Appendix — Bantom v. United States

Yn the United States Court of dlaims

No. 481-61.

(Decided March 13, 1964)

WALTER E. BANTOM, JR.,'ET AL. v. THE UNITED

STATES

Claude L. Dawson for plaintiffs.

' Thomas J. Lydon, with whom was Assistant Attorney

General John W. Douglas, for defendant.

Before Jonzs, Chief Judge, Wurraker, Laramone, DuRFEB

and Davis, Judges.

- OPINION

Perr Curiam: This case was referred pursuant to Rule 45

to Herbert N. Maletz, a trial commissioner of this court, with

directions to make findings of fact and recommendation for

conclusions of law. The commissioner has done so in a re-

port filed May 21, 1963. Plaintiffs filed exceptions to the

commissioner’s report and a brief. Defendant filed a notice

of election to submit on the commissioner’s report without

a brief. The case was submitted to the court on oral argu-

ment of counsel. Since the court is in agreement with the

findings and recommendation of the trial commissioner, as

hereinafter set forth, it hereby adopts the same as the basis ~

for its judgment in the case. Plaintiffs are not entitled to

recover and their petition is dismissed.

‘ OPINION OF COMMISSIONER

Plaintiffs, civilian security policersen employed by the

Department of the Army at the Frankford Arsenal, Phila-

722-612-641

2

delphia, Pennsylvania, -bring suit to recover overtime com-

pensation under the Federal Employees Pay Act of 1945, as

amended (5 U.S.C. 911).1 They claim first that they were

required to report for work 80 minutes prior to the start of

' their tour of duty without being paid therefor, and second

that they did not have available a 30-minute lunch period as

required by regulation, but instead were on duty during that

time. Each plaintiff thus seeks overtime pay for 1 hour per

day or a total of 5 hours during each workweek of his employ-

ment that falls within the six years preceding the filing of

the petition on December 29, 1961. Defendant says that

plaintiffs worked a total of 8 hours per day for which they

have been fully compensated. ,

The civilian security police force at the Frankford Arsenal

_ was charged with the physical security of the installation.

and of certain, outlying areas. The force was under the

supervision of a Provost Marshal and his immediate subor-

dinate, the Security Officer, while its day-to-day operations

were directed by a Chief of Police and subordinate shift

captains and lieutenants. The policemen operated motor

vehicle patrols, manned Various posts and gates at the - (rsena]

proper which covers an area of about 128 acres, and guarded

an outpost located some 4 miles away. s

- Members of the force. were employed on the basis of an

8-hour working day, five days per week, but at various times

were required to work six days a week for which they received

overtime compensation. The force operated around-the-clock

on the basis of 3 shifts known as the “A”, “B” and “C” shifts.

For the greater part of the claim period, the tour of duty on

the A shift was from 7:30 a.m. to 4:00 p.m.; on the B shift

from 3:30 p.m. to 12 midnight ; and on the C shift from 11 :30

p.m. to 8:00 a.m. Each shift overlapped the other by 30

minutes and while the shifts themselves were of 814 hours’

duration, 14 hour. was set aside by regulation for lunch pur-

poses. This overlapping of shifts gave continuity to the

1 This statute provides in part : >

“AN hours of work officially ordered or approved in excess of forty hours in

any administrative workweek performed by officers and employees to whom this

subchapter applies shall be considered to be overtime work and compensation

_ for such overtime work. except as otherwise provided for in this chapter, shall

be at * © * an amount equal to one and one-half times the hourly rate of basic

compensation of such officer or employee * oS

_ entire operation and permitted the policemen to perform

certain pre-shift activities during their tour of duty.

Members of the force were required to punch a time clock

in police headquarters at the beginning of their tour of duty ;

ie., at 7:30 a.m. on the A shift, at 3:30 p.m. on the B shift,

and at 11:30 p.m. on the C shift. Immediately thereafter a

roll call and inspection were held in the headquarters at

which each policeman was required to be in full uniform and

to be neat in appearance. In order that he be ready to assume”

his responsibility immediately, he was also required, pur-

suant to verbal orders of the shift captains, which were

taci..y approved by the Chief of Police, to be armed with his

pistol or revolver, together with ammunition therefor. In

the event a.policeman stood roll call without his side-arm, he

was admonished but not marked late. The time required for

an entire shift of 20 men to stand in line, turn in their gun

chits and draw their weapons and ammunition was not in -

excess of 5 minutes, with each man needing. not more than

15 seconds for this purpose.

Policemen owned their own uniforms which they were

permitted to wear to and from work. However, most pre-

ferred to keep their uniforms in lockers located adjacent to

the roll call area, and to change into and out of them on

arrival and departure. The men arrived at headquarters at

varying times before their tour of duty started, with some

d>ming in just prior to roll cal] while others arrived anywhere

up to 30 minutes before the start of roll caJl. . .

The majority of posts at the Arsenal were rotated among

policemen on a daily basis and at roll call, which averaged

about 5 minutes, the specific assignments for each policeman

on that shift were called out by the shift supervisor. In

addition, a roster of assignments, prepared the previous

evening, was available for examination beforehand.

