B-163016, MAR. 27, 1968

B-163016: Mar 27, 1968

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MAYS' CLAIM WAS DISALLOWED ON THE GROUND THAT ANY REPORTING FOR ROLL CALL PRIOR TO DUTY HOURS BY CORRECTIONAL OFFICERS WAS VOLUNTARY AND OVERTIME WAS NOT AUTHORIZED OR APPROVED BY PROPER ADMINISTRATIVE OFFICIALS AS REQUIRED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THE RECORD SHOWS THAT POST ORDERS ARE MERELY A STATEMENT OF DUTIES FOR EACH WORK ASSIGNMENT. THEY ARE WRITTEN BY THE CORRECTIONAL SUPERVISORS AND INITIALED BY THE CHIEF CORRECTIONAL SUPERVISOR. CORRECTIONAL OFFICERS ARE ASKED TO IDENTIFY AND SUBMIT CHANGES WHICH OCCURRED IN THE WORK OF POSTS. THE POST ORDERS ARE REVIEWED AND UPDATED ANNUALLY. ADMINISTRATIVELY WAS DETERMINED AS BEING AN INVALID ORDER AND WAS RESCINDED BY DIRECTIVE OF OCTOBER 15.

B-163016, MAR. 27, 1968

TO MR. JOHN F. GRINER,:

YOUR LETTER OF NOVEMBER 22, 1967, REFERENCE 4H/L-2052, WITH ENCLOSURES, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF APRIL 5, 1967, WHICH DISALLOWED THE CLAIM OF MR. WATSON M. MAYS FOR OVERTIME COMPENSATION ALLEGED TO BE DUE FOR REPORTING EARLY FOR ROLL CALL AS A CUSTODIAL OFFICER AT THE FEDERAL REFORMATORY, PETERSBURG, VIRGINIA. ALSO, YOU ENCLOSED A SIMILAR CLAIM FROM MR. LAWRENCE T. HANCOCK.

MR. MAYS' CLAIM WAS DISALLOWED ON THE GROUND THAT ANY REPORTING FOR ROLL CALL PRIOR TO DUTY HOURS BY CORRECTIONAL OFFICERS WAS VOLUNTARY AND OVERTIME WAS NOT AUTHORIZED OR APPROVED BY PROPER ADMINISTRATIVE OFFICIALS AS REQUIRED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, AS AMENDED, 5 U.S.C. 911 (NOW 5 U.S.C. 5542).

WE ADVISED YOU BY LETTER OF DECEMBER 21, 1967, B-163016, THAT BEFORE REPLYING TO YOUR LETTER WE FOUND IT NECESSARY TO REQUEST AN ADDITIONAL REPORT FROM THE BUREAU OF PRISONS. THAT REPORT HAS NOW BEEN RECEIVED. YOUR LETTER MENTIONS QUOTATIONS FROM TWO POST ORDERS OF THE APPROXIMATELY 73 CORRECTIONAL POSTS AT THE PETERSBURG INSTITUTION. THE RECORD SHOWS THAT POST ORDERS ARE MERELY A STATEMENT OF DUTIES FOR EACH WORK ASSIGNMENT. THEY ARE WRITTEN BY THE CORRECTIONAL SUPERVISORS AND INITIALED BY THE CHIEF CORRECTIONAL SUPERVISOR. CORRECTIONAL OFFICERS ARE ASKED TO IDENTIFY AND SUBMIT CHANGES WHICH OCCURRED IN THE WORK OF POSTS. THE POST ORDERS ARE REVIEWED AND UPDATED ANNUALLY. IN THAT REGARD, THE PETERSBURG DEPARTMENTAL DIRECTIVE NO. 25, DATED SEPTEMBER 8, 1961, ADMINISTRATIVELY WAS DETERMINED AS BEING AN INVALID ORDER AND WAS RESCINDED BY DIRECTIVE OF OCTOBER 15, 1962. THE AGENCY INFORMS US THAT THE CHIEF CORRECTIONAL SUPERVISOR WHO ISSUED THE SEPTEMBER ORDER WAS ACTING BEYOND HIS AUTHORITY. WE HAVE BEEN INFORMALLY ADVISED THAT NONE OF THE CURRENT POST ORDERS REQUIRE GUARDS TO REPORT PRIOR TO THE BEGINNING OF THEIR SHIFT FOR ROLL CALL.

