author: NICHOLS, Judge.

text:
    William T. ANDERSON et al. v. The UNITED STATES, United Transportation Union, Intervenor.
    No. 480-69.
    United States Court of Claims.
    Jan. 23, 1974.
    Ray R. Murdock, Washington, D. C., atty. of record for plaintiff. Joseph A. Klausner, Washington, D. C., Clyde C. Houston and Houston & Lytle, Anchorage, Alaska, of counsel.
    Judith Ann Yannello, Washington, D. C. , with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Lester P. Schoene, Washington, D. C., atty. of record for intervenor. Edward D. Friedman, William H. Horkan and Bernstein, Alper, Schoene & Friedman, Washington, D. C., of counsel.
    Before LARAMORE and DURFEE, Senior Judges, and NICHOLS, Judge.
   NICHOLS, Judge.

Plaintiffs are former and present operating employees of the Government owned Alaska Railroad. They brought this action to recover overtime pay they say is owed them under 5 U.S.C. §§ 5544. 6102. The United Transportation Union has been allowed to intervene, and will be referred to as “intervenor” hereafter, though possibly it is really here as an amicus curiae. It says it is a national railway labor organization and is the authorized representative of various crafts of employees of the Alaska Railroad and other railroads, including all the plaintiffs. It has a contract with the Alaska Railroad including a disputes procedure, which the plaintiffs have not followed. It says the assertion of plaintiffs’ claims interferes with it in the performance of its duties. Its position on the issues in litigation will be noticed hereinafter when we discuss these issues.

Plaintiffs and defendant have filed cross motions for summary judgment. There are no fact issues requiring trial. We conclude that defendant’s motion should be allowed, and the petition dismissed.

Counsel are to be commended for their able exposition of the pay system under which plaintiffs operate. It has become possibly the most complex mode of calculating compensation for personal services that the mind of man has ever devised. It is best understood by an exposition of how it got that way, and we do this before discussing the issues in dispute.

Up to 1956 the Alaska Railroad used for its operating employees the dual system of compensation which we are told is common among American railroads. It denied that the then current Federal overtime laws had any application to these employees. However, in Samples v. United States, 135 Ct.Cl. 548 (1956), this court held they did apply. In that case, at p. 550, Judge Madden describes the dual system as follows:

Under the dual system of pay, 12V2 miles per hour is regarded as the standard speed of a train, and 100 miles of travel produces the same pay as eight hours of work paid by the hour. If it takes the train more than eight hours to travel the 100 miles, pay by the hour will be greater, and that computation will be used. If, as is not unusual, the train completes the journey in less than eight hours, pay by the mile will be greater and that computation will be used.

It may be added that every man’s rate is stated initially as a rate per mile, and he is often said to have earned so many miles. The hourly rate is the mileage rate times 12.5. Thus a mileage rate of $.3720 is an hourly rate of $4.65. This hourly rate would govern in case of work in the yards, or switching, or on a train slower than 12.5 miles, but mileage governs for a fast, long run. If a train went 200 miles in eight hours the man having the $.3720 rate would earn 200 times that figure, or $54.40. This would be $6.80 for each hour worked. Nevertheless, it is clear from Judge Madden’s opinion and calculations in the findings that the basic hourly rate for overtime calculations was always 12.5 times the mileage, i. e., $4.65 in the example given. Dual system overtime was only payable for stationary work, or on a slow train, where the advantageous mileage figure was not applicable. We are told this system was evolved to give operative railroad employees an incentive to move their trains rapidly, instead of the disincentive the straight hourly rate with overtime would supply.

The dual system also required certain extra payments to employees called “ar-bitraries”, and they will be so called hereinafter. The term does not, as might at first be supposed, imply any criticism as to the reasonableness or justness of payments under that head. These too were in accord with standard practice on American railroads. They involved payment as for work in certain situations where no work was performed, or else payments for actual work done within hours of actual work otherwise paid for. An example of a contract “arbitrary” is “Tie up between terminals” which is worth 100 miles, i. e., 100 x the employee’s mileage rate of pay. A brakeman gets 15 miles for uncoupling an airhose, which may take him one minute. “Used off assignments” is worth 100 miles added to other dual system miles earned.

This court held in Samples (p. 552) that the employees were entitled to extra compensation under the overtime statute whenever the actual hours worked exceeded 40 per week, and the overtime was computed at time and a half the basic rate, i. e., iy2 x mileage x 12y2. It held that the “arbitraries” were disregarded in ascertaining the basic hourly wage.

* * * The arbitraries are items conceded to the employees by their superiors for reasons which seemed sufficient to them, and have no relation to the policy of the forty-hour week, with overtime, * * *

For the same reason, the arbitraries were disregarded in comparing the dual compensation with that prescribed by the statute, so that plaintiffs were held entitled to judgment for any excess of regular pay for 40 hours, actual time, plus statutory overtime, over compensation paid under the dual system, not counting arbitraries. Thus, in view of the arbitraries, the actual compensation could considerably exceed the basic hourly earnings plus statutory overtime, as a result of the decision.

