B-176924, DEC 15, 1972

B-176924, DEC 15, 1972

CIVILIAN PERSONNEL - WAGE BOARD OVERTIME COMPENSATION STANDBY DUTY AT EMPLOYEE'S RESIDENCE DECISION SUSTAINING THE PRIOR DENIAL OF THE CLAIM OF RALPH E. CONWAY FOR ADDITIONAL OVERTIME COMPENSATION ALLEGED TO BE DUE FOR STANDBY DUTY PERFORMED AT HIS RESIDENCE AS A CIVILIAN EMPLOYEE OF THE U.S. CORPS OF ENGINEERS. A WAGE BOARD EMPLOYEE IS NOT ENTITLED UNDER 5 U.S.C. 5544(A) TO OVERTIME COMPENSATION FOR TIME SPENT IN A STANDBY STATUS IN HIS OWN RESIDENCE, WHERE HE HAS NO DUTIES OTHER THAN TO BE AVAILABLE. CF. ARMOUR & CO. V. WANTOCK, 323 U.S. 126, 133 (1944).

TO MR. RALPH E. CONWAY:

THIS REFERS TO YOUR LETTER DATED AUGUST 14, 1972, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING YOUR CLAIM FOR ADDITIONAL OVERTIME COMPENSATION ALLEGED TO BE DUE FOR STANDBY DUTY AT YOUR RESIDENCE AS A CIVILIAN EMPLOYEE OF THE UNITED STATES CORPS OF ENGINEERS. YOUR RESIDENCE WAS PROVIDED BY THE GOVERNMENT PURSUANT TO THE PROVISIONS OF 5 U.S.C. 5911, AND LOCATED 2 OR 3 MINUTES WALKING DISTANCE FROM YOUR PLACE OF DUTY.

THE RECORD SHOWS THAT YOU ARE A WAGE BOARD EMPLOYEE SERVING IN THE CAPACITY OF LOCKMASTER AT LOCK NO. 8 ON THE KENTUCKY RIVER, AND THAT YOU WORK A REGULAR 40-HOUR WEEK. IN ADDITION THERETO, SINCE THE LOCK IS TO BE OPERATIVE 24 HOURS A DAY, EITHER YOU OR ANOTHER EMPLOYEE MUST BE AVAILABLE FOR LOCKAGE BEYOND YOUR REGULARLY SCHEDULED TOURS OF DUTY. IN SUCH LIGHT YOU ARE TO BE AVAILABLE TO OPERATE THE LOCK FOR UP TO 24 HOURS PER DAY ON A ROTATING BASIS WITH THE OTHER EMPLOYEE. PURSUANT TO THE REQUIREMENT OF YOUR HAVING TO BE AVAILABLE FOR WORK ON UP TO A 24-HOUR BASIS, OCCUPANCY OF GOVERNMENT QUARTERS WITHIN SHORT WALKING DISTANCE OF THE LOCKS WAS REQUIRED. THE RECORD INDICATES THAT YOU HAVE BEEN PAID OVERTIME COMPENSATION FOR ANY WORK ACTUALLY PERFORMED IN EXCESS OF YOUR REGULAR TOUR OF DUTY. YOUR PRESENT CLAIM IS FOR ADDITIONAL COMPENSATION FOR THE TIME SPENT IN A STANDBY STATUS AT YOUR RESIDENCE.

AS STATED IN THE SETTLEMENT DATED JULY 10, 1972, DISALLOWING YOUR CLAIM, AUTHORITY FOR PAYING OVERTIME COMPENSATION TO WAGE BOARD EMPLOYEES IS FOUND IN 5 U.S.C. 5544(A) WHICH PROVIDES IN PERTINENT PART THAT -

"(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. ***"

THE BASIC REQUIREMENT ESTABLISHED FOR RECEIVING OVERTIME COMPENSATION IS THE PERFORMANCE OF OVERTIME "WORK." IN ARMOUR & CO. V. WANTOCK, 323 U.S. 126, 133 (1944), THE SUPREME COURT, IN ORDER TO DETERMINE WHAT CONSTITUTED "WORK," USED THE CRITERION OF WHETHER THE TIME IN QUESTION WAS SPENT "*** PREDOMINANTLY FOR THE EMPLOYER'S BENEFIT OR FOR THE EMPLOYEE'S ***" AND STATED THAT THIS WAS "*** DEPENDENT UPON ALL THE CIRCUMSTANCES OF THE CASE." IN RAPP V. UNITED STATES, 167 CT. CL. 852 (1964), AND MOSS V. UNITED STATES, 173 CT. CL. 1169 (1965), THE COURT OF CLAIMS CONSIDERED THE OVERTIME CLAIMS OF EMPLOYEES WHO PERFORMED STANDBY DUTY AT THEIR HOMES, OUTSIDE OF REGULAR BUSINESS HOURS AND IN EXCESS OF THE REGULAR 40-HOUR WORKWEEK. IN EACH CASE THE EMPLOYEE WAS REQUIRED TO BE WITHIN HEARING DISTANCE OF HIS HOME TELEPHONE IN ORDER TO RECEIVE CALLS AND TAKE APPROPRIATE ACTION. IN EACH OF THOSE CASES THE COURT HELD THAT WHERE AN EMPLOYEE IS ALLOWED TO STAND BY IN HIS OWN HOME WITH NO DUTIES TO PERFORM FOR HIS EMPLOYER EXCEPT TO BE AVAILABLE TO ANSWER THE TELEPHONE, THE TIME SPENT IN SUCH STANDBY CAPACITY DOES NOT AMOUNT TO "HOURS OF WORK" WITHIN THE MEANING OF 5 U.S.C. 5542, RELATING TO OVERTIME COMPENSATION FOR OTHER THAN WAGE BOARD EMPLOYEES.

WE NOTE THAT THE ABOVE CASES DID NOT INVOLVE STATUTORY WORDING SUCH AS CONTAINED IN 5 U.S.C. 5544(A). HOWEVER, WE BELIEVE SUCH WORDING WAS MERELY ADDED TO EXPRESS THE VARIOUS COURT HOLDINGS TO THE EFFECT THAT WHILE OVERTIME COMPENSATION WAS PAYABLE FOR STANDBY TIME WITHIN THE CONFINES OF AN EMPLOYEE'S OFFICIAL STATION, IT WAS NOT PAYABLE FOR EATING AND SLEEPING TIME OCCURRING DURING THE PERIOD OF SUCH STANDBY DUTY. IT IS OUR VIEW THAT THE ABOVE COURT HOLDINGS WITH RESPECT TO STANDBY AT AN EMPLOYEE'S HOME, WITH NO REQUIREMENT FOR THE PERFORMANCE OF DUTY OTHER THAN TO BE AVAILABLE, ARE FOR APPLICATION TO 5 U.S.C. 5544(A) AND THEREFORE OVERTIME COMPENSATION FOR SUCH STANDBY MAY NOT BE PAID. THE FACT THAT YOUR HOME WAS LOCATED IN CLOSE PROXIMITY TO YOUR DUTY STATION DOES NOT FORM A BASIS FOR A DIFFERENT CONCLUSION. CF. DETLING V. UNITED STATES, 193 CT. CL. 125 (1970), WHEREIN AN EMPLOYEE WAS CONFINED TO THE DREDGE ON WHICH HE WAS ASSIGNED TO DUTY.

ON THE BASIS OF THE FOREGOING THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION DENYING YOUR CLAIM IS SUSTAINED.