B-172860, JUL 28, 1971

B-172860, JUL 28, 1971

CIVILIAN EMPLOYEE - COMPENSATION FOR TRAINING DECISION DENYING CLAIM OF MR. PAUL R. WOOLEY FOR COMPENSATION FOR "OFF- THE-CLOCK TRAINING" SAID TO HAVE BEEN PERFORMED IN 1966 AS A SUBSTITUTE CLERK-CARRIER WITH THE POST OFFICE. ALTHOUGH THE POSTMASTER AT OKMULGEE MAY HAVE EXPRESSED A PREFERENCE FOR USING SUBSTITUTE CARRIERS WHO WERE "TRAINED," I.E., FAMILIAR WITH GIVEN ROUTES, CLAIMANT MAY NOT BE COMPENSATED FOR TIME SPENT WALKING ROUTES WITH REGULAR CARRIERS TO LEARN THOSE ROUTES AS SUCH WAS VOLUNTARY ON HIS PART AND NOT MANDATORY.

TO MR. PAUL R. WOOLEY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1971, EXPRESSING DISSATISFACTION WITH THE SETTLEMENT CERTIFICATE OF OUR CLAIMS DIVISION DATED MARCH 29, 1971, WHICH DENIED YOUR CLAIM FOR COMPENSATION FOR "OFF- THE-CLOCK TRAINING" YOU APPARENTLY PERFORMED DURING JULY THROUGH OCTOBER 1966 AS A SUBSTITUTE CLERK-CARRIER AT THE UNITED STATES POST OFFICE IN OKMULGEE, OKLAHOMA.

THE RELEVANT FACTS UNDERLYING YOUR CLAIM WERE STATED IN THE AFOREMENTIONED SETTLEMENT CERTIFICATE AND WILL NOT BE REPEATED HERE. THE DECISIVE FACTOR IN RECONSIDERING YOUR CLAIM IS THE FACTUAL QUESTION OF WHETHER OR NOT OFF-THE-CLOCK TIME TO LEARN THE ROUTES OF REGULAR CARRIERS WAS MANDATORY. THE RECORD INDICATES THAT YOUR POSITION HAS BEEN THAT AS AN EMPLOYEE YOU WERE "ASSIGNED" TO SPECIFIC ROUTES WITH SPECIFIC REGULAR LETTER CARRIERS IN ORDER TO "QUALIFY" FOR ASSIGNMENT TO THOSE PARTICULAR ROUTES IN THE REGULAR CARRIER'S ABSENCE.

IN VIEW OF YOUR CONTENTIONS WE REQUESTED AND HAVE NOW RECEIVED AN ADMINISTRATIVE REPORT ON YOUR CLAIM FROM THE UNITED STATES POSTAL SERVICE. THAT REPORT STATES IN PART AS FOLLOWS:

"WE UNDERSTAND IT WAS CUSTOMARY PRIOR TO OCTOBER, 1968, FOR POSTMASTERS AT A NUMBER OF POST OFFICES IN OUR WICHITA REGION, INCLUDING THE POST OFFICE AT OKMULGEE, TO PERMIT NEW EMPLOYEES TO WORK IN THE POST OFFICE, AND TO WALK CARRIER ROUTES, WITH REGULAR EMPLOYEES ON THEIR OWN TIME TO INCREASE THEIR SKILLS OR TO ACQUIRE NEW ONES. HOWEVER, IT WAS NOT MANDATORY AND NO ONE WAS EVER ORDERED TO WORK OR TRAIN 'OFF-THE-CLOCK.'

"WHEN MR. WOOLEY WAS HIRED AS A SUBSTITUTE IN JULY, 1966, HE ASKED TO BE PERMITTED TO WORK WITH REGULAR EMPLOYEES ON HIS OWN TIME AND AT TASKS NOT ASSIGNED HIM. THE POSTMASTER ADVISED US THAT HE MAY HAVE STATED THAT AN EMPLOYEE WOULD NOT BE ASSIGNED TO A TASK 'GREEN', I.E., WITHOUT HAVING RECEIVED PRIOR TRAINING FOR IT, IF IT COULD BE AVOIDED, BUT DENIES WHAT ANYONE WAS EVER TOLD HE COULD NOT WORK UNTIL HE HAD TRAINED 'OFF-THE- CLOCK'. AS A MATTER OF FACT, MR. WOOLEY'S CLAIM IS FOR WORK ALLEGEDLY PERFORMED AFTER THE DATE OF HIS EMPLOYMENT, JULY 16, 1966.

"MR. HARRY TAYLOR, THE ASSISTANT POSTMASTER AT OKMULGEE, WAS THE SUPERINTENDENT OF MAILS IN 1966. ASSIGNING TRAINEES TO WALK CARRIER ROUTES WITH REGULAR CARRIERS WAS ONE OF THE DUTIES OF HIS POSITION. STATES POSITIVELY THAT HE NEVER ASSIGNED AN EMPLOYEE TO TRAIN 'OFF-THE CLOCK', AND THAT EMPLOYEES WHO TRAINED ON THEIR OWN TIME DID SO VOLUNTARILY AND THEY THEMSELVES SELECTED THE ROUTES ON WHICH THEY WISHED TO ACCOMPANY REGULAR EMPLOYEES. SINCE OFF-THE-CLOCK TRAINING WAS INFORMAL AND ENTIRELY VOLUNTARY ON THE PART OF THE EMPLOYEE AND UNSUPERVISED BY THE POST OFFICE, NO RECORDS WERE MADE OR KEPT."