The intervenor tells us it viewed our decision with some alarm. It believed the court was putting the Alaska Railroad under heavy pressure to abandon the dual system of compensation and pay a straight hourly wage, with statutory overtime, but no mileage and no arbi-traries. It believed the dual system, with arbitraries, was of value to the employees, as well as to management, and that some concessions should be made to preserve it. The result of this was an undertaking in a new collective bargaining agreement providing for statutory overtime whenever it was more favorable than the dual system, but preserving the latter otherwise. It was further agreed that the arbitraries would not be added in any instance where an operating employee was paid statutory overtime rather than under the dual system. If the dual system, plus the ar-bitraries, produced a result exceeding the statutory system, payment would be under the dual system, with arbitraries. This is the system which, with union consent, has been effective on the Railroad since 1957, and which has permitted the payment of mileage and arbitraries to continue.

This statement, oversimplified perhaps in some respects, suffices to show the problems, the background, and the evolution in the position of the parties. We turn now to the issues placed before us in these cross motions; counsel agree that they fall under four heads.

I

Plaintiffs say that the impact of mileage upon actual hourly earnings must be fed into the computation of the basic hourly rate, which is used in computing statutory overtime. Thus, for the $.3720 per mile employee already mentioned, who serves 8 hours on a train which travels 200 miles, the basic hourly rate they say is not $4.65 but $6.80. Any escalation in earnings resulting from the mileage system, as applied in the case of a fast train, is escalated again in any overtime that may be earned.

The intervenor says that by sustaining this contention we would destroy the dual system beyond the possibility of preservation. This is opinion, of course, but it does appear plausible and plaintiffs do not effectively refute it. They are also seeking a windfall from what they hope to show is a mistake of law, that would not have befallen them, had the Railroad construed the law correctly all along. Such windfalls are not, however, unheard of in overtime litigation, and construction of the law to avoid them is not in any-way mandated. The words chosen by Congress, if unambiguous, must prevail, with narrow exceptions not here relevant.

It seems clear, also, that under plaintiffs’ theory an operating employee’s basic hourly rate would be a different figure for every train journey he took. Apart from overtime, complications can be imagined in other areas, as e. g., in computing retirement annuities. Nor is it clear how the Wage Board could fix the wage in advance in accordance with prevailing rates, as § 5544 says it must. With a system already so complicated, additional complication is perhaps of little moment, but perhaps is to be avoided if possible.

Defendant relies heavily upon Samples, supra, where it appears hourly rates were everywhere calculated as the straight mileage rate x 12y2. At p. 554, Judge Madden says the straight time rate had been calculated “commensurate” with the statute since 1945, and no re-computation of it was necessary for purposes of the case before him. It does not seem that the point plaintiffs now make was made then. He was approving, as to that particular, an administrative practice already 11 years old, and it appears another 13 years were to pass before anyone challenged it.

Plaintiffs rely on decisions as to the nature of the basic rate for overtime calculation, under the Fair Labor Standards Act, 29 U.S.C. § 207 and the Public Contracts Act, 41 U.S.C. § 35. It has been held that a bargained regular rate of pay must yield before a calculation of actual earnings per hour worked. Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942); Walling v. Helmerich & Payne, 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944); Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945). In the last cited case there was a contract “basic rate” but an alternative piecework rate that generally produced larger earnings and it was held the overtime must be computed on the actual hourly piece-work earnings.

Defendant says the Railroad work is not piece-work and that Walling v. A. H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942) is more similar to the facts of this case. There a basic pay was provided but there was a $40 per week minimum guarantee, only exceeded if the employee worked over 54 hours. The Administrator argued that in reality that $40 was a fixed salary for an irregular work week, but the Court held that it would not provide a rigid definition of a “regular rate” when Congress had not done so. It would allow the widest possible scope to good-faith agreements.

These early cases under the then new Wage-hour Law all involved more or less obvious subterfuges, generally a paper basic rate that rarely controlled in practice. Here, however, we have an hourly rate which actually controls the earnings for a large number of the hours worked. The Wage Board or like administrative authority that per § 5544, fixes the rate of pay, is a Government agency entitled to the presumption of regularity of official action and may not have subterfuge imputed to it. The parties, bargaining in good faith have provided a mileage rate as an incentive for taking a train speedily over a long distance. As the Court said in Walling v. Belo, at p. 635, 62 S.Ct. 1223, we should not insist on an inflexible and artificial interpretation of the Act, where it will impose a pay scheme not suited to the needs of the industry as well as what the parties can agree on among themselves. Mr. Justice Frankfurter said, concurring, in Walling v. Harnischfeger Corp., 325 U.S. 427, 433, 65 S.Ct. 1246, 1250, 89 L.Ed. 1711 (1945), a contract rate will be respected “provided it is not a mere artifice unrelated to wage-earning actualities.” We note that the statute here involved speaks in terms of a “basic” rate of pay. The word “basic” not being found in the Fair Labor Standards Act. Moreover, the latter now requires, as the statute here under review does not, that a contract rate, if used, must be “substantially equivalent to the average hourly earnings of the employee.” § 207(g)(3).