Upon completion of roll call, the policemen dispersed to

their posts. Those who had assignments in the vicinity of

headquarters proceeded to their posts by foot and relieved

the policemen on the outgoing shift who returned to head-

quarters. Those assigned to more distaht posts (of which

there were three) were transported there by motor vehicle,

which in turn brought the outgoing policemen back to head-

quarters. These vehicles were driven by policemen assigned

\

ad

4 -»

to the motor vehicle patrol for that shift. Policemen on that

i were excused from_roll call, and subsequent to

the start of their duty shift made a cursory check of their

quarters before the end of their tour of duty, in which event

they were on occasion given a specific assignment before

up on their training. However, it was not uncommon for the

- outgoing policemen to have leisure time in the interval before

completion of their tour of duty.

Arsenal regulations provided that the policemen were to

have a 80-minute lunch period during each work shift. The

regulations prohibited them from leaving the Arsenal for

lunch, and this restriction was in effect during most or all of

the claim period. The policemen were free to have lunch

wore available on the A and B shifts but not on the C shift, —

thus making it necessary for men assigned to that shift to

- bring their lunch. As a matter of personal choice, a majority

of the policemen on the other shifts also brought their lunch.

The luncheon meal could be eaten at police headquarters or

at other areas within the Arsenal, as the individual saw fit.

However, because of the vicissitudes of police work, no speci-

fied:time for lunch was ordinarily prescribed so that a given

policeman’s lunch period might vary from day to day.

- Certain posts on the Arsenal required the constant presence °

of a policeman and, therefore, a man assigned thereto could

not leave his post for lunch or other purposes until he was

relieved by another member of the force. Accordingly, the

regulations made provision for relief posts in addition to the

specified posts, and generally at roll call certain policemen

were designated as relief men. If the force was shorthanded

-on a given day or if the relief men were occupied with other -

duties, the supervisory elements of the force acted as relief

5

men. Generally during the claim period, re)?ef was available

to the policemen so that they could have the 30-minute lunch

period. But on unspecified and irregular occasions, due to

a shortage of personnel, relief of a policeman was not always

possible with the result that he was deprived of his lunch

* period away from his post. This was not know: (o the

Provost Marshal or the Security Officer, nor did any police-

man complain to them about the situation. In the absence of

complaint, and having seen various members of the force

eating their lunch at the Arsenal’s cafeterias and snack bar,

these two officials had reason to believe that the regulation

prescribing a 30-minute lunch period was being fully com-

plied with. :

Not all posts on the Arsenal required assignment of relief

men: some were manned by 2 or 3 policemen, thus enabling

the men to relieve one another from duty for lunch and other

purposes. In addition, a policeman assigned to a motor patrol

was allowed to take his vehicle out of service and have his

lunch period. Similarly‘a man assigned to a “clock patrol”

could stop his clock and suspend his patrol for a 30-minute

lunch period.

Pursuant to regulation, it was necessary hee policeman

to call into headquarters and tell his shift supervisor that he

was taking his lunch period and give him the telephone

number where he could be reached. He was also required to

call in when his lunch period was over. During his lunch

period, the policeman was subject to a call back to duty in

the event the Arsenal fire alarm sounded, or some other emer-

gency situation arose. The evidence does not show that sub-

stantial work was actually performed in that time.

Against this background, the first question is whether

plaintiffs were required to report for work 80 minutes prior

to the start of their tour of duty. The record shows that no

such reporting time was ever officially ordered or approved,

orally or in writing, so as to permit recovery for overtime

. compensation under the Pay Act. See Gaines v. United

States, 132 Ct. Cl. 408 (1955) ; Tabbutt v. United States, 121

Ct. Cl. 495 (1952); Post v. United States, 121 Ct. Cl. 94

(1951). Nor were “the policemen “induced or directed by

(their) superiors directly or indirectly by writing or other-

wise” to work this overtime period. Gray v. United States, .

6

186 Ct. Cl. 812, 818 (1956) ; Anderson v. United States, 136

Ct. Cl. 365 (1956). It is quite true that some plaintiffs |

arrived at police headquarters at various intervals up to 30

minutes prior to commencement of their duty shift. How-

ever, this early arrival was not occasioned by any requirement

or order, but rather was voluntary on the individual police-

man’s part because of his own personal preference to change

into and out of uniform at the locker room in police head-

quarters instead of wearing it to and from work as he was

authorized to do.. The fact that some~plaintiffs voluntarily

caine to work earlier than required cannot support a claim

for overtime compensation. Baca v. United States, 150 Ct.

