B-159938, JAN. 18, 1967

B-159938, JAN. 18, 1967

TO MR. ROBERT H. BAILEY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1966, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 14, 1966, WHICH SUSTAINED OFFICE SETTLEMENT DATED SEPTEMBER 11, 1965, DENYING YOUR CLAIM FOR PAYMENT OF APPROXIMATELY 722 1/2 HOURS OF OVERTIME COMPENSATION ALLEGED TO BE DUE BECAUSE OF YOUR REPORTING ONE-HALF HOUR EARLY FOR WORK EACH DAY AS A CIVILIAN GUARD AT THE U.S. NAVAL AIR STATION, NORTH ISLAND, SAN DIEGO, CALIFORNIA, DURING THE PERIOD MAY 2, 1955, TO FEBRUARY 19, 1961.

WE AGAIN HAVE REVIEWED THE RECORD IN YOUR CASE, AND IT REASONABLY APPEARS THAT YOU WERE ADVISED BY YOUR IMMEDIATE SUPERVISOR, THE CHIEF GUARD, TO CLOCK-IN ONE-HALF HOUR EARLY FOR THE PURPOSE OF SECURING GOVERNMENT TRANSPORTATION TO YOUR DESIGNATED POST; THAT SUCH INSTRUCTIONS WERE KNOWN TO AND EITHER DIRECTED BY OR IMPLIEDLY APPROVED BY THE SECURITY OFFICER AND THAT YOU DID SO REPORT EARLY FOR THE PURPOSE OF OBTAINING GOVERNMENT TRANSPORTATION. ALSO, IT APPEARS THAT GOVERNMENT TRANSPORTATION WAS THE ONLY PRACTICABLY AVAILABLE MEANS OF TRANSPORTATION FROM GUARD HEADQUARTERS TO YOUR DESIGNATED POST.

ON THE OTHER HAND, THE COMMANDING OFFICER OF THE INSTALLATION, WHO APPARENTLY IS THE AUTHORITY VESTED WITH THE RESPONSIBILITY FOR ORDERING OVERTIME, CONSISTENTLY HAS TAKEN THE POSITION THAT NO OVERTIME WAS AUTHORIZED OR APPROVED IN YOUR CASE BY ANY OFFICIAL VESTED WITH PROPER AUTHORITY. IN A LETTER TO THIS OFFICE DATED JULY 15, 1964, HE STATED:

"NO INSTRUCTIONS, WRITTEN OR ORAL HAVE BEEN ISSUED BY, OR WITH THE CONSENT AND KNOWLEDGE OF RESPONSIBLE AUTHORITY, REQUIRING GUARDS TO REPORT AT A SPECIFIED TIME PRIOR TO ASSUMING POST OF DUTY.'

IN SUCH CONNECTION WE DIRECT ATTENTION TO THE REGULATIONS IN SECTION 85.3 -1 (A) AND (B) OF THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS (1954). SIMILAR REGULATORY PROVISIONS REMAINED IN EFFECT THROUGHOUT THE PERIOD OF YOUR CLAIM.

"A.ORDERED OR APPROVED.--- OVERTIME MUST BE ORDERED IN ADVANCE,OR APPROVED AFTER IT HAS BEEN PERFORMED, IN WRITING, BY COMPETENT AUTHORITY, IN ORDER TO BE CREDITABLE FOR PAY OR COMPENSATORY TIME PURPOSES. OVERTIME THAT IS NEITHER ORDERED IN ADVANCE NOR APPROVED AFTER IT IS PERFORMED BY COMPETENT AUTHORITY, IS NOT COMPENSABLE. OVERTIME MAY BE ORDERED OR APPROVED IN BLANKET FORM FOR A GROUP OR CLASS OF EMPLOYEES * * *

"B. AUTHORITY TO ORDER OR APPROVE OVERTIME.--- CHIEFS OF BUREAUS AND OFFICES, COMMANDS OF ACTIVITIES, AND MILITARY AND CIVILIAN PERSONNEL DESIGNATED BY THEM, ARE AUTHORIZED TO ORDER OR APPROVE OVERTIME. * * *"

THUS, EVEN WHEN THE EVIDENCE IS VIEWED IN ITS MOST FAVORABLE LIGHT, FROM YOUR STANDPOINT, THERE IS SUCH SUBSTANTIAL DOUBT AS TO WHETHER YOU WERE DIRECTED TO PERFORM OVERTIME WORK BY AN OFFICIAL HAVING AUTHORITY TO DO SO THAT OUR OFFICE WOULD NOT BE WARRANTED IN ALLOWING YOUR CLAIM.

PERTINENT TO THE MATTER UNDER CONSIDERATION IS THE CASE OF BILELLO, ET AL. V. UNITED STATES, CT.CL. NO. 198-63, DECIDED MARCH 18, 1966, WHEREIN THE COURT OF CLAIMS DENIED OVERTIME COMPENSATION TO CIVILIAN GUARDS WHO, FOR MORE THAN 11 YEARS, HAD BEEN VERBALLY ORDERED TO REPORT EARLY BY SUPERVISORY PERSONNEL. HOWEVER, THE REGULATIONS DID NOT GIVE SUPERVISORS AUTHORITY TO ORDER OR APPROVE OVERTIME, BUT RATHER REQUIRED THEM TO SUBMIT REQUESTS FOR OVERTIME FOR AUTHORIZATION AND APPROVAL. NONE WERE SUBMITTED, NOR DID THE GUARDS REQUEST THAT THEY BE SUBMITTED. AT ONE TIME PRIOR TO THE CLAIM PERIOD A WRITTEN ORDER REQUIRING EARLY REPORTING HAD BEEN POSTED FOR 30 DAYS. THE GUARDS WERE EVEN REPRIMANDED IF THEY FAILED TO REPORT EARLY. THE COURT HELD THAT:

"* * * A REGULATION REQUIRING APPROVAL OF OVERTIME BY A DESIGNATED OFFICIAL BEFORE IT CAN BE PAID IS BINDING ON CLAIMANTS UNLESS THE REGULATION IS UNREASONABLE OR THE OFFICIAL WHO HAS WITHHELD FORMAL WRITTEN APPROVAL HAS NEVERTHELESS ACTIVELY INDUCED AND ENCOURAGED THE OVERTIME. MERE KNOWLEDGE ON HIS PART, WITHOUT AFFIRMATIVE INDUCEMENT OR WRITTEN SANCTION, WOULD NOT SEEM TO BE SUFFICIENT. * * *"

IN YOUR CASE THE REGULATION REQUIRING AUTHORIZATION OR APPROVAL IN WRITING FROM THE COMMANDING OFFICER OR HIS DESIGNEE DOES NOT APPEAR TO BE UNREASONABLE AND WE KNOW OF NO PROPER BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

CONCERNING YOUR REFERENCE TO THE REPORT FURNISHED BY MR. LYLE BLISS, YOU ARE INFORMED THAT THE U.S. NAVAL AIR STATION FURNISHED US COPIES OF THE VARIOUS STATEMENTS MR. BLISS RECEIVED FROM THE CHIEF GUARDS AND WE HAVE GIVEN CONSIDERATION TO THEIR CONTENTS IN ARRIVING AT OUR DECISION. MOREOVER, OUR OFFICE IS NOT STAFFED SO AS TO BE ABLE TO UNDERTAKE INVESTIGATIONS OF THE MANY INDIVIDUAL REQUESTS RECEIVED FROM CLAIMANTS.