B-173092, MAR 13, 1972

B-173092: Mar 13, 1972

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CLAIMANTS' SWORN STATEMENTS OF FACTS ARE INSUFFICIENT TO JUSTIFY REJECTING THE VERSION SET FORTH IN THE NAVY REPORT. THE PRIOR DENIAL IS SUSTAINED. THE CLAIMS WERE THE SUBJECT OF DECISION B-173092. RECONSIDERATION OF THE DISALLOWANCE IS REQUESTED ON THE BASIS OF THE SWORN STATEMENTS. THE REASON FOR DISALLOWANCE OF THE CLAIMS WAS THE PROVISION FOR A DUTY FREE LUNCH PERIOD DURING THE SCHEDULED 8-HOUR TOUR OF DUTY AS AN OFFSET AGAINST THE EARLY REPORTING TIME. WHICH STATED: "IT IS OUR UNDERSTANDING THAT THE 30 MINUTE LUNCH PERIODS GIVEN THE EMPLOYEES ARE NOT DUTY-FREE. ARE SUBJECT TO INTERRUPTION FOR DUTIES OTHER THAN EMERGENCIES AND FALL WITHIN THE IDENTIFICATION OF 'ON-THE JOB LUNCH PERIODS'.

B-173092, MAR 13, 1972

CIVILIAN EMPLOYEES - REIMBURSEMENT FOR OVERTIME - DE MINIMUS RULE DECISION SUSTAINING PRIOR DENIAL OF A CLAIM OF RAYMOND O. ANDERSON AND TEN OTHER EMPLOYEES FOR OVERTIME COMPENSATION FOR EARLY REPORTING TIME WHILE CIVILIAN POLICEMEN AT THE NAVAL AIR STATION, ALBANY, GA. CLAIMANTS' SWORN STATEMENTS OF FACTS ARE INSUFFICIENT TO JUSTIFY REJECTING THE VERSION SET FORTH IN THE NAVY REPORT. FURTHER, THE SUBJECT CLAIMS WOULD APPEAR TO BE WITHIN APPLICATION OF THE DE MINIMUS RULE, WHICH PROVIDES THAT INSIGNIFICANT PERIODS OF TIME SPENT IN PRELIMINARY ACTIVITIES NEED NOT BE INCLUDED IN THE STATUTORY WORK WEEK. ANDERSON V MT. CLEMENS POTTERY CO., 328 U.S. 680 (1946). ACCORDINGLY, THE PRIOR DENIAL IS SUSTAINED.

TO MR. GEORGE R. BOSS:

WE REFER FURTHER TO YOUR LETTER OF DECEMBER 16, 1971, REFERENCE 4C/L 1053, ENCLOSING SWORN STATEMENTS FROM MR. RAYMOND O. ANDERSON AND TEN OTHER EMPLOYEES CONCERNING THEIR CLAIMS FOR OVERTIME COMPENSATION FOR EARLY REPORTING TIME WHILE CIVILIAN POLICEMEN AT THE NAVAL AIR STATION, ALBANY, GEORGIA.

THE CLAIMS WERE THE SUBJECT OF DECISION B-173092, JULY 27, 1971, WHICH SUSTAINED THE DISALLOWANCE ACTION OF OUR CLAIMS DIVISION IN ITS LETTER DATED FEBRUARY 23, 1971. RECONSIDERATION OF THE DISALLOWANCE IS REQUESTED ON THE BASIS OF THE SWORN STATEMENTS.

AS SET FORTH IN OUR CLAIMS DIVISION LETTER, THE REASON FOR DISALLOWANCE OF THE CLAIMS WAS THE PROVISION FOR A DUTY FREE LUNCH PERIOD DURING THE SCHEDULED 8-HOUR TOUR OF DUTY AS AN OFFSET AGAINST THE EARLY REPORTING TIME. IN OUR DECISION OF JULY 27, 1971, WE CONSIDERED THE STATEMENT IN THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES' LETTER OF APRIL 27, 1971, WHICH STATED:

"IT IS OUR UNDERSTANDING THAT THE 30 MINUTE LUNCH PERIODS GIVEN THE EMPLOYEES ARE NOT DUTY-FREE, BUT ARE SUBJECT TO INTERRUPTION FOR DUTIES OTHER THAN EMERGENCIES AND FALL WITHIN THE IDENTIFICATION OF 'ON-THE JOB LUNCH PERIODS'. IT IS APPARENT THAT IF THE EMPLOYEES ARE REQUIRED TO REPORT FIFTEEN MINUTES BEFORE THE STARTING HOUR OF THE TOUR OF DUTY OF EIGHT HOURS, THAT THEY SHOULD BE PAID OVERTIME FOR THIS ADDITIONAL FIFTEEN MINUTES."

