B-146380, AUG. 7, 1961

B-146380, AUG. 7, 1961

TO MR. WINSTON F. DAVIDS, SECRETARY, A.F.G.E. LODGE NO. 1940:

YOUR LETTER OF JUNE 24, 1961, REQUESTS, IN BEHALF OF YOURSELF AND OTHER MEMBERS OF LODGE NO. 1940, AND IN THE LIGHT OF STATEMENTS IN YOUR LETTER, (1) THAT WE RECONSIDER OUR CLAIMS DIVISION'S SETTLEMENT ACTIONS OF JUNE 1961, WHICH DISALLOWED YOUR JOINT CLAIM DATED OCTOBER 3, 1960, AND (2) THAT YOU BE GIVEN A FORMAL HEARING ON THESE CLAIMS BECAUSE, YOU SAY, YOU FEEL THAT THE ISSUES MAY NOT BE RESOLVED FAIRLY SHOULD WE CONSIDER "ONLY WRITTEN STATEMENTS.'

THE SETTLEMENT CERTIFICATE--- IN YOUR CASE, Z-2099401, DATED JUNE 21, 1961--- INCLUDED A SUMMARY OF THE REPORTS WHICH THE AGRICULTURAL RESEARCH SERVICE FURNISHED US. WE NOTE THE SECOND PARAGRAPH OF YOUR LETTER OF JUNE 24 SAYS YOUR IMPRESSION WAS THAT A FORMAL HEARING WOULD BE HELD BEFORE ANY DECISION IS MADE BY OUR OFFICE AND THAT, BECAUSE OF YOUR MISUNDERSTANDING OF PROCEDURE, YOUR JOINT CLAIM DID NOT "GIVE THE TRUE FACTS INVOLVED.' HENCE, YOUR LETTER IN THE PARAGRAPHS NUMBERED "ONE" TO "FOUR" ARGUES AGAINST THE STATEMENTS OF FACTS CONTAINED IN THE ADMINISTRATIVE REPORT. HOWEVER, WE MUST SAY THAT OUR RESPONSIBILITY REQUIRES THAT OUR ACTIONS BE BASED UPON THE WRITTEN RECORD AND THAT WE OBTAIN FROM THE ADMINISTRATIVE OFFICE CONCERNED ANY PAPERS IT MAY HAVE PERTAINING TO MATTERS PRESENTED TO US FOR SETTLEMENT. UNLESS WE OBTAIN FROM PROPER SOURCE THE AUTHENTICATED RECORDS AND OFFICIALLY VERIFIED FACTS IN A GIVEN CASE--- SUCH AS CONSTITUTE THE ESSENTIALS OF EVERY CLAIM--- WE COULD NOT ISSUE AN APPROPRIATE SETTLEMENT.

GENERALLY, THE BURDEN OF PROOF OF A CLAIM LIES WITH THE CLAIMANT. THE VALIDITY OF THE CLAIMS WOULD APPEAR TO DEPEND UPON WHETHER THE CLAIMANTS IN FACT KNEW OF THE CHANGE IN LUNCH PERIODS AND OF THEIR RESPONSIBILITY FOR CARE OF EQUIPMENT WHILE IN OPERATION AND WHETHER A CLAIMANT WAS NOT ALLOWED TIME FOR LUNCH, OR WAS REQUIRED TO WORK DURING HIS ASSIGNED LUNCH PERIOD BUT HAS NOT BEEN PAID FOR SUCH WORK. IN THAT REGARD THE REGIONAL FINANCE OFFICER AT FORT WASHINGTON, PENNSYLVANIA, BY LETTER DATED MAY 23, 1961, FORWARDED TO US COPY OF REPORT DATED MAY 8, 1961, FROM THE AGRICULTURAL RESEARCH SERVICE'S OFFICE AT GREENPORT, NEW YORK, WHICH IS IN PART AS FOLLOWS:

"WE DENY THAT SUCH EMPLOYEES WERE REQUIRED OR EXPECTED TO BE AVAILABLE DURING THEIR LUNCH PERIODS. IT WOULD BE IMPRACTICAL FOR THOSE EMPLOYEES WHO WORK IN RESTRICTED BUILDINGS TO PLAN AN EXIT FROM THE BUILDING TO HAVE LUNCH BECAUSE THEY COULD NOT GO THROUGH A DECONTAMINATION SHOWER, CHANGE CLOTHES, EXIT FROM BUILDING, EAT LUNCH OUTSIDE OR AT THE CAFETERIA, RETURN TO THE BUILDING, ENTER, CHANGE CLOTHES AND BE AT WORK IN 30 MINUTES. SUCH EMPLOYEES ARE FREE INSIDE THESE RESTRICTED AREAS, AND THEY MAY USE THEIR LUNCH PERIOD AS THEY WISH. THOSE E AND PM EMPLOYEES WHO DO WORK IN RESTRICTED FACILITIES ARE TREATED NO DIFFERENTLY WITH RESPECT TO THEIR LUNCH PERIODS THAN ALL OTHER EMPLOYEES WHO WORK IN OUR LABORATORIES, INCLUDING ANIMAL CARETAKERS, LABORATORY HELPERS, PROFESSIONAL RESEARCH PERSONNEL, ETC.OF COURSE, THE GROUP ASSIGNED TO BUILDING 103 ARE NOT IN RESTRICTED FACILITIES AT ALL. THEY MAY EAT OUTSIDE OF THIS BUILDING WITH NO DIFFICULTY AND AT THE CAFETERIA, IF THEY CHOOSE, WHILE ON DAY SHIFT WORK, MONDAY THROUGH FRIDAY.