Cl. 70, 86 (1960) ; Goode, v. United States, 25 Ct. Cl. 261, 267

(1890). z

There remains the further consideration that verbal orders

of the shift captains, which were tacitly approved by the

Chief of Police, required the men to be armed at roll call with

_ their guns and ammunition so that they would then be ready

to assume their full responsibility. Assuming that such tacit

approval constituted official approval within the meaning of

the Federal Employees Pay Act (see Albright v. United

States, Ct. Cl. No. 263-61, decided April 5, 1963, slip op. p. 4),

at most the total time needed for an entire shift to draw

weapons and ammunition from the gun room prior to roll

call was 5 minutes, while the time needed for any one man

to perform this activity did not exceed 15 seconds. In the |

circumstanees of the present case, this is negligible and must

be disregarded ag de minimis. Anderson v. Mt. Clemens

Pottery Co., 828 U.S. 680, 692 (1942); Ahearn v. United

States, 142 Ct. Cl. 308, 312 (1558). Furthermore, the time

required to draw weapons and ammunition was more than .

. offset by relief periods allowed policemen during which they

- could leave their posts for various reasons. Also serving as

an offset were the varicus occasions when policemen enjoyed

leisure time in the interval between completion of their duty

shift and the time for checking out. vans

As to plaintiffs’ contention that they did not have avail-

able a 30-minute lunch period, the evidénce establishes that

each plaintiff was entitled by regulation to a 30-minute lunch

period per duty shift ; that responsible officials of the Arsenal

7

had sound reason to believe that this regulation was being

- fully complied with; and that they made every reasonable

effort to insure that such a period was available. The evi- ~

dence also establishes that the regulation was for the most

part complied with and that a 30-minute lunch period away

from their posts was generally available, which the plaintiffs

were permitted to utilize, as they saw fit, within limitations -

which appear reasonable and proper. The facts are thus .

quite different from those in Albright v. United States,

supra. In thai. case civilian security guards, employed by

the Norfolk Naval Shipyard, sought overtime compensation

on the ground that they were required to report for work

before their tour of duty began. -Defendant conceded this,

but sought to offset such extra periods.of work with the

‘time taken by the guards for their meals. The court denied

the offset since a lunch period was not provided for in the

regulations and the evidence showed that it was necessary

for the guards to eat “on the job at their assigned posts, that

is, while walking a beat, sitting at a stationary post, or

while riding in a vehicle on a patrol assignment.” J/d., pp.

4,11. ; pases | |

_ Nor can plaintiffs recover for the unspecified and irregular

occasions when they were deprived of a lunch period away -

from their post because of inability to obtain relief. Apart

from absence of proof as to.when these instances occurred,

it is significant that plaintiffs made ne complaint to the

responsible officials ; indeed, such officials had no knowledge of

the situation. In these circumstances, work performed by

policemen during these periods cannot be said to have been

“officially ordered or approved” so’ as to be compensable

under the Pay Act. Gaines v. United States, 132 Ct. Cl.

408 (1955) ; Tabbutt v. United States, 121 Ct. Cl. 495 (1952) ;

Post v. United States, 121 Ct. Cl. 94 (1951).

Plaintiffs’ principal contention is that since they were on —

a duty status for 814 hours per shift (e.g., from 7:30 a.m.

to 4:00 p.m.) and were only paid for 8 hours, they were —

entitled to 14 hour additional compensation, notwithstanding

that this time was-set apart for lunch. The basis for the

contention is that the lunch. period was-not “free time” since

the policemen were subject to call back to duty in case of

8

emergency. The difficulty with the argument is that an

employee is not entitled under the Federal Employees Pay

Act to compensation for time set aside for.eating, even where

the employee is on.a duty status and such time is, therefore,

subject to possible interruption. Compensation is available

only if it is. shown that substantial official duties were per-_—

‘formed during that period. Thus, in Armstrong v. United

States, 144 Ct. Cl. 659 (1959), vert. den. 361 U.S. 825, a

group of civilian firefighters employed by the Air Force

sought to recover overtime compensation under the Federal

plaintiffs during sleeping and eating time and consequently

the time did not constitute “hours of employment” for over-

time purposes within the meaning of the statute. See also

Gaetke v. United States,136 Ct. Cl. 756, 758 (1956) ; Collins v.

United States, 141 Ct. Cl. 578, 575 (1958) ; Ahearn v. United

States, 142 Ct. Cl..309, 311 (1958) ; Bean v. United States,

146 Ct. Cl. 267, 269 (1959); Ahearn v. United States, Ct. Cl: -

No. 332-55, decided October 5, 1960, cert. den. 364 US. 932.

On the other hand, in Farley v. United States, 181 Ct. Cl.

776 (1955), and England v. United States, 183 Ct. Cl. 768

(1956), plaintiffs who were correctional officers at a Federal

_reformatory and required to remain there several nights a

week were held entitled to overtime compensation: for the ,

time authorized for sleeping and eating because substantial

labor was performed during that time.

In the present case, while the plaintiffs were subject to call

during their lunch period in the event of fire or other emer-

gency, the record fails to demonstrate that they performed

substantial official ‘duties during that period and hence re-

covery for overtime compensation may not be permitted.

