B-168800, FEB 13, 1970

B-168800: Feb 13, 1970

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IN DENYING THE CLAIMS INITIALLY WE POINTED OUT THAT THERE WAS NO SUBSTANTIATION OF THE GUARDS' BEING REQUIRED TO REPORT EARLY OR SIGN OUT LATER OR THAT ANY OVERTIME HAD BEEN AUTHORIZED OR APPROVED BY PROPER AUTHORITY. IF THEY HAD ANY INFORMATION IT WAS TO BE FURNISHED TOGETHER WITH COPIES OF ANY WRITTEN INSTRUCTIONS. THE ADMINISTRATIVE OFFICE FURNISHED US A COPY OF A STATEMENT SIGNED BY 18 FORMER AND PRESENT GUARDS WHICH READS AS FOLLOWS: "THIS IS TO VERIFY THAT PRIOR TO SEPTEMBER 22. WAS TO RECEIVE OUR WORK ASSIGNMENTS AND KEYS TO THE VARIOUS BUILDINGS FROM THE CHIEF OF GUARDS. "SINCE THE BUILDINGS WERE OPEN FROM 8:45 A.M. FACILITIES ARE PROVIDED FOR CHANGING UNIFORMS AT THE GUARD QUARTERS FOR THOSE WHO CHOOSE TO DO SO.

B-168800, FEB 13, 1970

PRECIS-UNAVAILABLE

SEYMOUR KANTER, ATTORNEY AT LAW:

THIS REFERS TO YOUR LETTER OF NOVEMBER 28, 1969, WITH ENCLOSURES, APPEALING ON BEHALF OF MR. DONALD GLOWACKI AND OTHER GUARDS AT THE INDEPENDENCE NATIONAL HISTORICAL PARK, PHILADELPHIA, PENNSYLVANIA, FROM OUR OFFICE SETTLEMENTS DATED OCTOBER 24, 1968, DENYING THEIR CLAIMS FOR OVERTIME OF ONE-HALF HOUR DAILY DURING VARIOUS PERIODS. THE CLAIM HAS NOW BEEN ENLARGED TO ENCLUDE ADDITIONAL GUARDS.

IN DENYING THE CLAIMS INITIALLY WE POINTED OUT THAT THERE WAS NO SUBSTANTIATION OF THE GUARDS' BEING REQUIRED TO REPORT EARLY OR SIGN OUT LATER OR THAT ANY OVERTIME HAD BEEN AUTHORIZED OR APPROVED BY PROPER AUTHORITY. BEFORE ISSUING OUR DISALLOWANCES OF OCTOBER 24, 1968, WE REQUESTED A REPORT FROM THE ADMINISTRATIVE OFFICE CONCERNING THE CLAIMS. THE ADMINISTRATIVE OFFICE CONTACTED THE CLAIMANTS INVOLVED (GUARDS) REQUESTING THAT THEY FURNISH ANY INFORMATION THEY HAD IN SUPPORT OF THEIR CLAIMS. IF THEY HAD ANY INFORMATION IT WAS TO BE FURNISHED TOGETHER WITH COPIES OF ANY WRITTEN INSTRUCTIONS, DUTY SCHEDULES, OR OTHER COMMENTS RELATIVE TO THEIR CLAIMS FOR THE ADDITIONAL ONE-HALF HOUR DAILY OVERTIME PAY COVERING THE PERIOD OF THEIR EMPLOYMENT. THE ADMINISTRATIVE OFFICE FURNISHED US A COPY OF A STATEMENT SIGNED BY 18 FORMER AND PRESENT GUARDS WHICH READS AS FOLLOWS:

"THIS IS TO VERIFY THAT PRIOR TO SEPTEMBER 22, 1967 I HAD TO REPORT TO WORK, FULLY DRESSED IN MY GUARD UNIFORM, AT THE CONTROL CENTER PRIOR TO 8:45 A.M. THE REASON FOR REPORTING TO WORK, FULLY DRESSED, AT THE CONTROL CENTER PRIOR 8:45 A.M. WAS TO RECEIVE OUR WORK ASSIGNMENTS AND KEYS TO THE VARIOUS BUILDINGS FROM THE CHIEF OF GUARDS.

"AT THE END OF OUR WORK SHIFT, 5:15 P.M., WE THEN SECURED THE BUILDINGS, RETURNED THE KEYS TO THE GUARDS AT INDEPENDENCE HALL AND THEN WENT TO THE LOCKER ROOM TO CHANGE OUR UNIFORM INTO CIVILIAN CLOTHES.

"SINCE THE BUILDINGS WERE OPEN FROM 8:45 A.M. TO 5:15 P.M. (8 1/2 HOURS) IT NECESSITATED AN ADDITIONAL HALF HOUR TO CHANGE INTO OUR UNIFORM, OBTAIN WORK ASSIGNMENTS, KEYS TO THE BUILDINGS, AND WALK TO AND FROM OUR ASSIGNED BUILDING."

