B-188687, MAY 10, 1978

B-188687, MAY 10, 1978

DECISION IN RAYMOND A. ALLEN, B-188687 SEPTEMBER 21, 1977, HELD THAT DUTY -FREE BREAK PERIODS REGULARLY TAKEN BY CERTAIN EMPLOYEES SHOULD BE AGGREGATED TO DETERMINE DAILY TOTAL OF BREAK-TIMES TO OFFSET AGAINST OTHERWISE COMPENSABLE OVERTIME. DURING REST BREAKS, UNLIKE LUNCH BREAKS, EMPLOYEE IS IN PAY STATUS AND MAY NOT GENERALLY ABSENT HIMSELF FROM HIS PLACE OF WORK. THUS, REST BREAKS MAY NOT BE USED AS AN OFFSET AGAINST OTHERWISE COMPENSABLE OVERTIME. DESCISION IN ALLEN DATED SEPTEMBER 21, 1977, IS THEREFORE MODIFIED TO PROHIBIT USE OF REST BREAKS FOR OFFSET PURPOSES.

RAYMOND A. ALLEN ET AL., OVERTIME FOR GENERAL SERVICES ADMINISTRATION GUARDS:

THIS ACTION CONSTITUTES A RECONSIDERATION OF OUR DECISION IN THE MATTER OF RAYMOND A. ALLEN ET AL., B-188687, SEPTEMBER 21, 1977. THAT DECISION CONSIDERED THE CLAIMS OF CERTAIN FEDERAL PROTECTIVE SERVICE EMPLOYEES FOR OVERTIME COMPENSATION FOR PRELIMINARY AND POSTLIMINARY ACTIVITIES IN ACCORDANCE WITH THE HOLDING BY THE COURT OF CLAIMS IN BAYLOR V. UNITED STATES, 198 CT.CL. 331 (1972).

THE FACTS IN THIS CASE ARE FULLY SET FORTH IN OUR PREVIOUS DECISION OF SEPTEMBER 21, 1977, CONCERNING THIS MATTER, AND NEED NOT BE REITERATED HERE EXCEPT AS NECESSARY. IN THAT DECISION WE STATED THAT DEFINITE AMOUNTS OF DUTY-FREE BREAK TIME MAY BE AGGREGATED FOR SETOFF PURPOSES. THUS, WE HELD THAT TWO 15-MINUTE BREAK PERIODS MAY BE AGGREGATED TO OFFSET EQUAL AMOUNTS OF PRE-SHIFT AND POST-SHIFT OVERTIME.

BY A LETTER DATED DECEMBER 22, 1977, MR. L.M. PELLERZI, GENERAL COUNSEL OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, REQUESTS THAT WE RECONSIDER OUR DETERMINATION THAT SUCH BREAK PERIODS MAY BE OFFSET AGAINST OTHERWISE COMPENSABLE OVERTIME. IN PARTICULAR, MR. PELLERZI DISTINGUISHES BETWEEN "REST PERIODS" AND "LUNCH PERIODS". HE CONTENDS THAT IN BAYLOR, THE COURT OF CLAIMS USED THE CONCEPT OF BREAK TIME TO REFER EXCLUSIVELY TO LUNCH PERIODS. MR. PELLERZI CONCLUDES BY REQUESTING US TO MODIFIY OUR DECISION IN ALLEN TO INCLUDE REST PERIODS IN HOURS WORKED FOR THE PURPOSE OF CALCULATING COMPENSABLE OVERTIME.

OUR RECENT DECISION IN B-190011, DECEMBER 30, 1977, CONSIDERED THE RELATIONSHIP BETWEEN REST PERIODS AND LUNCH BREAKS. IN THAT DECISION, WE STATED:

"IT IS CLEAR FROM THE FOREGOING STATUTORY AUTHORITIES AND GUIDANCE, THAT THERE ARE SIGNIFICANT DIFFERENCES BETWEEN LUNCH BREAKS AND REST PERIODS. ESSENTIALLY AN EMPLOYEE IS OFF DUTY AND IN A NONPAY STATUS DURING HIS AUTHORIZED LUNCH PERIOD AND IS FREE TO DEPART HIS PLACE OF WORK AND GENERALLY USE SUCH TIME AS HE DESIRES. ON THE OTHER HAND, AN EMPLOYEE IS IN A PAY STATUS DURING AUTHORIZED REST PERIODS AND MAY NOT GENERALLY ABSENT HIMSELF FROM HIS PLACE OF WORK DURING SUCH PERIODS."

FURTHER, 5 U.S.C. 301 VESTS DEPARTMENT HEADS WITH ADMINISTRATIVE AUTHORITY TO PRESCRIBE REGULATIONS COVERING THE CONDUCT OF HIS OR HER EMPLOYEES. WE HAVE HELD THAT SUCH AUTHORITY IS SUFFICIENTLY BROAD TO EMPOWER A DEPARTMENT HEAD IN HIS OR HER DISCRETION TO GRANT EMPLOYEES BRIEF REST PERIODS WHEN SUCH PERIODS ARE DETERMINED TO BE BENEFICIAL OR ESSENTIAL TO THE EFFICIENCY OF THE FEDERAL SERVICE. B-190011, SUPRA; B-166304, APRIL 7, 1969. OUR CASES, THEREFORE, CLEARLY RECOGNIZE THE DISTINCTION TO BE DRAWN BETWEEN REST PERIODS AND LUNCH BREAKS.

OUR PREVIOUS DECISION IN RAYMOND A. ALLEN, HELD THAT DUTY-FREE BREAK PERIODS REGULARLY TAKEN BY AN EMPLOYEE SHOULD BE AGGREGATED TO DETERMINE THE DAILY TOTAL OF BREAK TIME WHICH MAY BE SETOFF AGAINST ADDITIONAL DUTY TIME. THAT DECISION DID NOT, HOWEVER, DRAW ANY DISTINCTION BETWEEN REST BREAKS AND BREAKS FOR MEALS. IN VIEW OF THE FOREGOING DISCUSSION, OUR DECISION IN ALLEN REQUIRES CLARIFICATION. ACCORDINGLY, TO THE EXTENT THAT THE BREAK PERIODS TAKEN BY THE EMPLOYEES ARE REST PERIODS, SUCH BREAKS SHOULD NOT BE USED TO OFFSET AGAINST OTHERWISE COMPENSABLE OVERTIME. WHERE, HOWEVER, THE BREAK PERIODS TAKEN BY THE EMPLOYEES CONSTITUTE BREAKS FOR MEALS, THOSE BREAKS MAY BE USED FOR SETOFF PURPOSES. OUR PREVIOUS DECISION CONCERNING THIS MATTER IS MODIFIED ACCORDINGLY.