Furthermore, the fact that the policemen were required to

eat at the Arsenal is of no consequence; the Federal Em-

ployees Pay Act is not “meant to compensate an employee

merely because he was required to * * * eat on the em-

ployer’s premises instead of at home.” Armstrong v. United

States, supra (144 Ct. Cl. at 664). |

pind leas WM nie ded ais it te ry eatin cae peat nc Sa a oT Te te

9

In view of the foregoing, it is unnecessary to consider

defendant’s argument that the claims are barred by the doc-

trine of laches or its plea of estoppel. wa

FINDINGS OF FACT ss ;

1. -(a) All 96 plaintiffs in this case are citizens of the United _

States. _ 91 of the plaintiffs were employed at various periods ©

of time during the six years prior to the filing of this petition

on December 29, 1961, as civilian security policemen or

guards at the Frankford Arsenal, Philadelphia, Pennsyl-

vania. The remaining five plaintiffs gre widows or the sole

surviving heir of persons who served as security policemen

or guards at this installation during the above period. ;

(b) Of the 96 policemen involved in this action, 27 had

. been employed at the Arsenal since 1948; a total of 75 had

been so employed since 1951; and a total of 92 had been so

employed since 1953. Two were employed in 1955, one in -

1960, and one in 1961. . nae a ,

‘ 2 The Frankford Arsenal proper covers an area of ap-

"proximately 128 acres and includes about 234 buildings.

_ 3. (a) The civilian security police force at the Frankford

Arsenal was a branch of the Intelligence, Security and Safety

Office and was charged with the security of the Arsenal and

its outlying installations. The police force was: under the

over-all supervision of the Provost Marshal, a commissioned

- officer of the U.S. Army, and under the direct supervision of

the Security Officer (later called-the Security Administrator)

who was a subordinate of the Provést Marshal. The Chief

of the security police was.in charge of the day-to-day admin-

_ istration, operation and deployment of the policemen.

(b) The police force was composed of a chief, an assistant

‘chief, shift’ captains (who were initially designated as

sergesnts) and policemen (who were initially designated as

_. guards). Of the 96 plaintiffs involved in the suit, 2 were

chiefs of police, 8 were captains or acting captains, and 15

were lieutenants or acting lieutenants. These ranks com-'

prised the supervisory element of the police force. .

4. At all revelant times, the police force at the Arsenal was

employed on the basis of an 8-hour working day, five days ©

per week. However, at various periods the force was re-

722-612 64-2 ;

‘

10 a.

_ quired to work six days a week for which it received over-

time compensation.

5. (a) The police force operated around-the-clock on the

basis of 3 shifts known as the “A”, “B” and “C” shifts.

Beginning in June 1956, the tour of duty for each of these

shifts was as follows:

A shift—7 :30a.m.to4:00 p.m. |

B shift—3 :30 p.m. to 12 midnight

C shift—11 :30 p.m. to 8:00 a.m.

(b) Prior to June 1956, the tour of duty for each of these

shifts commenced and ended 30 minutes earlier than the times

listed above. .

-(c) Prior to 1958, these shifts were generally manned on

a two-week or monthly rotation basis. Thus, a policeman

would be assigned to the A shift for two weeks or a month,

‘following which he would be assigned for the next two weeks

or month to the C shift, then to the B shift, after which he

would revert to the A shift and so on. In 1958 rotation of

. shifts was discontinued and policemen were generally as-

' signed permanently toone of the 3 shifts.

(ad) From April 30, 1948, until December 31, 1950, police- .

men at. the Frankford Arsenal were employed on the basis

of a straight 8-hour day. The shifts operated as follows:

A shift—8 :0@a.m. to 4:00 p.m.

B shift—4 60 p.m. to 12 midnight

C shift—¥?2 midnight to 8 :00 a.m.

6. The operation of each shift was under the immediate

charge of a shift captain who reported directly to the chief

of police. ‘The shift captain was responsible for the assign- ;

n ont of policemex to various posts; for insuring that police-

men complied with the duties as specified in the regulations

and directives; and for seeing to it that the policemen on his

shift obtained relief from their posts so that they could

have a 30-minute lunch period. ) ‘

7. (a) The police force operated under regulations known

as Standard Operating Procedures (S.O.P.). These regu-

lations prescribed general orders and instructions concerning

the duties of the policemen and the specific duties applicable

to designated posts.

. : : ‘ :

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x . : + Re ae =n go iin Pies 2, SA » 2 ~ “, < it ee ee ee syn aii ae Bi Bs Ie fee

Lees jinn aed ae . oe tate Behons aS . ; ; : Fi .

