B-172069, MAY 10, 1971, 50 COMP GEN 767

B-172069: May 10, 1971

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COMPENSATION - VESSEL EMPLOYEES - OVERTIME - TWENTY-FOUR HOUR PORT WATCH DUTY A CORP OF ENGINEERS CIVILIAN WAGE BOARD EMPLOYEE WHO PERFORMED A 24 HOUR PORT WATCH DUTY ABOARD A SEAGOING HOPPER DREDGE AND RECEIVED ONLY 8 STRAIGHT-TIME HOURS OF COMPENSATION IS ENTITLED TO PAYMENT FOR THE ADDITIONAL 8 HOURS CLAIMED. IN WHICH THE COURT HELD THE PLAINTIFFS WERE IN A STANDBY DUTY FOR THE TIME IN EXCESS OF 8 HOURS AND APPLIED THE TWO-THIRDS RULE. TIME - TWO-THIRDS RULE - ABOARD VESSELS CLAIMS FOR 8 HOURS OF ADDITIONAL COMPENSATION AT OVERTIME RATES THAT ARE PRESENTED TO THE CORPS OF ENGINEERS BY CIVILIAN WAGE BOARD EMPLOYEES WHO PERFORMED 24-HOUR TOURS OF DUTY ON DREDGES AND OTHER FLOATING PLANTS.

B-172069, MAY 10, 1971, 50 COMP GEN 767

COMPENSATION - VESSEL EMPLOYEES - OVERTIME - TWENTY-FOUR HOUR PORT WATCH DUTY A CORP OF ENGINEERS CIVILIAN WAGE BOARD EMPLOYEE WHO PERFORMED A 24 HOUR PORT WATCH DUTY ABOARD A SEAGOING HOPPER DREDGE AND RECEIVED ONLY 8 STRAIGHT-TIME HOURS OF COMPENSATION IS ENTITLED TO PAYMENT FOR THE ADDITIONAL 8 HOURS CLAIMED, AND PROPERLY DOCUMENTED, AT OVERTIME RATES ON THE BASIS OF THE CONSOLIDATED CASES OF DETLING ET AL. V UNITED STATES AND FRANCE ET AL V UNITED STATES, 432 F. 2D 462 (1970), IN WHICH THE COURT HELD THE PLAINTIFFS WERE IN A STANDBY DUTY FOR THE TIME IN EXCESS OF 8 HOURS AND APPLIED THE TWO-THIRDS RULE, ALLOWING 8 HOURS FOR SLEEPING AND EATING TIME, AND AWARDED THE PLAINTIFFS 8 HOURS OF ADDITIONAL COMPENSATION AT OVERTIME RATES PURSUANT TO 5 U.S.C. 5544, A RULE THAT HAS BEEN FOLLOWED IN THE DECISIONS OF THE COMPTROLLER GENERAL. COMPENSATION - OVERTIME - STANDBY, ETC., TIME - TWO-THIRDS RULE - ABOARD VESSELS CLAIMS FOR 8 HOURS OF ADDITIONAL COMPENSATION AT OVERTIME RATES THAT ARE PRESENTED TO THE CORPS OF ENGINEERS BY CIVILIAN WAGE BOARD EMPLOYEES WHO PERFORMED 24-HOUR TOURS OF DUTY ON DREDGES AND OTHER FLOATING PLANTS, RECEIVING COMPENSATION FOR ONLY 8 HOURS OF WORK ON A STRAIGHT-TIME BASIS MAY BE PAID, IF PROPERLY DOCUMENTED, BY THE CORPS ON THE BASIS OF THE TWO- THIRDS RULE IN THE DETLING AND FRANCE CONSOLIDATED CASES, 432 F. 2D 462 (1970). HOWEVER, DOUBTFUL CLAIMS SHOULD BE FORWARDED FOR SETTLEMENT TO THE CLAIMS DIVISION OF THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO) PURSUANT TO 4 GAO 5.1, AND WHEN THE 10-YEAR LIMITATION ACT OF OCTOBER 9, 1940 IS INVOLVED AND THE CLAIMS CANNOT BE PROMPTLY APPROVED AND PAID IN THE FULL AMOUNT CLAIMED, THEY SHOULD BE FORWARDED TO THE CLAIMS DIVISION FOR RECORDING UNDER 4 GAO 7.1, AND AFTER RECORDING THE CLAIMS WILL BE RETURNED TO THE CORPS FOR PAYMENT, DENIAL, OR REFERRAL BACK TO THE GAO FOR ADJUDICATION. CLAIMS - EVIDENCE TO SUPPORT - BEST EVIDENCE AVAILABLE - ACCEPTABILITY WHERE THE CLAIMS OF CIVILIAN WAGE BOARD EMPLOYEES OF THE CORPS OF ENGINEERS FOR 8 HOURS OVERTIME COMPENSATION, WHICH ARE PRESENTED ON THE BASIS OF THE CONSOLIDATED CASES OF DETLING AND FRANCE, 193 CT. CL. 125, INCIDENT TO A 24-HOUR PORT WATCH ABOARD HOPPER DREDGES OR OTHER FLOATING PLANTS AND RECEIPT OF ONLY 8 HOURS STRAIGHT-TIME COMPENSATION, CANNOT BE ADEQUATELY DOCUMENTED, PAYMENT MAY BE MADE BY THE CORPS ON THE BASIS OF THE MOST ACCURATE ESTIMATE AFTER CONSIDERING ALL AVAILABLE RECORDS. FOR EXAMPLE, IF TIME AND ATTENDANCE RECORDS ARE MISSING FOR SOME PART OF THE PERIOD CLAIMED BUT AVAILABLE PAY AND LEAVE RECORDS SUPPORT REASONABLY ACCURATE ESTIMATES OF STANDBY DUTY, THE ESTIMATES WILL BE CONSIDERED SUFFICIENTLY DOCUMENTED, OR WHERE NO SIGNED LOGS CAN BE FOUND FOR THE STANDBY DUTY CLAIMED, THE NEXT BEST EVIDENCE - DUTY ROSTERS - MAY BE USED TO SUBSTANTIATE THE PAYMENT OF OVERTIME.

