B-119634, SEPT. 17, 1968

B-119634, SEPT. 17, 1968

TO MR. WILLIAM C. COX:

WE REFER TO YOUR LETTER OF AUGUST 8, 1968, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR PAYMENT OF OVERTIME COMPENSATION FOR SERVICES PERFORMED AS A BORDER PATROL OFFICER OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.

YOUR CLAIM WAS THE SUBJECT OF OUR DECISION OF JUNE 28, 1968, B 119634. WHILE YOU HAVE PRESENTED NO NEW EVIDENCE WHICH WOULD WARRANT RECONSIDERATION OF THAT DECISION, WE, NEVERTHELESS, SHALL DISCUSS THE ISSUES RAISED IN YOUR LETTER OF AUGUST 8.

SPECIFICALLY, YOU OBJECT TO OUR EXCLUSION OF 208-1/2 HOURS FROM THE TOTAL AMOUNT OF OVERTIME RECORDED BY YOU FOR THE PERIOD OCTOBER 30, 1949, THROUGH JANUARY 17, 1953, AS CONSTITUTING PURE TRAVEL. YOU SAY THAT SUCH TRAVEL INVOLVED THE PERFORMANCE OF WORK SUCH AS CHECKING TRAFFIC, FREIGHT TRAINS, BUSSES, ETC., AND THEREFORE CONSTITUTED COMPENSABLE OVERTIME.

IN OUR CONSIDERATION OF YOUR CLAIM WE RECOGNIZED THAT CERTAIN OF THE ACTIVITIES PERFORMED BY YOU, SUCH AS THOSE DESCRIBED ABOVE, CONSTITUTED WORK WITHIN THE MEANING OF THE OVERTIME STATUTE ALTHOUGH PERFORMED WITHIN A MOVING VEHICLE. THEREFORE, WE MADE NO DEDUCTION FOR HOURS OF TRAVEL PERFORMED IN CONNECTION WITH SUCH ACTIVITIES. HOWEVER, WITH RESPECT TO THE 208-1/2 HOURS FOR WHICH NO PAYMENT WAS AUTHORIZED, WE POINT OUT THAT THE EXCLUSION THEREOF WAS BASED UPON THE FACT THAT YOUR OWN RECORDS (COPIES OF DAILY REPORT FORM I-50) FAILED TO REFLECT THAT ANY WORK WAS PERFORMED IN CONNECTION WITH SUCH TRAVEL IN RETURNING TO YOUR OFFICIAL STATION OR THAT THE TRAVEL WAS PERFORMED UNDER ARDUOUS CONDITIONS.

WE BELIEVE THAT WE HAVE MADE EVERY EFFORT TO BE FAIR AND REASONABLE IN OUR TREATMENT OF TRAVEL TIME. WE AUTHORIZED PAYMENT OF OVERTIME COMPENSATION FOR PERIODS OF TRAVEL BETWEEN SPECIFIC POINTS OR OTHERWISE WHENEVER THE EVIDENCE FURNISHED BY YOU REASONABLY INDICATED THAT YOU PERFORMED ACTUAL WORK WHILE TRAVELING BEYOND THE HOURS OF YOUR REGULAR TOUR OF DUTY. IN THE ABSENCE OF OFFICIAL RECORDS WE ACCEPTED YOUR PERSONAL RECORDS AT FACE VALUE AND CLEARLY ADOPTED A LIBERAL INTERPRETATION OF THE INFORMATION CONTAINED THEREIN. WE CAN FIND NO BASIS FOR ALTERING OUR PREVIOUS DECISION WITH RESPECT TO THE HOURS EXCLUDED AS TRAVEL TIME.