Plaintiffs’ argument proves too much in the sense that if they are right, surely arbitraries too ought to be cranked into the computer to find the basic hourly rate. This would be clearly contrary to Samples and plaintiffs do not even urge it here.

Though the point is far from being frivolous, we conclude on the whole that defendant and intervenor are right, plaintiffs wrong. We regard the issue as more or less res integra, authorities cited dealing with wholly different fact situations, and laws written to overcome subterfuges not found in direct Government operation and employment, such as we have here. We are told the dual system of compensation, here involved, is similar to that which obtains on privately owned railroads. Yet the courts have not had to grapple with the issues we have here, because the Fair Labor Standards Act and any like wage-hour and overtime legislation do not apply to operating railway workers. We are certain that in including employees of Government owned railroads within the coverage of Government employee. overtime legislation, the Congress did not wish to disrupt a system of compensation worked out in bona fide collective bargaining, suited to the needs of the industry, and acceptable to the employees. In statutory construction, unless the language is compelling, as it signally here is not, it is well to avoid interpretations no one can believe the Congress could have intended. The occasional instances of Congress inadvertently saying the wrong thing raises problems for courts which happily do not confront us here. The language is general and indicates an expectation that the courts will give it a rational and workable meaning in the infinitive variety of foreseeable and unforeseeable circumstances, and that we try to do here.

II

The next issue relates to arbitraries. As we have seen, the judgment in Samples was that they were neither basic pay nor overtime. In determining whether pay under the dual system satisfied the overtime statute, arbitraries were not counted. The right of the employee to benefit from them was the same, whether his pay was set under the dual system, or under the statute. However, in contract negotiations after Samples the union, to save the arbitrar-ies, agreed in effect to waive them whenever compensation was awarded under the statute, and in comparing dual system and statutory compensation, to see which was more favorable, arbitraries would be counted only on the dual system side. The plaintiffs argue that this agreement was obtained by coercion, because they lacked the right to strike, but intervenor scoffs at this. A triable issue of fact is not presented because a pay system that otherwise satisfies the statute would not do so any the less if established by the employer’s unilateral fiat and on the other hand, a pay system that violates the statute is not saved if the employees agreed to it. In construing the statute, in marginal cases, as indicated above, the factor of bona fide agreement may have weight, but we do not deem the instant dispute to deal with such a marginal issue.

Both sides agree Samples is the law, and no overruling or modification is suggested. It does indeed appear to us well thought out and manifestly sound. Both parties base their positions as to this issue on Samples. Plaintiffs say, of course, that Samples gave the employee a right to arbitraries even when receiving statutory overtime. The agreement subsequent to Samples, therefore, attempted to waive a statutory right. In effect, the use of arbitraries in computing compensation to Samples plaintiffs, is by this view frozen into the law. Defendant says, if plaintiffs receive their basic pay, correctly computed, with time and a half for hours over 8 a day and 40 a week, the statute is satisfied. Since, as quoted above, this court held that the arbitraries have nothing to do with the policy of the statute, clearly the statute leaves the parties free to abolish arbitraries, or continue them as before, or modify their incidence, as they may agree or as the employer may decree, in the absence of agreement. Plaintiffs in the Samples case, who got statutory overtime and also arbitrarles, did so because there was at that time no agreement, custom, or practice, making arbitrarles other than uniformly applicable. Now there is. There is no law cited to us that an employer who concedes a statutory right may not partially recompense himself by curtailing benefits in other areas not prescribed by statute. If his position had the look or smell of assessment of a penalty for assertion of the right, that might be a different question, as to which we express no opinion, but that is not the situation here. The employees’ bargaining representative made the agreement he did to save a system of compensation he thought more advantageous to the employees than the statutory system. Actually, plaintiffs’ concession in Samples, and again here, that arbitraries are not cranked into the computation of the basic hourly wage, makes their position here untenable. If they don’t get into the case by that route, there is no rational way they can get into it at all.

Ill

A further issue concerns the arbitrary know as the bi-weekly guarantee. A guarantee of pay for not less than 1200 miles per two week pay period at freight service rates is given to the Railroad’s “Extra Board” employees. It is considered desirable to be on “Extra Board” and employees assert seniority to get on it. Plaintiffs are or have been on it. In exchange for such guarantee the employees participate in an on-call arrangement, where they are free to come and go as they please, as long as they report for work on 90 minutes notice at anytime of day. The 1200 mile guarantee is set off against all compensation actually earned, including arbitraries, straight time and overtime. If an employee should miss a call he is penalized 100 hours pay, held off the Extra Board for 24 hours and placed at the bottom of the Extra Board rotation roster. He is not called again until his name comes upon the list. If he repeatedly misses calls he is subject to discipline.

