B-181317, DEC 17, 1974

B-181317, DEC 17, 1974

1. FEDERAL PROTECTIVE OFFICER (FPO) EMPLOYED BY THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 9, WHOSE APPEAL OF OUR TRANSPORTATION AND CLAIMS DIVISION'S DENIAL OF HIS CLAIM FOR OVERTIME COMPENSATION INCIDENT TO PERFORMANCE OF PRESHIFT DUTIES WAS REFERRED BY COMPTROLLER GENERAL DECISION BACK TO GSA FOR PAYMENT IF FOUND APPROPRIATE UNDER GUIDELINES OF BAYLOR V. UNITED STATES, 198 CT. CL. 331 (1972) AND 53 COMP. GEN. 489 (1974), MAY NOT BE COMPENSATED SINCE SUBSEQUENT COMPTROLLER GENERAL DECISION FOUND THAT REGIONAL COMMISSIONER OF GSA'S REGION 9 WHO WAS ONLY OFFICIAL AUTHORIZED TO ORDER AND APPROVE REGION 9 FPO'S PRESHIFT DUTIES DID NOT ORDER OR APPROVE SUCH OVERTIME. 2. FEDERAL PROTECTIVE OFFICER (FPO) EMPLOYED BY GENERAL SERVICES ADMINISTRATION (GSA) WHO APPEALS THE DISALLOWANCE OF HIS CLAIM FOR OVERTIME COMPENSATION FOR HAVING WORKED DURING HIS LUNCH PERIODS MAY NOT BE COMPENSATED SINCE HIS LUNCHES WERE EATEN DURING HIS NORMAL 8 HOUR SHIFT AND FOR WHICH HE HAS BEEN COMPENSATED.

IVAN F. MORELAND - OVERTIME COMPENSATION:

THIS ACTION IS A REQUEST FOR RECONSIDERATION OF OUR DECISION B 174069, B- 181541, B-152707, B-181317, B-158549, SEPTEMBER 11, 1974, INVOLVING THE APPEAL OF AN ADVERSE SETTLEMENT ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION TO MR. IVAN F. MORELAND, WHO CLAIMED OVERTIME COMPENSATION WAS DUE HIM INCIDENT TO HIS EMPLOYMENT WITH THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 9, AS A FEDERAL PROTECTIVE OFFICER (FPO).

THE RECORD SHOWS THAT FROM JANUARY 21, 1961, TO NOVEMBER 7, 1965, MR. MORELAND WAS EMPLOYED BY THE GSA, REGION 9, AS AN FPO AND FOR THIS PERIOD OF TIME MR. MORELAND CLAIMED OVERTIME COMPENSATION FOR 30 MINUTES PER DAY FOR ALLEGEDLY BEING REQUESTED TO REPORT FOR DUTY EARLY AND FOR AN ADDITIONAL 30 MINUTES PER DAY FOR LUNCH PERIODS DURING WHICH HE WORKED. ON JUNE 20, 1969, OUR TRANSPORTATION AND CLAIMS DIVISION DENIED MR. MORELAND'S CLAIM BECAUSE IT FOUND THAT ANY OVERTIME HE MAY HAVE WORKED WAS NOT ORDERED OR APPROVED BY THE AUTHORIZED OFFICIAL AND BECAUSE HE WORKED A STRAIGHT 8-HOUR DAY, THUS NOT BEING ENTITLED TO 30 MINUTE FREE LUNCH PERIODS. BY LETTER RECEIVED IN OUR OFFICE ON APRIL 9, 1974, MR. MORELAND APPEALED THAT DENIAL OF HIS CLAIM ON THE BASIS OF THE DECISION BAYLOR V. UNITED STATES, 198 CT. CL. 331 (1972), IN WHICH IT WAS HELD THAT EVEN THOUGH OVERTIME WORK MAY NOT HAVE BEEN SPECIFICALLY ORDERED, IF IT HAS BEEN INDUCED BY THE APPROPRIATELY AUTHORIZED SUPERIOR IT MAY BE COMPENSABLE. THIS OFFICE THEN ISSUED A DECISION B-174069 ET AL., SUPRA, IN WHICH WE STATED THAT WE WOULD REFER MR. MORELAND'S APPEALED CLAIM TO GSA SINCE IT WAS IN THE BEST POSITION TO DETERMINE IF THE FACTUAL SITUATION IN HIS PARTICULAR CASE WOULD SUPPORT PAYMENT IN LIGHT OF THE COURT OF CLAIMS DECISION IN BAYLOR, SUPRA, AND OUR DECISION 53 COMP. GEN. 489 (1974) IN WHICH WE INDICATED WE WOULD FOLLOW THE PRINCIPLES OF LAW AS SET FORTH IN BAYLOR, SUPRA.

HOWEVER, SUBSEQUENT TO OUR DECISION B-174069 ET AL., SUPRA, WE RECEIVED FURTHER INFORMATION FROM GSA PERTAINING TO FPOS IN REGION 9. WE THEN HELD, IN DECISION B-175363, NOVEMBER 26, 1974, THAT AN FPO IN GSA'S REGION 9 WAS NOT ENTITLED TO OVERTIME COMPENSATION FOR PERFORMING PRESHIFT OR POST SHIFT DUTIES SINCE GSA REPORTED THAT THE REGIONAL COMMISSIONER OF REGION 9, WHO WAS THE ONLY OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE SUCH OVERTIME WORK, HAD NO KNOWLEDGE OF ANY REQUIREMENT THAT FPOS IN REGION 9 HAD TO PERFORM SUCH OVERTIME. IT WOULD APPEAR THAT SINCE GSA'S REPORT IS APPLICABLE TO ALL FPOS IN REGION 9, ANY OVERTIME THAT MR. MORELAND MAY HAVE PERFORMED PRIOR TO HIS SHIFT, WAS NOT PROPERLY AUTHORIZED OR APPROVED BY THE APPROPRIATE OFFICIAL. ACCORDINGLY, FOR THIS REASON AND ABSENT EVIDENCE THAT THE REGIONAL COMMISSIONER OF REGION 9 AUTHORIZED OR APPROVED THE OVERTIME WORK IN MR. MORELAND'S CASE, WE AFFIRM THE DENIAL OF MR. MORELAND'S CLAIM FOR OVERTIME COMPENSATION FOR ANY PRESHIFT DUTY WHICH HE MAY HAVE PERFORMED.

MR. MORELAND ALSO CLAIMS OVERTIME COMPENSATION FOR LUNCH PERIODS OF 30 MINUTES PER DAY EVEN THOUGH HE WORKED A REGULAR 8-HOUR-TOUR OF DUTY. HOWEVER, SINCE 5 U.S.C. 6101 REQUIRES THAT AN AGENCY ORDINARILY ASSIGN AN EMPLOYEE TO A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS AND A BASIC WORKDAY OF 8 HOURS FOR A FULL TIME EMPLOYEE, THE 30 MINUTE LUNCH PERIOD DURING WHICH MR. MORELAND WORKED IS ACTUALLY A PART OF THE OFFICIAL WORK PERIOD AND THEREFORE MAY NOT BE COMPENSATED AT OVERTIME RATES. B-175363, SUPRA. FOR THE ABOVE REASONS THE DISALLOWANCE OF MR. MORELAND'S CLAIM FOR OVERTIME COMPENSATION FOR LUNCH PERIODS HE ALLEGES HE WORKED IS AFFIRMED.