B-146044, JUL. 7, 1961

B-146044, JUL. 7, 1961

TO MR. ROBERT O-BRIEN:

YOUR LETTER RECEIVED HERE MAY 26, 1961, REQUESTS REVIEW OF OUR SETTLEMENT OF MAY 19, 1961, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION WHILE AN EMPLOYEE OF THE FEDERAL AVIATION AGENCY.

YOU SAY YOU WERE OFFICIALLY REQUIRED TO PERFORM OCCASIONAL DUTY DURING THE PERIOD JULY 5 TO SEPTEMBER 24, 1959, AT A RADAR TRANSMITTER AND RECEIVER SITE ON HUMBOLT MOUNTAIN, APPROXIMATELY 45 MILES FROM PHOENIX, ARIZONA, YOUR PERMANENT DUTY STATION AT THAT TIME. UPON CERTAIN DAYS DURING THAT PERIOD YOU PERFORMED OFFICIAL DUTY AT THE RADAR SITE AS A RELIEF TECHNICIAN FROM 4 P.M. TO MIDNIGHT AND WERE IN A STANDBY STATUS FROM MIDNIGHT UNTIL 8 A.M. THE FOLLOWING MORNING. YOU NOW CLAIM OVERTIME COMPENSATION FOR THE TIME YOU WERE IN A STANDBY STATUS UNDER THE PROVISIONS OF SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926 (1).

5 U.S.C. 926 (1) PROVIDES IN PART, AS FOLLOWS:

"THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, PROVIDE THAT---

"/1) ANY OFFICER OR EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK * * *.'

THE OVERTIME COMPENSATION SYSTEM PROVIDED BY SECTION 401 (1) IS NOT MANDATORY AND THE FEDERAL AVIATION AGENCY HAS INFORMED US THAT IT DOES NOT PAY PREMIUM COMPENSATION ON AN ANNUAL BASIS TO EMPLOYEES PERIODICALLY REQUIRED TO REMAIN IN A STANDBY STATUS. THEREFORE, IT WOULD APPEAR THAT ANY OVERTIME COMPENSATION TO WHICH YOU MAY BE ENTITLED DERIVES SOLELY FROM SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911. PURSUANT TO THAT SECTION OF THE UNITED STATES CODE PROVISION WAS MADE IN 5 CODE OF FEDERAL REGULATIONS 25.131 (2) (C) (1949 EDITION), FOR INCLUDING IN THE WORKWEEK ALL PERIODS OF STANDBY TIME EXCEPT THAT ALLOWED FOR EATING AND SLEEPING. SEE IN THAT REGARD AHEARN, ET AL. V. UNITED STATES, CT.CL.NO. 332-55, DECIDED OCTOBER 5, 1960.

WE ARE INFORMED BY THE FEDERAL AVIATION AGENCY THAT TWO EMPLOYEES ARE ASSIGNED TO DUTY AT THE HUMBOLT MOUNTAIN SITE WITH A BASIC WORKWEEK OF 40 HOURS. IN ADDITION TO HIS BASIC 40-HOUR TOUR ONE OF THESE TWO EMPLOYEES IS IN A STANDBY STATUS FROM MIDNIGHT TO 8 A.M., FOR ONE OR MORE NIGHTS AND MUST REMAIN AT THE SITE. THIS ASSIGNMENT PERIODICALLY IS ALTERNATED. BACHELOR QUARTERS AND PER DIEM IN LIEU OF SUBSISTENCE ARE PROVIDED SINCE THE EMPLOYEE IN STANDBY STATUS FROM MIDNIGHT UNTIL 8 A.M. IS UNABLE TO RETURN TO HIS HOME IN PHOENIX EACH DAY.

WE UNDERSTAND THAT DURING THE PERIOD JULY 5 TO SEPTEMBER 24, 1959, YOU PERIODICALLY WERE IN SUCH A STANDBY STATUS FROM MIDNIGHT UNTIL 8 A.M. BUT GENERALLY DID NOT ACTUALLY PERFORM WORK. THE DATE OF JULY 7, 1959, WAS ADMINISTRATIVELY REPORTED AS AN EXAMPLE OF ITS PRACTICE, STATING THAT THE RECORD SHOWS YOU WERE PAID FOR THREE HOURS OF EMERGENCY OVERTIME WORK FROM MIDNIGHT UNTIL 3 A.M.

WE NOTE FROM YOUR LETTER THAT YOU ALSO CLAIM OVERTIME COMPENSATION FOR ACTUAL WORK PERFORMED ON CERTAIN DATES BETWEEN THE HOUR OF 4 P.M. AND MIDNIGHT. SINCE THOSE HOURS WERE PART OF YOUR BASIC WORKWEEK OF 40 HOURS YOU WOULD NOT BE ENTITLED TO OVERTIME COMPENSATION FOR ACTUAL DUTY PERFORMED DURING SUCH HOURS. NEITHER IS OVERTIME COMPENSATION PAYABLE FOR THE HOURS OF MIDNIGHT TO 8 A.M. UNLESS SOME DUTY IS REQUIRED OF THE EMPLOYEE. IF HE IS FREE TO EAT AND SLEEP DURING SUCH HOURS THE TIME IS NOT COMPENSABLE. THE MERE FACT THAT YOU WERE REQUIRED TO REMAIN AT THE SITE DOES NOT ENTITLE YOU TO OVERTIME COMPENSATION.

THE AGENCY REPORTS THAT EXCEPT FOR THE THREE HOURS WORKED AFTER MIDNIGHT ON JULY 7, YOU PERFORMED NO WORK BETWEEN MIDNIGHT AND 8 A.M., DURING THE PERIOD IN QUESTION. THE PER DIEM IN LIEU OF SUBSISTENCE TO WHICH YOU REFER PRESUMABLY WAS AUTHORIZED IN RECOGNITION OF THE FACT THAT YOU WERE IN AN OFFICIAL TRAVEL STATUS AWAY FROM YOUR OFFICIAL STATION AND THE PER DIEM RATE UNDOUBTEDLY WAS REDUCED FROM THE MAXIMUM ALLOWABLE BECAUSE GOVERNMENT QUARTERS WERE FURNISHED.

IN VIEW OF THE FOREGOING WE MUST CONCLUDE THAT YOU WERE PAID ALL OVERTIME COMPENSATION TO WHICH YOU WERE ENTITLED. THEREFORE, OFFICE SETTLEMENT OF MAY 19, 1961, IS CORRECT AND UPON REVIEW, IT MUST BE, AND IS, SUSTAINED.

YOUR COPY OF THE SETTLEMENT WHICH WAS ENCLOSED WITH YOUR UNDATED LETTER IS RETURNED HEREWITH.