LETTER DOES NOT ALLEGE AND THE INFORMATION OTHERWISE BEFORE US DOES NOT INDICATE THAT THE OVERTIME WORK FOR WHICH PAYMENT IS CLAIMED WAS ORDERED OR ACTIVELY INDUCED OR ENCOURAGED BY THE BASE COMMANDER, THE OFFICIAL AT TINKER AIR FORCE BASE, WHO IS VESTED WITH AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME. ACCORDINGLY, THE SETTLEMENT OF JUNE 5, 1969, IS SUSTAINED.