B-159171, JUN. 9, 1967

B-159171, JUN. 9, 1967

TO SECRETARY OF TRANSPORTATION:

WE REFER TO THE LETTER OF MAY 11, 1966, FROM THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION, DEPARTMENT OF THE INTERIOR, WITH ENCLOSURES, INCLUDING THE LEGAL OPINION OF THE OFFICE OF THE SOLICITOR, DATED APRIL 13, 1966. OUR DECISION IS REQUESTED AS TO WHETHER OVERTIME COMPENSATION IS REQUIRED FOR TIME IN EXCESS OF EIGHT HOURS PER DAY SPENT BY A DISPATCHER ON THE ALASKA RAILROAD IN TRANSFERRING INFORMATION TO A RELIEVING DISPATCHER. ALSO IN CONNECTION THEREWITH WE HAVE RECEIVED BOTH FORMALLY AND INFORMALLY FROM MR. EDWIN M. FITCH, ASSISTANT TO THE RAILROAD'S GENERAL MANAGER, CERTAIN ADDITIONAL INFORMATION.

THE ADMINISTRATION OF THE RAILROAD WAS TRANSFERRED TO YOUR DEPARTMENT BY SECTION 6 (I) OF THE DEPARTMENT OF TRANSPORTATION ACT, PUB.L. 89-670, APPROVED OCTOBER 15, 1966, 80 STAT. 941, WHICH BECAME EFFECTIVE APRIL 1, 1967, PURSUANT TO EXECUTIVE ORDER NO. 11340, DATED MARCH 30, 1967.

ARTICLE II OF THE AGREEMENT OF THE AMERICAN TRAIN DISPATCHERS' ASSOCIATION WITH THE ALASKA RAILROAD PROVIDES AS FOLLOWS (WITH PUNCTUATION OF PARAGRAPH (C) CORRECTED IN ACCORDANCE WITH MR. FITCH'S LETTER OF NOVEMBER 15, 1966):

"HOURS OF SERVICE (A) EIGHT (8) CONSECUTIVE HOURS SHALL CONSTITUTE A DAY'S WORK.

"OVERTIME (B) TIME WORKED IN EXCESS OF EIGHT (8) HOURS ON ANY DAY OR IN EXCESS OF FORTY (40) HOURS IN ANY WORK WEEK, EXCLUSIVE OF THE TIME REQUIRED TO MAKE TRANSFER, WILL BE CONSIDERED OVERTIME AND SHALL BE PAID FOR AT THE RATE OF TIME AND ONE-HALF ON THE MINUTE BASIS.

"/C) A TRAIN DISPATCHER WHO IS REQUIRED TO REMAIN IN CHARGE DURING THE TIME TRANSFER IS BEING MADE WILL NOT BE CONSIDERED AS HAVING ACCRUED OVERTIME. EXCEPT TO EXTENT PROVIDED HEREIN WITH RESPECT TO TRANSFER TIME, A TRAIN DISPATCHER REQUIRED TO REMAIN ON DUTY AFTER THE EXPIRATION OF HIS TOUR OF DUTY WILL BE PAID FOR SUCH TIME AS OVERTIME.'

WHILE BOTH THE QUESTION AS FRAMED IN THE DEPUTY ASSISTANT SECRETARY'S LETTER AND THE WORDING OF THE AGREEMENT LEND THE IMPRESSION THAT THE OUTGOING DISPATCHER REMAINS ON DUTY AFTER THE END OF HIS SHIFT (12 MIDNIGHT, 8 A.M. OR 4 P.M., AS THE CASE MAY BE) DURING THE TIME NECESSARY FOR THE TRANSFER OF INFORMATION TO THE RELIEVING DISPATCHER, OUR UNDERSTANDING FROM INFORMAL DISCUSSIONS IS THAT THE RELIEVING DISPATCHER REPORTS A FEW MINUTES BEFORE THE BEGINNING OF HIS SHIFT SO THAT THE OUTGOING DISPATCHER CAN LEAVE AT THE END OF HIS SHIFT. SO FAR AS WE CAN ASCERTAIN, THERE IS NO REGULATION OR OFFICIAL ORDER PRESCRIBING THE TIME BEFORE THE BEGINNING OF HIS SHIFT AT WHICH THE RELIEVING DISPATCHER IS TO REPORT; AND NO OFFICIAL RECORDS OF THE TIME THE RELIEVING DISPATCHER BEGINS THE TRANSFER OPERATION ARE KEPT.