THE STATEMENTS MADE BY MR. RAYMOND O. ANDERSON AND THE TEN OTHER CLAIMANTS ARE TO THE EFFECT THAT THEIR LUNCH PERIOD WAS INTERRUPTED FREQUENTLY RESULTING GENERALLY IN HAVING TO EAT A COLD MEAL OR NOT EAT AT ALL AND THAT THEY HAD TO MUSTER 20 MINUTES BEFORE RELIEVING ON WATCH. THE STATEMENTS WHICH ARE GENERAL IN NATURE DO NOT ENLARGE THE EVIDENTIAL EFFECT OF THE MATERIAL QUOTED ABOVE OTHER THAN ASSERT A 20 MINUTE EARLY REPORTING REQUIREMENT COMPARED TO THE 15-MINUTE PERIOD PREVIOUSLY CONSIDERED.

THE ADMINISTRATIVE REPORT ON THE CLAIMS STATES THAT A DEFINITE LUNCH BREAK IS PROVIDED AND THAT A REVIEW OF THE RADIO LOGS INDICATES THAT DURING THE PERIOD OF THE CLAIMS THE EMPLOYEES WERE IN FACT IN AN "OUT OF SERVICE" CATEGORY GENERALLY FOR 30-MINUTE PERIODS. ADDITIONALLY, IT IS STATED THAT ONLY RARELY WAS THE 30-MINUTE LUNCH PERIOD INTERRUPTED. THE REPORT ALSO NOTES THAT UNSCHEDULED COFFEE BREAKS HAVE BEEN PERMITTED ON A LIBERAL BASIS.

WE DO NOT BELIEVE THE STATEMENTS SUBMITTED OVERCOME THE FACTS AS SET FORTH BY THE DEPARTMENT OF THE NAVY IN ITS REPORT. THE STATEMENTS FAIL TO SHOW THE NUMBER OF TIMES THE EMPLOYEES WERE REQUIRED TO WORK DURING THEIR LUNCH PERIODS OR THAT ANY RECORD WAS MADE THEREOF. WE, THEREFORE, ARE REQUIRED TO BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE DEPARTMENT OF THE NAVY.

AS A SEPARATE POINT, WE NOTE THAT THE APPLICATION OF THE SO CALLED DE MINIMIS RULE MIGHT ALSO PRECLUDE RECOVERY ON THE CLAIMS AS STATED.

IN A LEADING CASE - ANDERSON V MT. CLEMENS POTTERY CO., 328 U.S. 680 (1946) - IN WHICH THE SUPREME COURT DISCUSSES THE DE MINIMIS RULE IN A CASE SIMILAR TO THE CLAIMS BEFORE US, IT IS STATED AT PAGES 692-93:

" *** IT IS ONLY WHEN AN EMPLOYEE IS REQUIRED TO GIVE UP A SUBSTANTIAL MEASURE OF HIS TIME AND EFFORT THAT COMPENSABLE WORKING TIME IS INVOLVED.

" *** IT IS APPROPRIATE TO APPLY A DE MINIMIS DOCTRINE SO THAT INSUBSTANTIAL AND INSIGNIFICANT PERIODS OF TIME SPENT IN PRELIMINARY ACTIVITIES NEED NOT BE INCLUDED IN THE STATUTORY WORK WEEK."

THE COURTS HAVE RECOGNIZED AND APPLIED THE DE MINIMIS RULE. IN BANTOM V UNITED STATES, 165 CT. CL. 312, CERT. DENIED, 379 U.S. 890 (1964) THE COURT HELD THAT 5 MINUTES SHOULD BE DISREGARDED AS DE MINIMIS. CRAWFORD V UNITED STATES, 169 CT. CL. 546, 564-65 (1965), THE COURT UPHELD A NAVY REGULATION PROVIDING THAT OVERTIME PERIODS OF LESS THAN 15 MINUTES A DAY MAY BE DISREGARDED. THE CASE OF CARTER V PANAMA CANAL CO., 314 F. SUPP. 386 (D. C. CIR. 1970), HOLDS THAT A TIME PERIOD UP TO 15 MINUTES IS DE MINIMIS. IN MCINTYRE V JOSEPH E. SEAGRAM AND SONS, 72 F. SUPP. 366 (W. D. KY 1947), A PERIOD OF 10 TO 20 MINUTES WAS FOUND TO BE DE MINIMIS.

ACCORDINGLY, WE FIND NO BASIS FOR REVERSING OUR PREVIOUS ACTION IN THESE CASES.