Claims by Guards for Overtime

B-167602: Aug 4, 1976

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Fifteen former guards filed claims for overtime compensation for preliminary and postliminary duties. A prior GAO decision denying the claims was sustained since the claimants furnished no additional evidence that their supervisor, who allegedly ordered the overtime, was authorized to do so or that the overtime was actually ordered by him. Overtime claims for 32 minutes per day were denied as de minimus since the record indicated that the guards were permitted to wear their uniforms to and from home and that other activities did not exceed 10 minutes per day. The record also indicated that an offset for the 30-minute lunch period should be made against the 32 minutes claimed. The fact that the agency to which the guards were later transferred authorized 6 minutes overtime before and after each shift did not provide a basis for allowing claims for duty performed for the original agency.

B-167602, AUG 4, 1976

1. FORMER GENERAL SERVICES ADMINISTRATION (GSA) GUARDS AT ALBUQUERQUE, NEW MEXICO, FILED CLAIMS FOR OVERTIME COMPENSATION FOR PRELIMINARY AND POSTLIMINARY DUTIES. PRIOR GAO DECISION (53 COMP.GEN. 181) DENYING THESE CLAIMS IS SUSTAINED SINCE CLAIMANTS HAVE FURNISHED NO ADDITIONAL EVIDENCE THAT SUPERVISOR, WHO ALLEGEDLY ORDERED OVERTIME, WAS AUTHORIZED TO DO SO, OR THAT OVERTIME WAS ACTUALLY ORDERED BY HIM. 2. FORMER GSA GUARDS AT ALBUQUERQUE, NEW MEXICO, FILED CLAIMS FOR OVERTIME COMPENSATION FOR PRELIMINARY AND POSTLIMINARY DUTIES. OVERTIME CLAIMS FOR 32 MINUTES PER DAY ARE DENIED AS DE MINIMUS SINCE RECORD INDICATES THAT GUARDS WERE ALLOWED TO WEAR UNIFORMS TO AND FROM HOME AND THAT OTHER ACTIVITIES DID NOT EXCEED 10 MINUTES PER DAY WHICH IS CONSIDERED DE MINIMUS. ALSO, RECORD INDICATES THAT OFFSET FOR 30 MINUTE LUNCH PERIOD SHOULD BE MADE AGAINST 32 MINUTES CLAIMED. 3. FORMER GSA GUARDS AT ALBUQUERQUE, NEW MEXICO, SUBSEQUENTLY TRANSFERRED TO ATOMIC ENERGY COMMISSION (AEC), FILED CLAIMS FOR OVERTIME COMPENSATION FOR PRELIMINARY AND POSTLIMINARY DUTIES. FACT THAT AEC SUBSEQUENTLY AUTHORIZED 6 MINUTES OVERTIME BEFORE AND AFTER EACH SHIFT DOES NOT PROVIDE BASIS FOR ALLOWING CLAIMS FOR DUTY PERFORMED FOR GSA. BY AUTHORIZING SUCH OVERTIME AEC ACQUIRED CONTROL OVER THESE PERIODS AND COULD HAVE REQUIRED ADDITIONAL DUTIES.

LORENZO G. BACA, ET AL. - CLAIMS BY GUARDS FOR OVERTIME:

THIS DECISION CONCERNS THE CLAIMS OF 15 INDIVIDUALS FOR OVERTIME COMPENSATION FOR DUTY PERFORMED PRIOR TO JULY 1, 1966, WHILE EMPLOYED AS GUARDS BY THE GENERAL SERVICES ADMINISTRATION (GSA) AT ALBUQUERQUE, NEW MEXICO. THIRTTEN OF THE GUARDS, MESSRS. [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], AND [REDACTED], ARE REQUESTING RECONSIDERATION OF A PRIOR DECISION OF THIS OFFICE IN 53 COMP.GEN.181 (B- 167602, SEPTEMBER 21, 1973), WHILE TWO OF THE GUARDS, MESSRS. [REDACTED] AND [REDACTED], ARE APPEALING ADVERSE SETTLEMENTS MADE BY OUR TRANSPORTATION AND CLAIMS DIVISION (NOW CLAIMS DIVISION). THE GUARDS CLAIM OVERTIME COMPENSATION FOR PRELIMINARY AND POSTLIMINARY DUTIES PERFORMED PRIOR TO JULY 1, 1966, WHILE EMPLOYED BY GSA AT THE ALBUQUERQUE OPERATIONS OFFICE OF THE ATOMIC ENERGY COMMISSION (AEC).

