B-204846, B-204847, NOV 2, 1981

B-204846, B-204847, NOV 2, 1981

DIGEST: EMPLOYEES ARE NOT ENTITLED TO OVERTIME COMPENSATION UNDER 5 U.S.C. SEC. 5544(A) FOR ON-CALL DUTY AT THEIR RESIDENCES. ALTHOUGH EMPLOYEES WERE ON CALL AND SUBJECT TO REPORT FOR DUTY IN THE EVENT OF AN EMERGENCY THEIR MOVEMENTS AND ACTIVITIES WERE NOT SEVERELY RESTRICTED.

HARRY O. CHANEY AND JAMES E. LEWIS - OVERTIME COMPENSATION FOR ON CALL DUTY AT HOME:

THIS ACTION CONCERNS THE APPEAL OF MR. HARRY O. CHANEY FROM OUR CLAIMS DIVISION'S ACTION DATED JANUARY 29, 1979, WHICH DISALLOWED HIS CLAIM AND THAT OF MR. JAMES E. LEWIS FOR OVERTIME COMPENSATION FOR THE PERIOD FROM MARCH 1974 THROUGH MARCH 1976. THESE CLAIMS ARISE OUT OF THEIR CONTENTION THAT THEY WERE IN A COMPENSABLE STANDBY STATUS AT THEIR HOMES IN CONNECTION WITH THEIR DUTIES AS TELEPHONE MECHANIC FOREMEN AT THE U. S. ARMY COMMUNICATIONS COMMAND AGENCY, PRESIDIO OF SAN FRANCISCO, CALIFORNIA (PRESIDIO). THE DISALLOWANCE BY THE CLAIMS DIVISION IS UPHELD SINCE THE RECORD DOES NOT SHOW THAT THE CLAIMANTS' ACTIVITIES WERE SUBSTANTIALLY RESTRICTED WHEN THEY WERE IN AN ON-CALL STATUS.

THE RECORD SHOWS THAT MESSRS. CHANEY AND LEWIS WERE EMPLOYED AT THE PRESIDIO AS TELEPHONE MECHANIC FOREMEN, GRADE WS-9, AND THAT THEY, AS WELL AS SEVERAL OTHER INDIVIDUALS IN THE TELEPHONE DIVISION, WERE DESIGNATED AS ON-CALL REPRESENTATIVES. EACH WAS REQUIRED TO SERVE IN AN ON-CALL STATUS OUTSIDE HIS REGULAR DUTY HOURS FOR 1 WEEK OUT OF EVERY 3 TO 4 WEEKS IN ORDER TO RESPOND IN THE EVENT OF A COMMUNICATIONS OUTAGE.

IN A MEMORANDUM DATED APRIL 7, 1976, THE CHIEF, TELEPHONE DIVISION, ADVISED THAT SECTION'S DESIGNATED ON-CALL REPRESENTATIVES OF THE STANDARD OPERATING PROCEDURE FOR ON-CALL DUTY. HE STATED THEREIN THAT THE ON-CALL REPRESENTATIVES WOULD BE REASONABLY AVAILABLE BY TELEPHONE, INFORM THE PRESIDIO WHERE THEY COULD BE CONTACTED IF ABSENT FROM THEIR TELEPHONE FOR AN EXTENDED PERIOD OF TIME, AND BE PREPARED TO REPORT FOR DUTY IN SUFFICIENT TIME TO MEET MISSION REQUIREMENTS. THE MEMORANDUM FURTHER PROVIDED THAT IF THE DESIGNATED ON-CALL REPRESENTATIVE WAS UNABLE TO PERFORM HIS DUTIES HE WOULD BE RESPONSIBLE FOR MAKING ARRANGEMENTS WITH THE OTHER ON-CALL REPRESENTATIVES TO INSURE THAT HIS ON-CALL DUTIES WERE PERFORMED. IN A MEMORANDUM DATED APRIL 20, 1976, THE COMMANDER, UNITED STATES ARMY COMMUNICATIONS COMMAND AGENCY, PRESIDIO, STATED THAT THE INSTRUCTIONS AND GUIDANCE FOR ON-CALL PERSONNEL SET FORTH IN THE APRIL 7, 1976 MEMORANDUM BASICALLY FOLLOWED THE GUIDANCE AND INTENT OF PREVIOUS VERBAL INSTRUCTIONS.

