B-153307, FEB. 2, 1965

B-153307, FEB. 2, 1965

TO MR. G. V. ZANICOPOULOS, U.S. NAVAL ORDNANCE LABORATORY:

WE REFER TO YOUR LETTER OF DECEMBER 16, 1964, YOUR REFERENCE DM 6:MRW, CONCERNING THE CLAIMS OF CERTAIN CIVILIAN GUARD EMPLOYEES OF THE U.S. NAVAL ORDNANCE LABORATORY, WHITE OAK, SILVER SPRING, MARYLAND, FOR ADDITIONAL OVERTIME COMPENSATION INCIDENT TO THE REQUIREMENT OF THE INSTALLATION THAT THEY REPORT 30 MINUTES BEFORE THE BEGINNING OF THEIR SHIFTS.

IN OUR DECISION OF MARCH 11, 1964, B-153307, THE FORMER DISBURSING OFFICER OF THE NAVAL ORDNANCE LABORATORY WAS AUTHORIZED TO PAY ADDITIONAL OVERTIME COMPENSATION TO CIVILIAN GUARDS AT THAT INSTALLATION FOR THE PERIOD JANUARY 1, 1961, TO APRIL 15, 1963, BECAUSE IT WAS SHOWN THAT WRITTEN ORDERS HAD BEEN ISSUED REQUIRING THE GUARDS TO REPORT 30 MINUTES EARLY DURING THAT PERIOD. WE DID NOT AUTHORIZE PAYMENT OF SUCH OVERTIME COMPENSATION TO GUARDS EMPLOYED ON THE SECOND SHIFT (6:30 A.M. TO 3 P.M.) FOR WEEKDAYS (MONDAY THROUGH FRIDAY, HOLIDAYS EXCLUDED) BECAUSE EVIDENCE HAD BEEN PRESENTED THAT THE GUARDS ASSIGNED TO THAT SHIFT WERE NORMALLY ALLOWED A LUNCH BREAK FREE FROM DUTY ON WEEKDAYS.

THE SECOND SHIFT GUARDS HAVE NOW SUBMITTED CLAIMS TO YOU FOR OVERTIME COMPENSATION FOR THE WEEKDAYS THEY WORKED AS WELL AS FOR THE WEEKEND DAYS AND HOLIDAYS THEY WORKED. THROUGH THEIR ATTORNEY THEY SAY THAT THEY WERE NOT "OFFICIALLY RELIEVED FROM DUTY FOR ANY SCHEDULED OR UNINTERRUPTED LUNCH PERIOD" AND THAT THEY "ALWAYS ATE WHILE ON CALL AND ON DUTY.' YOU HAVE ENCLOSED OTHER STATEMENTS WITH YOUR LETTER TO THE EFFECT THAT SECOND SHIFT GUARDS WERE RELIEVED FOR LUNCH WHEN IT WAS POSSIBLE BUT THAT PERSONNEL TO PROVIDE RELIEFS WERE NOT ALWAYS AVAILABLE, AND, THAT WHEN RELIEF WAS FURNISHED THE GUARDS EXCUSED WERE SUBJECT TO CALL BACK TO DUTY. THE CLAIMANTS BELIEVE THAT THEY SHOULD BE PAID FOR ALL WORKDAYS ON THE BASIS OF THE EVIDENCE PRESENTED TO THE SAME EXTENT AS FIRST AND THIRD SHIFT GUARDS HAVE BEEN PAID UNDER OUR DECISION OF MARCH 11, 1964. YOU DO NOT FEEL THAT PAYMENT OF THE CLAIMS WOULD BE PROPER IN VIEW OF THE CIRCUMSTANCES BUT ASK THAT WE REVIEW THE MATERIAL PRESENTED AND ADVISE YOU OF THE PROPER COURSE OF ACTION.

THE COURT OF CLAIMS HAS DISCUSSED THE LIABILITY OF THE UNITED STATES IN CASES INVOLVING THE EARLY REPORTING OF SECURITY GUARDS IN ALBRIGHT V. UNITED STATES, CT.CL. NO. 263-61, DECIDED APRIL 5, 1963, AND IN BANTOM V. UNITED STATES, CT.CL. NO. 481-61, DECIDED MARCH 13, 1964. IN THE ALBRIGHT CASE THE COURT HELD THAT A LUNCH BREAK COULD NOT BE CONSIDERED AS OUTSIDE A GUARD'S WORKING HOURS WHEN HE WAS NORMALLY REQUIRED TO EAT HIS LUNCH WHILE MAINTAINING SURVEILLANCE AT HIS DUTY POST. IN THE BANTOM CASE THE COURT HELD THAT A GUARD'S LUNCH PERIOD WAS NOT COMPENSABLE MERELY BECAUSE HE WAS ON CALL DURING SUCH PERIOD AND THAT OVERTIME COMPENSATION COULD BE PAID ONLY IF "SUBSTANTIAL OFFICIAL DUTIES WERE PERFORMED DURING THAT PERIOD.'

OUR ORIGINAL DECISION WHEREIN OVERTIME COMPENSATION WAS DENIED TO GUARDS ON THE SECOND SHIFT AT THE U.S. NAVAL ORDNANCE LABORATORY, WHITE OAK, EXCEPT FOR SATURDAYS, SUNDAYS AND HOLIDAYS WAS PREDICATED FOR THE MOST PART ON A STATEMENT FROM ONE OF THE OFFICER GUARDS TO THE EFFECT THAT THE GUARDS ON THAT SHIFT WERE GIVEN LUNCH BREAKS EACH WEEKDAY. (ON THAT BASIS THE TIME FOR LUNCH WAS DEEMED AS AN OFFSET AGAINST THE TIME FOR EARLY REPORTING.) THAT SAME OFFICER GUARD HAS NOW SUBMITTED A SECOND STATEMENT WHEREIN HE INDICATES HIS FIRST STATEMENT MAY HAVE BEEN MISUNDERSTOOD AND THAT DURING THE MAJORITY OF THE TIME NO RELIEF FOR LUNCH COULD BE MADE WHICH MEANT THAT THE GUARDS HAD TO EAT ON DUTY AS BEST THEY COULD. THIS SECOND STATEMENT IS CORROBORATED BY ANOTHER OFFICER GUARD. HOWEVER, ASIDE FROM THE GENERALITY OF SUCH STATEMENTS, WE NOTE THAT BOTH SUCH GUARDS ARE AMONG THE PRESENT CLAIMANTS WHICH REFLECTS THAT THEIR STATEMENTS ARE TO SOME EXTENT SELF SERVING. MOREOVER, THERE IS NO INDICATION THAT THE PROPER ADMINISTRATIVE OFFICIALS HAVE CONCEDED THAT THE GROUP HERE INVOLVED WERE NOT GIVEN TIME OFF FOR LUNCH. UNDER THE CIRCUMSTANCES, WE CANNOT REGARD THE ADDITIONAL EVIDENCE AS SUFFICIENT TO ESTABLISH THAT ALL OF THE GUARDS OF THIS GROUP WERE NOT GIVEN TIME OFF FOR LUNCH (EXCEPT FOR RARE OCCASIONS) DURING THE PERIOD INVOLVED. THEREFORE, ON THE PRESENT RECORD, THE CLAIMS MAY NOT BE ALLOWED.