THE AUTHORITY FOR AUTHORIZING OVERTIME OF ALL EMPLOYEES OF THE FEDERAL PRISON SYSTEM IS CONTAINED IN PARAGRAPH 6 OF THE BUREAU OF PRISONS MANUAL BULLETIN, PART 4 - BUSINESS ADMINISTRATION, SECTION 5 - MISCELLANEOUS, CHAPTER XII - OVERTIME REGULATIONS, WHICH PROVIDES AS FOLLOWS:

"WRITTEN AUTHORIZATION AND APPROVAL

"/A) STANDARD FORM PRESCRIBED - PERSONNEL FORM NO. 6, -OVERTIME AUTHORIZATION-, SHALL BE USED IN ALL CASES WHEN AUTHORIZING OVERTIME. THE FORM SHALL BE PREPARED IN ORIGINAL ONLY. IT SHALL BE COMPLETED AS REQUIRED AND FORWARDED TO THE PAYROLL OFFICE FOR VERIFYING TIME AND ATTENDANCE REPORTS AND FILING IN THE PAYROLL FOLDER. AUTHORIZATIONS COVERING COMPENSATORY TIME REQUESTED SHALL BE FILED IN THE REGULAR PAYROLL FOLDER.

"/B) DELEGATIONS TO AUTHORIZE - THE WARDEN MAY DELEGATE AUTHORITY TO POSITIONS SUCH AS CAPTAIN, LIEUTENANT, CHIEF OF MECHANICAL SERVICE, ETC., TO ORDER AND AUTHORIZE OVERTIME. SUCH DELEGATION SHALL BE IN WRITING AND SHALL INCLUDE SUCH LIMITATIONS AS TO EMPLOYEES AND PURPOSES AS COVERED BY THIS CHAPTER. A COPY OF EACH DELEGATION SHALL BE ON FILE WITH THE PAYROLL CLERK.

"/C) FINAL APPROVAL - FINAL APPROVAL IN EVERY INSTANCE SHALL BE BY THE WARDEN, BEFORE PROCESSING FOR VOUCHER PREPARATION.

"/D) EXCEPTION - IT IS NOT CONSIDERED PRACTICABLE ON ALL OCCASIONS TO ORDER OVERTIME IN WRITING IN ADVANCE INASMUCH AS THE PURPOSES FOR OVERTIME ARE TO MEET EMERGENCIES. ALSO WHERE LARGE GROUPS OF EMPLOYEES ARE ORDERED TO PERFORM OVERTIME, THE STANDARD FORM PRESCRIBED HAS PROVISION ON THE REVERSE SIDE FOR THE OFFICIAL ORDERING OF EMPLOYEES TO WORK TO INSERT THEIR NAMES, PERIODS COVERED, INITIALS BY THE EMPLOYEE AND SUBMISSION FOR THE ENTIRE GROUP AFTER WRITTEN APPORVAL (APPROVAL) (SIC) BY THE WARDEN. IT IS EXPECTED THAT TO SUCH EXTENT AS PRACTICABLE ADVANCE APPROVAL BY THE HEAD OF THE INSTITUTION WILL BE SECURED CONCERNING THIS METHOD OF MEETING EMERGENCIES.'

WE HAVE BEEN ADVISED BY THE DIRECTOR, BUREAU OF PRISONS, THAT NO AUTHORITY HAS BEEN DELEGATED TO THE FIELD TO ORDER OVERTIME ON A CONTINUING OR RECURRING BASIS. THE CHIEF CORRECTIONAL SUPERVISOR HAS AUTHORITY TO ORDER EMERGENCY OVERTIME SUBJECT TO THE APPROVAL OF THE WARDEN; BUT NEITHER HAS EVER BEEN AUTHORIZED TO ORDER ROUTINE DAILY OVERTIME. THE DIRECTOR SAYS THAT ANY INSTRUCTIONS THEY MIGHT ISSUE TO THAT EFFECT WOULD BE INVALID. THAT IT WAS NOT CONSIDERED MANDATORY FOR EMPLOYEES TO STAND ROLL CALL IS SUPPORTED BY THE AGENCY STATEMENT THAT FAILURE TO MEET ROLL CALL WAS NOT RECORDED EITHER IN TIME AND ATTENDANCE RECORDS OR IN DUTY ROSTERS. THE DIRECTOR INFORMS US THAT EMPLOYEES MAY, AND FREQUENTLY DO, REPORT TO THE SUPERVISOR'S OFFICE ADJACENT TO THE FRONT ENTRANCE TO HAVE THEIR PRESENCE CHECKED AND THEN PROCEED DIRECTLY TO THEIR POSTS.

