B-166081, MAR. 13, 1969

B-166081, MAR. 13, 1969

TO MR. E. W. LUBER:

WE REFER TO YOUR LETTER OF JANUARY 7, 1969, AND ENCLOSURES, CONCERNING YOUR CLAIM DATED JULY 31, 1967, FOR OVERTIME PAY FOR 30 MINUTES EACH WORKDAY AS A MEMBER OF THE CIVILIAN GUARD FORCE AT THE WESTERN VIRGINIA AREA OFFICE (WVAO), CORPS OF ENGINEERS, BERRYVILLE, VIRGINIA, DURING THE PERIOD FROM FEBRUARY 10, 1958, TO APRIL 3, 1966.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON APRIL 22, 1968, BECAUSE THE RECORD SHOWS THAT THE OVERTIME SERVICE CLAIMED BY YOU WAS NOT OFFICIALLY ORDERED OR APPROVED AS OVERTIME FOR PURPOSES OF ADDITIONAL PAY BY AN OFFICIAL AUTHORIZED TO APPROVE OVERTIME AS REQUIRED BY 5 U.S.C. 5542. THAT SETTLEMENT INFORMED YOU THAT THE MERE EXISTENCE OF A PRACTICE TO REPORT 15 MINUTES EARLY AND TO DEPART LATE 15 MINUTES EACH DAY FROM THE GUARD ROOM IS NOT TANTAMOUNT TO EXPRESS OR IMPLIED ORDERS BY AN AUTHORIZED OFFICIAL FOR YOU TO WORK OVERTIME.

THE SETTLEMENT OF APRIL 22, 1968, ALSO REFERRED TO THE CASE OF BILELLO, ET AL. V UNITED STATES, 174 CT. CL. 1253, AT PAGE 1256, WHEREIN THE COURT OF CLAIMS CONSIDERED WHETHER OVERTIME WAS OFFICIALLY ORDERED AND APPROVED IN THE SENSE REQUIRED BY THE GOVERNING STATUTE FOR ENTITLEMENT TO OVERTIME PAY AND THE COURT CONCLUDED THAT A REGULATION REQUIRING APPROVAL OF OVERTIME SERVICE BY A DESIGNATED OFFICIAL BEFORE IT CAN BE PAID IS BINDING ON CLAIMANTS UNLESS IT BE SHOWN THAT THE REGULATION IS UNREASONABLE OR THAT THE DESIGNATED OFFICIAL WHO WITHHOLDS SUCH APPROVAL HAS NEVERTHELESS ACTIVELY INDUCED THE PERFORMANCE OF OVERTIME WORK. MERE KNOWLEDGE ON THE PART OF SUCH OFFICIAL, WITHOUT INDUCEMENT OR WRITTEN SANCTION, WOULD NOT BE SUFFICIENT TO ENTITLE THE EMPLOYEES INVOLVED TO OVERTIME PAY.

THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS CPR H2 HOURS OF WORK (1959 AND 1962 ISSUES) PROVIDED IN PERTINENT PART AS FOLLOWS:

"DELEGATION OF AUTHORITY

"1-3. AUTHORITY FOR ESTABLISHING AND CHANGING THE TOURS OF DUTY OF CIVILIAN EMPLOYEES IS DELEGATED TO THE COMMANDING OFFICER OF ANY ACTIVITY EMPLOYING CIVILIAN PERSONNEL. THE EXERCISE OF THIS AUTHORITY WILL BE SUBJECT TO THE REQUIREMENTS OF APPLICABLE LAWS AND OF THESE REGULATIONS.

"OVERTIME HOURS

"2-4. OVERTIME SERVICES OF CIVILIAN EMPLOYEES MAY BE UTILIZED ONLY IN THE EVENT OF UNUSUAL EMERGENCY. FOR THIS PURPOSE -UNUSUAL EMERGENCY REFERS TO UNFORSEEABLE SITUATIONS INVOLVING PRESERVATION OF HEALTH, WELFARE, AND SAFETY OF PERSONNEL, OR PROTECTION OF GOVERNMENT PROPERTY; TEMPORARY PEAK WORKLOADS OR SEASONAL REQUIREMENTS WHEN OVERTIME IS MORE ECONOMICAL THAN HIRING ADDITIONAL STAFF; OR UNIQUE OPERATING REQUIREMENTS WHEN OVERTIME IS MORE ECONOMICAL THAN DEMURRAGE OR OTHER CHARGES. WHEN OVERTIME IS SO UTILIZED, ON EITHER AN IRREGULAR OR REGULAR BASIS, IT WILL BE RESTRICTED TO THE ABSOLUTE MINIMUM REQUIRED BY THE -UNUSUAL EMERGENCY.- SEE ALSO PARAGRAPH 2-9.

