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B-159163, JUN. 20, 1966

B-159163 Jun 20, 1966
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NELSON: THIS IS IN REPLY TO YOUR LETTER OF APRIL 26. THE RECORD INDICATES THAT YOU WERE EMPLOYED IN THE OFFICE OF THE REGIONAL DIRECTOR. THAT MUCH OF YOUR WORK IN THE FIELD WAS DONE BEFORE AND AFTER REGULAR WORKING HOURS. THAT THIS WAS KNOWN AND UNDERSTOOD BY YOUR SUPERVISORS. YOUR CLAIM FOR 353 HOURS COMPENSATORY TIME AND 312 HOURS OF NIGHT DIFFERENTIAL PAY WAS DENIED BY THE DEPARTMENT IN A LETTER DATED DECEMBER 9. IN SUPPORT OF YOUR CLAIM YOU HAVE SUBMITTED A NUMBER OF WEEKLY REPORTS OF TRAVEL. YOU ALSO ASSERT THAT YOU WERE REQUIRED BY DEPARTMENTAL REGULATIONS TO MAINTAIN AN OFFICIAL TRAVEL DIARY FORM 5025. UPON WHICH THE WEEKLY TRAVEL REPORTS WERE BASED AND WHICH YOU CONTEND SHOW YOUR ACTUAL HOURS OF WORK AT THE POST OFFICES YOU VISITED.

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B-159163, JUN. 20, 1966

TO MR. EDWARD N. NELSON:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 26, 1966, APPEALING FROM OUR OFFICE SETTLEMENT NO. Z-2310245 OF APRIL 18, 1966, DENYING YOUR CLAIM FOR OVERTIME AND NIGHT DIFFERENTIAL AS AN EMPLOYEE OF THE POST OFFICE DEPARTMENT.

THE RECORD INDICATES THAT YOU WERE EMPLOYED IN THE OFFICE OF THE REGIONAL DIRECTOR, MINNEAPOLIS, MINNESOTA, AS A METHODS AND STANDARDS ANALYST, PFS- 12, STEP 9 AT $12,170 PER ANNUM, DURING THE PERIOD COVERED BY YOUR CLAIM JULY 8, 1961, TO OCTOBER 8, 1965. YOUR DUTIES CONSISTED IN TRAVELING TO FIELD POST OFFICES OBSERVING THEIR METHODS OF OPERATION, ADVISING THEM CONCERNING VARIOUS PROGRAMS INCLUDING THE WORK MEASUREMENT SYSTEM AND THE NATIONWIDE IMPROVED MAIL SERVICE, AND TALKING OVER PROBLEMS WITH THE POSTMASTERS. YOU ASSERT THAT YOUR ASSIGNMENTS REQUIRED YOU TO OBSERVE OPERATIONS ON POST OFFICE WORKROOM FLOORS FROM EARLY IN THE MORNING THROUGH THE CRITICAL PEAK PERIODS IN THE EVENING, THAT MUCH OF YOUR WORK IN THE FIELD WAS DONE BEFORE AND AFTER REGULAR WORKING HOURS, AT NIGHTTIME, AND ON SATURDAYS AND SUNDAYS, AND THAT THIS WAS KNOWN AND UNDERSTOOD BY YOUR SUPERVISORS.

YOUR CLAIM FOR 353 HOURS COMPENSATORY TIME AND 312 HOURS OF NIGHT DIFFERENTIAL PAY WAS DENIED BY THE DEPARTMENT IN A LETTER DATED DECEMBER 9, 1965, ON THE GROUND THAT IT HAD NO AUTHORITY TO PAY SUCH A CLAIM NOT ORDERED BY YOUR SUPERVISORS AND NOT BASED ON OFFICIAL RECORDS, CITING 33 COMP. GEN. 32.

IN SUPPORT OF YOUR CLAIM YOU HAVE SUBMITTED A NUMBER OF WEEKLY REPORTS OF TRAVEL, A FORM USED IN THE REGIONAL HEADQUARTERS, SHOWING YOUR TIME OF ARRIVAL AND DEPARTURE AT VARIOUS POST OFFICES THAT YOU VISITED. YOU ALSO ASSERT THAT YOU WERE REQUIRED BY DEPARTMENTAL REGULATIONS TO MAINTAIN AN OFFICIAL TRAVEL DIARY FORM 5025, NOT INCLUDED IN THE RECORD, UPON WHICH THE WEEKLY TRAVEL REPORTS WERE BASED AND WHICH YOU CONTEND SHOW YOUR ACTUAL HOURS OF WORK AT THE POST OFFICES YOU VISITED. YOU ALSO INCLUDED ITINERARY SCHEDULES POD FORM 998 SHOWING YOUR PROPOSED MOVEMENTS WHILE TRAVELING WHICH HAD BEEN INITIALED BY YOUR SUPERIORS.