Plaintiffs contend that hours of on-call time (i. e., awaiting calls) on Extra Boards exceeding 40 a week should be compensated for at overtime rates under 5 U.S.C. § 5544, since Extra Board employees are in substance engaged to wait. They argue that a trial judge should take evidence on the issue of whether or not Extra Board employees are engaged to wait. Cited as authority are Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), and Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944). Defendant argues that based on this court’s decisions it is entitled to judgment as a matter of law.

In Aldridge v. United States, 479 F.2d 1365, 1367, 202 Ct.Cl. -, - (1973), Trial Judge White said in language the court adopted as its own Per Curiam:

* * * it is my opinion that considerable violence to the English language would be done by a holding to the effect that the plaintiffs were engaged in “work” for the Government while they were attending church services, or making purchases at grocery stores or watching shows at the-atres, or visiting the homes of friends, or entertaining friends in their own homes or pursuing hobbies at hobby shops, or swimming at swimming pools, or participating in social activities at social clubs, or playing golf at golf clubs, or getting haircuts, or bowling at bowling alleys, or carrying on in their own homes whatever activities in the way of recreation, diversion, or relaxation that might suit their fancy.
The plaintiffs’ situation is readily distinguishable from that involved in other cases where employees were required to remain at a specific place designated by the employer while awaiting a possible need for their services, and the courts held that the waiting time, although not productive, constituted compensable hours of work (e. g., Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944); [other cites omitted]).

Plaintiffs distinguish the Aldridge case on the ground that there the claimants got no pay for waiting for a call, per se. Here, they assert, they do, making their waiting compensable work. There is, however, no pay for waiting in the instances which must be the majority, where work over 1200 miles is actually done. If less than 1200 miles is done and an extra payment is made to satisfy the guarantee, it is just another arbitrary, already held (see above) to have nothing to do with the policy of the overtime law. There are, indeed, several other ar-bitraries that deal with waiting situations. Such an arbitrary does not suffice to transform nonworking into working time; the Federal law on overtime deals with realities.

IV

The last issue relates to the calculation of the number of overtime hours where some are admittedly performed. It is another res integra issue and it rises out of the overtime law, as amended in 1962, too recently for authoritative court interpretation to be available to us on the issue involved. By 5 U.S.C. § 5544(a) compensation for a Wage Board or similar employee is for “overtime work in excess of 8 hours a day or 40 hours a week”. Before amendment by the Work Hours Act of 1962, Pub. L. 87-581, only work in excess of 40 hours a week was compensable. The question can be stated as whether hours that are overtime because of the 8 hours provision are nevertheless counted in determining when the 40 hour weekly figure is exceeded. For example, suppose an employee works as follows:

Monday ............... 10 hours
Tuesday ............... 8 hours
Wednesday ............ 8 hours
Thursday .............. 8 hours
Friday ................ 8 hours

Both sides concede that he worked two overtime hours on Monday. However, per defendant, these two hours, the ninth and tenth, are excluded from the “regular” hours and these being 8 hours each day, the 40 hour weekly maximum is not exceeded, and the employee earns two overtime hours only. Per plaintiff, however, the allowed 40 hours weekly are used up upon completion of the sixth hour Friday, and the seventh and eighth hours that day are also overtime, making four hours in all. Intervenor supports plaintiff on this issue, though saying it would not have intervened for this issue alone.

Questioning from the bench revealed that plaintiffs and intervenor would interpret the statute differently in another situation. Vary the illustrative case given above as follows:

Monday ............... 8 hours
Tuesday ............... 8 hours
Wednesday ............ 8 hours
Thursday .............. 8 hours
Friday ................ 10 hours

Plaintiffs would claim for two hours only, conceding that the last two on Friday were the only ones entitling the worker to overtime compensation. In-tervenor would make a double award, triple time apparently, for these two hours, converting them into four, as they represented excess over both the allowable daily and weekly hours. Thus, per plaintiffs, the worker would lose two hours overtime pay by the happenstance of the 10 hour day being Friday instead of Monday, while intervenor would correct this by a somewhat startling gloss on the statute. Of course, the illustra-tion gives defendant no problems.

According to counsel’s surmise, defendant’s interpretation of the statutory language results from the conceptual difficulties, as illustrated above, that ensue if defendant’s interpretation is abandoned. At any rate, there can be no doubt that defendant has interpreted similar language in other statutes as it now does the statute here involved. Thus Department of Labor Rulings and Interpretations No. 3 (Jan. 31, 1961) is quoted, construing the Public Contracts Act, as saying that if an employee under that Act has worked ten hours a day for six days he has worked 20 hours overtime. Under plaintiffs’ view herein, of course, it would be 28.

It would appear to accord the statute an interpretation according to its terms to compute overtime earned each week by the day, taking the sum of the hours worked over 8 in any days, then by the week, the total of hours worked in the week over 40, and then award the employee the larger figure. In any event, the plaintiffs’ interpretation cannot be correct and must be rejected. The daily and weekly figures surely cannot simply be added together, whether or not the happenstance is that the hours counted in the daily and in the weekly figures are the same hours. It is absurd that the employer should sacrifice his ability to get forty hours work at the regular rate if he calls for overtime at the beginning of the week, but not do so if he calls for it at the end. Statutes must, if their text permits, and sometimes even when it doesn’t, be construed to avoid absurd and whimsical results, unrelated to the Congressional purpose. Church of Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). The Congress might possibly have intended in overtime legislation of the 1930’s to compel the employer to spread the work around to the maximum extent feasible, by heavy pecuniary penalties for failing to do so, but it is hardly to be supposed it intended to penalize the United States Government in 1962. The 1962 amendment was, we believe, primarily to benefit the members of the Government’s work force, not to compel the parcelling out of portions of their work among strangers.

