B-141846, FEB. 28, 1967

B-141846: Feb 28, 1967

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MCNALL: THIS IS IN REPLY TO YOUR LETTER OF JANUARY 12. IN YOUR LETTER YOU CONTEND THAT SUBSTITUTIONS OF THE DUTY AS A STAFF DUTY OFFICER WERE ALLOWED ONLY IF AN INDIVIDUAL WAS ON A TRIP. YOU ALSO ASSERT THAT YOU WERE NOT ENTIRELY FREE TO EAT. IT IS OUR UNDERSTANDING THAT YOU ARE REFERRING TO THE CASE OF ARMOUR AND CO. WHICH IS THE IDENTICAL CASE CITED IN OUR DECISION OF NOVEMBER 7 TO YOU IN WHICH THE COURT POINTED OUT THAT THE CRITERION FOR DETERMINING WHETHER A PARTICULAR PERIOD OF TIME CONSTITUTED WORK WAS WHETHER SUCH TIME WAS SPENT PREDOMINATELY FOR THE EMPLOYER'S BENEFIT OR FOR THE EMPLOYEES AND THAT SUCH DETERMINATION WAS DEPENDENT UPON ALL THE CIRCUMSTANCES OF THE CASE. WE DO NOT CONSIDER THAT THE SEVERAL CALLS WHICH YOU RECEIVED WHEN YOU ACTED AS DUTY OFFICER ARE SUFFICIENT TO CLEARLY ESTABLISH THAT THE PERIOD OF DUTY WAS TIME SPENT PRIMARILY FOR YOUR EMPLOYER'S BENEFIT.

B-141846, FEB. 28, 1967

TO MR. JAMES E. MCNALL:

THIS IS IN REPLY TO YOUR LETTER OF JANUARY 12, 1967, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF NOVEMBER 7, 1966, B-141846, DENYING YOUR CLAIM FOR PAYMENT OF OVERTIME COMPENSATION INCIDENT TO YOUR STANDING OVERNIGHT TELEPHONE WATCHES AT YOUR HOME AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, WESTERN CONTRACT MANAGEMENT REGION, LOS ANGELES MANAGEMENT CONTRACT DISTRICT, LOS ANGELES, CALIFORNIA.

IN YOUR LETTER YOU CONTEND THAT SUBSTITUTIONS OF THE DUTY AS A STAFF DUTY OFFICER WERE ALLOWED ONLY IF AN INDIVIDUAL WAS ON A TRIP, SICK, OR EMERGENCY LEAVE. YOU ALSO ASSERT THAT YOU WERE NOT ENTIRELY FREE TO EAT, SLEEP, AND ENTERTAIN FRIENDS AS YOU CHOSE AS YOU HAD TO REMAIN NEARBY TO HEAR PHONE CALLS, PARTICULARLY THE ONE THAT YOU RECEIVED AFTER MIDNIGHT.

ALSO YOUR LETTER REFERS TO AN INTERPRETATIVE REPORT OF A RECENT UNITED STATES SUPREME COURT RULING AS TO WHAT CONSTITUTES "WORK.' WHILE YOU DO NOT CITE THE RULING INVOLVED, IT IS OUR UNDERSTANDING THAT YOU ARE REFERRING TO THE CASE OF ARMOUR AND CO. V. WANTOCK ET AL., 323 U.S. 126, WHICH IS THE IDENTICAL CASE CITED IN OUR DECISION OF NOVEMBER 7 TO YOU IN WHICH THE COURT POINTED OUT THAT THE CRITERION FOR DETERMINING WHETHER A PARTICULAR PERIOD OF TIME CONSTITUTED WORK WAS WHETHER SUCH TIME WAS SPENT PREDOMINATELY FOR THE EMPLOYER'S BENEFIT OR FOR THE EMPLOYEES AND THAT SUCH DETERMINATION WAS DEPENDENT UPON ALL THE CIRCUMSTANCES OF THE CASE.

WE DO NOT CONSIDER THAT THE SEVERAL CALLS WHICH YOU RECEIVED WHEN YOU ACTED AS DUTY OFFICER ARE SUFFICIENT TO CLEARLY ESTABLISH THAT THE PERIOD OF DUTY WAS TIME SPENT PRIMARILY FOR YOUR EMPLOYER'S BENEFIT. COMPARE DECISION OF JANUARY 27, 1967, B-160475, COPY ATTACHED. ACCORDINGLY, IN A CLAIM OF DOUBTFUL VALIDITY, SUCH AS HERE INVOLVED, IT IS OUR PRACTICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS UNDER THE PRINCIPLES OF LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316.

ON THE BASIS OF THE FOREGOING OUR PREVIOUS DECISION SUSTAINING THE DISALLOWANCE OF YOUR CLAIM IS AFFIRMED.

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