TO DOYLE W. HOFFMAN, DEPARTMENT OF THE ARMY, MAY 10, 1971:

THIS WILL REFER TO YOUR LETTER OF FEBRUARY 26, 1971 (FILE REFERENCE SAJFF), WITH ENCLOSURES, IN WHICH YOU REQUEST AN ADVANCE DECISION ON THE CLAIM OF MR. ROY E. BOLTIN FOR COMPENSATION FOR STANDBY TIME ABOARD DREDGES DURING PORT WATCH TOURS OF DUTY. THE CLAIM IS BASED UPON THE COURT OF CLAIMS OPINION RENDERED ON THE CONSOLIDATED CASES OF DETLING ET AL. V UNITED STATES AND FRANCE ET AL. V UNITED STATES, 432 F. 2D 462 (1970), 193 CT. CL. 125. YOU STATE THAT THIS IS THE FIRST OF SEVERAL CLAIMS WHICH ARE ANTICIPATED AS A RESULT OF THE COURT OF CLAIMS DECISION AND THERE IS DOUBT AS TO THE EXTENT OF ADDITIONAL ADJUDICATION, IF ANY, WHICH MAY BE NECESSARY BEFORE CLAIMS SIMILAR TO THOSE INVOLVED IN THE DECISION MAY BE PAID. ALSO, NO CRITERIA HAVE BEEN ESTABLISHED IN REGARD TO SUBSTANTIATING DOCUMENTS.

