B-176924, SEP 20, 1976

B-176924, SEP 20, 1976

DEPARTMENT OF ARMY LOCKMASTER WAS CONFINED TO LOCK RESERVATION OF SEVERAL ACRES FOR STANDBY DUTY AND RESPONDED TO CALLS DURING HIS STANDBY DUTY. EVEN THOUGH EMPLOYEE'S RESIDENCE WAS ON RESERVATION, EMPLOYEE'S RESIDENCE WAS ON RESERVATION, EMPLOYEE'S DUTY WAS STANDBY AS CONTEMPLATED BY 5 U.S.C. 5544(A) AND IS COMPENSABLE BECAUSE HIS ACTIVITIES AND MOVEMENTS WERE EXTREMELY RESTRICTED AND HE WAS ON READY ALERT. DECISIONS OF OCTOBER 17, 1974, AND DECEMBER 15, 1972, B-176924, OVERRULED.

RALPH E. CONWAY - OVERTIME COMPENSATION FOR STANDBY DUTY:

THIS ACTION CONCERNS THE REQUEST OF MR. RALPH E. CONWAY, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR RECONSIDERATION OF OUR DECISIONS OF OCTOBER 17, 1974, AND DECEMBER 15, 1972, B-176924, WHICH DENIED HIM OVERTIME COMPENSATION FOR STANDBY DUTY.

THE RECORD SHOWS THAT MR. CONWAY CLAIMS OVERTIME COMPENSATION FOR TIME SPENT ON STANDBY STATUS INCIDENT TO HIS EMPLOYMENT AS A WAGE BOARD EMPLOYEE SERVING IN THE CAPACITY OF LOCKMASTER ON THE KENTUCKY RIVER SYSTEM. THE KENTUCKY RIVER SYSTEM CONSISTS OF A NUMBER OF LOCK AND DAM INSTALLATIONS LOCATED AT VARIOUS POINTS ALONG THE KNETUCKY RIVER. EACH INSTALLATION IS LOCATED ON A FEDERAL RESERVATION WHICH IS GENERALLY SEVERAL ACRES IN SIZE AND CONSISTS OF, IN ADDITION TO THE LOCK AND DAM, TWO RESIDENCES FOR LOCK PERSONNEL, ADDITIONAL BUILDINGS, AND AREAS SET ASIDE FOR PUBLIC USE. EACH INSTALLATION IS USUALLY STAFFED BY TWO MEN, A LOCKMASTER AND A LOCK OPERATOR, BOTH OF WHOM ARE REQUIRED TO LIVE IN THE RESIDENCES AS A CONDITION OF EMPLOYMENT AND WHO ARE RESPONSIBLE FOR MAINTENANCE, UPKEEP, AND CARE OF THE ENTIRE RESERVATION. THE TWO MEN EACH HAVE A REGULAR 40-HOUR WORKWEEK. HOWEVER, SINCE THE LOCKS ARE OPERATIVE 24 HOURS PER DAY, ONE MAN ALWAYS HAS TO BE AVAILABLE FOR LOCKAGE BEYOND HIS REGULARLY SCHEDULED TOUR OF DUTY.

DURING THE TIMES PERTINENT TO THE CLAIM, MR. CONWAY WORKED A REGULAR 40- HOUR WORKWEEK AND WAS REQUIRED TO BE AVAILABLE TO OPERATE THE LOCK FOR UP TO 24 HOURS PER DAY ON A ROTATING BASIS WITH THE LOCK OPERATOR AND WAS ACCORDINGLY CONFINED TO THE RESERVATION FOR SUCH PERIODS OF TIME.

