B-176964, MAR 7, 1973

B-176964, MAR 7, 1973

COMPENSATION - OVERTIME - DUTY OFFICERS - COMPENSATORY TIME IN LIEU OF OVERTIME EMPLOYEE'S CLAIM FOR OVERTIME COMPENSATION FOR TIME HE SERVED AS DUTY OFFICER WHILE EMPLOYED BY DEPT. OF ARMY IN WASH., D.C., IS DISALLOWED AS NO TIMELY REQUEST FOR SAME WAS MADE. WHILE IT APPEARS OFFICE IN WHICH CLAIMANT WORKED GRANTED COMPENSATORY TIME OFF ON INFORMAL BASIS RATHER THAN UNDER ANY PROCEDURES ESTABLISHED UNDER APPLICABLE AUTHORIZING MEMO, IT IS IMPOSSIBLE, WITH LIMITED RECORD AVAILABLE, TO COMPUTE OVERTIME ACCURATELY AND IT IS ASSUMED CLAIMANT WAS GRANTED TIME OFF INFORMALLY FOR PERIOD HE SERVED AS DUTY OFFICER. THE TIME EMPLOYEE MAY HAVE SPENT AT WORK WHEN HE WAS ENTITLED TO COMPENSATORY TIME WOULD BE CONSIDERED VOLUNTARY.

TO MR. JOHN C. LAWLOR:

WE REFER TO YOUR LETTER OF DECEMBER 12, 1972, BY WHICH YOU REQUEST OUR REVIEW OF THE SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION, DATED DECEMBER 1, 1972, DISALLOWING YOUR CLAIM FOR ADDITIONAL OVERTIME COMPENSATION FOR THE TIME YOU SERVED AS DUTY OFFICER WHILE EMPLOYED BY THE DEPARTMENT OF THE ARMY IN WASHINGTON, D.C.

YOU INDICATE THAT DURING THE PERIOD 1963 THROUGH 1969, YOU WERE, ON NUMEROUS OCCASIONS, REQUIRED TO ACT AS DUTY OFFICER AND YOU HAVE FURNISHED DUTY ROSTERS COVERING MUCH OF THAT PERIOD WHICH SHOW THE WEEKDAYS AND SATURDAYS YOU WERE SO ASSIGNED. INSTRUCTIONS WITH REGARD TO DUTY OFFICER SERVICES WHICH ARE IN THE FILE ON YOUR CLAIM SHOW THAT EMPLOYEES SO ASSIGNED WERE REQUIRED TO REMAIN AFTER NORMAL WORKING HOURS ON THE WEEKDAYS INVOLVED AND TO BE IN THE OFFICE DURING THE MORNING ON THE SATURDAYS INVOLVED. HOWEVER, INSTRUCTIONS COVERING THE PERFORMANCE OF DUTY OFFICER SERVICES - MATERIAL MAINTENANCE DIVISION MEMO NO. 6 DATED SEPTEMBER 10, 1963, AND DIRECTOR OF MAINTENANCE MEMO NO. 6 DATED OCTOBER 28, 1968, BOTH OF HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS - PROVIDED FOR THE GRANTING OF COMPENSATORY TIME FOR DUTY OFFICER SERVICES PERFORMED. THE EARLIER MEMO PROVIDES:

"CIVILIAN PERSONNEL PERFORMING DUTY TOURS PHYSICALLY IN THE DIVISION WILL BE GIVEN A CORRESPONDING NUMBER OF HOURS COMPENSATORY TIME OFF DURING THE FOLLOWING DAY OR WEEK AS APPROPRIATE. NORMALLY SATURDAY COMPENSATORY TIME WILL BE TAKEN THE FOLLOWING MONDAY, AND WEEK DAY TIME THE NEXT WORK DAY."