THE ADMINISTRATIVE OFFICE HAS ADVISED US THAT AT NO TIME HAS THERE BEEN A REQUIREMENT THAT THE GUARDS MUST CHANGE FROM STREET CLOTHING INTO OR OUT OF UNIFORMS ON THE PREMISES. UNIFORMS MAY BE WORN TO OR FROM WORK AT THE INDIVIDUAL'S OPTION, BUT FACILITIES ARE PROVIDED FOR CHANGING UNIFORMS AT THE GUARD QUARTERS FOR THOSE WHO CHOOSE TO DO SO. SOME GUARDS WEAR THEIR UNIFORMS TO AND FROM WORK, SOME CHANGE AT THE GUARD STATION.

WHEN GUARDS REPORT FOR DUTY AT THE CONTROL CENTER IN INDEPENDENCE SQUARE, IT HAS ALWAYS BEEN ROUTINE FOR THEM TO SIGN THE DAILY LOG SHEET AND PICK UP WORK ASSIGNMENTS AND KEYS THEREBY UTILIZING THE ASSIGNMENT CARD WHICH IS PREPARED BY THE SUPERVISOR IN ADVANCE. THIS, TOGETHER WITH NECESSARY KEYS AND A COUNTER, IS LAID OUT BY THE SUPERVISOR FOR READY PICK UP BY THE INCOMING GUARD BEFORE PROCEEDING TO HIS DUTY STATION.

AFTER PICKING UP HIS ASSIGNMENT, KEYS, AND COUNTER, THE GUARD PROCEEDS TO THE BUILDING TO WHICH HE HAS BEEN ASSIGNED. PRIOR TO MAY 1965 ALL SUCH DUTY STATIONS WERE WITHIN ONE SHORT BLOCK OF THE CONTROL CENTER IN INDEPENDENCE SQUARE. THE NORMAL TIME REQUIRED TO TRAVERSE THIS DISTANCE IS STATED TO BE NO MORE THAN TWO MINUTES. IN MAY 1965 AN ADDITIONAL EXHIBIT BUILDING AT A DISTANCE FROM THE CONTROL CENTER OF TWO SHORT BLOCKS WAS OPEN TO PUBLIC VISITATION. WE UNDERSTAND THAT NO MORE THAN FOUR MINUTES IS REQUIRED TO TRAVERSE THE DISTANCE FROM THE CONTROL CENTER TO THIS DUTY STATION WHICH INVOLVES ONLY ONE EMPLOYEE AT ANY ONE TIME. THE NORMAL PRACTICE AT CLOSING TIME IS AND HAS BEEN FOR GUARDS TO SEND KEYS, COUNTER, AND ASSIGNMENT CARDS UP TO THE CONTROL CENTER BY ONE PERSON.

IT IS THE POSITION OF THE GUARDS THAT THEY ARE ENTITLED TO OVERTIME COMPENSATION BECAUSE IT REQUIRES 15 MINUTES AT THE START OF A SHIFT TO DRESS INTO UNIFORMS, DRAW THE NECESSARY EQUIPMENT, AND BE POSTED AND 15 MINUTES AFTER A SHIFT TO RETURN THE EQUIPMENT AND CHANGE OUT OF UNIFORM. AS CAN BE SEEN FROM THE FOREGOING THE ONLY REQUIREMENT IMPOSED ON THE GUARDS WAS THAT THEY RELIEVE THE OFF GOING GUARD IN UNIFORM AT THE BEGINNING OF THE SHIFT. THERE WAS NO REQUIREMENT TO REPORT EARLY FOR INSTRUCTIONS OR OTHER DUTIES. WHETHER THEY CHANGED AT HOME OR USED THE FACILITIES FURNISHED BY THE GOVERNMENT WAS AT THE EMPLOYEE'S OPTION. IS OUR VIEW THAT THE ACTION OF PUTTING ON A UNIFORM IS PRELIMINARY TO THE PERFORMANCE OF A GUARD'S DUTY TO PROTECT GOVERNMENT PROPERTY AND WHILE PERHAPS EVEN NECESSARILY INCIDENT THERETO DOES NOT ACTUALLY FORM A PART OF SUCH WORK. SEE BATTERY WORKERS' UNION V. ELECTRIC STORAGE BATTERY CO., 78 F. SUPP. 947 (1948). THUS, IT DOES NOT SATISFY THE PROVISIONS OF 5 U.S.C. 5542 GOVERNING ENTITLEMENT TO OVERTIME RATES WHICH REQUIRE THE PERFORMANCE OF ACTUAL WORK OFFICIALLY ORDERED OR APPROVED.

CONCERNING THE WALKING TIME FROM THE CONTROL CENTER TO THE POST OF DUTY (NOT MORE THAN FOUR MINUTES AT THE BEGINNING AND ENDING OF A SHIFT) WE REGARD THIS TIME AS DE MINIMIS. SEE PLUMMER V. MINNEAPOLIS MO LINE POWER IMPLEMENT CO., 76 F. SUPP. 745 (1948); MCINTYRE V. JOSEPH E. SEAGRAM & SONS, 72 F. SUPP. 366 (1947).

ACCORDINGLY, WE MUST SUSTAIN THE DISALLOWANCE OF THE ORIGINAL CLAIMS AND DISALLOW THE ADDITIONAL CLAIMS SUBMITTED.