THE GUARDS HAVE RESUBMITTED THEIR CLAIMS THROUGH GSA PURSUANT TO OUR DECISION B-174069, SEPTEMBER 11, 1974. THAT DECISION HELD THAT THE CLAIMS OF CIVILIAN GUARDS WHICH WERE DENIED PRIOR TO THE COURT OF CLAIMS DECISION IN [REDACTED] V. UNITED STATES, 198 CT.CL. 331 (1972), AND WHICH WERE BEING APPEALED AND THE CLAIMS OF CIVILIAN GUARDS SUBMITTED FOR THE FIRST TIME PURSUANT TO THE [REDACTED] CASE SHOULD BE REFERRED TO THE EMPLOYING AGENCY FOR DEVELOPMENT OF THE RECORD AND FOR PAYMENT IN ACCORDANCE WITH [REDACTED]. ONLY DOUBTFUL APPEALS OR CLAIMS OF DOUBTFUL LEGALITY WERE TO BE REFERRED TO THE GENERAL ACCOUNTING OFFICE. HOWEVER, THE CLAIMS OF THESE GUARDS HAVE ALREADY BEEN CONSIDERED BY THIS OFFICE IN LIGHT OF THE [REDACTED] CASE, AND, THEREFORE, OUR DECISION B-174069, SUPRA, IS NOT APPLICABLE. WE SHALL INSTEAD CONSIDER THE CLAIMS OF THE FIRST 13 GUARDS LISTED ABOVE AS REQUESTS FOR RECONSIDERATION OF OUR PRIOR DECISION AND THE CLAIMS OF MESSRS. [REDACTED] AND [REDACTED] AS APPEALS OF SETTLEMENTS ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION.

THE FACTS ARE SET FORTH IN DETAIL IN 53 ID. 181, SUPRA, AND, THEREFORE, WILL NOT BE REPEATED EXCEPT WHERE NECESSARY. THE CLAIMS OF THE FIRST 13 GUARDS LISTED ABOVE WERE FILED WITH OUR CLAIMS DIVISION AND WERE DENIED ON THE GROUND THAT THE OVERTIME HAD NOT BEEN AUTHORIZED OR APPROVED BY AN OFFICIAL HAVING AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME. THESE 13 GUARDS THEN APPEALED TO DETERMINATION OF OUR CLAIMS DIVISION IN 1972 BASED UPON TWO CASES DECIDED BY THE COURT OF CLAIMS, [REDACTED] V. UNITED STATES, 196 CT.CL. 362 (1971), AND THE [REDACTED] CASE, CITED ABOVE. OUR OFFICE ISSUED A DECISION IN 53 ID. 181, SUPRA, HOLDING THAT, AFTER CONSIDERING THE APPLICATION OF THE [REDACTED] AND [REDACTED] CASES, WE WERE UNABLE TO VERIFY DUE TO THE ABSENCE OF RECORDS WHETHER THE SUPERVISOR, WHO ALLEGEDLY HAD ORDERED THE OVERTIME, WAS AN OFFICIAL WHO HAD BEEN DELEGATED THE AUTHORITY TO DO SO, OR WHETHER THAT SUPERVISOR HAD ACTUALLY ORDERED OR APPROVED THE OVERTIME. WE ALSO HELD THAT BASED UPON THE RECORD BEFORE US THERE WAS NO EVIDENCE OF A CONSISTENT PATTERN OF PRELIMINARY OR POSTLIMINARY DUTIES AND THAT THE RECORD DID NOT SUPPORT A CONCLUSION THAT THE AMOUNT OF TIME REQUIRED WAS IN EXCESS OF A FEW MINUTES PER DAY WHICH IS CONSIDERED DE MINIMUS. FINALLY, WE HELD THAT THE BURDEN RESTS UPON THE CLAIMANTS TO FURNISH EVIDENCE SATISFACTORILY PROVING THE VALIDITY OF THE CLAIM, AND THAT, THEREFORE, WE WERE SUSTAINING THE DISALLOWANCE OF THEIR CLAIMS. THIS DECISION WAS ISSUED IN RESPONSE TO MR. [REDACTED] APPEAL, AND IT WAS LATER HELD APPLICABLE TO THE OTHER 12 GUARDS.