In view of the foregoing, defendant has not incurred liability to make overtime payments to the plaintiffs in any of the four ways discussed above. Plaintiffs’ motion for summary judgment is denied. Defendant’s motion for summary judgment is allowed. The petition is dismissed.


source: Caselaw Access Project

author: KASHIWA, Judge. KUNZIG, Judge

license: Public Domain

text:
    Seymour PERLMAN v. The UNITED STATES.
    No. 178-72.
    United States Court of Claims.
    Jan. 23, 1974.
    As Amended on Rehearing and Rehearing En Banc Denied April 5, 1974.

      John I. Heise, Jr., Silver Spring, Md., attorney of record, for plaintiff. Leonard J. Meiselman, Mineóla, N. Y., of counsel.
    Karen A. Berndt, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.
    Before DAVIS, KASHIWA and KUN-ZIG, Judges.

       Judges Kunzig and Bennett dissent as to the denial of defendant’s motion for rehearing en hane. Judge Kunzig also dissents as to the denial of the motion for rehearing.

   ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANT’S ALTERNATIVE MOTION TO REMAND

KASHIWA, Judge.

The plaintiff, a classified Civil Service employee and a Veterans Preference Eligible, brought this action to recover salary for the period following the termination of his employment on May 31, 1971, from his position as GS-11, Space System Quality Control Specialist, at the Naval Plant Representative Office (hereinafter “NAVPRO”), Bethpage, New York, less such amount he has received in retirement pay since that date.

The case is presently before the court on defendant’s motion for summary judgment or, in the alternative, for remand of the case to the Civil Service Commission, and on plaintiff’s cross motion for summary judgment. For reasons hereinafter stated, we deny both parties’ motions for summary judgment and allow defendant’s alternative motion for remand to the Civil Service Commission.

The ultimate controversy involves the implementation of a reduction in force (hereinafter “RIF”). However, the Government has interposed a defense raising the issue of whether plaintiff’s retirement on May 31, 1971, is to be treated as “voluntary.” If so, argues the Government, the Civil Service Commission, as well as its Board of Appeals and Review, was correct in deciding that the retirement constituted a.jurisdictional bar to appeal of the RIF. If the May 31, 1971, retirement was voluntary, the RIF, scheduled for June 24, 1971, could not and did not occur. Since we have chosen to limit our inquiry to the voluntariness of plaintiff’s retirement, it is not necessary to recite, in detail, the various allegations with respect to the RIF issue except insofar as these allegations relate to the voluntariness of the retirement. For purposes of the motions and our limited inquiry, the facts of the case may be summarized as follows.

As we have noted, supra, at the time of the termination of his employment at NAVPRO, the plaintiff was serving as a Space System Quality Control Specialist at a grade GS-11 level in Bethpage, New York. He had the status of a Preference Eligible entitled to the guarantees of the Veterans’ Preference Act.

Plaintiff was first employed by the Department of the Navy on February 19, 1947, as a Radio Mechanic, at the New York Naval Ship Yard in Brooklyn, New York. He continued his employment with the New York Naval Ship Yard until October 3, 1965, at which time he was employed by the Bureau of Naval Weapons, then located at Beth-page, New York. This facility later became known as NAVPRO. On May 22, 1966, plaintiff was promoted to the position of Space System Quality Control Specialist, GS-1955-11, and he served in this capacity until May 31, 1971. During the period of time between the date of his promotion and May 31, 1971, plaintiff also served for a time at grade GS-12 with the position assignment of Crew Chief in the Quality Division of the NASA Branch of NAVPRO. At all times during the course of his employment, plaintiff received a performance rating of “satisfactory.”

Prior to June, 1970, NAVPRO, Beth-page Quality Division, had its inspection personnel at the GS-11 grade classified in series designations 1955, 1942, and 1986. In June, 1970, the Civil Service Commission issued a single GS-1910 classification series for Quality Control positions which was to supersede the old 1955, 1942, and 1936 titles. The new series designation was Quality Assurance Specialist (Aerospace). The new position standards were sent to the printer from the Civil Service Commission by September 28, 1970.

In 1970 it was decided to reduce the number of personnel assigned to its Quality Division as a result of a cutback in funds and a manpower ceiling reduction. On December 15, 1970, plaintiff and other co-workers requested the initiation of formal grievance procedures to correct what they viewed to be the wrongful establishment of competitive levels by NAVPRO at Bethpage. In the submission to the Regional Office of the Civil Service Commission, plaintiff and the other signatories claimed that improper establishment of competitive levels would allow the retention of low preference and tenure employees and cause a dismissal of high preference and tenure employees. The New York Regional Office, by letter of December 31, 1970, advised that since no RIF notices had been issued, a proper appeal had not "been filed and thereby declined to pass upon plaintiff’s request.

