B-174402, MAR 7, 1972

B-174402: Mar 7, 1972

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GAO HAS PERSONALLY DETERMINED THAT A MAXIMUM OF 13 MINUTES IS INVOLVED IN PRELIMINARY AND POSTLIMINARY ACTIVITIES INCIDENT TO REGULAR GUARD DUTIES AT THE CENTER. LHOTKA: THIS IS IN FURTHER REFERENCE TO YOUR LETTERS OF OCTOBER 12. WHICH WILL BE VIEWED AS A REQUEST FOR RECONSIDERATION OF THE SETTLEMENT ACTION BY THE CLAIMS DIVISION OF OUR OFFICE ON OCTOBER 6. THE RECORD SHOWS THAT YOU ARE EMPLOYED AS A GUARD. IT IS YOUR CONTENTION THAT DURING THE PERIOD COVERED BY THE CLAIM YOU WERE REQUIRED TO BE ON DUTY 25 MINUTES PRIOR TO THE BEGINNING OF YOUR 8-HOUR SHIFT. YOUR CLAIM WAS DENIED FOR THE REASON THAT NO EVIDENCE WAS SUBMITTED TO SHOW THAT THE OVERTIME WORK ALLEGEDLY PERFORMED WAS AUTHORIZED OR APPROVED AS REQUIRED UNDER THE PROVISIONS OF THE GOVERNING LAW.

B-174402, MAR 7, 1972

CIVILIAN EMPLOYEE - OVERTIME - DE MINIMUS DOCTRINE DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF CLARENCE V. LHOTKA FOR OVERTIME PAY BELIEVED DUE HIM AS A GUARD AT THE NAVAL LABORATORY CENTER, SAN DIEGO, CALIF. THAT PORTION OF MR. LHOTKA'S CLAIM CONCERNING THE TIME REQUIRED FOR CHANGING INTO HIS GUARD UNIFORM HAS NEVER BEEN RECOGNIZED AS COMPENSABLE IN THE ABSENCE OF A SPECIFIC AGENCY ALLOWANCE. FURTHER, IT APPEARS THAT AS OF JULY 8, 1964, THE CHANGING OF THE UNIFORM AT THE CENTER BECAME OPTIONAL. WITH REGARD TO THE TIME NECESSARY FOR MUSTER, INSPECTIONS, INSTRUCTION, AND OBTAINING INSIGNIA, GAO HAS PERSONALLY DETERMINED THAT A MAXIMUM OF 13 MINUTES IS INVOLVED IN PRELIMINARY AND POSTLIMINARY ACTIVITIES INCIDENT TO REGULAR GUARD DUTIES AT THE CENTER. THIS SHORT PERIOD OF TIME MUST BE REGARDED AS DE MINIMUM AND, THEREFORE, NONCOMPENSABLE. ANDERSON V. MT. CLEMENS POTTERY CO., 328 U.S. 680 (1946). ACCORDINGLY, THE PRIOR DENIAL OF THIS CLAIM MUST BE SUSTAINED.

TO MR. CLARENCE V. LHOTKA:

THIS IS IN FURTHER REFERENCE TO YOUR LETTERS OF OCTOBER 12, 1971, AND FEBRUARY 14, 1972, WHICH WILL BE VIEWED AS A REQUEST FOR RECONSIDERATION OF THE SETTLEMENT ACTION BY THE CLAIMS DIVISION OF OUR OFFICE ON OCTOBER 6, 1971, DISALLOWING YOUR CLAIM FOR OVERTIME PAY ALLEGED TO BE DUE FOR THE PERIOD FEBRUARY 9, 1964, TO APRIL 14, 1971.

THE RECORD SHOWS THAT YOU ARE EMPLOYED AS A GUARD, HOLDING THE RANK OF SERGEANT, AT THE NAVAL ELECTRONICS LABORATORY CENTER, SAN DIEGO, CALIFORNIA. IT IS YOUR CONTENTION THAT DURING THE PERIOD COVERED BY THE CLAIM YOU WERE REQUIRED TO BE ON DUTY 25 MINUTES PRIOR TO THE BEGINNING OF YOUR 8-HOUR SHIFT, AND THAT YOU SHOULD BE COMPENSATED FOR SUCH TIME. THE 25 MINUTES AS EXPLAINED BY YOU CONSISTS OF APPROXIMATELY 10 MINUTES FOR CHANGING UNIFORM, MUSTER, INSPECTION, AND INSTRUCTION, AND 15 MINUTES BEFORE THE SHIFT STARTS FOR TRAVEL TO THE ASSIGNED POST WHERE EACH MAN CHECKS KEYS, RECEIVES PERTINENT POST DATA, AND ACCEPTS SIDEARM FROM THE GUARD HE RELIEVES.