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11

(b) S.0.P. 518 (Revised June 1956) read as follows:

LUNCH PERIODS AND RELIEF

1. Duty hours for the Security Branch ‘for each shift

is as follows: '

a. “A” Shift—0730-1600 hours ™

All personnel of this shift will report for duty ond

ring in their time cards no later than 0730 hours, at

which time they will be issued arms and ammunition, in-

spected in ranks and given such instructions as necessary

by the Security Police Captain. Those men assigned for

‘duty at Gage Laboratory will report directly to their

respective places at the time prescribed above and will

receive arms, ammunition and orders fromthe Senior

Security Policeman in charge at that particular installa-

tion. All Security Policemen will then be posted in

sufficient time to relieve the old Security Policemen by

0800 hours.

b. “B” Shift—1530-2400 hours

All personnel of this shift will report for duty and

ring in their time cards no later than 1530 hours, -at

which time they will be issued arms and ammunition,

inspected in ranks and given such instructions as neces-

sary by the Security Police Captain. Those men as-

signed for duty at Gage Laboratory will report directly

to their respective places at the time prescribed above

and will receive arms, ammunition and orders from the

Senior, Security Policeman in charge at that particular

installation. All Security Policemen will then be posted

in sufficient time to relieve the old Security Policemen

by 1600 hours.

* ¢. “O” Shift—2330-0800 hours

_All personnel of this shift will report for duty and

ring in their time cards no later than 2330 hours, at

which time they will be issued arms and ammunition,

inspected in ranks and given such instructions as neces-

sary by the Security Police Captain. Those men as-

signed for duty at Gage Laboratory will report directly

to their respective places at the time prescribed above

and will receive arms, ammunition and orders from their

Senior Security Policeman in charge at that, particular

installation. All Security Policemen will then be posted

in sufficient time to relieve the old Security Policemen

by 2400 hours. ;

2. The attention of all Security Policemen is directed

to General Security Police Order #4, which provides

that a Security Policeman will quit his post only when

q 12 .

roperly relieved. This means specifically that when

Bocurity Policeman is officially posted he is charged with

the ‘duties as prescribed in the General and Special

Orders, ‘and such other instructions as he may receive

from his Security Police Captain until he is officially

relieved. .

3. It isrecognized that at certain periods a Security

Policeman requires relief for various reasons. The Secu-

rity Police Captain, therefore will see that each Police-

man receives relief. ¢ ‘

4. Lunch Period: The Security Police Captain will

authorize absence from duty for a period not to exceed

thirty (30) minutes. The Security Policemen on their

lunch period will not be permitted to leave the instal-

lation where they are and they must be at such a

place where they can reached by telephone and the

nearest telephone number will be given to the Security

Police Captain prior to taking the lunch period. When

messing facilities are not available Security Policemen

will be required to Lring their lunch.

(c) S.O.P. 513 superseded a similar regulation which had

been in effect from December 31, 1950. Under the earlier

regulation the hours of duty for each shift started and ended

-30 minutes earlier. The earlier regulation also contained

referonce to three out posts, Tacony Depot, Burlington Ware-

house and Gage Laboratory, and specified that “the senior

guard in charge of each installation is authorized to grant

the prescribed reliefs and lunch periods and he is charged

with maintaining an accurate record of such reliefs and lunch

periods and will forward this report to the Shift Leader at

the completic 1 of his shift.” The Arsenal police force's re-

sponsibility 1 r the Tacony and Burlington dutposts ceased

some time prior to April 1956 and S.0.P. 513 contained no

reference to them.

(d) S.O.P. 511 (Revised January 1956) ent itled “Security

Poiice Regulations” provided in part as follows:

The following restrictions and regulations are issued

to the Security Policemen for strict compliance:

* 5 . * * *

14. It is ordered that all Security Policemen be

thoroughly familiar with all General and Special

Orders, and especially know the Special Order of his

assigned post.

*

* * * *

Oia Dales Ss ih,

13

7. There is no time allowed during the tour of duty

for any breaks or intermissions. This is not to be con-

strued as preventing a Security Policeman from eating

his lunch or advising the Police Captain that relief is

8, As indicated above, the policemen were required to re-

port for duty at the beginning of the duty shift (at 7:30 a.m.

on the A shift, 3:30 p.m. on the B shift, and at 11:30 p.m. on

the C’shift) and to punch a time clock in police headquarters

at the designated time which signaled the commencement of

their duty shifts for work and pay purposes.

9. (2) At or shortly after 7:30 a.m., 3:30 p.m. and 11:30

p.m. (depending on the shift) a roll call and inspection were

. held in police headquarters. At the roll call each policeman

was required to be in full uniform which had to be clean and

neatly pressed ; to have his equipment clean and shined; and

to be neat in appearance. Pursuant to verbal orders of the

shift captains, which were tacitly approved by the Chief of

Police, he was also required at roll call to have on his pisto!

or revolver, together with ammunition therefor. In short, at

roll call each policeman was expected to be ready to assume

his full responsibility. In the event a policeman stood roll

call without his side-arm, he was admonished but not marked

late. 7

(b) Generally it was necessary for the policemen to draw

their weapons and ammunition from the gun room (located

in police headquarters) prior to the beginning of their duty

shift. Based on the testimony-and based on this Commis-

sioner’s view of the operations of the B shift, it is found that

the total time needed for about 20 policemen to stand in line,

turn in their gun chits and draw their weapons and ammuni-

tion was not in excess of 5 minutes, and that the time required

for one policeman for this purpose was not in excess of 15

seconds. .