YOUR LETTER RECITES THE FACTUAL AND LEGAL BASIS FOR MR. BOLTIN'S CLAIM AS FOLLOWS:

MR. BOLTIN WAS ASSIGNED TO THE JACKSONVILLE DISTRICT IN OCTOBER 1959 WITH DUTY ABOARD A SEAGOING HOPPER DREDGE. DURING THE PERIOD OF THIS ASSIGNMENT MR. BOLTIN PERFORMED PORT WATCH DUTY ABOARD THE DREDGE FOR PERIODS OF (24) HOURS FOR WHICH HE RECEIVED COMPENSATION FOR (8) HOURS ON A STRAIGHT-TIME BASIS, THE (8) HOURS BEING A PART OF HIS REGULAR 40 HOUR TOUR OF DUTY. MR. BOLTIN BASIS HIS CLAIM FOR AN ADDITIONAL (8) HOURS AT OVERTIME RATES ON U.S. COURT OF CLAIMS DECISION IN THE CASE OF CHALMERS O. DETLING, ET AL V US AND JOSEPH FRANCE, ET AL V US.

THE DOCUMENTATION SUPPORTING THIS CLAIM INCLUDES A CERTIFIED COMPUTATION SCHEDULE WHICH YOU REPORT WAS BASED UPON DATA EXTRACTED FROM THE FOLLOWING SOURCES:

(1) "OFFICIAL LOG BOOKS" IN WHICH WAS INTERED THE NAMES) OR THE SPECIFIC TITLES) OF THE EMPLOYEES WHO WERE ASSIGNED PORT WATCH DUTIES ON SPECIFIC DATES.

(2) "UNOFFICIAL TIME AND ATTENDANCE RECORDS" MAINTAINED ON THE DREDGE AND FROM WHICH THE OFFICIAL TIME AND ATTENDANCE RECORDS WERE POSTED IN FINAL FORM. THE OFFICIAL TIME AND ATTENDANCE RECORDS ARE RETAINED FOR ONLY TWO YEARS; HOWEVER, THESE RECORDS COVERING THE LAST TWO YEARS DO NOT SPECIFICALLY IDENTIFY PORT WATCH DUTY.

(3) "INDIVIDUAL PAY RECORDS."

(4) "OPERATING RECORDS" OF THE DREDGE WHICH SHOW PORT WATCH DATES.

IN ADDITION TO YOUR REQUEST FOR A DECISION ON MR. BOLTIN'S CLAIM, YOU ASK (1) WHETHER PAYMENT MAY BE MADE LOCALLY FOR EMPLOYEES WHO PERFORMED PORT WATCH ON FLOATING PLANT OTHER THAN HOPPER DREDGES, UNDER SAME OR SIMILAR CIRCUMSTANCES, AND (2) WHETHER IT IS NECESSARY TO OBTAIN INDIVIDUAL CLAIMS FROM CURRENT EMPLOYEES OR CAN THE RECORDS OF THESE EMPLOYEES BE RECONSTRUCTED AND PAYMENTS MADE ACCORDINGLY.

THE COURT OF CLAIMS HELD IN THE DETLING AND FRANCE CASES THAT CIVILIAN WAGE BOARD EMPLOYEES OF THE CORPS OF ENGINEERS WHO PERFORM PORT WATCH TOURS OF DUTY REQUIRING THEM TO REMAIN ON BOARD DREDGES AND RESPOND TO ANY EMERGENCY CALLS DURING THE REMAINING 16 HOURS OF ANY DAY, AFTER THEY HAVE ALREADY MAINTAINED A PORT WATCH OF 8 CONSECUTIVE HOURS, ARE IN A STANDBY DUTY STATUS AND ARE ENTITLED TO OVERTIME COMPENSATION UNDER 5 U.S.C. 5544 EXCEPT FOR SLEEPING AND EATING TIME. THE COURT FOUND THAT SUCH EATING AND SLEEPING TIME TOTALED ABOUT 8 HOURS PER DAY AND ACCORDINGLY APPLIED THE TWO-THIRDS RULE. OUR DECISIONS HAVE SUSTAINED CERTAIN REGULATORY SCHEMES PROVIDING FOR OVERTIME COMPENSATION OF EMPLOYEES IN A STANDBY DUTY STATUS SO LONG AS THE TWO-THIRDS RULE WAS FOLLOWED. SEE 25 COMP. GEN. 161 (1945); 47 ID. 438 1968); AND B-165646, FEBRUARY 18, 1969. WE HAVE ALSO STATED THAT THE OVERTIME RATE OF TIME AND ONE-HALF APPLIES TO STANDBY DUTY TIME WITHIN THE PURVIEW OF 5 U.S.C. 5544 AS WELL AS TO ACTUAL WORK TIME. 42 COMP. GEN. 197, 201 (1962).