NAVPRO initiated its RIF program in December, 1970, and segmented it into three stages, with personnel being separated in February, April, and June or July, 1971. NAVPRO did not implement the new standards prior to the issuance of the RIF notices.

On March 26, 1971, plaintiff was issued a RIF notice advising of the abol-ishment of his position of GS-1955-11, Space System Quality Control Specialist, effective June 24, 1971. At the time, he had a service computation date of June 12, 1943, and was in retention subgroup 1A. The notice advised him that there were no employees in the commuting area whom he had a right to displace.

At approximately the same time as plaintiff’s RIF predicament was developing, the Civil Service Commission, on March 16, 1971, issued Bulletin No. 831-34, which directed the attention of the agencies to the possibility of an annuity increase effective June 1, 1971, for employees retiring before that date. The eventual annuity increase of 4.5 percent was not, however, announced as definite until May 4, 1971, by Bulletin No. 831-35.

After the issuance of his RIF notice but before May 31, 1971, plaintiff met with a Personnel Specialist of the Personnel Branch of NAVPRO to determine his position on the retention register and to discuss his personnel rights. Plaintiff was advised that if he would elect to resign by May 31, 1971, he would receive the benefits of an increased annuity of 4.5 percent.

Subsequent to this meeting and a week prior to May 31, 1971, plaintiff inquired of the Personnel Specialist as to the amount of time which he would have subsequent to any retirement on May 31, 1971, in order to perfect an appeal of his rights. The Personnel Specialist was unable to answer but indicated that she would find out. No response was forthcoming so on May 28, 1971, a Friday which was plaintiff’s last day of work, he again inquired as to whether he would have appeal rights. She then advised that he would have no appeal rights by reason of his going off the rolls on May 31, 1971. Plaintiff then requested a delay in his separation procedure in order to verify this information from the Civil Service Commission. The Personnel Specialist agreed to a delay until the following Monday in order for plaintiff to verify this information. Plaintiff tried to contact the Civil Service Commission by telephone to ascertain the extent of his rights of appeal and was unable to do so. With only hours remaining in which to make a decision, plaintiff drove to the Civil Service Commission in New York City on Friday, May 28, 1971. But between the time of his conversation with the Personnel Specialist at Bethpage and the time he reached the Regional Office of the Civil Service Commission in New York on the same day, the office closed. He was therefore unable to ascertain the answer from the Commission to his inquiry concerning his rights of appeal. Thus, the plaintiff, certain that a retirement was required by May 31, 1971, to insure the vesting of the 4.5 percent increase in his annuity, but with no firm knowledge of the effect, if any, of such a decision on his appeal rights, “chose” to retire.

On July 7, 1971, plaintiff appealed to the New York Regional Office of the Civil Service Commission from the RIF contending that NAVPRO did not implement the 1910 job series for the purpose of excluding qualified GS-1955 series positions from their proper level on the retention register. Plaintiff contended that lower retention employees at his competitive level were not subjected to the RIF procedure. Plaintiff further contended that the Senior Naval Officer at NAVPRO had advised personnel of the Quality Division that in the event of any RIF, all billets of the Quality Division would be combined by competitive level on one register. He further advised the Commission that subsequent to the announcement, various transfers and reassignments reflected the interchangeability. Plaintiff went on to claim that in the prior stage of the RIF (effective April 21, 1970), lower retention employees reached in this reduction were offered jobs by “bumping” non-veterans but that these same positions were not offered to the higher retention employees in the later stage of the RIF affecting plaintiff. Plaintiff contended that he had been denied his rights under Subchapter 7 of Chapter 351 of the Federal Personnel Manual in not being offered a continuing position which was held by an employee with lower retention points and standing.

On July 12, 1971, plaintiff furnished the Civil Service Commission with additional information concerning the RIF. By letter dated July 12, 1971, NAVPRO advised the Civil Service Commission that plaintiff “ * * * was to be separated as a result of reduction-in-force effective 24 June 1971, applied for retirement on 27 May 1971, with effective date of 31 May 1971.” By letter dated July 23, 1971, the New York Region of the Civil Service Commission declined to accept plaintiff’s appeal on the ground that his separation was “ * * * a voluntary act on your part and not as a result of reduction-in-force action taken against you by your agency, * *

By appeal letter of August 5, 1971, plaintiff appealed the decision to the Board of Appeals and Review of the Civil Service advising that “ * * * had I known that an inoluntary (sic) retirement, in this instance, would be looked upon as a voluntary separation from the service, I would not have elected the option.” Plaintiff further claimed that NAVPRO officials had notified him that no job offer would be made during the period between May 31 and the scheduled date of the RIF, June 24, 1971. By decision dated September 29, 1971, the Board of Appeals and Review of the Civil Service Commission concurred in the finding of the Regional Office that the appeal was not within the purview of the Commission’s appellate jurisdiction.