WITH RESPECT TO MAXIMUM HOURS OF WORK, COMPENSATORY TIME AND OVERTIME, 39 U.S.C. 3571 AND 3573 PROVIDE IN PERTINENT PART AS FOLLOWS:

"SEC. 3571. MAXIMUM HOURS OF WORK.

"EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE, EMPLOYEES MAY NOT BE REQUIRED TO WORK MORE THAN EIGHT HOURS A DAY. THE WORK SCHEDULE OF EMPLOYEES SHALL BE REGULATED SO THAT THE EIGHT HOURS OF SERVICE DOES NOT EXTEND OVER A LONGER PERIOD THAN TEN CONSECUTIVE HOURS.

"SEC. 3573. COMPENSATORY TIME, OVERTIME, AND HOLIDAYS.

"IN EMERGENCIES OR IF THE NEEDS OF THE SERVICE REQUIRE, THE POSTMASTER GENERAL MAY REQUIRE EMPLOYEES TO WORK MORE THAN EIGHT HOURS IN ONE DAY, OR ON SATURDAYS, SUNDAYS, OR HOLIDAYS. FOR THAT SERVICE HE SHALL GRANT EMPLOYEES IN THE "PFS" SCHEDULE COMPENSATORY TIME OR PAY THEM OVERTIME COMPENSATION UNDER THE FOLLOWING RULES: * * *

"/4) EACH EMPLOYEE IN OR ABOVE SALARY LEVEL PFS-8 WHO PERFORMS OVERTIME OR HOLIDAY WORK AS DESCRIBED IN THIS SECTION, UNDER REGULATIONS PRESCRIBED BY THE POSTMASTER GENERAL, SHALL BE GRANTED COMPENSATORY TIME IN AN AMOUNT EQUAL TO THE OVERTIME OR HOLIDAY WORK.'

AN EXEMPTION FROM THE PROVISIONS OF SECTIONS 3571 AND 3573 FOR SUCH EMPLOYEES AS THE POSTMASTER DESIGNATES IS CONTAINED IN 39 U.S.C. 3575.

IN PART 755 OF THE POST OFFICE MANUAL, 1954 EDITION, EFFECTIVE AT THE INCEPTION OF YOUR CLAIM THE POSTMASTER GENERAL PROVIDED FOR OVERTIME, SATURDAY AND SUNDAY WORK AS FOLLOWS:

".11 OVERTIME WORK

".111 * * * WORK IN EXCESS OF 8 HOURS IN A DAY IS OVERTIME.

".12 SATURDAY AND SUNDAY WORK

"SATURDAY AND SUNDAY EMPLOYMENT SHALL BE RESTRICTED TO ESSENTIAL SERVICE. * * *

".13 HOLIDAY WORK

".131 * * * HOLIDAY EMPLOYMENT SHALL BE RESTRICTED TO ESSENTIAL SERVICE.

".14 COMPENSATORY TIME FOR EMPLOYEES IN PFS-8 AND ABOVE

"ELIGIBLE EMPLOYEES IN PFS-8 AND ABOVE WHO ARE REQUIRED TO WORK IN EXCESS OF 8 HOURS IN ANY ONE DAY, OR TO PERFORM WORK ON SATURDAY, SUNDAY, OR A DAY OBSERVED AS A HOLIDAY, OR A DAY DEEMED A HOLIDAY FOR PAY AND LEAVE PURPOSES, SHALL BE GRANTED COMPENSATORY TIME FOR THE WORK PERFORMED WITHIN 13 PAY PERIODS FOLLOWING THE END OF THE PAY PERIOD IN WHICH THE SERVICE WAS PERFORMED. THE COMPENSATORY TIME SHALL BE GRANTED WHEN THE SERVICES CAN BEST BE SPARED. WHERE SUPERVISORY COVERAGE IS SUFFICIENT, COMPENSATORY TIME FOR SATURDAY AND SUNDAY SERVICE SHALL BE GRANTED WITHIN 5 WORKING DAYS FOLLOWING THE SATURDAY OR SUNDAY ON WHICH THE SERVICE WAS PERFORMED.'

