B-180036, MAY 20, 1974

B-180036, MAY 20, 1974

DEPARTMENT OF AIR FORCE EMPLOYEES CLAIMED OVERTIME PAY FOR HOURS OUTSIDE THEIR NORMAL WORK HOURS WHEN THEY WERE REQUIRED TO BE AVAILABLE BY TELEPHONE, EITHER AT THEIR RESIDENCE OR ELSEWHERE WITHIN A 1-HOUR DRIVE OF THEIR DUTY STATION, IN ORDER THAT AN INFORMATION OFFICER WOULD BE AVAILABLE SHOULD A NEED FOR AN AGENCY SPOKESMAN ARISE OUTSIDE NORMAL DUTY HOURS. CLAIMS WERE DISALLOWED SINCE STANDBY DUTY AT THE EMPLOYEES' RESIDENCE WHEN NO WORK IS REQUIRED IS NOT "HOURS OF WORK" WITHIN THE MEANING OF 5 U.S.C. 911 (1958 ED.) SO AS TO BE COMPENSABLE.

TO MR. GEORGE K. BERNHARD:

THIS ACTION IS A RECONSIDERATION OF A SETTLEMENT OF JANUARY 24, 1966, BY THE CLAIMS DIVISION OF OUR OFFICE DISALLOWING THE OVERTIME COMPENSATION CLAIM OF MR. FRANCIS J. ASH, A FORMER INFORMATION OFFICER EMPLOYED BY THE DEPARTMENT OF THE AIR FORCE, AT THE ELECTRONIC SYSTEMS DIVISION, L. G. HANSCOM FIELD, BELFORD, MASSACHUSETTS. IN CONNECTION WITH THIS MATTER THE ATTORNEY FOR MR. ASH HAS ALSO FILED THE CLAIM OF MR. C. BRUCE WRIGHT WHICH IS THE SAME IN ALL RESPECTS AS THAT OF MR. ASH.

DURING THE PERIOD MARCH 19, 1962 THROUGH OCTOBER 13, 1963, THE CLAIMANTS WERE PLACED ON AN ALERT DUTY ROSTER FOR INFORMATION OFFICERS TO ASSURE THE AVAILABILITY OF AN INFORMATION SPECIALIST TO SERVE, IF REQUIRED, AS A SPOKESMAN FOR THE ELECTRONIC SYSTEMS DIVISION OUTSIDE NORMAL DUTY HOURS. ON THE DATES THE EMPLOYEES WERE ASSIGNED TO DUTY, THEY WERE REQUIRED TO REMAIN WITHIN IMMEDIATE REACH OF THEIR OWN RESIDENTIAL TELEPHONES DURING OTHER THAN NORMAL WORKING HOURS OR TO NOTIFY THE COMMANDING OFFICER OF THE DAY OF AN ALTERNATE TELEPHONE NUMBER WHERE THEY COULD BE REACHED. ALSO, THE ALTERNATE LOCATION COULD NOT BE FARTHER THAN 1 HOUR IN DRIVING TIME FROM THEIR DUTY STATION. INSTRUCTIONS WERE INITIALLY PROMULGATED VERBALLY AND WERE EVENTUALLY PUBLISHED IN GREATER DETAIL AS AN OFFICE MEMORANDUM ON DECEMBER 26, 1963.

MR. ASH'S CLAIM WAS DISALLOWED INASMUCH AS THE RECORD DID NOT INDICATE THAT THE OFFICIALS IN CHARGE EVER INTENDED TO AUTHORIZE OR APPROVE OVERTIME COMPENSATION FOR STANDBY DUTY SERVICES WHEN NO OFFICIAL BUSINESS WAS CONDUCTED. FURTHER THERE WAS NOTHING IN THE RECORD INDICATING THAT THE STANDBY TIME CONSTITUTED "HOURS OF WORK".