"AUTHORITY TO ORDER OVERTIME

"B. THE AUTHORITY TO ORDER OR APPROVE OVERTIME, IN ACCORDANCE WITH THE POLICY SET FORTH ABOVE, IS DELEGATED TO ARMY COMMANDERS AND CHIEFS OF DEPARTMENT OF THE ARMY STAFF AGENCIES AND MAY BE REDELEGATED TO INSTALLATION COMMANDERS. COMMANDERS MAY EXERCISE SUCH AUTHORITY THROUGH PRIOR APPROVAL OF THE SPECIFIC CIRCUMSTANCES UNDER WHICH USE OF OVERTIME IS CONSIDERED APPROPRIATE AND BY SPECIFIC DESIGNATION OF THE INDIVIDUALS EMPOWERED TO DETERMINE THAT SUCH CIRCUMSTANCES EXIST. THE SIGNATURE OF EITHER THE APPROPRIATE COMMANDER, OR OF A DESIGNATED INDIVIDUAL, ON THE TIME AND ATTENDANCE REPORT WILL SATISFY THE REQUIREMENT THAT THE OVERTIME SHOWN THEREON HAS BEEN DULY ORDERED OR APPROVED.

"INCIDENTAL DUTIES

"2-7.INCIDENTAL DUTIES DIRECTLY CONNECTED WITH THE PERFORMANCE OF A GIVEN JOB ARE CONSIDERED ASSIGNED DUTIES, AND TIME SPENT IN THEIR PERFORMANCE IS TO BE INCLUDED IN THE DAILY SCHEDULE OF WORKING HOURS. THIS INCLUDES TIME SPENT IN TRAVEL WHICH IS AN INHERENT PART OF, AND INSEPARABLE FROM, THE WORK ITSELF (SEE CPR P1.7). HOWEVER, TRAVEL FROM HOME OR LODGING PLACE TO WORK IS NOT CONSIDERED AS WORK TIME. EXAMPLES OF SITUATIONS INVOLVING INCIDENTAL DUTIES ARE OUTLINED BELOW.

"GUARDS

"A. WHERE IT IS NECESSARY FOR CIVILIAN GUARDS TO REPORT AT A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTIONS, UNDER-GO INSPECTION, AND THEN PROCEED TO THEIR RESPECTIVE POSTS OF DUTY, THE DAILY TOUR OF DUTY IS CONSIDERED TO BEGIN AT THE TIME THEY ARE REQUIRED TO CHECK IN. SIMILARLY, WHERE SUCH PERSONNEL ARE REQUIRED TO CHECK OUT AT A CENTRAL LOCATION, THE DAILY TOUR WILL END AT THAT TIME. GENERALLY, SUCH DUTIES SHOULD NOT REQUIRE MORE THAN ONE-HALF HOUR EACH DAY.'

IN YOUR AND OTHER CASES AT THE WVAO, THE EXTRA TIME ALLOTTED FOR THE PERFORMANCE OF INCIDENTAL DUTIES DID NOT OFFICIALLY BECOME PART OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE CIVILIAN GUARDS UNTIL ORDERED ON MARCH 30, 1966, EFFECTIVE APRIL 3, 1966, BY THE AREA ENGINEER, THE OFFICIAL TO WHOM AUTHORITY TO ISSUE SUCH AN ORDER HAD BEEN DELEGATED. WE UNDERSTAND FROM DISCUSSIONS WITH REPRESENTATIVES OF THE DEPARTMENT OF THE ARMY THAT GENERAL ORDER NO. 5, QUOTED IN YOUR LETTER, WHICH READS: "REMAIN ON DUTY AT THIS POST UNTIL PROPERLY RELIEVED" WAS ISSUED BY THE GUARD SUPERVISOR ALONG WITH OTHER GENERAL ORDERS SPECIFYING DUTIES AND PROCEDURES TO BE FOLLOWED WHILE ON THE GUARD POST OR PLACE OF REGULAR DUTY. NOWHERE DOES IT APPEAR THAT THE GUARD SUPERVISOR EVER POSSESSED THE AUTHORITY TO PRESCRIBE TOURS OF DUTY OR TO ORDER THE PERFORMANCE OF OVERTIME, AND NEITHER DOES IT APPEAR THAT ANY PERSON TO WHOM SUCH AUTHORITY HAD BEEN DULY DELEGATED EVER ORDERED OR ACTIVELY INDUCED THE PERFORMANCE OF THE WORK FOR WHICH YOU CLAIM OVERTIME. SEE GENERALLY IN THIS REGARD OUR DECISION B 163716 DATED JUNE 5, 1968, COPY ENCLOSED.

ON THE BASIS OF THE FOREGOING, AND UNDER THE CONTROLLING REGULATIONS WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT OF APRIL 22, 1968, WHICH DISALLOWED YOUR CLAIM.