THE EXTENT TO WHICH YOU TOOK ADVANTAGE OF THE COMPENSATORY TIME SO AUTHORIZED IS NOT CLEAR FROM THE RECORD. THIS MAY BE DUE IN PART TO THE FACT THAT IT WAS THE PRACTICE IN THE OFFICE IN WHICH YOU WORKED TO GRANT COMPENSATORY TIME ON AN INFORMAL BASIS, ALTHOUGH IT IS APPARENTLY YOUR CONTENTION THAT YOU TOOK LITTLE, IF ANY, COMPENSATORY TIME ON SUCH AN INFORMAL BASIS. DUE TO THE FACT THAT SOME TIME HAD PASSED SINCE THE PERIOD COVERED BY YOUR CLAIM THE DEPARTMENT OF THE ARMY HAS BEEN UNABLE TO FURNISH US INFORMATION WHICH WOULD ESTABLISH WITH CERTAINTY THE HOURS YOU WORKED AND THE COMPENSATORY TIME, IF ANY, WHICH YOU TOOK.

YOU BELIEVE THAT THE FAILURE OF YOUR AGENCY TO FOLLOW ESTABLISHED PRACTICES IN GRANTING COMPENSATORY TIME OFF OR PAYING OVERTIME COMPENSATION FOR DUTY OFFICER SERVICES PROVIDES A BASIS FOR THE ALLOWANCE OF YOUR CLAIM. IT MUST BE RECOGNIZED, HOWEVER, THAT HIGHER GRADE PROFESSIONAL AND ADMINISTRATIVE PERSONNEL OF THE GOVERNMENT OFTEN WORK BEYOND THEIR PRESCRIBED HOURS OF DUTY WITHOUT REQUESTING OR EXPECTING OVERTIME PAY OR COMPENSATORY TIME OFF. ALTHOUGH WE DO NOT CONDONE ANY AGENCY PRACTICE WHICH WOULD TEND TO MAKE EMPLOYEES FEEL OBLIGATED TO PERFORM ADDITIONAL HOURS OF WORK WITHOUT RECOMPENSE THE FACT THAT IT IS NOT UNUSUAL FOR EMPLOYEES IN MANY CIRCUMSTANCES TO PERFORM OVERTIME WORK ON A VOLUNTARY BASIS RESULTS IN ACCEPTANCE OF THE ADDITIONAL WORK BY THE AGENCIES INVOLVED WITHOUT REQUIRING RECORDS THEREOF TO BE MAINTAINED. WHEN SUCH CONDITIONS EXIST, EMPLOYEES CANNOT RELY UPON THEIR AGENCIES TO SUBSTANTIATE CLAIMS FOR OVERTIME WHICH ARE MADE YEARS AFTER THE PERIOD INVOLVED. IN THE CIRCUMSTANCES WE DO NOT BELIEVE IT UNREASONABLE TO HOLD THAT EMPLOYEES, ESPECIALLY THOSE IN HIGHER GRADE PROFESSIONAL AND ADMINISTRATIVE POSITIONS, MUST MAKE TIMELY REQUESTS FOR THE PAY OR COMPENSATORY TIME THEY FEEL IS DUE THEM AND FOLLOW UP ON THOSE REQUESTS THROUGH AVAILABLE ADMINISTRATIVE AND GRIEVANCE CHANNELS. FAILURE OF THE EMPLOYEE TO FOLLOW THOSE PROCEDURES SHOULD NOT SUBJECT THE GOVERNMENT TO PAYMENT OF A CLAIM WHICH CANNOT BE PROPERLY SUPPORTED IN OFFICIAL RECORDS.

IN YOUR CASE, ALTHOUGH DUTY OFFICER SERVICES WERE NOT VOLUNTARY SERVICES SINCE THEY WERE SPECIFICALLY ASSIGNED, THE TIME YOU MAY HAVE SPENT AT WORK WHEN YOU WERE ENTITLED TO COMPENSATORY TIME OFF AS PROVIDED IN THE APPLICABLE INSTRUCTIONS WOULD BE CONSIDERED VOLUNTARY. SINCE YOU DID NOT FOLLOW APPROPRIATE STEPS TO OBTAIN PAY OR LEAVE FOR SUCH SERVICES ON A TIMELY BASIS, YOUR PRESENT CLAIM MAY NOT BE ALLOWED.

THEREFORE, THE SETTLEMENT OF THE TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.