THE APPLICABLE STATUTORY PROVISION REGARDING PAYMENT OF OVERTIME COMPENSATION TO WAGE BOARD EMPLOYEES WHILE IN A STANDBY STATUS DURING THE PERIOD IN QUESTION IS NOW CODIFIED IN 5 U.S.C. 5544(A), AND PROVIDES, IN PART, AS FOLLOWS:

"(A) AN EMPLOYEE WHOSE BASIC RATE OF PAY IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY A WAGE BOARD OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE IS ENTITLED TO OVERTIME PAY FOR OVERTIME WORK IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK. HOWEVER, AN EMPLOYEE SUBJECT TO THIS SUBSECTION WHO REGULARLY 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 IS ENTITLED TO OVERTIME PAY ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF 40 A WEEK.* * *"

IN OUR DECISION OF OCTOBER 17, 1974, SUPRA, WE STATED THE FOLLOWING IN AFFIRMING THE DISALLOWANCE OF MR. CONWAY'S CLAIM:

"WE CAN FIND NO INDICATION FROM THE LANGUAGE OR THE LEGISLATIVE HISTORY TO 5 U.S.C. 5544(A) THAT CONGRESS INTENDED TO COVER THE SITUATION WHERE A WAGE BOARD EMPLOYEE LIVES WITH HIS FAMILY IN GOVERNMENT FURNISHED HOUSING AT HIS DUTY STATION AND IS REQUIRED TO BE AVAILABLE OUTSIDE HIS REGULAR DUTY HOURS IN THE EVENT HIS SERVICES ARE NEEDED, BUT CAN SPEND THAT 'STANDBY' TIME IN HIS RESIDENCE WITH HIS FAMILY. NOR ARE WE AWARE OF ANY COURT DECISION INVOLVING CLAIMS FOR COMPENSATION FOR STANDBY DUTY PERFORMED BY WAGE BOARD EMPLOYEES WHOSE HOMES ARE LOCATED AT THEIR DUTY STATIONS."

WE DISTINGUISHED MR. CONWAY'S SITUATION FROM THAT IN DETLING V. UNITED STATES, 193 CT.CL. 125 (1970), IN WHICH THE PETITIONER'S STANDBY ON A DREDGE WAS FOUND TO BE COMPENSABLE, BECAUSE IN DETLING THE PETITIONER WAS CONFINED TO A DREDGE ON WHICH HE HAD A ROOM WHICH WAS NOT HIS USUAL RESIDENCE, WHEREAS MR. CONWAY SPENT HIS STANDBY TIME WITH HIS FAMILY AT HIS RESIDENCE ON THE LOCK RESERVATION.

HOWEVER, IN OUR DECISION OF OCTOBER 17, 1974, SUPRA, WHICH DENIED MR. CONWAY'S CLAIM, WE ALSO OBSERVED THAT THE COURT OF CLAIMS WAS THEN CONSIDERING THE CASE OF HUGH J. HYDE V. UNITED STATES, ET AL., CT.CL. NO. 322-73 (HEREINAFTER CITED AS HYDE) IN WHICH A WAGE BOARD EMPLOYEE OF THE DEPARTMENT OF THE NAVY WAS SEEKING OVERTIME COMPENSATION FOR STANDBY DUTY PERFORMED UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN MR. CONWAY'S CASE. ACCORDINGLY, WE STATED THAT SHOULD THE COURT IN THAT CASE REACH A DECISION FAVORABLE TO THE PETITIONER, WE WOULD, UPON REQUEST, REEXAMINE OUR DECISION WITH RESPECT TO MR. CONWAY.

ON APRIL 16, 1976, THE COURT OF CLAIMS ISSUED ITS DECISION IN HYDE FAVORABLE TO THE PETITIONER THEREIN. MR. CONWAY HAS, THEREFORE, REQUESTED RECONSIDERATION OF OUR DECISIONS OF OCTOBER 17, 1974, AND DECEMBER 15, 1972.