It is the defendant’s position that because plaintiff submitted an application for retirement prior to the date of his scheduled RIF, he is thereby precluded from having a review of the RIF. While as a general rule this is certainly the case, the rule has no application when the ostensible retirement is not voluntary. In determining whether or not the plaintiff’s retirement was voluntary, we must look to whether the factors operating on his decision-making processes made a voluntary decision impossible and not what the agency officials perceived as plaintiff’s condition. Cf. Manzi v. United States, 198 Ct.Cl. 489, 494 (1972). It is our view that a variety of factors coalesced in the fact-pattern before us to render the retirement “decision” of May 31, 1971, not a voluntary action by the plaintiff.

Plaintiff had been informed that he had no real chance of being reassigned, transferred, or offered a position at NAVPRO or in the New York commuting area prior to the effective date of his reduction on June 24, 1971. There is also no real doubt that plaintiff was aware that his application for retirement had to be submitted as of May 31, 1971, for him to be entitled to increased annuity benefits. The plaintiff, in this predicament, sought to learn whether he could safeguard the 4.5 percent annuity increase while at the same time pursue what he deemed to be his claim arising from a wrongful RIF procedure. In this quest for information, the plaintiff found himself falling ever deeper into confusion.

The plaintiff’s first conversation with the Personnel Specialist merely confirmed that an early retirement date (i. e., by May 31, 1971) was the only way that plaintiff could become eligible for the 4.5 percent annuity increase. Plaintiff’s inquiries, directed to the Personnel Specialist, taken together with his prompt appeal to the Civil Service Commission, are indications of plaintiff’s intent throughout not to abandon his appeal rights with respect to the RIF question. In this regard, it must also be remembered that the plaintiff was a Preference Eligible and thereby qualified for the favorable treatment provided by the Veterans’ Preference Act of June 27, 1944, 58 Stat. 387, as amended. This provides additional reason for plaintiff to believe that he had been injured by the RIF procedures.

The Government counters, however, by stating that a person in plaintiff’s position cannot put his “head in the sand” and then argue that he did not in fact abandon his appeal rights with respect to the RIF. We find, on the contrary, that plaintiff went to great lengths in attempting to comprehend and pursue his remedies. It was only after the pressures of the possible lack of employment and the presence of a financial inducement placed him on the horns of a dilemma that plaintiff signed the forms indicating his retirement. Plaintiff began to protest the procedure as early as grievance procedures. This avenue December 15, 1970, by way of formal could not be pursued according to the Civil Service Commission because of the lack, at that time, of an adverse action. Throughout, the plaintiff has argued that there was a delay in the implementation of the classification system. The Government admits the delay but argues that, in any event, the plaintiff could not prevail under the new classification. We hold that in this case, at least, it is the very fact of delay which tended to create a situation in which the free expression of choice was not possible. When coupled with the definitive announcement of the 4.5 percent increase less than a month before the retirement date, the factor of financial pressure was added. The situation resolved itself into one of compulsion.

It was not until his last scheduled day of work (Friday, May 28, 1971) that plaintiff was actually informed by the Personnel Specialist of her opinion that a retirement would void his RIF appeal rights. At this late date, and considering the importance of this matter to the plaintiff, it was perfectly reasonable for him to seek verification of her opinion. Attempts were made to contact the Civil Service Commission by telephone, but this proved impossible. Then plaintiff made the drive into New York City only to find the Civil Service offices had closed. The following Monday, May 31, 1971, was an official Government holiday, the Memorial Day celebration. Therefore, plaintiff was forced, by circumstance at the very least, to permit his retirement application to be filed and to perfect his appeal following the effective date of the RIF notice.

It should be noted that the Federal Personnel Manual considers a resignation to be

* * * an adverse action if it is obtained by duress, time pressure, intimidation, or deception. Whether an
NAVPRO Office. On May 24, 1971, plaintiff notified the proper party that he would not accept the offer. action is voluntary or involuntary is determined not by the form, of the action, but by the circumstances that produced it. [Emphasis supplied.] [Federal Personnel Manual Supp. 752-1, subchapter Sl-2a(l).]

The combination of the Government’s delay in implementing the classification system, taken with the fact of the deadline for qualification for increased annuity benefits, and plaintiff’s inability to ascertain, despite his significant efforts, a final answer to his personnel rights inquiries brought to bear upon him the full force of time pressure.

