B-163549, APR. 22, 1969
Highlights
WHICH DECISIONS CONCERN DIFFERENT CIRCUMSTANCES UNDER WHICH YOU FEEL YOU ARE ENTITLED TO OVERTIME COMPENSATION FOR CERTAIN IDENTIFIED DATES. THOSE DATES WERE SPECIFICALLY COVERED IN OUR DECISION OF SEPTEMBER 6. IN EACH INSTANCE IT WAS POINTED OUT HOW YOU DID NOT WORK "IN EXCESS OF 8 HOURS IN A DAY" USING THE PERIOD "MIDNIGHT TO MIDNIGHT" AS A DAY. AS WE POINTED OUT THEREIN THE IMMIGRATION AND NATURALIZATION SERVICE ADVISED US THAT THE CALENDAR DAY PERIOD WAS UTILIZED IN SCHEDULING WORK TO THE GREATEST EXTENT POSSIBLE. THOSE TWO DATES WERE NOT A PART OF YOUR ORIGINAL CLAIM. THERE WAS NOT BASIS FOR INCLUDING THEM IN OUR SEPTEMBER 6 DECISION. OR 1 HOUR WHICH WAS PART OF YOUR SCHEDULED TOUR THAT COMMENCED ON FRIDAY AT 5 P.M.
B-163549, APR. 22, 1969
TO MR. PATRICK BYRNE:
YOUR LETTER OF MARCH 24, 1969, REFERS TO CERTAIN ASPECTS OF OUR DECISIONS B-163549, MARCH 6, 1969, AND SEPTEMBER 6, 1968, WHICH DECISIONS CONCERN DIFFERENT CIRCUMSTANCES UNDER WHICH YOU FEEL YOU ARE ENTITLED TO OVERTIME COMPENSATION FOR CERTAIN IDENTIFIED DATES.
YOUR ORIGINAL CLAIM IDENTIFIED CERTAIN DATES ON WHICH YOU CLAIM OVERTIME COMPENSATION. THOSE DATES WERE SPECIFICALLY COVERED IN OUR DECISION OF SEPTEMBER 6, 1968. IN EACH INSTANCE IT WAS POINTED OUT HOW YOU DID NOT WORK "IN EXCESS OF 8 HOURS IN A DAY" USING THE PERIOD "MIDNIGHT TO MIDNIGHT" AS A DAY. AS WE POINTED OUT THEREIN THE IMMIGRATION AND NATURALIZATION SERVICE ADVISED US THAT THE CALENDAR DAY PERIOD WAS UTILIZED IN SCHEDULING WORK TO THE GREATEST EXTENT POSSIBLE.
WHEN YOU RECEIVED THE FOREGOING DECISION YOU TOOK ISSUE THEREWITH AND STATED THAT WE HAD FAILED TO CONSIDER CERTAIN DATES, I.E., FEBRUARY 10 AND APRIL 13, 1968. AS WE ADVISED YOU ON OCTOBER 23, 1968, THOSE TWO DATES WERE NOT A PART OF YOUR ORIGINAL CLAIM. CONSEQUENTLY, THERE WAS NOT BASIS FOR INCLUDING THEM IN OUR SEPTEMBER 6 DECISION.
OUR DECISION OF MARCH 6, 1969, DEALT SPECIFICALLY AND IN DETAIL WITH THE DATES OF FEBRUARY 10 AND APRIL 13, 1968. WE POINTED OUT THEREIN THAT FOR THOSE DATES YOU DID NOT WORK IN EXCESS OF 8 HOURS CONTINUOUSLY. FEBRUARY 10, SATURDAY, THE RECORD SHOWS YOU WORKED FROM MIDNIGHT UNTIL 1 A.M. OR 1 HOUR WHICH WAS PART OF YOUR SCHEDULED TOUR THAT COMMENCED ON FRIDAY AT 5 P.M., A TOTAL OF 8 HOURS OF WORK. THEN AT 4 P.M. SATURDAY, THE SAME CALENDAR DAY YOU WORKED AS SCHEDULED, 4 P.M. TO MIDNIGHT, 8 HOURS. YOU ADD THE 1 HOUR MIDNIGHT TO 1 A.M. SATURDAY, TO THE 8 HOURS 4 P.M. TO MIDNIGHT TO GET 9 HOURS WORK ON SATURDAY. THE CIRCUMSTANCES FOR APRIL 13 WERE SIMILAR. HOWEVER, ADMINISTRATIVELY TWO 8-HOUR TOURS WERE SET, I.E., FEBRUARY 9TH AND 10TH AND APRIL 12TH AND 13TH. WE POINTED OUT IN DETAIL IN OUR SEPTEMBER 6 DECISION TO YOU THAT, AS AUTHORIZED BY 5 U.S.C. 6101 (A) (3), THE ADMINISTRATIVE OFFICE CONCERNED EXERCISED ITS DISCRETION OF SCHEDULING WORK IN ADVANCE ON OTHER THAN A "MIDNIGHT TO MIDNIGHT" BASIS. AS WAS STATED ADMINISTRATIVELY, SUCH BASIS IS UTILIZED TO THE MINIMUM EXTENT NECESSARY IN ESTABLISHING WORK SCHEDULES OF EMPLOYEES WHICH SCHEDULES ARE SET UP WELL IN ADVANCE AND DO NOT REPRESENT SPUR OF THE MOMENT CHANGES OR CHANGES THAT ARE MADE WITHOUT FULL AND DUE CONSIDERATION OF ALL THE CIRCUMSTANCES AND REQUIREMENTS THAT CURRENTLY EXIST FOR THE PROPER AND FULL DISCHARGE OF ADMINISTRATIVE RESPONSIBILITY. WE SEE NOTHING ARBITRARY OR CAPRICIOUS IN THE EVIDENCE SUBMITTED TO US CONCERNING THE ADMINISTRATIVE SCHEDULES THAT HAVE BEEN FOR CONSIDERATION IN THIS MATTER.
WE HAVE AGAIN CONSIDERED THIS MATTER VERY CAREFULLY AND BASED UPON THE PRESENT RECORD AND THE APPLICABLE STATUTORY PROVISIONS WE ARE REQUIRED TO SUSTAIN OUR PREVIOUS CONCLUSIONS ON YOUR CLAIM THAT NO OVERTIME COMPENSATION IS DUE YOU FOR THE DATES IDENTIFIED.
SENATOR JACOB K. JAVITS AND CONGRESSMAN RICHARD D. MCCARTHY WHO CONTACTED US IN YOUR BEHALF HAVE BEEN ADVISED IN THIS MATTER.