B-162145, NOV. 3, 1967

B-162145, NOV. 3, 1967

COMPENSATION - OVERTIME DECISION TO AFGE RE EMPLOYEE'S CLAIM FOR OVERTIME COMPENSATION AS A CIVILIAN GUARD AT STOCKTON ANNEX, U.S. NAVAL SUPPLY CENTER FROM 1956 TO 1964. EMPLOYEE WHO CONTENDS THAT HE WAS REQUIRED TO REPORT 15 MINUTES EARLY EACH DAY FOR WORK BUT IS NOT ABLE TO FURNISH EVIDENCE INDICATING THAT THE OVERTIME WAS ORDERED OR APPROVED BY OFFICERS AUTHORIZED TO APPROVE OVERTIME MAY NOT HAVE CLAIM FOR OVERTIME ALLOWED.

TO MR. JOHN F. GRINER:

THIS IS IN REPLY TO YOUR LETTER OF JULY 20, 1967, AS ATTORNEY IN FACT FOR MR. DELMER V. OATMAN, APPEALING FROM OUR OFFICE SETTLEMENT OF OCTOBER 4, 1966, DENYING HIS CLAIM FOR OVERTIME COMPENSATION FOR SERVICES AS A CIVILIAN GUARD AT THE STOCKTON ANNEX, U.S. NAVAL SUPPLY CENTER, OAKLAND, STOCKTON, CALIFORNIA, FROM JULY 7, 1956, TO DECEMBER 31, 1964, AND INDICATING THAT HIS CLAIM FOR THE PERIOD PRIOR TO JULY 7, 1956, WAS BARRED BY THE 10-YEAR LIMITATION. THE STOCKTON ANNEX WAS DISESTABLISHED AS A NAVAL ACTIVITY ON JUNE 30, 1965, AND ITS FUNCTION WAS TAKEN OVER BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

IN SUPPORT OF MR. OATMAN'S CONTENTION THAT HE WAS REQUIRED TO REPORT IN 15 MINUTES EARLY EACH DAY IN ORDER TO DRAW A VEHICLE, A GUN, AND RECEIVE INSTRUCTIONS, YOU SUBMITTED A COPY OF THE STOCKTON ANNEX PHYSICAL SECURITY MANUAL (SA INSTRUCTION P5510.8A CH-8) DATED JULY 18, 1963, WHICH ESTABLISHED AN 8-HOUR AND 15-MINUTE WORKDAY FOR GUARDS WITH 15 MINUTES FREE OF ALL DUTY FOR LUNCH. ALSO, FORWARDED WERE A LETTER FROM THE FORMER POLICE CHIEF, E. M. JOLLEY, STATING THAT HE SIGNED AND ISSUED AN ORDER SOMETIME IN THE LATTER PART OF 1955 REQUIRING GUARDS TO REPORT 15 MINUTES BEFORE THE HOUR, AND A LETTER FROM A FORMER GUARD, JOHN EPROSON, TO THE EFFECT THAT THERE WAS AN ORDER BY THE SECURITY OFFICER OR EXECUTIVE OFFICER AT STOCKTON ANNEX PUBLISHED BY THE CHIEF OF POLICE AT STOCKTON REQUIRING GUARDS TO REPORT 15 MINUTES PRIOR TO THEIR SHIFT IN ORDER TO STAND INSPECTION.

THE REPORT OF THE DEPARTMENT OF THE NAVY INDICATES THAT NO LOCAL WRITTEN ORDER HAS BEEN FOUND REQUIRING 15-MINUTE EARLY REPORTING ON THE PART OF GUARDS AT THE STOCKTON ANNEX PRIOR TO JULY 18, 1963, AND INVESTIGATION REVEALS THAT IN ALL PROBABILITY NO SUCH WRITTEN ORDER EXISTED DURING THE PERIOD IN QUESTION. IT APPEARS FROM THE REPORT THAT ALTHOUGH THE PRACTICE OF EARLY REPORTING FOR SECURITY GUARDS MAY HAVE EXISTED AT THE STOCKTON ANNEX IT WAS NOT ORDERED, INDUCED OR ENCOURAGED BY THE ONLY SURVIVING OFFICER-IN-CHARGE DURING THE PERIOD IN QUESTION, NOR DID HE HAVE KNOWLEDGE OF IT.

UNDER THE PROVISION OF 5 U.S.C. 5542 (A) ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK (AS OF THE TIME IN QUESTION) PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID AT OVERTIME TIME RATES. IN SUCH CONNECTION WE INVITE ATTENTION TO THE REGULATIONS IN SECTIONS 85.3-1 (A) AND (B) OF THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS (1954). SIMILAR REGULATORY PROVISIONS REMAINED IN EFFECT THROUGHOUT THE PERIOD OF MR. OATMAN'S 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 MR. OATMAN'S STANDPOINT THERE IS SUCH SUBSTANTIAL DOUBT AS TO WHETHER HE WAS DIRECTED TO PERFORM OVERTIME WORK BY AN OFFICIAL HAVING AUTHORITY TO DO SO THAT OUR OFFICE WOULD NOT BE WARRANTED IN ALLOWING HIS 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 SUMIT 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 REPORT IN 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 MR. OATMAN'S 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 HIS CLAIM.

NEITHER THE CHIEF OF POLICE, THE SECURITY OFFICER, NOR THE OFFICER IN- CHARGE AT THE STOCKTON ANNEX WOULD HAVE HAD AUTHORITY TO DIRECT REGULARLY SCHEDULED OVERTIME OF THIS NATURE. AUTHORIZATION OF SUCH WOULD HAVE REQUIRED ADVANCE APPROVAL OF THE COMMANDING OFFICER, U.S. NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, WHOSE COMMAND INCLUDED THE STOCKTON ANNEX, AND THERE IS NO EVIDENCE TO SHOW THAT SUCH OFFICER EITHER ORDERED OR INDUCED ANY EARLY REPORTING.

WITH RESPECT TO MR. OATMAN'S CLAIM FOR OVERTIME COMPENSATION FOR THE PERIOD FROM JULY 18, 1963, TO DECEMBER 31, 1964, FOLLOWING PUBLICATION OF STOCKTON ANNEX INSTRUCTION P5510.8A CH-8, THE REQUIREMENT IN THAT DIRECTIVE TO REPORT 15 MINUTES EARLY WAS OFFSET BY A 15-MINUTE LUNCH PERIOD. THUS, THE OVERALL WORKING TIME TOTALED ONLY 8 HOURS WITH NO OVERTIME INVOLVED.

FOR THE FOREGOING REASONS MR. OATMAN'S CLAIM FOR OVERTIME COMPENSATION MUST BE DENIED.