THE REMAINING TWO GUARDS INVOLVED IN THE PRESENT CASE, MESSRS. [REDACTED] AND [REDACTED], FILED CLAIMS WITH OUR TRANSPORTATION AND CLAIMS DIVISION IN 1972 AND 1974, RESPECTIVELY, AND THEY WERE ISSUED SETTLEMENTS DENYING THEIR CLAIMS ON THE SAME GROUNDS AS SET FORTH IN 53 ID. 181, SUPRA.

AS NOTED ABOVE, OUR OFFICE HELD IN 53 ID. 181 THAT IT COULD NOT BE DETERMINED WHETHER THE SUPERVISOR, WHO ALLEGEDLY ORDERED THE OVERTIME, WAS DELEGATED SUCH AUTHORITY OR WHETHER HE HAD ACTUALLY ORDERED OR APPROVED THE OVERTIME CLAIMED. THE GUARDS HAVE FURNISHED NO EVIDENCE ON THIS POINT, AND, THEREFORE, WE MUST SUSTAIN OUR PRIOR DETERMINATION.

WITH RESPECT TO THE QUESTION OF A CONSISTENT PATTERN OF OVERTIME, THE 15 GUARDS HAVE NOW SUPPLIED NOTARIZED CLAIMS AND AFFIDAVITS IN WHICH THEY CLAIM THEY SPENT 32 MINUTES A DAY FOR UNIFORM CHANGING, DRAWING AND REPLACING THEIR GUNS, AND TRAVELING BETWEEN THEIR LOCKERS, THE CONTROL POINT, AND THEIR DUTY POSTS. THE AFFIDAVITS FURTHER STATE THAT NO TIME WAS PROVIDED FOR A DUTY-FREE LUNCH. MOST OF THE GUARDS STATE THAT THEY WERE REQUIRED TO EAT AT THEIR DUTY STATION AND THAT THEY WERE NOT COMPLETELY RELIEVED FROM DUTY DURING THEIR LUNCH PERIOD.

THE ADMINISTRATIVE REPORT FROM GSA WHICH ACCOMPANIED THE CLAIMS STATES THAT UNIFORM CHANGING WAS OPTIONAL AND THAT THE GUARDS WERE PERMITTED TO WEAR THEIR UNIFORM TO AND FROM WORK, EXCEPT FOR THEIR CAP, BADGE, BLOUSE, AND FIREARM. THE REPORT STATES FURTHER THAT THE MAXIMUM TIME UTILIZED FOR SUCH PRESHIFT AND POST SHIFT ACTIVITIES WOULD NOT EXCEED 10 MINUTES AND WOULD, THEREFORE, BE CONSIDERED DE MINIMUS.

WHEN THERE IS A CONFLICT OVER THE FACTS, SUCH AS PRESENTED HERE, OUR OFFICE GENERALLY ACCEPTS THE FACTS AS REPORTED BY THE GOVERNMENT AGENCY, ABSENT EVIDENCE FURNISHED BY A CLAIMANT WHICH CLEARLY SHOWS THE FACTS SUBMITTED BY THE GOVERNMENT AGENCY TO BE IN ERROR. SEE B-180638, AUGUST 30, 1974, AND CASES CITED THEREIN. WE DO NOT BELIEVE THAT THE EVIDENCE SUBMITTED BY THE GUARDS IS SUFFICIENT TO OVERCOME THE FACTS AS REPORTED BY THE ADMINISTRATIVE AGENCY. THUS, THE PRESHIFT AND POST SHIFT ACTIVITIES ARE CONSIDERED DE MINIMUS AND NOT COMPENSABLE.