THE REQUIREMENTS FOR THE TRANSFER OPERATION AS SET FORTH IN INSTRUCTIONS OF JUNE 21, 1966, ARE QUOTED IN MR. FITCH'S LETTER AS FOLLOWS:

"RULE 41 PARAGRAPH 2 OF SPECIAL INSTRUCTIONS TO TRAIN DISPATCHERS REQUIRES THE RELIEVING TRAIN DISPATCHER TO FIRST READ CAREFULLY ALL TRAIN ORDERS TRANSFERRED TO HIM, CHECKING THE NUMBER OF EACH TRAIN ORDER IN THE TRANSFER, THEN SIGN THE TRANSFER, THEN SHOW TIME AND DATE THIS HAS BEEN COMPLETED. THE TIME AND DATE REFERRED TO IN THIS PARAGRAPH IS THE TIME AND DATE THE RELIEVING TRAIN DISPATCHER COMPLETES THE REQUIREMENTS STATED AND ASSUMES FULL RESPONSIBILITY.

"PARAGRAPH 3 OF THE SAME RULE REQUIRES THE TRAIN DISPATCHER BEING RELIEVED TO ALSO SIGN THE TRANSFER, SHOWING TIME AND DATE, AND THE TIME REFERRED TO IS THE TIME AND DATE THE TRAIN DISPATCHER BEING RELIEVED HAS COMPLETED THE LISTING OF ALL TRAIN ORDERS TO BE TRANSFERRED AND LISTED ANY INFORMATION WHICH IN HIS OPINION WOULD BE PERTINENT TO THE RELIEVING DISPATCHER.' DISCUSSION OF THE OPERATION OF THOSE INSTRUCTIONS IN THE LETTER IS AS FOLLOWS:

"I AM ATTACHING TO THIS LETTER COPIES FROM THE TRAIN DISPATCHER'S ORDER BOOK SHOWING HOW THE INCOMING DISPATCHER AND THE DISPATCHER BEING RELIEVED SIGN FOR THE TRANSFER. THESE SHEETS PROVE THAT THERE IS NO RECORD KEPT OF TRANSFER TIME. PLEASE NOTE THE FIRST SHEET SHOWING A TRANSFER FROM MERLE FRANK TO CHAS. FORTIER. THE OUTGOING DISPATCHER, MR. FRANK, SIGNS THE TRANSFER AT 7:50 A.M. WHICH IS 10 MINUTES PRIOR TO THE END OF HIS SHIFT. THE TIME HAS NOTHING TO DO WITH WORK HOURS. IT MERELY MEANS THAT AS OF 7:50 A.M. MR. FRANK, THE TRAIN DISPATCHER BEING RELIEVED, HAD ,COMPLETED THE LISTING OF ALL TRAIN ORDERS TO BE TRANSFERRED AND LISTED ANY INFORMATION WHICH IN HIS OPINION WOULD BE PERTINENT TO THE RELIEVING DISPATCHER.' THE INCOMING DISPATCHER SIGNED FOR THE TRANSFER AT 8:03 A.M. THIS DID NOT MEAN THAT HE STARTED TO WORK 3 MINUTES LATE. IT MEANS THAT AS OF 8:03 A.M. HE HAD "READ CAREFULLY ALL TRAIN ORDERS TRANSFERRED TO HIM, CHECKING THE NUMBER OF EACH TRAIN ORDER IN THE TRANSFER.' THIS IS THE TIME THE RELIEVING TRAIN DISPATCHER ,ASSUMES FULL RESPONSIBILITY.'"

FOUR SAMPLE OVERTIME CLAIMS ARE SUBMITTED. THE FIRST STATES THE TIME AS BEING FROM 3:45 P.M. TO 12:01 A.M., AND 15 MINUTES IS CLAIMED; THE SECOND SHOWS 7:35 A.M. TO 3:55 P.M., AND 20 MINUTES IS CLAIMED; THE THIRD SHOWS 3:52 P.M. TO 12:01 A.M., AND 8 MINUTES IS CLAIMED; THE FOURTH SHOWS :45 A.M. TO 4 P.M., AND 15 MINUTES IS CLAIMED.

THE COURT OF CLAIMS HAS HELD IN A LONG LINE OF DECISIONS, BEGINNING WITH POGGAS V UNITED STATES (1951), 96 F.SUPP. 609, 118 CT.CL. 385, THAT THE OVERTIME COMPENSATION PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED (FORMERLY 5 U.S.C. 673C, NOW 5 U.S.C. 5544 (A) (, ARE APPLICABLE TO EMPLOYEES OF THE ALASKA RAILROAD. THAT LAW REQUIRES PAYMENT OF OVERTIME PAY FOR OVERTIME WORK IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK.

