B-170580, OCT. 21, 1970

B-170580, OCT. 21, 1970

OVERTIME COMPENSATION - PROPER AUTHORIZATION SUSTAINING DECISION WHICH DENIED CLAIMS OF CIVILIAN GUARDS AT THE ARMY PICTORIAL CENTER, NEW YORK, FOR OVERTIME COMPENSATION FOR REPORTING TO DUTY 15 MINUTES PRIOR TO THE BEGINNING OF AN 8 HOUR SHIFT. PRIOR TO FEB. 16, 1968, THE PERFORMANCE OF INCIDENTAL DUTY BEFORE GOING ON SHIFT (REPORTING 15 MIN. EARLY) TO RECEIVE SPECIAL INSTRUCTIONS AND FOR THE ISSUANCE OF WEAPONS WAS NOT OFFICIALLY PART OF THE SCHEDULED ADMINISTRATIVE WORK WEEK, NOTWITHSTANDING THE REQUIREMENT BY SUPERVISORY OFFICIALS AND THE INSTRUCTIONS IN THE GUARD MANUAL DIRECTING THEM TO REPORT EARLY; AND, ABSENT PROPER AUTHORIZATION, GUARDS ARE NOT ENTITLED TO OVERTIME COMPENSATION.

TO MR. NATHAN T. WOLKOMIR:

THIS IS IN REPLY TO YOUR LETTER DATED JUNE 24, 1970, YOUR REFERENCE C 1106, WITH ENCLOSURES, CONCERNING THE OVERTIME CLAIMS OF DEPARTMENT OF DEFENSE CIVILIAN GUARDS AT THE ARMY PICTORIAL CENTER, LONG ISLAND CITY, NEW YORK, PRIOR TO FEBRUARY 18, 1968.

THE CLAIMANTS ARE SEEKING OVERTIME COMPENSATION FOR REPORTING FOR DUTY 15 MINUTES PRIOR TO THE BEGINNING OF A SHIFT. THE CLAIMS WERE FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 4, 1969. ACCORDINGLY, WE ARE WITHOUT AUTHORITY TO CONSIDER THAT PART OF THE CLAIMS INVOLVING PERIODS PRIOR TO SEPTEMBER 4, 1959, SINCE THE ACT OF OCTOBER 9, 1940, CHAPTER 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, FOREVER BARS ANY CLAIM AGAINST THE UNITED STATES WHICH IS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

THE CLAIMS COVERING PERIODS SUBSEQUENT TO SEPTEMBER 4, 1959, WERE DISALLOWED BY OUR CLAIMS DIVISION BY SETTLEMENTS DATED JUNE 9, 1970, ON THE BASIS THAT PAYMENT OF OVERTIME COMPENSATION FOR INCIDENTAL DUTIES WAS FIRST OFFICIALLY APPROVED AT THE ARMY PICTORIAL CENTER BY COLONEL DONALD S. BOWMAN, COMMANDING OFFICER, TO BE EFFECTIVE FEBRUARY 18, 1968. CERTAIN OF THE CLAIMANTS, THROUGH MR. JOSEPH P. GENUARD AND MR. PASQUALE F. SEVERINO, CLAIMS COORDINATORS, HAVE, IN EFFECT, REQUESTED REVIEW OF THOSE DISALLOWANCES ON THE BASIS THAT THEY WERE REQUIRED BY THE GUARD MANUAL OF THE CENTER AND THE PROVOST MARSHALS TO REPORT AT LEAST 15 MINUTES PRIOR TO GOING ON GUARD POST TO INSURE RECEIPT OF SPECIAL INSTRUCTIONS AND ISSUANCE OF WEAPONS BY THE SHIFT SUPERVISOR.