(c) On various cccasions, weapons and ammunition were

issued to the policemen after the time prescribed for com-

mencement of their duty shift.

10. In. order that the policemen could withdraw their

weapons and ammunition prior to the duty shift, a lieutenant

was directed to open the gun room prior to the start of the

shift. .To compensate him for early reporting, he was al-

14

lowed to terminate his-tour earlier than the prescribed time.

Generally, the lieutenant reported for duty 15. minutes prior

to the shift (e.g., at 7:15 am. on the A shift), opened the

gun room at this time, made an inventory of its contents, and.

' then issued the side-arms to the policemen. He was author-.

ized to leave for home 15 minutes early that day.

11. The policemen were required to be in uniform and to

wear their weapon during their entire tour of duty. They

owned their own uniforms and received an allowance from

the Arsenal to cover their cost and replacement. They were

permitted to wear their uniforms to and from work. How- |

ever, a majority of the policemen preferred to wear their

civilian clothes to and from work and kept their uniforms in

their lockers located adjacent to the roll call area, and

changed into and out of them on arrival and departure.

Policemen arrived at police headquarters at varying times

before their tour of duty started. Some came in just prior

to roll call, while others arrived anywhere up to 30 minutes

before.

12. (a) At the roll call the assignments for the policemen

were called out and special instructions given. The roll call

varied from 1 to 10 minutes arid averaged about 5 minutes.

(b) The specific assignment of policemen to the various

posts was generally prepared on the preceding day and listed °

on a roster which the policemen could examine prior to roll

call. The purpose of calling out the assignments at roll call

was to make last-minute changes in case a policeman was sick

or an emergency situation developed. In addition, projection

schedules were made up for a monthly period and posted on

the, bulletin board at police headquarters, indicating the

assignments and annual leave of the men for the month.

This schedule was revised from time to time because of emer-

gency or other conditions.

(c) Most of the posts at the Arsenal were rotated from

policeman to policeman on a daily basis. However, several

posts were assigned on a permanent basis.

13. (a) After roll call, the policemen dispersed to their

posts. Those assigned posts in the vicinity of police head-

quarters walked to their posts and relieved the outgoing

policemen; those assigned to more distant posts were trans- ©

ported there by motor vehicle, which in turn brought police-

15

men from the outgoing shift back to headquarters. The most

distant post on the Arsenal was about one mile from head-

quarters; and only three posts were beyond walking distance.

(b) A policemen who was assigned to motor vehicle patrol

was excused from roll call and subsequent to the start of the

duty shift (7:30 a.m., for example) would make a cursory -

check of the vehicle to make sure it had not been involved in

an accident or otherwise damaged during the preceding shift. _

Following completion of roll call, the policemen‘ assigned to

the vehicles were ready to commence operation thereof. .

14, In summary, while the polivemen’s tour of duty began

at 7:30 a.m. on the A shift, 3:30 p.m. on the B shift and 11:30

p.m. on the C shift, they did not actually assume their daily

duty posts until some time prior to the hour following the

commencement of the duty shift. For example, while police-

_men on the A shift were required to report for vork at 7:30.

a.m., they would not assume their actual daily duty post until

some time prior to 8:00 a.m. The pre-shift activities during

which the policemen responded to roll call, received their

assignments and any special instructious, and walked or were

driven to their posts to relieve policemen on the outgoing

shift could be accomplished subsequent to the required re-

porting time in sufficient time to enable members of the out-

going shift to be relieved and punch out on the hour on which

their tour of duty ended. For example, the A shift which

reported for work at 7:30 a.m. would relieve the C shift in

sufficient time to enable policemen on that shift to punch out

at 8:00 a.m. This was also true relative to relieving the other

shifts. After having been relieved from their posts, members

of the outgoing shift assigned to posts in the Arsenal returned’

to police headquarters to sign out. Frequently they returned

before the end of their tour of duty, in which event they were

sometimes given specific assignments to bé accomplished

before the check-out time. On occasion they utilized the time

in brushing up on their training. And on occasion they had

leisure time for the interval.

15. (a) The posts to which the policemen were assigned

were designated by numerals; e.g., Post No. 1, Post No. 2, etc.

_ These designations ran up to 32, but this does not indicate that

there were 32 posts in operation at any one time since during

the claim period various posts were discontinued and addi-

16

tional posts created. There were more posts in 1955 than at

the present, and the police force has been reduced during this

period. In addition to the posts, the policemen. manned 6

(c) The number of posts and gates that were manned

_ varied from shift to shift with more in operation on the A

shift than on the B or C shifts. In 1956 about 30 policemen

worked the A shift, 25 policemen the B shift and 20 the C

shift. As of May 1962 about 22 policemen worked the A

shift, 17 policemen the B shift and 14 the C shift.

(d) Prior to April 1956 policemen from the Arsenal were

assigned to outposts outside the confines of the Arsenal,

designated as the Tacony Depot ‘and Burlington Warehouse.