IN THE DECISION OF JUNE 28, 1968, WE AUTHORIZED PAYMENT TO YOU FOR AN ADDITIONAL 553 HOURS OF OVERTIME WORK PERFORMED DURING THE PERIOD OCTOBER 21, 1946, THROUGH OCTOBER 29, 1949, WHILE YOU WERE STATIONED AT DOUGLAS, ARIZONA. THE ADDITIONAL PAYMENT WAS BASED UPON THE AVERAGE AMOUNT OF OVERTIME WORK PERFORMED BY YOU PER WEEK (3-1/2 HOURS) AS DETERMINED FROM YOUR PERSONAL RECORDS COVERING THE PERIOD OCTOBER 30, 1949, THROUGH JANUARY 17, 1953. YOU OBJECT TO OUR APPLYING AN AVERAGE OF 3-1/2 HOURS OVERTIME PER WEEK FOR THE PERIOD OCTOBER 21, 1946, THROUGH OCTOBER 29, 1949, ON THE GROUND THAT DURING SUCH PERIOD YOU PERFORMED NO TRAVEL AND WERE GRANTED NO COMPENSATORY LEAVE.

IN OUR ORIGINAL SETTLEMENT OF YOUR CLAIM (FEBRUARY 15, 1968) NO AMOUNT WAS ALLOWED FOR THE PERIOD OCTOBER 21, 1946, THROUGH OCTOBER 29, 1949, FOR THE REASON THAT YOU FAILED TO FURNISH ANY EVIDENCE OF OVERTIME WORK PERFORMED DURING SUCH PERIOD. FOLLOWING THAT SETTLEMENT YOUR ATTORNEY SUBMITTED AFFIDAVITS FROM YOUR FELLOW EMPLOYEES STATING THAT YOU HAD PERFORMED SUBSTANTIAL AMOUNTS OF OVERTIME WORK WHILE STATIONED AT DOUGLAS, ARIZONA. WE DID NOT REGARD SUCH AFFIDAVITS AS AFFORDING A REASONABLE BASIS FOR RECONSTRUCTING THE AMOUNT OF OVERTIME WORK PERFORMED BY YOU WHILE AT DOUGLAS. HOWEVER, WE DETERMINED THAT SUCH AFFIDAVITS, WHEN CONSIDERED TOGETHER WITH YOUR PERSONAL RECORDS, COULD BE ACCEPTED TO SUPPORT A PAYMENT OF OVERTIME COMPENSATION FOR THE PERIOD IN QUESTION. THE PAYMENT, HOWEVER, WAS BASED UPON THE AVERAGE OF 3-1/2 HOURS AS DETERMINED FROM YOUR PERSONAL RECORDS COVERING THE PERIOD OCTOBER 30, 1949, THROUGH JANUARY 17, 1953, SINCE THOSE RECORDS CONSTITUTED THE ONLY ACCEPTABLE EVIDENCE OF OVERTIME WORK AVAILABLE TO OUR OFFICE.

WE SHOULD LIKE TO STRESS THAT IN THE ABSENCE OF RECORDS COVERING THE PERIOD OCTOBER 21, 1946, THROUGH OCTOBER 29, 1949, A CASE FOR DENIAL OF ALL OVERTIME COMPENSATION FOR SUCH PERIOD COULD WELL HAVE BEEN MADE. WE POINTED OUT IN OUR DECISION OF JUNE 28, 1968, ACTION BY OUR OFFICE ON A CLAIM PRESENTED FOR SETTLEMENT MUST BE PREDICATED UPON OFFICIAL RECORDS OR OTHER PERTINENT DATA FROM WHICH THE NECESSARY INFORMATION REASONABLY MAY BE RECONSTRUCTED. IN THE CIRCUMSTANCES, WE FIND NO PROPER BASIS TO EXCLUDE THE COMPENSATORY TIME OR TRAVEL TIME DEDUCTIONS IN ARRIVING AT THE OVERTIME ALLOWABLE FOR THE DUTY AT DOUGLAS, ARIZONA, A PERIOD FOR WHICH NO RECORDS HAVE BEEN FURNISHED. WE BELIEVE THAT ON THE BASIS OF THE EVIDENCE PRESENTED FOR OUR CONSIDERATION WE HAVE ACTED AS REASONABLY AS THE LAW WILL ALLOW. THEREFORE, IT IS OUR FIRM BELIEF THAT YOU HAVE BEEN PAID ALL OF THE OVERTIME COMPENSATION TO WHICH YOU ARE LEGALLY ENTITLED.