AS A PFS-12 IN A REGIONAL OFFICE YOU WERE NOT EXCLUDED FROM COMPENSATORY TIME FOR OVERTIME WORK UNDER SECTION 755.18 OF THE REGULATIONS.

AS MAY BE SEEN FROM THE FOREGOING STATUTE OVERTIME WORK AND SATURDAY AND SUNDAY WORK MAY BE REQUIRED BY THE POSTMASTER GENERAL ONLY IN EMERGENCIES OR AS THE NEEDS OF THE SERVICE REQUIRE. HIS DETERMINATION AS TO THE PRESENCE OF THESE CONDITIONS IS A PREREQUISITE TO REQUIRING SUCH WORK TO BE PERFORMED.

THERE IS NO INDICATION THAT THE EXTRA HOURS AND NIGHT DIFFERENTIAL FOR WHICH YOU MAKE CLAIM WAS EVER BROUGHT TO THE ATTENTION OF YOUR SUPERIORS IN THE FORM OF A REQUEST FOR COMPENSATORY TIME FOR WORK IN EXCESS OF YOUR REGULAR SCHEDULE OR AS A BASIS FOR REQUESTING NIGHT DIFFERENTIAL PAY FOR HOURS WORKED BETWEEN 6 P.M. AND 6 A.M. IF THE POSTAL AUTHORITIES HAD BEEN ADVISED THAT YOU WERE PUTTING IN MANY EXTRA HOURS OF WORK FOR WHICH COMPENSATORY TIME OFF OR SPECIAL PAY ORDINARILY WOULD BE INVOLVED, IT IS POSSIBLE SOME ARRANGEMENT MIGHT HAVE BEEN MADE IN YOUR WORKING HOURS OR IF THEY DETERMINED THE OVERTIME AND NIGHT PAY WORK WAS UNAVOIDABLE THEN COMPENSATORY TIME OFF AND NIGHT PAY WOULD UNDOUBTEDLY HAVE BEEN AWARDED TO YOU. AN INDIVIDUAL WORKER IS NOT AUTHORIZED UNDER THE REGULATIONS TO MAKE THE DETERMINATIONS IN HIS OWN CASE AS TO THE NEED FOR OR THE REQUIREMENT THAT THE OVERTIME OR NIGHT WORK BE PERFORMED. THIS IS A JUDGMENTAL MATTER RESERVED FOR SUPERVISORS AUTHORIZED TO APPROVE OVERTIME. ACCORDINGLY, AND AS THE POST OFFICE DEPARTMENT HAS NOT SEEN FIT TO ADMINISTRATIVELY APPROVE THIS WORK AS AUTHORIZED OVERTIME, YOUR REQUEST FOR OVERTIME PAY FOR THE PERIOD OF YOUR CLAIM MUST BE DENIED. THE REASONS SET FORTH ABOVE RELATING TO DENIAL OF YOUR CLAIM FOR OVERTIME ARE EQUALLY APPLICABLE TO NIGHT DIFFERENTIAL.

CONCERNING YOUR REQUEST FOR RETURN OF EXHIBITS, YOU MAY BE ADVISED THAT PAPERS SUBMITTED IN SUPPORT OF A CLAIM BECOME A PART OF THE PERMANENT RECORDS OF THIS OFFICE.

AS TO WHAT YOUR NEXT LINE OF APPEAL MAY BE, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF TITLE 28, U.S.C. SECTIONS 1346 AND 1491, WHEREIN JURISDICTION IS CONFERRED UPON THE UNITED STATES COURT OF CLAIMS, WASHINGTON, D.C., AND THE UNITED STATES DISTRICT COURTS (LIMITATION OF $10,000) TO RENDER JUDGMENT UPON A CLAIM AGAINST THE UNITED STATES SUCH AS HERE INVOLVED. THERE IS NO FURTHER ADMINISTRATIVE APPEAL FROM A DECISION OF THE COMPTROLLER GENERAL. IN THE EVENT YOU DECIDE TO FURTHER PURSUE YOUR CLAIM IN A COURT OF THE UNITED STATES ANY PAPERS SUBMITTED HERE WHICH ARE APPLICABLE TO THE MATTER WILL BE MADE AVAILABLE TO THE COURT UPON REQUEST.

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