B-170432, SEP. 16, 1970

B-170432: Sep 16, 1970

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WHEN HE WAS REQUIRED TO BE AVAILABLE TO ANSWER THE PHONE IN CASE OF AN OFFICE EMERGENCY. MAY NOT HAVE THAT TIME REGARDED AS COMPENSABLE. HARRIS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 18. THIS MATTER WAS THE SUBJECT OF A SETTLEMENT DATED NOVEMBER 3. WHICH HELD THAT AN EMPLOYEE REQUIRED TO REMAIN AT HIS HOME DURING OFF-DUTY HOURS WITH NO ACTUAL DUTY TO PERFORM EXCEPT TO BE AVAILABLE TO ANSWER THE TELEPHONE IN CASE OF AN OFFICE EMERGENCY IS NOT CONSIDERED WORK SO AS TO ENTITLE THE EMPLOYEE TO COMPENSATION FOR SUCH DUTY. A REVIEW OF OUR FILE SHOWS THAT YOU BASED YOUR INITIAL CLAIM UPON THE CASE OF JAMES BITONTI AND WERE ADVISED IN OUR SETTLEMENT THAT WHILE THAT CASE HAD BEEN ALLOWED ADMINISTRATIVELY BY THE DEPARTMENT OF THE AIR FORCE.

B-170432, SEP. 16, 1970

COMPENSATION - OVERTIME - STAND-BY DUTY AT HOME SUSTAINING SETTLEMENT, DATED NOVEMBER 3, 1966, THAT DISALLOWED OVERTIME COMPENSATION TO AN EMPLOYEE, WHO DID NOT PERFORM ANY ACTUAL WORK WHILE ON STANDBY DUTY AT HOME OTHER THAN TO BE AVAILABLE TO ANSWER THE TELEPHONE IN CASE OF AN OFFICE EMERGENCY. EMPLOYEE, WHO CLAIMS COMPENSATION FOR STANDBY DUTY AT HOME, 233.25 HOURS OVER A 46 MONTH PERIOD, WHEN HE WAS REQUIRED TO BE AVAILABLE TO ANSWER THE PHONE IN CASE OF AN OFFICE EMERGENCY, BUT DOES NOT FURNISH ANY EVIDENCE THAT THE STANDBY DUTY ACTUALLY INVOLVED THE PERFORMANCE OF A DUTY, MAY NOT HAVE THAT TIME REGARDED AS COMPENSABLE. SETTLEMENT BASED ON CASE RAPP AND HAWKINS V UNITED STATES, 167 CT. CL. 852 (1964)

TO MR. EDGAR L. HARRIS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1970, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR OVERTIME COMPENSATION FOR STANDBY DUTY AT YOUR HOME AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, WESTERN CONTRACT MANAGEMENT REGION, LOS ANGELES, CALIFORNIA, TOTALING 233.25 HOURS OVER A 46-MONTH PERIOD EXTENDING FROM OCTOBER 3, 1961, TO AUGUST 21, 1965.

THIS MATTER WAS THE SUBJECT OF A SETTLEMENT DATED NOVEMBER 3, 1966, BY OUR CLAIMS DIVISION WHICH DISALLOWED YOUR CLAIM BASED ON THE CASE OF RAPP AND HAWKINS V UNITED STATES, 167 CT. CL. 852 (1964), WHICH HELD THAT AN EMPLOYEE REQUIRED TO REMAIN AT HIS HOME DURING OFF-DUTY HOURS WITH NO ACTUAL DUTY TO PERFORM EXCEPT TO BE AVAILABLE TO ANSWER THE TELEPHONE IN CASE OF AN OFFICE EMERGENCY IS NOT CONSIDERED WORK SO AS TO ENTITLE THE EMPLOYEE TO COMPENSATION FOR SUCH DUTY.

YOU NOW CITE OUR DECISION B-169113, MARCH 24, 1970, AND REFER TO THE CASE OF JAMES A. BITONTI AS HAVING APPLICATION TO YOUR CLAIM. A REVIEW OF OUR FILE SHOWS THAT YOU BASED YOUR INITIAL CLAIM UPON THE CASE OF JAMES BITONTI AND WERE ADVISED IN OUR SETTLEMENT THAT WHILE THAT CASE HAD BEEN ALLOWED ADMINISTRATIVELY BY THE DEPARTMENT OF THE AIR FORCE, THE MATTER WAS BEING RECONSIDERED BY THEM AND COULD NOT SERVE AS A PRECEDENT FOR THE ALLOWANCE OF YOUR CLAIM.

IN 1967 MR. BITONTI FILED SUIT IN THE UNITED STATES COURT OF CLAIMS. THE DECISION RENDERED BY THE COURT IN THAT CASE, BITONTI V UNITED STATES, 184 CT. CL. 804 (1968), HELD THAT TIME SPENT ON TELEPHONE STANDBY DUTY AT THE EMPLOYEE'S HOME IS NOT COMPENSABLE TIME AND DENIED RECOVERY TO MR. BITONTI, CITING THE EARLIER CASE OF RAPP AND HAWKINS, SUPRA, AND A DECISION BY THE SUPREME COURT IN ARMOUR & CO. V WANTOCK, 323 U.S. 126 (1944).

WHILE WE HELD IN DECISION B-169113 THAT THE EMPLOYEES THERE INVOLVED WERE ENTITLED TO COMPENSATION OR TIME OFF IN LIEU THEREOF, OUR CONCLUSION WAS BASED UPON THE FACTS OF THAT PARTICULAR CASE AS SUPPLIED BY THE EMPLOYING AGENCY. THE DUTIES PERFORMED BY THE EMPLOYEES IN QUESTION WERE BASICALLY A CONTINUATION OF THEIR OFFICE DUTIES AND INVOLVED A NUMBER OF HOURS IN THE ACTUAL PERFORMANCE OF THOSE DUTIES, RATHER THAN SIMPLY BEING AVAILABLE AT HOME ON TELEPHONE STANDBY.

IN VIEW OF THE DECISION REACHED BY THE COURT OF CLAIMS IN THE BITONTI CASE AND THE FACT THAT THERE IS NOTHING IN THE RECORD TO SHOW THAT YOUR HOME STANDBY DUTY ACTUALLY INVOLVED THE PERFORMANCE OF A DUTY OTHER THAN TO BE AVAILABLE TO ANSWER THE TELEPHONE, THE TIME SPENT IN SUCH CAPACITY IS NOT COMPENSABLE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.