B-164617, AUG. 12, 1968

B-164617, AUG. 12, 1968

TO MR. GLENN D. RAHR:

THIS IS IN REPLY TO YOUR LETTER OF JUNE 3, 1968, APPEALING FROM OUR OFFICE SETTLEMENT DATED MAY 27, 1968, DENYING YOUR CLAIM FOR 15 MINUTES OVERTIME FROM DECEMBER 18, 1966, TO THE PRESENT TIME FOR EARLY REPORTING AS A SECURITY GUARD AT NORTON AIR FORCE BASE, CALIFORNIA.

THE RECORD INDICATES THAT PRIOR TO DECEMBER 18, 1966, GUARDS AT NORTON AFB WERE PAID ONE-HALF HOUR OVERTIME IN EXCESS OF THE REGULAR 8 HOUR TOUR OF DUTY FOR THE PERFORMANCE OF PRELIMINARY AND POSTLIMINARY DUTIES INVOLVING ISSUE OF A WEAPON AND AMMUNITION, TESTING THE WEAPON, POSTING, MUSTERING AND TURN IN OF WEAPONS AND EQUIPMENT. TOURS OF DUTY WERE FROM 6 A.M. TO 2:30 P.M.; 2 P.M. TO 10:30 P.M.; AND 10 P.M. TO 6:30 A.M. EFFECTIVE DECEMBER 18, 1966, THE OVERTIME FOR THE PERFORMANCE OF SUCH INCIDENTAL DUTIES WAS REDUCED TO 15 MINUTES. THE USE OF TIME CLOCKS TO CHECK ARRIVALS AND DEPARTURES WAS STOPPED SHORTLY THEREAFTER.

YOU HAVE ENCLOSED A STATEMENT SIGNED BY 20 MEMBERS OF THE GUARD FORCE INCLUDING YOURSELF TO THE EFFECT THAT SUCH MEMBERS HAVE BEEN REQUIRED TO WORK MANY HOURS OVERTIME SINCE DECEMBER 1966 FOR WHICH THEY HAVE NOT BEEN COMPENSATED. IN THAT CONNECTION YOU HAVE ALSO ENCLOSED SEVERAL DUTY ROSTERS ISSUED IN JULY 1967 DIRECTING GUARDS TO REPORT PRIOR TO THE COMMENCEMENT OF THEIR TOURS OF DUTY SUCH AS 0600 AND 1400 HOURS WITH NO INDICATION OF HOW MUCH EARLIER SUCH REPORTING SHOULD BE. YOU ALSO POINT TO SECURITY BULLETINS OF RECENT DATE PROVIDING (1) THAT NO WEAPONS WILL BE DRAWN PRIOR TO THE COMMENCEMENT OF AN ACTUAL DUTY TIME, (2) ADDITIONAL OVERTIME OF 15 MINUTES FOR GUARDS MAY BE AUTHORIZED BUT MUST BE KEPT TO A MINIMUM, AND (3) THE REQUEST AND JUSTIFICATION FOR SUCH OVERTIME MUST BE IN WRITING, AS DEMONSTRATING THE PERFORMANCE OF OVERTIME ON THE PART OF GUARDS AND THE NONPAYMENT THEREFOR ON THE PART OF MANAGEMENT. IN ADDITION YOU REFER TO AFR 40-523 AND 40-524 WHICH PROVIDES THAT TIME SPENT IN THE PERFORMANCE OF INCIDENTAL DUTIES DIRECTLY CONNECTED WITH THE PERFORMANCE OF A JOB NOT IN EXCESS OF 30 MINUTES A DAY AND WHICH CANNOT BE MADE PART OF THE 8-HOUR TOUR OF DUTY MAY BE COMPENSATED AS OVERTIME AS JUSTIFYING PAYMENT OF OVERTIME IN YOUR CASE. THERE IS ALSO INCLUDED A MEMORANDUM OF THE CHIEF, SECURITY POLICE, LT. COL. PHILLIPS, DATED MAY 12, 1967, REQUESTING THAT THE AIR FORCE LIMITATION ON OVERTIME NOT BE APPLIED TO THE SECURITY FORCE SINCE SOME POLICEMEN WERE NOT BEING RELIEVED WITHIN THE 15 MINUTES ALLOCATED.

WITH RESPECT TO THE ESTABLISHMENT OF WORK SCHEDULES AND PAYMENT OF OVERTIME 5 U.S.C. 5542 AND 6101 PROVIDE AS FOLLOWS: "SEC. 5542. OVERTIME RATES; COMPUTATION

"/A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR * * * IN EXCESS OF 8 HOURS IN A DAY * * * SHALL BE PAID FOR * * *

* * * * * * * "SEC. 6101. BASIC 40-HOUR WORKWEEK; WORK SCHEDULES; REGULATIONS

"/2) THE HEAD OF EACH EXECUTIVE AGENCY, MILITARY DEPARTMENT, AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL---

"/A) ESTABLISH A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS FOR EACH FULL- TIME EMPLOYEE IN HIS ORGANIZATION * * *

"/3) (D) THE BASIC NONOVERTIME WORKDAY MAY NOT EXCEED 8 HOURS; "

PURSUANT TO ITS AUTHORITY TO REGULATE WITH RESPECT TO EMPLOYEES COVERED BY THE ABOVE LAW THE CIVIL SERVICE COMMISSION ISSUED THE FOLLOWING REGULATIONS: "SEC. 610.111 ESTABLISHMENT OF WORKWEEKS.