After April 1956 policemen were no longer assigned 'to these

two outposts. The only other outpost was the Gage Labora-

tory which was about 4 miles from the center of the Arsenal.

This post was manned by two policemen during the greater

_ part of the claim period. Policemen assigned to this outpost

went there directly from their homes and were not subject

to any pre-shift duty activities. Upon arriving for work at

7:30 a.m., for example, the policemen relieved the on-duty

policemen and called the Arsenal to advise the shift captain

of this fact.” é ;

16. (a) Certain posts required the constant presence of a

policeman, and thus a policeman assigned to such a post could

not leave until he was relieved. The S.O.P. therefore made

_ provision for relief posts in addition-to duty posts. Police-

men assigned to these posts were utilized to relieve other

policemen at their posts for lunch or other purposes. Gen-

erally at roll call certain policemen were designated as relief

men. However, if no one was designated for relief, the shift

captain instructed certain policemen to relieve others. In ,,

addition, policemen on the posts were permitted to call in and

request relief for lunch or other purposes. On occasion

designated relief men were engaged in other duties which

precluded them from acting as relief in which event the

supervisory personnel, including the assistant chief, the cap-

tains or lieutenants, frequently acted.as relief men to enable

policemen to leave their posts for lunch or other purposes. .

17

" (b) In general, relief policemen or members of the super-

visory group were available to enable each policeman to be

(c) Some posts had 2 or 3 policemen assigned to them

which enabled the men to relieve one another from duty for

lunch and other purposes.

(d) A policeman assigned to motor patrol generally was

allowed to take the vehicle out of service and have his lunch

period. Another vehicle would then cover that post.

(e) At police headquarters, there were usually sufficient

men assigned to effect relief of each policeman for a lunch

(f) During that period of the claim up to late 1958 or early

1959, policemen on certain posts were required to carry clocks

on their patrols of various buildings within the Arsenal and

at the outposts. On weekdays the clocks were only utilized

between the hours of 6 :00 p.ni. and 6 :00 a.m. (which involved

only the B and C shifts) ; on Saturdays and Sundays they

were. used on all three shifts. There were six such “clock

patrols”. The clocks were portable devices which contained

dial sheets or tapes which recorded impressions or “hits”

when placed in contact with clock stations located in the vari-

ous buildings. The time of each “hit” was recorded on the

dials or tapes which were read thereafter by the supervisor

to make sure that the policemen were patrolling the various

installations on their posts. When a policeman on the clock

patrol wanted to take his lunch period, he stopped the clock,

called the lieutenant at police headquarters and advised him

as to when he was taking and terminating his lunch period. |

This information was marked down by the lieutenant on 4

call sheet and was later checked with the clock dial or tape

. to verify the lunch period absence. While assigned to the

clock patrol, a policeman was unable to take ‘an excessive

lunch period because his absence was recorded both on the call

sheet and on the dial or tape.

17. While the policemen were entitled to and generally had

available a 30-minute lunch period, because of the vicissitudes

-—<R

of police work, no specified time for lunch was ordinarily

prescribed and, therefore, the lunch period of an individual

policeman might vary from day today. For example, on one

day a policeman on the A shift might have available to him |

the period from 12:30 p.m. to 1:00 p.m. for lunch ; on the next

day the period from 11:30 a.m. to 12 noon. ;

18, Generally it was necessary for the policeman to call

into headquarters and advise the shift supervisor that he was

taking his lunch period and where he could be reached, and

to call in when the lunch period was over.

19. During his lunch period, the policeman was subject to

call back to duty in the evertt-the Arsenal fire alarm sounded,

- or an emergency situation arose. The evidence does not show —

that plaintiffs performed substantial work during their lunch .

‘period. Nor is there any evidence in the record showing the

- number of hours of actual work performed by policemen

20. S.0.P. 513, which continued in effect until March 1962,

prohibited a policeman from leaving the Arsenal during his

lunch period. This prohibition was adhered to at least until

_ August 1960 when a new administrative policy was apparent-

ly adopted whereby a policeman could, leave the Arsenal to

eat lunch provided he obtained permission from his. super-

visor. —ee

21. (a) During their lunch period the policemen were free

to go anywhere within the Arsenal to eat their lunch. Vari-

- ous facilities were available on the Arsenal for eating pur-

poses. On the A shift two cafeterias were in operation five

days a week, Monday through Friday, one of which accom- -_

modated 800 persons, the o*h-r 100 persons. Also available |

was a snack bar that was open 6 days a week but closed on

Sunday, where hot meals could be obtained. This snack-bar,

which had about 9 tables where personnel could sit down and

eat, was open during the day and until 12:30 .a.m. except

Saturday when it closed at 9:00 p.m. However, the grill at

the snack bar generally closed at 10:00 p.m. during weekdays

so that from then unti] 12:30 a.m. only cold sandwiches and

‘beverages were available. Several canteens were also in oper-

ation throughout the Arsenal which served soup, sandwiches

and beverages.

