B-152707, NOV. 4, 1963

B-152707, NOV. 4, 1963

TO MR. WERNER D. SCHALLER:

THIS REFERS TO YOUR UNDATED REGISTERED LETTER NO. 591946, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF SEPTEMBER 9, 1963, WHICH DISALLOWED YOUR CLAIM FOR 1/2 HOUR A DAY OVERTIME FROM JULY 31, 1961, TO APRIL 31, 1963, AS A CIVILIAN GUARD AT THE NORTON AIR FORCE BASE, SAN BERNARDINO, CALIFORNIA.

YOUR CLAIM WAS DISALLOWED BECAUSE YOU WERE PAID FOR ALL THE TIME YOU WERE REQUIRED TO WORK. THE RECORD SHOWS THAT DURING THE PERIOD IN QUESTION YOU WERE PAID FOR 8 1/2 HOURS WORK EACH DAY, 5 DAYS A WEEK, 8 HOURS AT REGULAR PAY AND 1/2 HOUR AT OVERTIME RATE. YOU WERE ALLOWED A 20-MINUTE ON-THE- JOB LUNCH PERIOD. SINCE YOUR LUNCH PERIOD WAS NOT ENTIRELY FREE OF DUTIES THE ENTIRE 8-HOUR SHIFT IS COMPENSABLE TIME. THE 1/2 HOUR OVERTIME WAS PAID TO YOU BECAUSE YOU WERE REQUIRED TO REPORT 30 MINUTES EARLY TO A CENTRAL LOCATION, CLOCK IN, RECEIVE INSTRUCTIONS AND UNDERGO INSPECTION PRIOR TO PROCEEDING TO YOUR RESPECTIVE POST.

YOU SAY THAT YOUR CLAIM IS BASED ON A STATEMENT ISSUED BY THE COMMISSION AS THE RESULT OF THE NORFOLK NAVAL SHIPYARD CASE. YOU APPARENTLY HAVE REFERENCE TO THE CASE OF MACK N. ALBRIGHT, ET AL. V. UNITED STATES, CT.CL.NO. 263-61, AND ROBERT B. BAKER, ET AL. V. UNITED STATES, CT.CL.NO. 323-61, BOTH DECIDED APRIL 5, 1963, IN WHICH PLAINTIFFS CLAIMED 30 MINUTES OVERTIME PER DAY FOR REPORTING TO WORK PRIOR TO THE BEGINNING OF EACH 8- HOUR TOUR OF DUTY AND RECEIVED JUDGMENT FOR 15 MINUTES. THERE WAS NO CLAIM MADE FOR COMPENSATION FOR A LUNCH PERIOD IN ADDITION TO THE REGULAR 8 HOURS WORKED BY THE GUARDS.

YOU SAY THAT THE COMMISSION MADE A STATEMENT THAT UNLESS A LUNCH PERIOD IS SCHEDULED DURING AN 8-HOUR PERIOD THAT THE EMPLOYEE SHOULD BE PAID FOR A TIME EQUAL TO THE LUNCH PERIOD IN ADDITION TO HIS REGULAR 8 HOURS. ASSUME YOU REFER TO THE TRIAL COMMISSIONER'S REPORT TO THE COURT ON THE FACTS OF THE CASE. ALTHOUGH WE FIND NOTHING IN THE COURT'S OPINION TO THAT EFFECT, WE MAY SAY THAT THE COURT OF CLAIMS CONSISTENTLY HAS RULED THAT THE GOVERNMENT IS NOT LIABLE TO PAY COMPENSATION FOR A DUTY-FREE DESIGNATED EATING PERIOD.

FURTHER, IN THAT REGARD, SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303, REQUIRES THE HEADS OF THE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT TO ESTABLISH A BASIC WORKWEEK OF 40 HOURS. THERE IS NOTHING IN THAT ACT REQUIRING THAT A COMPENSABLE LUNCH PERIOD BE GRANTED TO AN EMPLOYEE. WHEN A 30-MINUTE LUNCH PERIOD IS ASSIGNED TO AN EMPLOYEE, SUCH PERIOD IS IN ADDITION TO THE 8-HOUR DAY AND IS NONCOMPENSABLE. IF, AS WE UNDERSTAND IT, YOUR BASIC WORKDAY CONSISTS ONLY OF 8 1/2 HOURS WORK TIME, WE ARE UNAWARE OF ANY EXPRESS STATUTORY AUTHORITY UNDER WHICH THE AIR FORCE MAY GRANT A REGULAR 20-MINUTE LUNCH PERIOD AND COMPENSATE YOU FOR SUCH A PERIOD.

HOWEVER, WE NOTE FROM THE REGULATIONS THAT WHEN A LUNCH PERIOD IS FOR 20 MINUTES OR LESS THE PERIOD MAY BE COUNTED AS TIME WORKED AND SINCE IT APPARENTLY IS A PERIOD WHICH MAY BE INTERRUPTED BY DUTY REQUIREMENTS WE WILL INTERPOSE NO OBJECTION TO THE ARRANGEMENT. NEVERTHELESS, AS YOU ARE PAID FOR THE 20-MINUTE OR LESSER PERIOD, YOU MAY NOT BE ALLOWED ADDITIONAL COMPENSATION FOR THE SAME PERIOD.

THEREFORE, THE CONCLUSION REACHED IN OFFICE SETTLEMENT OF SEPTEMBER 9, 1963, IS CORRECT AND UPON REVIEW MUST BE SUSTAINED.