IT IS CLEAR FROM THE ABOVE THAT THE POSTAL SERVICE TAKES A POSITION CONTRARY TO YOURS. WE ARE NOT EQUIPPED TO RESOLVE THE FACTUAL DISPUTE EXISTING IN THE CIRCUMSTANCES. WE ARE THEREFORE REQUIRED TO BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE POSTAL SERVICE IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO REBUT THE CORRECTNESS OF THOSE FACTS.

THE MATTER OF COMPENSATION FOR OFF-DUTY TIME SPENT BY A SUBSTITUTE LETTER CARRIER IN LEARNING THE ROUTES OF THE REGULAR CARRIER WAS BEFORE THE COURT OF CLAIMS IN KINGSTON V UNITED STATES, 44 CT. CL. 44 (1908). AFTER CONSIDERING THE APPLICABLE STATUTE AUTHORIZING COMPENSATION FOR SUBSTITUTE LETTER CARRIERS, THE CASE HELD THAT A SUBSTITUTE CARRIER WAS NOT IN A DUTY STATUS WHILE ASSISTING THE REGULAR CARRIER IN ROUTING AND DELIVERING HIS MAIL BUT WAS MERELY BEING "INSTRUCTED BY SUCH REGULAR CARRIER IN THE DUTIES ON THE ROUTE HE (THE SUBSTITUTE) WAS TO SERVE." KINGSTON AT PAGE 47. THE OPINION PARTICULARLY NOTED THAT COMPENSATION SHOULD NOT BE PAID TO THE SUBSTITUTE WHEN THE REGULAR CARRIER WAS IN A DUTY STATUS FOR THE SAME ROUTE ON WHICH THE SUBSTITUTE WAS ACCOMPANYING HIM.

TWO SUBSEQUENT CASES HAVE CONSIDERED THE RELATED QUESTION OF ENTITLEMENT TO OVERTIME COMPENSATION FOR OFF-THE-CLOCK TIME SPENT BY DISTRIBUTION CLERKS IN STUDY AND PRACTICE PREPARATION FOR EXAMINATIONS WHICH THEY WERE REQUIRED TO PASS IN ORDER TO RETAIN THEIR JOBS WITH THE POST OFFICE. THE MORE RECENT CASE THE COURT OBSERVED THAT CONGRESS HAD RECOGNIZED THE SITUATION OF REQUIRED EXAMINATIONS FOR SOME 30 YEARS AND HAD CONSISTENTLY REFUSED TO PROVIDE OVERTIME PAY, STRAIGHT PAY, OR ON-THE-CLOCK STUDY PERIODS FOR THOSE EMPLOYEES CONCERNED. SEE DELAND V UNITED STATES, 77 CT. CL. 55 (1933), AND ANDERSON V UNITED STATES, 138 CT. CL. 192, 150 F. SUPP. 881 (1957).

IT MAY BE CONCEDED THAT THE PRACTICE OF PERMITTING SUBSTITUTE CARRIERS TO LEARN THE ROUTES OF REGULAR CARRIERS ON THEIR OWN TIME WAS ENGAGED IN CONTRARY TO POST OFFICE POLICY. THIS IS SUBSTANTIATED BY POST OFFICE REGIONAL (WICHITA) BULLETIN NO. 37 DATED OCTOBER 10, 1968, WHICH ACKNOWLEDGED THAT SOME POST OFFICES WERE REQUIRING THEIR EMPLOYEES TO PERFORM TRAINING OFF-THE-CLOCK. IT ALSO DIRECTED THAT EMPLOYEE TRAINING ACTIVITIES, SUCH AS WALKING A CARRIER ROUTE, WERE TO BE PART OF AN EMPLOYEE'S ON-THE-CLOCK ASSIGNMENT AND THAT HE COULD NOT BE REQUIRED OR PERMITTED TO ENGAGE THEREIN WITHOUT COMPENSATION FOR SAME AS OFFICIAL DUTY TIME. THOUGH THE POSTMASTER AT OKMULGEE MAY HAVE EXPRESSED HIS PREFERENCE FOR CALLING "TRAINED" SUBSTITUTES TO CARRY ROUTES THEY HAD PREVIOUSLY LEARNED, WE NONETHELESS CONCLUDE THAT THE MERE EXISTENCE OF THAT PRACTICE IS NOT TANTAMOUNT TO AN EXPRESS OR IMPLIED DIRECTION BY THE POSTMASTER TO PERFORM AN ASSIGNED DUTY FOR WHICH THE EMPLOYEE WOULD BE ENTITLED TO COMPENSATION. AS INDICATED PREVIOUSLY, THE RESPONSIBLE POST OFFICE OFFICIALS HAVE POSITIVELY DENIED THAT "OFF-THE-CLOCK" ASSIGNMENTS TO LEARN REGULAR CARRIER ROUTES WERE DIRECTED OR ORDERED.

IN VIEW OF THE FOREGOING AND SINCE YOUR SUBJECT TRAINING TIME CANNOT BE CHARACTERIZED AS MANDATORY, IT IS NOT COMPENSABLE AS REGULAR DUTY. ACCORDINGLY, THE DECISION OF OUR CLAIMS DIVISION MUST BE AND IS SUSTAINED.