THE REPORT FROM GSA ALSO CONTENDS THAT IT WAS THE NORMAL PRACTICE TO PROVIDE DUTY-FREE LUNCH PERIODS TO THE GUARDS BY ASSIGNING RELIEF OFFICERS. HOWEVER, THE GUARDS WERE CONSIDERED TO BE OFFICIALLY ON DUTY AND SUBJECT TO CALL IN EMERGENCY SITUATIONS. THE GUARDS, ON THE OTHER HAND, CLAIM THAT THEY WERE NOT ALLOWED A DUTY-FREE LUNCH PERIOD. AGENCY IS REQUIRED UNDER 5 U.S.C. 6101 (1970), FORMERLY 5 U.S.C. 944(A), TO ESTABLISH A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS AND A BASIC WORKDAY OF 8 HOURS. THE GUARDS IN THE PRESENT CASE WERE ASSIGNED TO A STRAIGHT 8-HOUR TOUR OF DUTY WITHIN WHICH A 30-MINUTE LUNCH PERIOD WAS AUTHORIZED. UNDER THESE CIRCUMSTANCES, THE GOVERNMENT IS ENTITLED TO OFFSET THE LUNCH PERIOD AGAINST ANY OVERTIME CLAIMED BY THE GUARDS. SEE [REDACTED], SUPRA, [REDACTED] V. UNITED STATES, 181 CT.CL. 968 (1967); AND [REDACTED] V. UNITED STATES, 165 CT.CL. 312 (1964), CERT. DEN. 379 U.S. 890 (1964). THE FACT THAT THE GUARDS REMAINED AT THE DUTY STATION, IN DUTY STATUS, AND SUBJECT TO CALL DOES NOT MAKE THE OFFSET INAPPROPRIATE. SEE B-179412, FEBRUARY 28, 1974, AND CASES CITED THEREIN. INSTEAD, IT HAS BEEN HELD THAT THE ACTUAL PERFORMANCE OF SUBSTANTIAL DUTIES IS A PREREQUISITE TO EITHER ALLOWING OVERTIME FOR THE LUNCH PERIOD (WHEN ASSIGNED TO AN 8-1/2 HOUR DAY) OR TO DENY THE OFFSET OF A LUNCH PERIOD AGAINST OTHER OVERTIME. [REDACTED] V. UNITED STATES, SUPRA, AND [REDACTED] V. UNITED STATES, SUPRA. THE GUARDS IN THE PRESENT CASE HAVE NOT ALLEGED THAT THEY WERE ACTUALLY PERFORMING SUBSTANTIAL DUTIES DURING THEIR LUNCH PERIODS, AND THE ADMINISTRATIVE REPORT SUGGESTS THE OPPOSITE. THUS, BASED UPON THE RECORD BEFORE US, WE FIND THAT THE 30-MINUTE LUNCH PERIOD SHOULD BE OFFSET AGAINST THE GUARDS' CLAIMS FOR 32 MINUTES OF OVERTIME, AND THE RESULTING OVERTIME IS CLEARLY DE MINIMUS.

FINALLY, IT HAS BEEN NOTED THAT WHEN THESE GUARDS WERE TRANSFERRED EFFECTIVE JULY 1, 1966, FROM THE CONTROL OF GSA TO AEC, THE LATTER AGENCY CHOSE TO ALLOW 6 MINUTES COMPENSABLE TIME BEFORE AND AFTER EACH SHIFT FOR PRELIMINARY AND POSTLIMINARY DUTIES WHICH WERE APPARENTLY UNCHANGED FROM THE PERIOD PRIOR TO JULY 1, 1966. HOWEVER, THIS ACTION BY AEC DOES NOT ESTABLISH THAT THE PRIOR PRACTICES OF GSA WERE IMPROPER. FURTHERMORE, BY AUTHORIZING OVERTIME PAY, AEC ACQUIRED CONTROL OVER THE ACTIVITIES OF THE GUARDS DURING THESE PERIODS AND THUS COULD REQUIRE ADDITIONAL DUTIES. DO NOT FIND THAT THE ACTIONS OF AEC PROVIDE A BASIS FOR ALLOWING THE CLAIMS FOR THE PERIOD WHILE THE GUARDS WERE EMPLOYED BY GSA.

ACCORDINGLY, WE SUSTAIN THE PRIOR DENIALS OF THESE CLAIMS.

 

 

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