MR. BOLTIN'S CLAIM IS PRESENTED ON A BASIS CONSISTENT WITH THE COURT OF CLAIMS DECISION, AND DECISIONS OF OUR OFFICE RELATING TO STANDBY TIME, AND THEREFORE IS PROPER FOR ALLOWANCE FROM A LEGAL STANDPOINT. ACCORDINGLY, AND SINCE THE SOURCES OF DATA ENUMERATED IN YOUR LETTER TO SUBSTANTIATE THE PORT DUTY PERFORMED BY MR. BOLTIN PROVIDE RELIABLE EVIDENCE THAT SUCH DUTY WAS PERFORMED, THE CLAIM WHICH IS RETURNED HEREWITH MAY BE SETTLED BY YOUR AGENCY.

OTHER SIMILAR CASES, UPON RECEIPT OF A REQUEST IN THE NATURE OF A CLAIM FROM THE INDIVIDUALS CONCERNED, ALSO MAY BE SETTLED WITHOUT SUBMISSION TO OUR OFFICE. THIS INCLUDES CLAIMS FOR SERVICE ON OTHER FLOATING PLANTS UNDER SITUATIONS SIMILAR TO THOSE INVOLVED IN THE DETLING AND FRANCE CASES. HOWEVER, CLAIMS INVOLVING A DOUBTFUL QUESTION OF LAW OR FACT SHOULD BE FORWARDED TO OUR CLAIMS DIVISION PURSUANT TO 4 GAO 5.1 FOR SETTLEMENT. THOSE WHICH HAVE ACCRUED SO LONG AGO (8 YEARS OR MORE) THAT THE 10-YEAR LIMITATION OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.31 U.S.C. 71A, MAY BE INVOLVED, AND WHICH CANNOT PROMPTLY BE APPROVED AND PAID IN THE FULL AMOUNT CLAIMED, SHOULD BE FORWARDED TO THE CLAIMS DIVISION FOR RECORDING UNDER 4 GAO 7.1. AFTER RECORDING, SUCH CLAIMS WILL BE RETURNED TO YOU FOR PAYMENT, DENIAL, OR REFERRAL BACK TO OUR OFFICE FOR ADJUDICATION.

IN FURTHER REGARD TO EVIDENCE IN SUPPORT OF THE CLAIMS, WHERE THERE IS SOMEWHAT LESS DOCUMENTATION THAN THAT ENUMERATED IN YOUR LETTER, WE WOULD NOT OBJECT TO PAYMENTS MADE ON THE BASIS OF THE MOST ACCURATE ESTIMATES YOU ARE ABLE TO MAKE AFTER CONSIDERATION OF ALL AVAILABLE RECORDS. FOR EXAMPLE, IF TIME AND ATTENDANCE RECORDS ARE MISSING FOR SOME PART OF THE PERIOD COVERED BY THE CLAIMS BUT PAY AND LEAVE RECORDS ARE AVAILABLE WHICH CONTAIN INFORMATION TO SUPPORT REASONABLY ACCURATE ESTIMATES OF STANDBY DUTY, THEN SUCH ESTIMATES ARE SUFFICIENT DOCUMENTATION FOR THE CLAIM; OR WHERE NO SIGNED LOGS CAN BE FOUND FOR THE HOURS OF STANDBY DUTY IN A GIVEN CASE, THE NEXT BEST EVIDENCE - DUTY ROSTERS - CAN BE USED TO SUBSTANTIATE THE PAYMENT OF OVERTIME.