IN HYDE, THE COURT FOUND THAT, SINCE THE EMPLOYEE WAS CONFINED TO A 10- ACRE FENCED-IN AREA WITHIN THE STATION AT WHICH HE WORKED AND FROM WHICH HE COULD NOT LEAVE WHILE HE WAS ON STANDBY STATUS, SUCH CONFINEMENT WAS IN FACT STANDBY DUTY WITHIN THE MEANING OF 5 U.S.C. 5544(A) EVEN THOUGH THE EMPLOYEE'S RESIDENCE AND FAMILY WERE LOCATED WITHIN THE 10-ACRE AREA. OUR LATEST DECISION INVOLVING HUGH J. HYDE, B-176934, JULY 26, 1976, 55 COMP.GEN. . . ., WE FOLLOWED THE COURT OF CLAIMS APPROACH IN HYDE AND OVERRULED OUR DECISION 52 COMP.GEN. 587 (1973) WHICH DENIED MR. HYDE'S CLAIM FOR OVERTIME COMPENSATION WHILE IN STANDBY STATUS. THE OVERRULED DECISION, 52 COMP.GEN. 587, HAD RELIED ON OUR DECEMBER 15, 1972 DECISION INVOLVING MR. CONWAY IN WHICH WE HELD THAT AN EMPLOYEE WAS NOT ENTITLED TO OVERTIME COMPENSATION FOR STANDBY DUTY PERFORMED AT HIS RESIDENCE, NOTWITHSTANDING THAT HE RESIDED IN GOVERNMENT QUARTERS WHICH HE WAS REQUIRED TO OCCUPY AS A CONDITION OF HIS EMPLOYMENT.

IT IS NOW QUITE EVIDENT THAT THE MERE FACT AN EMPLOYEE HAS HIS RESIDENCE WITHIN THE CONFINES OF HIS POST OF DUTY OR STATION AT WHICH HE PERFORMS STANDBY DUTY, DOES NOT PRECLUDE THE PAYMENT OF COMPENSATION FOR SUCH STANDBY DUTY, UNDER SECTION 5544(A), SUPRA. SEE HYDE AND 55 COMP.GEN. . . . , SUPRA. SINCE MR. CONWAY WAS CONFINED TO THE LOCK RESERVATION, DURING HIS STANDBY DUTY, THE ONLY QUESTION REMAINING IS WHETHER SUCH STANDBY DUTY MEETS THE DEFINITION OF HOURS OF DUTY UNDER SECTION 5544(A), SUPRA.

THE COURT IN HYDE HELD THAT WHETHER STANDBY DUTY WAS PREDOMINANTLY FOR THE BENEFIT OF THE EMPLOYER AND WAS THUS COMPENSABLE HOURS OF DUTY COULD BE DETERMINED, IN PART, BY THE DEGREE TO WHICH THE EMPLOYEE'S ACTIVITIES WERE RESTRICTED. THE COURT FOUND THAT:

"THE FACT REMAINS THAT IN THE INSTANT CASE, THE ONLY FREEDOM AVAILABLE TO PLAINTIFF WAS TO RETURN TO HIS FAMILY; HE COULD NOT SHOP, VISIT NEARBY RELATIVES, OR ENJOY ANY RECREATIONAL ACTIVITIES, ALL OF WHICH WERE LOCATED OFF THE BASE * * *. THUS ALTHOUGH PLAINTIFF COULD ENGAGE IN ANY ACTIVITY HE DESIRED WHEN NOT ACTUALLY WORKING. IN FACT THERE WERE VIRTUALLY NO ACTIVITIES FOR HIM TO ENGAGE IN." PP. 17-18 OF TRIAL JUDGE'S OPINION.

IT WAS ALSO FOUND THAT SINCE DUTY SECURITY OFFICERS (DSO) IN HYDE RESPONDED 40-50 TIMES A YEAR TO EMERGENCIES, THE POSSIBILITY OF AN EMERGENCY WAS SUFFICIENTLY GREAT THAT THE DSOS WERE NEVER ABLE TO RELAX COMPLETELY. THUS, THE COURT FOUND THAT SINCE PETITIONER WAS SUBSTANTIALLY LIMITED IN HIS MOVEMENTS, WAS SIGNIFICANTLY RESTRICTED IN HIS ACTIVITIES, AND WAS IN A STATE OF READY ALERT TO RESPOND TO AN EMERGENCY DURING HIS STANDBY STATUS, SUCH STANDBY WAS COMPENSABLE HOURS OF DUTY.

IN THE INSTANT CASE MR. CONWAY WAS REQUIRED TO USE GOVERNMENT HOUSING ON THE LOCK RESERVATION SINCE A DETERMINATION WAS MADE BY THE ARMY THAT THE FOLLOWING CIRCUMSTANCES PREVAILED IN HIS WORK SITUATION:

1. WHERE LOCKING SERVICE MAY BE NEEDED ON A 24-HOUR BASIS, BUT THE VOLUME OF TRAFFIC DOES NOT WARRANT STAFFING ON A 24-HOUR BASIS.