19

(b) There were no eating facilities available on the Arsenal

during the C shift. — ;

22. (a) About 85-90 per cent of the policemen on the A

shift brought their lunch with them because of their own

persona] preference and ate at police headquarters or at other

areas within the Arsenal, as they saw fit. Some policemen on

that Anift purchased and ate their lunch at the cafeterias or

snack bar, = 8 =. st

_ (b) Because of the absence of eating facilities on the C

shift, policemen assigned to that shift had to bring their lunch

which they could eat a various areas within the Arsenal, as

they saw fit.

23, In the event a policeman was unable, because of work -

_. commitments, to have a lunch period, he was entitled to over-

time compensation or compensatory time off.

24. (a) At ho time did the Provost Marshal or his imme-

- diate subordinate, the Security Officer, ever receive any com-

plaint from any member of the police force that policemen

did not always have available a 30-minute lunch period.

(b) From time to time the Provost Marsha] and the Secu-

rity Officer observed policemen eating lunch in the cafe-

terias, the snack bar and elsewhere. They had no reason to

believe, nor did they know, that the regulation allowing a

30-minute lunch period was not always complied with. ,

(c) On occasion men complained to the Chief of Police,

who is a plaintiff here, that they were not always getting the

30-minute period. However, the Chief did nothing about it

and did not bring it to the attention of the Provost Marsual.

The Assistant Chief of Police, also a plaintiff here, never

heard of a man not getting relieved for lunch and never re-

ceived-‘any complaint about the length of the lunch period,

but had heard complaints about the time a man was relieved.

On numerois.occasions he saw men under his supervision on

the A shift eating lunch in the cafeterias.

(d) Members of the police force had the right to take up

with an assigned representative in the personnel office apy

grievance relating to their employment. Plaintiffs knew wio

' their representative was and were familiar with their right to

seek relief by way of recourse to such representative. On

occasion some of the plaintiffs utilized the grievance pro-

cedure to seek redress in rospect to various matters concern-

they

ment of their duty shift, or that they were not receiving the .

80-minute lunch period specified by the police regulations.

filed claims with the General Accounting Office by letters

which were virtually the same.. A typical letter read as

follows: :

I am tly — at the Frankford Arsenal,

Philadelphia 37, Pennsy vania, as a Security Policeman »

formerly known as ) and am required to be on

uty eight and one- f (o) hours each day, for which -

1 receive:pay for ont eight (8) hours. -

I would like to e a claim for back pay, based on a

recent decision by the United States rt of Clai

which ruled that, “Federal employees who are requi

to donate free time to their agency must be paid for the

extra time at the overtime rate of compensation for their

grade.” ~ “ |

(b) In addition, plaintiff Dubin sent the following letter

to the GAO: ek hs

I am presently ry te in the Frankford Arsenal,

Philadelphia, in the Physical Security Branch since

1940. In 1950, there was a change. Our Chief told us

that we would have to come In & half-hour earlier, so

that we would be in uniform to stand a roll-call inspec-

tion prior to being assigned to our various posts, in order

to relieve the men of the previous shift in time for them

_ to turn in the revolvers, change their uniforms to street

clothing and ring out their time cards on the hour. I

was advised by the Civil Service Reporter [publication]

because I am forced to pre a half houreveryday without

to Mr. Redlinger, about the claim for back pay voucher

form, and was instructed to write to the Comptroller

General’s office, as there were no forms for claims for

s

. 21

26. It was not until after these claims were filed with the

GAO that the Provost Marshal was aware of the plaintiffs’

contentions about not receiving a 30-minute lunch period per

duty shift. Upon being made aware of these contentions, the

Provost Marshal discussed the matter with the Chief of.

Police who gave him assurance that the policemen had been

getting their 80-minute lunch period. The Provost Marshal

then issued instructions to the Chief that no policeman, under

any circumstances, was to be denied his lunch period and that

if anyone were deprived of his lunch because of work com-

mitments, he was to receive overtime or compensatory time

off. He also caused to be issued in February 1962 a clarifying

directive (effective the following month) to make it crystal

clear that policemen were to have a 30-minute free lunch

period. The Provost Marshal further required the Chief of .

Police to certify to him that the policemen were getting their.

lunch period. The Chief of Police thereafter obtained state-

_ nents from his shift captains that each man had available

‘at least 30 minutes for lunch or other purposes and upon

receipt of this information advised the Provost Marshal in

writing that his directive was being carried out.

27. Pursuant to Rule 38(c), the parties entered into a

- stipulation, approved by the Commissioner, limiting the is-

sues of law and fact relating to the right, if any, of the

plaintiffe to recover, reserving the determination of the

amount of recovery, if any, for further proceedings.

CONCLUSION OF LAW

On the foregoing findings of fact, which are made a part

of the judgment herein, the court concludes as a matter of

law that plaintiffs are not entitled to recover and their

petition is dismissed. .

G.8. GOVERNMERT PRINTING OFFICE: 1964