IN THE CASE OF BOWLING V UNITED STATES, CT. CL. NO. 25-64, DECIDED DECEMBER 15, 1967, THE PLAINTIFFS (GUARDS) WERE CLAIMING 20 MINUTES OVERTIME COMPENSATION PER DAY FOR REPORTING EARLY, THE COURT SAID:

"PLAINTIFFS RELY ON THE OFFICE MEMORANDUM ISSUED BY CHIEF MCPHERSON IN 1957 AND WHICH WAS POSTED ON THE BULLETIN BOARD IN THE STATION HOUSE FOR 30 DAYS AS CONSTITUTING A WRITTEN ORDER IMPOSING DUTIES ON THEM WHICH, IN ORDER TO PERFORM IN APPROPRIATE MANNER, NECESSITATED THEIR REPORTING TO WORK 20 MINUTES BEFORE THEIR REGULAR 8-HOUR SHIFTS. HOWEVER, PLAINTIFFS HAVE FAILED TO SHOW (AND INDEED MADE NO ATTEMPT TO PROVE) THAT CHIEF MCPHERSON WAS AN OFFICIAL WHO WAS AUTHORIZED, BY THE DEPARTMENT OF THE NAVY OR THE APPROPRIATE OFFICIALS IN CHARGE OF THE MARE ISLAND NAVAL SHIPYARD, TO ISSUE ORDERS CONCERNING WORK HOURS AND TO COMMIT DEFENDANT TO THE PAYMENT OF OVERTIME COMPENSATION BY LENGTHENING THE WORK HOURS. APPROPRIATE ACTION BY AN OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME IS A CONDITION TO RECOVERY IN THIS TYPE OF CASE, FOR OBVIOUSLY NOT EVERY DEPARTMENTAL OFFICIAL IS EMPOWERED TO SO CHANGE THE WORK HOURS OF EMPLOYEES AS TO COMPEL THE PAYMENT OF OVERTIME, OR OTHERWISE TO APPROVE OVERTIME. BILELLO, ET AL. V UNITED STATES, 174 CT. CL. 1253 (1966); BANTOM, ET. AL. V UNITED STATES, 165 CT. CL. 312 1964); CERT. DENIED, 379 U.S. 890; TABBUTT, ET AL. V UNITED STATES, 121 CT. CL. 495 (1952). * * " THE COURT GOES ON TO SAY THAT:

"THUS, THE MERE FACT THAT PLAINTIFFS MIGHT HAVE WORKED OVERTIME DURING THE PERIOD HEREIN INVOLVED IS NOT DETERMINATIVE OF THEIR RIGHT TO RECEIVE COMPENSATION THEREFOR. -* * * THE COURT HAS NOT GIVEN JUDGMENT UNDER THIS TYPE OF OVERTIME LEGISLATION (RELATING TO FEDERAL EMPLOYEES) UNLESS THE WORK OR ACTIVITY WHICH IS THE BASIS OF THE CLAIM HAS BEEN AUTHORIZED, APPROVED, ORDERED OR CONFIRMED BY AN AUTHORITY EMPOWERED TO DO SO. -GAINES V UNITED STATES, 158 CT. CL. 497, 501 (1962), CERT. DENIED, 371 U.S. 936 (1964).'

WE FEEL THAT ON THE BASIS OF THE PRESENT RECORD IT IS APPROPRIATE TO POINT OUT THAT THE PERFORMANCE OF DUTIES WHICH DO NOT REQUIRE A SUBSTANTIAL AMOUNT OF TIME PRIOR TO THE BEGINNING OF AN EMPLOYEE'S SHIFT IS CONSIDERED DE MINIMIS AND AS SUCH WILL NOT SERVE AS A BASIS FOR PAYMENT OF OVERTIME COMPENSATION. BANTOM V UNITED STATES, 165 CT. CL. 312, 318. THE EVIDENCE PRESENTED TO US DOES NOT SHOW, WITH ANY DEGREE OF CERTAINTY, THE ACTUAL TIME OF WORK PERFORMED BY THE EMPLOYEES PRIOR TO THE BEGINNING OF THEIR SHIFTS. LIKEWISE, THERE APPEARS TO BE A CLEAR DISAGREEMENT BETWEEN THE AGENCY AND THE CLAIMANTS AS TO WHETHER EARLY REPORTING WAS REQUIRED. IN OUR VIEW, THE LACK OF CERTAINTY IN THE EVIDENCE PRESENTED IS SUCH THAT OUR OFFICE WOULD NOT BE WARRANTED IN AUTHORIZING ANY PAYMENT ON THE SUBMITTED CLAIMS. RATHER, WE MUST VIEW THE CLAIMS AS INVOLVING QUESTIONS OF LAW AND FACT WHICH CANNOT BE RESOLVED HERE. THE CLAIMANTS, THUS, ARE LEFT TO THEIR REMEDY BEFORE THE COURTS.

ON THE BASIS OF THE FOREGOING WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF THE CLAIM OF MR. WATSON M. MAYS AND DISALLOW THE CLAIM OF MR. LAWRENCE T. HANCOCK.

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