YOUR CLAIM WAS DENIED FOR THE REASON THAT NO EVIDENCE WAS SUBMITTED TO SHOW THAT THE OVERTIME WORK ALLEGEDLY PERFORMED WAS AUTHORIZED OR APPROVED AS REQUIRED UNDER THE PROVISIONS OF THE GOVERNING LAW, 5 U.S.C. 5542.

THERE IS A CONSIDERABLE DIFFERENCE BETWEEN THE TIME YOU ALLEGE YOU ARE REQUIRED TO BE ON DUTY IN EXCESS OF YOUR 8-HOUR SHIFT AND THE TIME THE ADMINISTRATIVE OFFICE ACKNOWLEDGES. YOU CLAIM 25 MINUTES AND THE ADMINISTRATIVE OFFICE ACKNOWLEDGES 6 OR 7 MINUTES.

IT APPEARS THAT 15 MINUTES OF THE TIME CLAIMED BY YOU CONSISTS OF THE 15 MINUTES EARLY DEPARTURE FROM A CENTRAL HEADQUARTERS TO POST OF DUTY. HAS BEEN DETERMINED, HOWEVER, AS REPORTED BY THE ADMINISTRATIVE OFFICE AND VERIFIED BY OBSERVATION BY A REPRESENTATIVE OF OUR OFFICE, THAT THE TIME IS OFFSET AT THE END OF THE SHIFT. IN OTHER WORDS, THE SCHEDULED REPORTING AND RELIEF TIMES ARE IN PRACTICE EACH ADVANCED 15 MINUTES. IS RECOGNIZED THAT THE GUARD COMING ON DUTY TO PROVIDE RELIEF AT THE END OF THE SHIFT, WHO HAS DEPARTED HEADQUARTERS 15 MINUTES PRIOR TO THE BEGINNING OF HIS SHIFT, CANNOT ARRIVE AT THAT SAME MOMENT AT THE POST OF DUTY, AND THAT THE GUARD BEING RELIEVED MUST WAIT AND THEN PROCEED TO HEADQUARTERS. HOWEVER, THE TIME INVOLVED IS NOT A FULL 15 MINUTES AS HEREINAFTER INDICATED.

THE ABOVE ARRANGEMENT HAS THE EFFECT OF ESTABLISHING A GUARD'S SHIFT AS, FOR EXAMPLE, 6:45 A.M. TO 2:45 P.M. RATHER THAN 7 A.M. TO 3 P.M. SUCH BEING THE CASE, THERE REMAINS FOR DETERMINATION WHETHER THE "PRELIMINARY" AND "POSTLIMINARY" ACTIVITIES HERE INVOLVED, INCLUDING TIME SPENT WALKING OR RIDING BETWEEN THE CENTRAL HEADQUARTERS AND DUTY POST, PERFORMED OUTSIDE THE 8-HOUR WORKDAY, ARE TO BE CONSIDERED IN COMPUTING HOURS WORKED FOR PAY PURPOSES.

IT IS YOUR CONTENTION, AS STATED IN YOUR LETTER OF JULY 12, 1971, THAT 10 MINUTES IS REQUIRED FOR CHANGING INTO GUARD UNIFORM AT THE LOCKERS PROVIDED, MUSTER, INSPECTION, AND INSTRUCTIONS. WITH RESPECT TO CHANGING INTO GUARD UNIFORM, THE WEARING OF THE UNIFORM BETWEEN DUTY STATION AND HOME WAS AUTHORIZED ON JULY 8, 1964, AND ONLY THE HAT AND BREAST INSIGNIA WERE REQUIRED TO BE LEFT IN THE LOCKERS. HENCE, CHANGING OF UNIFORM AT THE CENTER AFTER THAT DATE WAS AT THE OPTION OF THE GUARD. WE NOTE THAT FROM FEBRUARY 9, 1964, TO JULY 8, 1964, THE CHANGING OF UNIFORMS AT THE CENTER WAS REQUIRED. HOWEVER, WE HAVE NEVER RECOGNIZED THE TIME NECESSARY FOR CHANGING UNIFORMS AS BEING COMPENSABLE IN THE ABSENCE OF ANY SPECIFIC ALLOWANCE FOR THAT PURPOSE BY THE ADMINISTRATIVE AGENCY INVOLVED. SPECIFIC DIRECTION TO THAT EFFECT WAS MADE BY THE NAVY DEPARTMENT. THIS LEAVES FOR DETERMINATION WHETHER THE TIME NECESSARY FOR MUSTER, INSPECTION, INSTRUCTION, AND OBTAINING INSIGNIA, IS REQUIRED TO BE INCLUDED AS "HOURS WORKED" FOR OVERTIME-PAY COMPUTATION PURPOSES. SINCE ONLY GUARDS BELOW THE RANK OF SERGEANT AND LIEUTENANT LEAVE HEADQUARTERS TO ENTER ON DUTY AT THE DUTY POST ASSIGNMENT, AND YOUR RANK IS SERGEANT, THERE IS NO BASIS TO CONSIDER THE TIME NECESSARY TO REACH THE POST AND RETURN TO HEADQUARTERS INSOFAR AS YOUR CLAIM IS CONCERNED.