"WE DENY THAT SUCH EMPLOYEES PERFORMED REGULAR DUTIES DURING THEIR LUNCH PERIOD WITHOUT COMPENSATION. DURING THE PERIOD COVERED BY THE CLAIM, MAY 31, 1959 TO MARCH 12, 1960, AND SUBSEQUENTLY, THERE HAVE BEEN EMERGENCIES WHEN IT HAS BEEN NECESSARY TO REQUIRE CERTAIN INDIVIDUAL EMPLOYEES OR GROUPS OF EMPLOYEES TO PERFORM EMERGENCY DUTIES DURING THE TIME THEY WOULD NORMALLY HAVE LUNCH. IN SUCH CASES THE EMPLOYEES INVOLVED HAVE BEEN PLACED IN "EMERGENCY ORDERED OVERTIME" FOR THEIR LUNCH PERIOD EVEN THOUGH THEY MAY SUBSEQUENTLY EAT ON THE JOB. THIS SITUATION ACTUALLY APPLIES TO SEVERAL EMPLOYEES WHO SIGNED THE CLAIM, SOME OF THEM DID PERFORM EMERGENCY DUTY AND WERE PAID OVERTIME FOR ALL SUCH DUTY DURING THEIR LUNCH PERIOD OR OUTSIDE OF THEIR REGULAR SCHEDULED TOUR OF DUTY.

"THIS HAS BEEN OUR CONSISTENT PRACTICE FOR ALL SHIFT EMPLOYEES, INCLUDING FOR EXAMPLE, OUR GUARDS AND BOAT CREW EMPLOYEES. WHENEVER IT HAS NOT BEEN POSSIBLE TO PROVIDE A RELIEF FOR A GUARD AT HIS POST DURING HIS LUNCH PERIOD OR WHEN IT HAS BEEN NECESSARY TO OPERATE A BOAT FOR SPECIAL OR EMERGENCY TRIPS DURING THE PERIOD SCHEDULED FOR LUNCH, SUCH EMPLOYEES HAVE BEEN PLACED IN ORDERED OVERTIME STATUS.

"IN ADDITION TO VERBAL ADVICE DIRECT TO SOME EMPLOYEES AND TO OTHER EMPLOYEES THROUGH SUPERVISION AND WATCH LEADERS, VARIOUS WRITTEN NOTICES REGARDING THE LUNCH PERIOD WERE POSTED IN DIFFERENT AREAS. THESE WERE SPECIFICALLY NOTED BY ALL AND SIGNED OR INITIALED BY MOST OF THE EMPLOYEES. WE HAVE RECENTLY HAD THESE COPIES AUTOCLAVED OUT OF THE RESTRICTED AREAS AND ALTHOUGH ERBO PROBABLY HAS COPIES OF MOST OF THESE, WE HAVE MADE PHOTOCOPIES OF THE INITIALED COPIES AND ARE ENCLOSING THEM TO COMPLETE YOUR FILES.'

IN THE LIGHT OF SUCH REPORT, AND SINCE YOUR LETTER OF JUNE 24, 1961, DOES NOT CONTAIN ANY EVIDENCE AS WOULD PERSUADE US TO ARRIVE AT A DIFFERENT CONCLUSION, WE HAVE NO ALTERNATIVE OTHER THAN TO ADVISE YOU THAT BASED UPON THE PRESENT RECORD THE DISALLOWANCES AS SET FORTH IN THE SETTLEMENT CERTIFICATES OF JUNE 1961 IN THE RESPECTIVE CLAIM FILES, Z-2099401 AND OTHERS, TO WHICH YOU REFER, AS SUSTAINED.

A CONFERENCE COULD BE ACCORDED TO YOU OR THE OTHER CLAIMANTS TO PRESENT NEW OR ADDITIONAL EVIDENCE IF IT BE DESIRED. SUCH EVIDENCE SHOULD BE PRESENTED ORALLY BUT WOULD HAVE TO BE REDUCED TO WRITING IN ORDER FOR IT TO BE CONSIDERED A PART OF THE RECORD.