THE CLAIMANTS CONTEND THAT PRIOR TO THE WRITTEN INSTRUCTIONS OF APRIL 7, 1976, THERE WAS NO WRITTEN STANDARD OPERATING PROCEDURE FOR SERVING ON- CALL DUTY. THEY STATE THAT THE PRIOR VERBAL ORDERS GIVEN BY THEIR SUPERVISOR WITH REGARD TO ON-CALL DUTY REQUIREMENTS PLACED THEM UNDER GREATER RESTRICTIONS. MESSRS. CHANEY AND LEWIS ASSERT THAT THEY WERE INSTRUCTED BY THEIR SUPERVISOR THAT PRESIDIO OF SAN FRANCISCO (PSF) REGULATION 210-10 WAS APPLICABLE TO THEM. THAT REGULATION, DATED JANUARY 15, 1976, WAS PROMULGATED TO ESTABLISH POLICY FOR THE PERFORMANCE OF STAFF ON-CALL REPRESENTATIVES IN ALL STAFF OFFICES OF THE U. S. ARMY GARRISON, PRESIDIO. PARAGRAPH 4 OF THE REGULATION STATED THAT STAFF ON-CALL REPRESENTATIVES WOULD BE AVAILABLE BY TELEPHONE AT ALL TIMES DURING THEIR TOUR OF DUTY, KEEP STAFF OFFICERS INFORMED WHERE THEY COULD BE CONTACTED IF ABSENT FROM THE TELEPHONE NUMBER PREVIOUSLY FURNISHED, AND BE PREPARED TO REPORT FOR DUTY IN THEIR SECTION WITHIN 1 HOUR AFTER BEING NOTIFIED THAT THEIR SERVICES ARE REQUIRED.

THE CLAIMANTS STATE THAT PRIOR TO THE WRITTEN INSTRUCTIONS OF APRIL 7, 1976, AS A RESULT OF THEIR ON-CALL RESPONSIBILITIES, THEIR MOVEMENTS WERE RESTRICTED AS THEY WERE UNABLE TO ATTEND SUCH ACTIVITIES AS PICNICS AND SOCIAL OUTINGS AND WERE ALSO UNABLE TO PLAY GOLF, FISH OR INDULGE IN MANY OTHER WEEK-END ACTIVITIES.

THE CLAIMANTS HAVE CITED FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 990-2, CHAPTER 550, PARAGRAPH S1-6 ENTITLED "REGULARLY SCHEDULED STANDBY DUTY PAY" AS SUPPORT FOR THEIR CONTENTION THAT THEY ARE ENTITLED TO BACKPAY FOR STANDBY DUTY. THE CITED PROVISION OF THE FPM SUPP. 990-2 WOULD NOT BE APPLICABLE TO THE CLAIM BEFORE US SINCE IT IMPLEMENTS THE ANNUAL PREMIUM PAY PROVISION OF 5 U.S.C. SEC. 5545(C)(1), A LAW APPLICABLE TO GENERAL SCHEDULE EMPLOYEES. AS PREVAILING RATE EMPLOYEES MESSRS. CHANEY'S AND LEWIS' ENTITLEMENT TO ADDITIONAL COMPENSATION WOULD BE GOVERNED BY 5 U.S.C. SEC. 5544(A). UNDER THAT SECTION TIME DURING WHICH A PREVAILING RATE EMPLOYEE WHO IS REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF HIS POST OF DUTY IN EXCESS OF 8 HOURS A DAY IN A STANDBY OR ON-CALL STATUS, EXCLUSIVE OF EATING OR SLEEPING TIME, IS COMPENSABLE AS OVERTIME WORK WHEN IT IS IN EXCESS OF 40 HOURS A WEEK.

IN INTERPRETING 5 U.S.C. SEC. 5544(A) OUR OFFICE AND THE COURT OF CLAIMS HAVE ALLOWED OVERTIME PAY ONLY WHERE THE EMPLOYEE'S MOVEMENTS WERE NARROWLY LIMITED, HIS ACTIVITIES SEVERELY RESTRICTED, AND HIS STATUS WAS IN EFFECT ONE OF READY ALERT. HYDE V. UNITED STATES, 209 CT.CL. 746 (NO. 322-73), APRIL 16, 1976; 55 COMP.GEN. 1314 (1976); AND RALPH E. CONWAY, B-176924, SEPTEMBER 20, 1976.