IT IS UNDERSTOOD THAT, PENDING DETERMINATION OF YOUR CLAIM, SEVERAL CLAIMS ARE BEING HELD IN ABEYANCE. THESE APPARENTLY INCLUDE CLAIMS OF GUARDS IN VARIOUS RANKS. SINCE DUTIES VARY ACCORDING TO RANK, THERE IS A VARIANCE OF TIME INVOLVED IN PRELIMINARY AND POSTLIMINARY ACTIVITIES. SINCE THE RECORD WAS INSUFFICIENT FOR OUR OFFICE TO DETERMINE THE FACTS INVOLVED, IT WAS NECESSARY THAT FIRSTHAND INFORMATION BE OBTAINED. REPRESENTATIVE OF OUR OFFICE VISITED THE CENTER ON JANUARY 17 AND 20, 1972. BASED UPON OBSERVATION AND INFORMATION FURNISHED BY GUARDS AND ADMINISTRATIVE PERSONNEL, THE FOLLOWING APPROXIMATION OF TIME REQUIRED HAS BEEN DEVELOPED:

ROUND TRIP TIME

BETWEEN HEADQUARTERS TOTAL

PERIOD PRELIMINARY POSTLIMINARY AND POST OF DUTY* MINUTES

GUARDS BELOW RANK OF SERGEANT AND LIEUTENANT:

1/31/64 - 9/24/70 5 3 5 13

9/25/70 - 12/8/71 4 2 5 11

12/9/71 - DATE 4 2 6 12

WATCH LIEUTENANTS:

1/31/64 - DATE 10 2 NONE 12

SERGEANTS:

1/31/64 - 9/24/70 6 1/2 2 NONE 8 1/2

9/25/70 - DATE 5 1/2 2 NONE 7 1/2

*FIGURES ARE COMPUTED ON AVERAGE OF TRAVEL TIME TO ALL POSTS AS GUARDS ARE ROTATED ON A DAILY BASIS.

IT IS WELL SETTLED THAT THE ENTITLEMENT OF AN EMPLOYEE TO COMPENSATION MUST BE BASED ON THE FACTS OF THE INDIVIDUAL CASE AND THAT THE EMPLOYEE'S ENTITLEMENT TO COMPENSATION DEPENDS UPON THE HOURS HE SPENDS PERFORMING TASKS NECESSARY TO THE ACTIVITIES FOR WHICH HE IS EMPLOYED AND NOT UPON THE TIMES APPEARING ON HIS TIME CARD OR AN ADMINISTRATIVE DESIGNATION OF WORK HOURS WHICH DOES NOT COINCIDE WITH THE HOURS DURING WHICH WORK IS ACTUALLY PERFORMED. HOWEVER, WHERE INSUBSTANTIAL AND INSIGNIFICANT PERIODS OF TIME ARE INVOLVED IN PRELIMINARY AND POSTLIMINARY ACTIVITIES, THE DE MINIMIS RULE IS FOR APPLICATION. IN ANDERSON V MT. CLEMENS POTTERY CO., 328 U.S. (1946), THE LEADING CASE, THE SUPREME COURT STATED:

" *** 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, 564-565 (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 CONCLUDED TO BE DE MINIMIS.

IT APPEARS THAT AS A MAXIMUM THERE IS BUT A TOTAL OF 13 MINUTES INVOLVED IN PRELIMINARY AND POSTLIMINARY ACTIVITIES INCIDENT TO REGULAR GUARD DUTIES AT THE NAVAL ELECTRONICS LABORATORY CENTER, AND BUT 8 1/2 MINUTES MAXIMUM IN POSITIONS SUCH AS YOURS. CONSISTENT WITH THE COURT DECISIONS CITED ABOVE, AND THERE BEING NO ADMINISTRATIVE ORDER THAT SUCH TIME SHALL BE INCLUDED IN THE COMPENSABLE HOURS OF WORK, WE MUST CONCLUDE THAT SUCH TIME IS DE MINIMIS AND AS SUCH NONCOMPENSABLE. ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION ON OCTOBER 6, 1971, DISALLOWING YOUR CLAIM IS SUSTAINED.

THE COMMANDING OFFICER, NAVAL ELECTRONICS LABORATORY CENTER, SAN DIEGO, CALIFORNIA, IS BEING ADVISED THAT SIMILAR CLAIMS FROM EMPLOYEES OR FORMER EMPLOYEES OF THE CENTER SHOULD LIKEWISE BE DENIED FOR THE REASONS SET FORTH HEREIN.