IN REQUESTING REVIEW OF THE DISALLOWANCE, CLAIMANTS THROUGH THEIR ATTORNEY CONTEND THAT STANDBY DUTY SHOULD BE CONSIDERED HOURS OF WORK IN VIEW OF THE SEVERE RESTRICTIONS PLACED ON ALERT INFORMATION OFFICERS. THE CLAIMANTS SUMMARIZE THEIR CASE FOR REVIEW AS FOLLOWS:

"AS THE DUTY PERSON, THE INDIVIDUAL WAS REQUIRED TO PHONE INTO THE OFFICER REGULARLY, AND WHENEVER HE CHANGED LOCATION, I.E. MOVIE, VISIT TO NEIGHBOR. ALL OF WHICH WAS UNNECESSARY AND ONEROUS. BUT THE PENALTY FOR FAILURE TO FOLLOW THE ROSTER AND ITS CONCOMMITANT DUTY WAS DRASTIC INDEED - LOSS OF JOB]"

COMPENSATION FOR EMPLOYEES REQUIRED TO PERFORM WORK IN EXCESS OF THEIR NORMAL DUTY HOURS DURING THE PERIOD OF THE CLAIMS WAS GOVERNED BY 5 U.S.C. 911 (1958 ED.) WHICH PROVIDED IN PERTINENT PART AS FOLLOWS:

"SEC 911. PAYMENT OF OVERTIME; RATES.

"ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES TO WHOM THIS SUBCHAPTER APPLIES SHALL BE CONSIDERED TO BE OVERTIME WORK AND COMPENSATION FOR SUCH OVERTIME WORK, EXCEPT AS OTHERWISE PROVIDED FOR IN THIS CHAPTER, SHALL BE AT THE FOLLOWING RATES ***."

UNDER THAT PROVISION THE OFF DUTY TIME DURING WHICH THE CLAIMANTS WERE ASSIGNED AS INFORMATION ALERT OFFICERS WOULD BE COMPENSABLE ONLY IF SUCH TIME CONSTITUTED "HOURS OF WORK" EVEN IF THE DUTY WAS PROPERLY AUTHORIZED OR APPROVED. IN THIS REGARD THE COURT OF CLAIMS RECENTLY CONSTRUED THE PHRASE "HOURS OF WORK" AS IT APPEARS IN 5 U.S.C. 5542 (FORMERLY 5 U.S.C. 911) IN ALDRIDGE V. UNITED STATES, 479 F.2D 1365 (1973), A CASE INVOLVING STANDBY DUTY PERFORMED BY CANAL ZONE POLICEMEN. THERE THE COURT SPEAKING THROUGH COMMISSIONER MASTIN G. WHITE STATED ON PAGE 1367 IN PERTINENT PART:

"HOWEVER, IT IS MY OPINION THAT CONSIDERABLE VIOLENCE TO THE ENGLISH LANGUAGE WOULD BE DONE BY A HOLDING TO THE EFFECT THAT THE PLAINTIFFS WERE ENGAGED IN 'WORK' FOR THE GOVERNMENT WHILE THEY WERE ATTENDING CHURCH SERVICES, OR MAKING PURCHASES AT GROCERY STORES, OR WATCHING SHOWS AT THEATRES, OR VISITING THE HOMES OF FRIENDS, OR ENTERTAINING FRIENDS IN THEIR OWN HOMES OR PURSUING HOBBIES AT HOBBY SHOPS, OR SWIMMING AT SWIMMING POOLS, OR PARTICIPATING IN SOCIAL ACTIVITIES AT SOCIAL CLUBS, OR PLAYING GOLF AT GOLF CLUBS, OR GETTING HAIRCUTS, OR BOWLING AT BOWLING ALLEYS, OR CARRYING ON IN THEIR OWN HOMES WHATEVER ACTIVITIES IN THE WAY OF RECREATION, DIVERSION, OR RELAXATION THAT MIGHT SUIT THEIR FANCY.