2. WHERE UNPREDICTABLE NEEDS, SUCH AS NECESSITY TO OPERATE FLOODGATES OR MAKE REPORTS IN RESPONSE TO WEATHER CONDITIONS, REQUIRES THAT A RESPONSIBLE EMPLOYEE BE AT THE WORKSITE AT ALL TIMES.

3. WHERE, DUE TO THE ISOLATED NATURE OF THE PROJECT, THERE IS NEED FOR PROTECTION OF THE ACTIVITY AGAINST SUDDEN RISES IN THE RIVER, AND PROTECTION AGAINST PILFERAGE, FIRE, AND UNAUTHORIZED USE.

THE RECORD SHOWS THAT WHILE MR. CONWAY WAS ON STANDBY DUTY, HE COULD NOT LEAVE THE CONFINES OF THE LOCK RESERVATION AND, AS IN HYDE, THERE WERE NO SUBSTANTIAL ACTIVITIES IN WHICH HE COULD ENGAGE OTHER THAN BEING WITH HIS FAMILY AND VISITING THE ONLY OTHER LOCKKEEPER ON THE RESERVATION. ASCERTAIN THE EXTENT OF THE OVERTIME DUTIES PERFORMED BY MR. CONWAY WHILE ON STANDBY DUTY WE REQUESTED INFORMATION AS TO THE NUMBER OF TIMES HE WAS CALLED OUT WHILE ON STANDBY DUTY DURING TWO REPRESENTATIVE PERIODS OF HIS CLAIM. WE HAVE BEEN ADVISED BY AN OFFICIAL OF THE CORPS OF ENGINEERS THAT FOR THE PERIOD JANUARY 1966 THROUGH JUNE 1967, DURING WHICH TIME MR. CONWAY WAS AT LOCK 2, HE WAS CALLED OUT 325 TIMES FOR A TOTAL OF 588-1/2 HOURS OF OVERTIME. FOR THE PERIOD JANUARY 1970 THROUGH JUNE 1971, DURING WHICH TIME MR. CONWAY WAS AT LOCK 8, HE WAS CALLED OUT 92 TIMES FOR 109- /12 HOURS OF OVERTIME. APPARENTLY, OVERTIME DUTY PERFORMED AFTER REGULAR DUTY HOURS WAS NOT SOLELY FOR THE PURPOSE OF MAKING LOCKAGES. HIGH WATER PROBLEMS, THE NEED TO CHECK INSTRUMENTS, AND OTHER EMERGENCIES ALSO REQUIRED THE PERFORMANCE OF OVERTIME DUTY.

FOLLOWING THE STANDARDS SET BY THE COURT OF CLAIMS IN HYDE AND OUR SUBSEQUENT DECISION INVOLVING MR. HYDE, WE FIND THAT SINCE MR. CONWAY WAS SUBSTANTIALLY LIMITED IN HIS MOVEMENTS, WAS SIGNIFICANTLY RESTRICTED IN HIS ACTIVITIES, AND WAS IN A STATE OF READY ALERT TO RESPOND TO CALLS AFTER REGULAR DUTY HOURS, HIS STANDBY DUTY QUALIFIES AS HOURS OF DUTY UNDER THE MEANING OF SECTION 5544(A).

ACCORDINGLY, MR. CONWAY IS ENTITLFD TO OVERTIME COMPENSATION FOR STANDBY DUTY WHICH WAS UNCOMPENSATED IN THE PAST TO THE EXTENT OTHERWISE PROPER. CLAIMS OF OTHER LOCKMASTERS AND LOCK OPERATORS FOR PERFORMANCE OF SIMILAR DUTIES IN THE KENTUCKY RIVER SYSTEM ARE LIKEWISE FOR ALLOWANCE. OUR CLAIMS DIVISION HAS BEEN INSTRUCTED TO DETERMINE AND PAY THE OVERTIME COMPENSATION DUE MR. CONWAY AND THE OTHER PETITIONERS. DECISIONS B-176924, OCTOBER 17, 1974, AND DECEMBER 15, 1972, ARE OVERRULED.