B-153540, MAR. 24, 1964

B-153540, MAR. 24, 1964

TO MRS. DOROTHY M. PAINE:

WE REFER TO YOUR LETTER RECEIVED IN OUR OFFICE FEBRUARY 12, 1964, WHEREIN YOU AND MR. ROBERT B. ELLIOTT REQUEST REVIEW OF THE SETTLEMENTS OF OUR CLAIMS DIVISION, DATED JANUARY 28, 1964, WHICH DISALLOWED YOUR CLAIMS FOR OVERTIME COMPENSATION AS PASSENGER TRAFFIC CLERKS EMPLOYED BY THE DEPARTMENT OF THE AIR FORCE, 1501ST AIR TERMINAL SQUADRON, TRAVIS AIR FORCE BASE, CALIFORNIA.

YOUR CLAIM IS FOR ADDITIONAL COMPENSATION AT THE APPLICABLE OVERTIME RATE FOR ONE-HALF HOUR ON EACH DAY YOU WORKED BETWEEN JULY 1960 AND SEPTEMBER 9, 1963. YOU CONTEND THAT YOU WERE NOT ALLOWED APPROPRIATE LUNCH BREAKS DURING THAT PERIOD ALTHOUGH YOUR DAILY TOUR OF DUTY COVERED AN 8 1/2-HOUR PERIOD TO CONSIST OF 8 HOURS OF WORK PLUS A ONE HALF-HOUR LUNCH BREAK. APPEARS THAT NO PARTICULAR TIME FOR YOUR LUNCH BREAK WAS SCHEDULED BUT THAT SUCH BREAKS WERE TO BE ALLOWED WHEN THE WORKLOAD PERMITTED. YOU SAY THAT ON MANY OCCASIONS YOU WERE REQUIRED TO WORK THROUGH YOUR ENTIRE SHIFT WITHOUT A LUNCH BREAK WHEN THE WORKLOAD WAS HEAVY, HOWEVER, YOU HAVE PRESENTED NO EVIDENCE TO SHOW WHEN YOU ACTUALLY DID WORK WITHOUT A LUNCH BREAK. WHILE YOUR CLAIM CONSISTS OF ONE-HALF-HOUR OVERTIME PAY FOR 5 DAYS EACH WEEK YOU SAY THAT IT IS INCUMBENT UPON THE GOVERNMENT TO COMPUTE THE NUMBER OF DAYS WHEN YOU ACTUALLY WORKED DURING YOUR LUNCH PERIOD WITH APPROPRIATE DEDUCTIONS FOR LEAVE OF ABSENCES.

THE DEPARTMENT OF THE AIR FORCE REPORTED TO US THAT THE SPORADIC WORKLOAD IN THE POSITION IN WHICH YOU ARE EMPLOYED DID NOT PERMIT THE SCHEDULING OF LUNCH BREAKS ON A DEFINITE BASIS, BUT THAT YOUR SUPERVISOR WAS TO ALLOW YOU A ONE-HALF-HOUR LUNCH BREAK DURING THE MIDDLE OF EACH SHIFT AT A TIME WHEN WORK REQUIREMENTS PERMITTED. THE DEPARTMENT ALSO REPORTED THAT YOUR SUPERVISOR WAS NOT AUTHORIZED TO REQUIRE YOU TO FOREGO YOUR LUNCH BREAK BUT ONLY THAT HE WAS TO DESIGNATE THE TIME YOU WERE TO BE FREE FOR LUNCH ON THE BASIS OF THE WORKLOAD EACH DAY.

THE DETERMINATION OF WHETHER EMPLOYEES MAY BE ALLOWED LUNCH BREAKS AT SPECIFIC TIMES OR WHETHER LUNCH BREAKS MUST BE ALLOWED AT A TIME DETERMINED BY WORK REQUIREMENTS IS A MATTER WITHIN ADMINISTRATIVE DISCRETION AND THE EXERCISE OF SUCH DISCRETION IS NOT SUBJECT TO QUESTION AS LONG AS AN OPPORTUNITY TO TAKE THE APPROPRIATE LUNCH BREAK IS PROVIDED FOR EACH EMPLOYEE ENTITLED THERETO WITHIN A REASONABLE RANGE OF HOURS. SEE BANTOM V. UNITED STATES, CT.CL.NO. 481-61, MARCH 13, 1964.

YOU ENCLOSED WITH YOUR REQUEST FOR REVIEW THE STATEMENT SIGNED BY YOURSELF, MR. ELLIOTT AND 3 OTHER PASSENGER TRAFFIC CLERKS WITH WHOM YOU ARE EMPLOYED AT FOLLOWS:

"FROM A DIRECTIVE PLACED ON THE BULLETIN BOARD AND FROM PRIOR POLICIES OF THE 1501 AIR TERMINAL SQUADRON, PASSENGER SERVICE BRANCH, TRAVIS AFB, CALIFORNIA, IT IS THE OFFICIAL UNDERSTANDING THAT WHEN THERE IS A CONFLICT BETWEEN LUNCH REQUIREMENTS AND OUR WORK THE WORK WOULD COME FIRST, IN LIEU OF LUNCH. WE HAVE WORKED INNUMERABLE TIMES WITHOUT LUNCH PERIODS BECAUSE OF REQUIREMENT IN WORKLOAD.'

REGARDING THE PROOF THAT MUST BE SUBMITTED BY AN EMPLOYEE WHO CLAIMS ADDITIONAL OVERTIME COMPENSATION THE COURT OF CLAIMS IN THE RECENT CASE OF ALBRIGHT V. UNITED STATES, CT.CL.NO. 323-61, DECIDED APRIL 5, 1963, SAID THAT AN EMPLOYEE CLAIMING OVERTIME MUST SHOW NOT ONLY THAT HE WAS DIRECTED TO WORK OVERTIME BUT ALSO THAT THE PERSON DIRECTING HIM TO PERFORM THE OVERTIME DUTY HAD AUTHORITY TO DO SO. SEE ALSO BANTOM V. UNITED STATES, SUPRA.

WE DO NOT BELIEVE THAT YOUR ALLEGATION OR THE GENERAL STATEMENT MADE BY YOU AND OTHER PASSENGER TRAFFIC CLERKS IS SUFFICIENTLY SPECIFIC TO ESTABLISH THAT YOU WERE ACTUALLY REQUIRED TO WORK OVERTIME ON ANY SPECIFIC OCCASION. FURTHERMORE, IN VIEW OF THE FACTS AS REPORTED BY THE AIR FORCE WE DO NOT BELIEVE THAT YOU HAVE ESTABLISHED THAT YOUR SUPERVISOR WAS AUTHORIZED TO DIRECT YOU TO FOREGO YOUR LUNCH BREAKS AND THUS WORK OVERTIME. IN VIEW THEREOF, THERE IS NO AUTHORITY WHEREBY WE MAY ALLOW YOUR CLAIM FOR OVERTIME COMPENSATION.

THE SETTLEMENT OF OUR CLAIMS DIVISION DATED JANUARY 28, 1964, DISALLOWING YOUR CLAIM, IS SUSTAINED.