"THE PLAINTIFFS' SITUATION IS READILY DISTINGUISHABLE FROM THAT INVOLVED IN OTHER CASES WHERE EMPLOYEES WERE REQUIRED TO REMAIN AT A SPECIFIC PLACE DESIGNATED BY THE EMPLOYER WHILE AWAITING A POSSIBLE NEED FOR THEIR SERVICES, AND THE COURTS HELD THAT THE WAITING TIME, ALTHOUGH NOT PRODUCTIVE, CONSTITUTED COMPENSABLE HOURS OF WORK (E.G., ARMOUR & CO. V. WANTOCK, 323 U.S. 126, 65 S. CT. 165, 89 L. ED. 118 (1944); SKIDMORE V. SWIFT & CO., 323 U.S. 134, 65 S. CT. 161, 89 L. ED. 124 (1944); WINSBERG V. UNITED STATES, 98 F. SUPP. 345, 120 CT. CL. 511 (1951); FARLEY V. UNITED STATES, 127 F. SUPP. 562, 131 CT. CL. 776 (1955))."

THE CASE PRESENTED BY CLAIMANTS CLOSELY PARALLELS THE FACTUAL SITUATION PRESENTED IN THE CASE RAPP V. UNITED STATES, 167 C. CLS. 852 (1964). THAT CASE CERTAIN EMPLOYEES OF THE FEDERAL CIVIL DEFENSE ADMINISTRATION AND ITS SUCCESSOR AGENCY WERE REQUIRED TO SERVE PERIODICALLY AS DUTY OFFICERS IN THEIR HOMES DURING NON-WORK HOURS FOR THE PURPOSE OF RECEIVING TELEPHONE CALLS RELATING TO NATURAL DISASTERS AND OTHER EMERGENCIES. THEY WERE NOT REQUIRED TO PERFORM OTHER TASKS AND WERE FREE TO OCCUPY THEIR TIME AS THEY DESIRED WHILE AWAITING POSSIBLE CALLS. LATER THESE DUTY OFFICERS WERE REQUIRED TO PERFORM THIS STANDBY DUTY AT THE AGENCY'S CONTROL CENTER WHERE THEY WERE ALSO REQUIRED TO ACCOMPLISH ROUTINE TASKS SUCH AS KEEPING A LOG AND MAKING AND RECEIVING REGULAR TELEPHONE CALLS. OTHERWISE THEY WERE ALLOWED TO EAT, SLEEP OR READ AS THEY SAW FIT. THE COURT OF CLAIMS HELD THAT THE HOURS WHEN THE DUTY OFFICERS PERFORMED THEIR FUNCTION AT HOME DID NOT CONSTITUTE HOURS OF WORK FOR PURPOSE OF COMPENSATION WHILE THE HOURS WHEN THE DUTY OFFICERS PERFORMED THEIR FUNCTION AT THE CONTROL CENTER WERE PREDOMINANTLY FOR THE BENEFIT OF THE EMPLOYER AND WERE COMPENSABLE. SEE ALSO MOSS V. UNITED STATES, 1973 C. CLS. 1169 (1965).

THE CLAIMANTS IN THIS CASE WERE REQUIRED TO REMAIN WITHIN REACH OF A TELEPHONE IN THEIR HOMES OR AT PLACES WITHIN 1 HOUR DRIVING DISTANCE OF THEIR OFFICE. OTHERWISE THEY WERE FREE TO ENGAGE IN NORMAL ACTIVITIES. UNDER SUCH CIRCUMSTANCES WE FIND NO BASIS FOR DETERMINING THAT THE TIME SPENT BY CLAIMANTS AS INFORMATION ALERT OFFICERS CONSTITUTED "HOURS OF WORK" SO AS TO BE COMPENSABLE. B-176924, DECEMBER 15, 1972, AND B-173899, NOVEMBER 24, 1971. CF. B-170264, DECEMBER 21, 1973.

ACCORDINGLY, THE SETTLEMENT DISALLOWING MR. ASH'S CLAIM IS HEREBY SUSTAINED AND THE CLAIM OF MR. WRIGHT IS DISALLOWED.