THE OPINION OF THE OFFICE OF THE SOLICITOR TAKES THE VIEW THAT THE SUBJECT TRANSFER TIME IS NOT COMPENSABLE BECAUSE IT IS VOLUNTARY, CITING BACA V UNITED STATES, 150 CT.CL. 70, 86, CERT. DENIED 364 U.S. 892, AND GAINES V UNITED STATES, 158 CT.CL. 497. TO THE EXTENT THAT THE DISPATCHER VOLUNTARILY REPORTS FOR DUTY PRIOR TO THE TIME NECESSARY TO COMPLETE THE TRANSFER OPERATION IN TIME FOR THE OUTGOING DISPATCHER TO LEAVE ON TIME, WE AGREE. SEE BANTOM V UNITED STATES, 165 CT.CL. 312, 318. ON THE OTHER HAND, OUR OPINION IS THAT THE TRANSFER OPERATION IS AN INTEGRAL AND INDISPENSABLE PART OF THE PRINCIPAL ACTIVITY OF A TRAIN DISPATCHER AND, AS SUCH (BUT FOR OTHER CONSIDERATIONS, AS TO WHICH SEE BELOW), WOULD CONSTITUTE COMPENSABLE TIME. SEE STEINER V MITCHELL, 350 U.S. 247, AND MITCHELL V KING PACKING CO., ID. 260. HOWEVER, FOR THE REASONS HEREINAFTER STATED, WE CANNOT APPROVE PAYMENT OF OVERTIME COMPENSATION FOR TRANSFER TIME ON THE PRESENT RECORD.

AS PREVIOUSLY NOTED, THERE IS NO REGULATION OR OFFICIAL ORDER PRESCRIBING THE TIME BEFORE THE BEGINNING OF HIS SHIFT AT WHICH THE RELIEVING DISPATCHER IS TO REPORT; AND NO OFFICIAL RECORDS OF THE REPORTING TIME ARE KEPT. WE MAY ASSUME, THEREFORE, THAT THE TIMES SHOWN IN THE SAMPLE CLAIMS MENTIONED ABOVE ARE NOT TAKEN FROM OFFICIAL RECORDS AND HAVE NOT BEEN OFFICIALLY VERIFIED.

WE NOTE THAT THE COURT OF CLAIMS HELD IN SCHIABLE ET AL. V UNITED STATES, 135 CT.CL. 890, THAT THE ACCEPTANCE BY FEDERAL EMPLOYEES OF LESS STATUTORY ADDITIONAL COMPENSATION THAN THAT PROVIDED BY LAW DOES NOT CONSTITUTE A WAIVER OF THE AMOUNT LAWFULLY DUE. SEE ALSO RAPP ET AL. V UNITED STATES, 167 CT.CL. 852; 340 F.2D 635. HOWEVER, WE HAVE NOT FOUND ANY DECISIONS WHICH HOLD THAT A GROUP OF EMPLOYEES, ACTING THROUGH THEIR AUTHORIZED REPRESENTATIVES, AS HERE, MAY NOT NEGOTIATE AN AGREEMENT WAIVING COMPENSATION FOR A DE MINIMIS AMOUNT OF TIME WHEN THE WAIVER ACCORDS WITH PRACTICE IN PRIVATE INDUSTRY. CF. ANDERSON V MT. CLEMENS POTTERY CO., 328 U.S. 680, 692 AND FOLLOWING PAGES; E. I. DU PONT DE NEMOURS AND CO. V HARRUP, 227 F.2D 133 (A CASE SOMEWHAT ANALOGOUS TO THE PRESENT ONE IN THAT IT INVOLVED TRANSFER TIME OF CAFETERIA CASHIERS).

FOR ANOTHER THING, COMPENSABLE TIME SHOULD, FOR OBVIOUS REASONS, BE CONTROLLED ADMINISTRATIVELY AND NOT LEFT TO THE DISCRETION OF THE EMPLOYEE, WHOSE TIME OF REPORTING AT THE PLACE OF DUTY MAY BE CONTROLLED BY SUCH FORTUITOUS CIRCUMSTANCES AS THE STATE OF TRAFFIC, WEATHER CONDITIONS, ETC. THUS, IN THE EXAMPLES GIVEN, WE CANNOT TELL WHETHER ANY TIME IN EXCESS OF 8 MINUTES (THE MINIMUM TIME CLAIMED) IS DICTATED BY OFFICIAL NECESSITY. IF 8 MINUTES IS SUFFICIENT TO MEET OFFICIAL PURPOSES, WE WOULD CONSIDER THAT AMOUNT AS DE MINIMIS AND, AS INDICATED ABOVE, SUBJECT TO WAIVER BY NEGOTIATION IN THE LIGHT OF PRACTICE IN PRIVATE INDUSTRY.

FOR THE REASONS STATED, WE ARE REQUIRED ON THE PRESENT RECORD TO OBJECT TO PAYMENT OF CLAIMS SUCH AS THOSE SUBMITTED.

IF FOR THE FUTURE YOU SHOULD DECIDE TO REGARD TRANSFER TIME AS COMPENSABLE, WE WOULD OFFER NO OBJECTION PROVIDED GUIDELINES, WHICH INSURE THAT NO TIME IS PAID FOR IN EXCESS OF THAT NECESSARY FOR OFFICIAL REQUIREMENTS, ARE ADOPTED. ALSO, IT WOULD BE APPROPRIATE TO MAKE SUCH ADJUSTMENTS IN BASIC WAGE RATES AS WOULD ELIMINATE ANY AMOUNT, IF ANY, NOW INCLUDED IN CONSIDERATION OF TRANSFER TIME.