IN THE CASE BEFORE US, THE EMPLOYEES WERE NOT RESTRICTED TO THEIR DUTY STATION NOR DOES IT APPEAR IN THE RECORD THAT THE AGENCY DESIGNATED THEIR RESIDENCE AS THEIR POST OF DUTY. FURTHERMORE, AS STATED ABOVE, UNDER THE ON-CALL POLICIES ESTABLISHED UNDER PSF REGULATION 210-10, JANUARY 15, 1976, AND THE TELEPHONE DIVISION CHIEF'S MEMORANDUM OF APRIL 7, 1976, AN ON-CALL REPRESENTATIVE WAS NOT REQUIRED TO REMAIN AT HIS RESIDENCE BUT WAS FREE TO LEAVE HIS RESIDENCE AS LONG AS HE PROVIDED A TELEPHONE NUMBER WHERE HE COULD BE REACHED IN THE EVENT HE WAS NEEDED. AS STATED ABOVE, THE COMMANDER AT THE U. S. ARMY COMMUNICATIONS COMMAND AGENCY, PRESIDIO, STATED THAT THE MEMORANDUM OF APRIL 7, 1976, BASICALLY SET FORTH THE PRIOR VERBAL INSTRUCTIONS REGARDING ON-CALL DUTY.

THUS, THE RECORD SHOWS THAT DURING THE PERIOD FOR WHICH MESSRS. CHANEY AND LEWIS CLAIM OVERTIME COMPENSATION ON-CALL REPRESENTATIVES WERE FREE TO LEAVE THEIR RESIDENCE AND TRAVEL IN THE AREA PROVIDED THAT THEY LEFT A TELEPHONE NUMBER WHERE THEY COULD BE REACHED. IN ADDITION, THERE IS NOTHING IN THE RECORD WHICH WOULD SHOW THAT OVERTIME WORKED BY EITHER MR. CHANEY OR MR. LEWIS WAS SO FREQUENT SO AS TO RESTRICT HIS ACTIVITIES. HAVE HELD UNDER SIMILAR CIRCUMSTANCES WHICH WERE NO LESS RESTRICTIVE THAT THE "ON-CALL" DUTY DOES NOT CONSTITUTE COMPENSABLE OVERTIME UNDER 5 U.S.C. SEC. 5544(A). SEE RALPH E. JAMISON, B-201628, MAY 21, 1981.

SINCE MESSRS. CHANEY AND LEWIS CITED FPM SUPP. 990-2, CHAPTER 550, PARAGRAPH S1-6, AS AUTHORITY FOR ENTITLEMENT TO ADDITIONAL COMPENSATION, WE NOTE THAT GENERAL SCHEDULE EMPLOYEES ALSO HAVE BEEN FOUND NOT TO BE ENTITLED TO EITHER OVERTIME COMPENSATION UNDER 5 U.S.C. SEC. 5542 OR TO ANNUAL PREMIUM PAY UNDER SECTION 5545(C)(1) UNDER CIRCUMSTANCES SIMILAR TO THOSE IN THE INSTANT CASE. SEE PRIMO F. MANDAC, B-197431, AUGUST 19, 1980.

THE RECORD SHOWS THAT MESSRS. CHANEY AND LEWIS BOTH HAVE BEEN DESIGNATED AS NONEXEMPT EMPLOYEES UNDER THE FAIR LABOR STANDARDS ACT, 29 U.S.C. SEC. 201 ET SEQ. UNDER 29 U.S.C. SEC. 204(F)(1976) THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF PERSONNEL MANAGEMENT) IS AUTHORIZED TO ADMINISTER THE PROVISIONS OF THE FLSA APPLICABLE TO FEDERAL EMPLOYEES. ACCORDINGLY, AT THE TIME OF ITS FINAL ACTION ON THEIR CLAIM, OUR CLAIMS DIVISION FORWARDED COPIES OF MESSRS. CHANEY'S AND LEWIS' CLAIMS FILES TO THE OFFICE OF PERSONNEL MANAGEMENT FOR A DETERMINATION OF ENTITLEMENT UNDER THE FLSA. THE RECORD DOES NOT SHOW WHAT ACTION WAS TAKEN BY THE OPM IN THIS MATTER. HOWEVER, WE NOTE THAT FPM LETTER 551-14, MAY 15, 1978, PROVIDES IN PERTINENT PART AT PARAGRAPH 1C AS FOLLOWS:

"C. ON CALL OR TELEPHONE CONTACT STANDBY. EMPLOYEE WHO IS MERELY REQUIRED TO LEAVE WORD WHERE HE OR SHE CAN BE REACHED *** 'IS WAITING TO BE ENGAGED,' AND IS NOT WORKING FOR PURPOSES OF THE FLSA. THIS IS TRUE EVEN IF THE EMPLOYEE IS RESTRICTED TO A REASONABLE MILEAGE OR TIME CALLBACK RADIUS."

IN ACCORDANCE WITH THE ABOVE, THE DISALLOWANCE OF THE CLAIMS DIVISION IS SUSTAINED.