PRIOR TO FEBRUARY 18, 1968, THE TOURS OF DUTY OF THE CIVILIAN GUARDS AT THE ARMY PICTORIAL CENTER WERE 8 HOURS PER DAY FROM 0700 HOURS TO 1500 HOURS; FROM 1500 HOURS TO 2300 HOURS; AND FROM 2300 HOURS TO 0700 HOURS. ON FEBRUARY 16, 1968, THE COMMANDING OFFICER OF THE CENTER APPROVED NEW TOURS OF DUTY FROM 0645 HOURS TO 1500 HOURS; FROM 1445 HOURS TO 2300 HOURS; AND FROM 2245 HOURS TO 0700 HOURS, EFFECTIVE FEBRUARY 18, 1968. SUBSEQUENT TO THAT DATE, INCIDENTAL DUTY OVERTIME OF 15 MINUTES PER DAY HAS BEEN OFFICIALLY RECORDED ON EACH TIME AND ATTENDANCE REPORT WHERE APPLICABLE AND THEN APPROVED BIWEEKLY FOR PAYMENT BY OFFICIAL MEMORANDUM SIGNED BY THE COMMANDING OFFICER. PRIOR TO FEBRUARY 18, 1968, ALTHOUGH THESE GUARDS WERE REQUIRED TO REPORT 15 MINUTES BEFORE GOING ON SHIFT, INCIDENTAL OVERTIME WAS NOT SCHEDULED AS PART OF THE WORKDAY NOR WAS OVERTIME COMPENSATION THEREFOR AUTHORIZED OR APPROVED BY COMPETENT AUTHORITY ALTHOUGH REQUIRED BY THE GUARD MANUAL AND THE PROVOST MARSHALS OF THE CENTER.

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 20, 1945, CHAPTER 212, 59 STAT. 296, AS AMENDED, 5 U.S.C. 5542, AUTHORIZES THE PAYMENT OF OVERTIME PAY FOR HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN THE EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK. IN THE ABSENCE OF PROPER AUTHORIZATION OR APPROVAL EMPLOYEES ARE NOT ENTITLED TO OVERTIME COMPENSATION EVEN THOUGH SUPERVISORY OFFICIALS ARE AWARE OF AND TACITLY APPROVE OF EARLY REPORTING BY EMPLOYEES.

THE EXTRA TIME ALLOTED FOR THE PERFORMANCE OF INCIDENTAL DUTY BEFORE GOING ON SHIFT DID NOT OFFICIALLY BECOME PART OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE CIVILIAN GUARDS UNTIL APPROVED ON FEBRUARY 16, 1968, EFFECTIVE FEBRUARY 18, 1968, BY THE COMMANDING OFFICER OF THE CENTER, THE OFFICIAL VESTED WITH THE AUTHORITY FOR ESTABLISHING AND CHANGING THE TOURS OF DUTY OF CIVILIAN EMPLOYEES AND FOR APPROVING PAYMENT OF OVERTIME COMPENSATION. THERE IS NOTHING IN THE RECORD TO ESTABLISH THAT THE PROVOST MARSHALS OR ANY OTHER SUPERVISORS WERE AUTHORIZED TO PRESCRIBE TOURS OF DUTY OR TO ORDER THE PERFORMANCE OF OVERTIME NOR DOES IT APPEAR THAT ANY PERSONS TO WHOM SUCH AUTHORITY HAD BEEN DULY DELEGATED EVER ORDERED OR ACTIVELY INDUCED THE PERFORMANCE OF THE WORK FOR WHICH OVERTIME IS CLAIMED. WHILE THE CENTER'S GUARD MANUAL SPECIFICALLY REQUIRES THAT "ALL GUARDS WILL REPORT FOR DUTY AT LEAST FIFTEEN (15) MINUTES BEFORE GOING ON POST," THERE IS NO EVIDENCE TO SUPPORT A FINDING THAT SUCH REQUIREMENT WAS INITIATED OR APPROVED BY AN OFFICIAL AUTHORIZED TO PRESCRIBE TOURS OF DUTY OR ORDER OVERTIME HOURS OF WORK.

IN THE CASE OF BOWLING, ET AL V UNITED STATES, 181 CT. CL. 968 (1967), IN WHICH THE PLAINTIFFS (GUARDS) CLAIMED OVERTIME FOR THE 20 MINUTES THEY CONTENDED THEY WERE OFFICIALLY ORDERED TO WORK PRIOR TO EACH 8-HOUR SHIFT OF DUTY THE COURT SAID AT PAGE 978 THAT:

"PLAINTIFFS RELY ON THE OFFICE MEMORANDUM ISSUED BY CHIEF MCPHERSON IN 1957 AND WHICH WAS POSTED ON THE BULLETIN BOARD IN THE STATION HOUSE FOR 30 DAYS AS CONSTITUTING A WRITTEN ORDER IMPOSING DUTIES ON THEM WHICH, IN ORDER TO PERFORM IN APPROPRIATE MANNER, NECESSITATED THEIR REPORTING TO WORK 20 MINUTES BEFORE THEIR REGULAR 8-HOUR SHIFTS. HOWEVER, PLAINTIFFS HAVE FAILED TO SHOW (AND INDEED MADE NO ATTEMPT TO PROVE) THAT CHIEF MCPHERSON WAS AN OFFICIAL WHO WAS AUTHORIZED, BY THE DEPARTMENT OF THE NAVY OR THE APPROPRIATE OFFICIALS IN CHARGE OF THE MARE ISLAND NAVAL SHIPYARD, TO ISSUE ORDERS CONCERNING WORK HOURS, AND TO COMMIT DEFENDANT TO THE PAYMENT OF OVERTIME COMPENSATION BY LENGTHENING THE WORK HOURS. APPROPRIATE ACTION BY AN OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME IS A CONDITION TO RECOVERY IN THIS TYPE OF CASE, FOR OBVIOUSLY NOT EVERY DEPARTMENTAL OFFICIAL IS EMPOWERED TO SO CHANGE THE WORK HOURS OF EMPLOYEES AS TO COMPEL THE PAYMENT OF OVERTIME, OR OTHERWISE TO APPROVE OVERTIME. BILALLO, ET AL. V UNITED STATES, 174 CT. CL. 1253 (1966); BANTOM, ET AL. V UNITED STATES, 165 CT. CL. 312 (1964), CERT. DENIED, 379 U.S. 890 (1964); TABBUTT, ET AL. V UNITED STATES, 121 CT. CL. 495 (1952). AS WAS STATED IN ALBRIGHT, ET AL. V UNITED STATES, 161 CT. CL. 356, 361 (1963) (CIVILIAN SECURITY GUARDS EMPLOYED AT THE NORFOLK NAVAL SHIPYARD), IN DISALLOWING A PORTION OF THE CLAIMED OVERTIME PERIOD, 'THE PLAINTIFFS NOT ONLY HAVE THE BURDEN OF PROVING THAT THEY WERE ORDERED TO APPEAR 20 MINUTES BEFORE THE SHIFT STARTED, BUT ALSO THAT THE ORDER WAS ISSUED BY ONE HAVING THE AUTHORITY TO DO SO.' *** "

THE COURT WENT ON TO SAY THAT:

"THUS, THE MERE FACT THAT PLAINTIFFS MIGHT HAVE WORKED OVERTIME DURING THE PERIOD HEREIN INVOLVED IS NOT DETERMINATIVE OF THEIR RIGHT TO RECEIVE COMPENSATION THEREFOR. ' *** THE COURT HAS NOT GIVEN JUDGMENT UNDER THIS TYPE OF OVERTIME LEGISLATION (RELATING TO FEDERAL EMPLOYEES) UNLESS THE WORK OR ACTIVITY WHICH IS THE BASIS OF THE CLAIM HAS BEEN AUTHORIZED, APPROVED, ORDERED OR CONFIRMED BY AN AUTHORITY EMPOWERED TO DO SO.' GAINES V UNITED STATES, 158 CT. CL. 497, 500 (1962), CERT. DENIED, 371 U.S. 936 (1964)."

IN THE CASE OF BILELLO, ET AL. V UNITED STATES, 174 CT. CL. 1253 (1966), THE COURT OF CLAIMS WAS PRESENTED WITH A FACTUAL SITUATION SIMILAR TO THE ONE INVOLVED HERE. THE COURT 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 OF THE INSTALLATION DID NOT GIVE THE SUPERVISORY PERSONNEL AUTHORITY TO ORDER OR TO APPROVE OVERTIME BUT RATHER REQUIRED THEM TO SUBMIT OVERTIME REQUESTS FOR AUTHORIZATION AND APPROVAL BY THE SHIPYARD OFFICIALS LISTED IN THE REGULATIONS, OR THEIR DELEGATED REPRESENTATIVES. THOUGH THE GUARDS WERE 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. *** "

ON THE BASIS OF THE FOREGOING, AND UNDER THE CONTROLLING LAW AND REGULATIONS, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENTS DATED JUNE 9, 1970, WHICH DISALLOWED THE CLAIMS IN WHICH YOU ARE INTERESTED.