"/A) THE HEAD OF EACH DEPARTMENT, WITH RESPECT TO EACH GROUP OF FULL-TIME EMPLOYEES TO WHOM THIS SUBPART APPLIES, SHALL ESTABLISH BY REGULATION:

"/1) A BASIC WORKWEEK OF 40 HOURS WHICH DOES NOT EXTEND OVER MORE THAN 6 OF ANY 7 CONSECUTIVE DAYS. * * *

"/2) A REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK WHICH CONSISTS OF THE 40-HOUR BASIC WORKWEEK ESTABLISHED IN ACCORDANCE WITH SUBPARAGRAPH (1) OF THIS PARAGRAPH, PLUS THE PERIOD OF OVERTIME WORK, IF ANY, REGULARLY REQUIRED OF EACH GROUP OF EMPLOYEES. * * *" "SEC. 550.111 AUTHORIZATION OF OVERTIME PAY.

"/A) EXCEPT AS PROVIDED BY PARAGRAPH (D) OF THIS SECTION, OVERTIME WORK MEANS EACH HOUR OF WORK IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK OR IN EXCESS OF 8 HOURS IN A DAY, WHICHEVER IS THE GREATER NUMBER OF OVERTIME HOURS, THAT IS:

"/1) OFFICIALLY ORDERED OR APPROVED; AND

"/2) PERFORMED BY AN EMPLOYEE. "SEC. 550.113.

"/C) OVERTIME WORK IN EXCESS OF ANY INCLUDED IN A REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK MAY BE ORDERED OR APPROVED ONLY IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM THIS AUTHORITY HAS BEEN SPECIFICALLY DELEGATED.'

IN THIS REGARD IT IS NOTED THAT PARAGRAPH 9 OF AFR 40-523 WHICH YOU ENCLOSED REQUIRES THAT OVERTIME WORK MUST BE ORDERED BY THE APPROPRIATE SUPERVISOR AND APPROVED IN WRITING BY THE OFFICIAL DESIGNATED TO AUTHORIZE PAYMENT OF OVERTIME.

WE DO NOT REGARD THE DIRECTIVES TO WHICH YOU REFER AS DIRECTING THAT OVERTIME SERVICES BE PERFORMED AT SPECIFIC TIMES OR AS OTHERWISE AUTHORIZING PAYMENT OF OVERTIME COMPENSATION FOR 15 MINUTES OF ADDITIONAL SERVICE EACH DAY. THE ADMINISTRATIVE OFFICE REPORTS THAT THERE IS NO EVIDENCE OF OVERTIME ACTUALLY WORKED AND NO APPROVAL OR AUTHORITY FOR PAYMENT OF ADDITIONAL OVERTIME FOR THE PERIOD IN QUESTION. THE DIRECTION CONTAINED IN THE DUTY ROSTERS TO REPORT PRIOR TO 0600 OR 1400 HOURS DOES NOT CONTAIN ANY ORDER TO REPORT A SPECIFIED TIME IN ADVANCE AND IN PRACTICAL EFFECT AMOUNTS TO NO MORE THAN A DIRECTION TO BE ON TIME. MOREOVER, WE HAVE BEEN ADVISED THAT THE FLIGHT COMMANDERS ARE NOT AUTHORIZED TO ORDER THE PERFORMANCE OF OVERTIME.

THE COURT OF CLAIMS HAS HAD OCCASION TO CONSIDER CLAIMS SUCH AS YOURS. IN A RECENT CASE, BILELLO V UNITED STATES, 174 CT. CL. 1253 (1966) THAT COURT WAS CONFRONTED BY THE CLAIMS OF SEVERAL SECURITY GUARDS FOR OVERTIME PERFORMED PURSUANT TO VERBAL ORDERS OVER A PERIOD OF 11 YEARS. IN THEIR CASE ALSO DESIGNATED OFFICIALS WERE REQUIRED TO APPROVE, IN ADVANCE AND IN WRITING, ALL OVERTIME WORKED AND ON A DESIGNATED FORM. IN DENYING THE PLAINTIFFS' CLAIMS THE COURT ANALYZED SEVERAL ANALOGOUS CASES AND STATED:

"THE COMMON DENOMINATOR DERIVED FROM THESE RESULTS IS 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 RESPONSE TO THE PLAINTIFFS' ASSERTION THAT IT WAS A BREACH OF DUTY ON THE PART OF THEIR SUPERVISORS NOT TO SUBMIT THEIR OVERTIME CLAIMS TO THE PROPER OFFICIAL THE COURT SAID:

"* * * ADMINISTRATIVE EFFICIENCY REQUIRES OBSERVANCE OF ORDERLY FORMS, AND BY VOICING THEIR DEMANDS THROUGH PROPER CHANNELS THE PLAINTIFFS CONCEIVABLY COULD HAVE SECURED A RULING WHICH WOULD HAVE RESULTED EITHER IN AN ORDER FOR OVERTIME COMPENSATION OR IN A JUSTIFIED REFUSAL ON THE PART OF THE PLAINTIFFS TO CONTINUE PERFORMING OVERTIME WORK WITHOUT COMPENSATION.'

IN VIEW OF THE FOREGOING THE PRIOR ACTION OF MAY 27, 1968, DISALLOWING YOUR CLAIM MUST BE AND IS SUSTAINED.