Finally, it should be pointed out that plaintiff was able to retire under the provisions of 5 U.S.C. § 8336(d) because the Civil Service Commission considers a resignation while RIF procedures are in progress to be involuntary for the purposes of retirement. The Government makes the argument that the plaintiff has confused

* * * involuntary separation, and its application for the purpose and benefit of early retirement, with the fact that his acceptance of early retirement and the 4.5 percent bonus was a voluntary act on his part, x- -* *

For a person in plaintiff’s position, the Government’s legal argument — that the retirement is involuntary only for purposes of § 8336(d) — is easily lost. We do not think it other than prudent for plaintiff, in a position of having a matter of hours to make a very significant decision to attempt to verify whether a formal retirement made only to protect the 4.5 percent annuity increase would invalidate his appeal rights with respect to the RIF. Plaintiff has suggested that it might have been possible to work out a conditional retirement. While we need make no comment on this suggestion, it is certainly reasonable for plaintiff to attempt to pursue the inquiry. When no answer was forthcoming until May 28, 1971, and then only after plaintiff had made two requests, we think that an attempt at verification was called for. It should be kept in mind that the Personnel Specialist countenanced this verification procedure to the extent of allowing the plaintiff to submit his backdated retirement forms on the morning of June 1, 1971. When, due to the lack of time not caused by the plaintiff, the verification could not be completed, we cannot say that plaintiff’s submission of his retirement forms to protect the annuity increase constituted, in any real sense, a voluntary retirement.

This court has consistently examined the surrounding circumstances to test the ability of the employee to exercise free choice. We have held, for instance, that the doctrine of exhaustion of administrative remedies has no application when the agency involved had defaulted in its obligation toward the employee by not informing him of his rights or in affirmatively misleading him to believe that he had no rights. See Ainsworth v. United States, 180 Ct.Cl. 166, 172 (1967), and the recent decision in Manzi v. United States, 198 Ct.Cl. 489, 495 (1972). Here, we have a plaintiff who had made genuine attempts to decipher the effect of a retirement (made only to qualify for an annuity increase) on his RIF appeal rights. He found himself in a quandary evidenced by the stark contrast between the absence of another position to which to be assigned and the tantalizing promise of an increased annuity made at a late stage in the proceedings. When set against the desperate lack of time caused by the Government’s delay in implementing the new classification system, we can be certain that plaintiff’s retirement “decision” was not a voluntary choice.

We see no financial prejudice to the Government in allowing the plaintiff to have a review of the RIF action before the Civil Service Commission. A recovery on the part of plaintiff would be reduced by that amount which was received during the interim period by way of retirement.

It has been noted, supra, that the Civil Service Commission, believing that it had no jurisdiction, has not rendered a decision on the merits of the RIF controversy. We hold that the Commission’s decision that the plaintiff’s retirement was voluntary is not supported by the substantial evidence. There no longer being an impediment to a review of the merits of the RIF, we, .therefore allow defendant’s alternate motion and order remand of the case to the Civil Service Commission. The plaintiff’s retirement not being voluntary, he is required to present his appeal, in the first instance, to the Civil Service Commission. See 28 U.S.C. § 1491, as amended by Pub.L. 92-415 (August 29, 1972), 86 Stat. 652; Pettit v. United States, Ct.Cl., 488 F.2d 1026, at p. 1034, decided December 19, 1973. Congress has lodged with the Civil Service Commission the duty of administering the civil service laws, such as the promulgation of “ * * * regulations for the release of competing employees in a reduction in force * * 5 U.S.C. § 3502 (Supp. IV 1968). The Commission has, under the law, promulgated regulations which specify standards for determining whether a particular employee is to be subjected to a RIF. 5 C.F.R. pt. 351 (1969). When a deviation has occurred, the regulations provide for corrective action. 5 C.F.R. §§ 351.902(b), 772.307(c) (1969). An employee who seeks to challenge the RIF is afforded an- initial appeal to the Commission. 5 C.F.R. § 351.901 (1969). If dissatisfied, he may appeal to the Board of Appeals and Review of the Civil Service Commission. 5 C.F.R. §§ 772.301, 772.306, 772.307 (1969). In light of the foregoing, it would be totally improper for this court, at this time, to undertake a de novo proceeding with respect to the RIF.

The plaintiff noted, during oral argument, that he was skeptical of a hearing before the Civil Service Commission because of the more limited rights with respect to the subpoena power or the calling of witnesses. We see no reason to question, at this stage, the quality or the procedures of the Commission. It is sufficient to state that this court retains jurisdiction of the case and should the plaintiff feel he is being denied a full and fair hearing petition may be made to this court for the rendering of appropriate orders.

CONCLUSION

Upon the foregoing opinion, the defendant’s and plaintiff’s motions for summary judgment are denied and defendant’s alternative motion for remand is granted. Pursuant to Pub.L. 92-415, 28 U.S.C. § 1491, and General Order No. 3 of 1972, the case is remanded to the Civil Service Commission. Plaintiff’s counsel is designated to advise the court, by letter to the clerk, of the status of the remand proceedings as provided for in paragraph 9(a) of the General Order, with said advice to be given at intervals of 90 days or less, commencing from the date of this opinion.

KUNZIG, Judge

(dissenting):

In overturning the Civil Service Commission’s determination that it lacked jurisdiction in this case, I feel the majority opinion, even in its revised form, expands without justification the concept of involuntary resignation.

The facts are not difficult and bear brief restatement. On March 26, 1971, plaintiff received official notification of his RIF, effective three months later. On May 4, a retirement annuity increase was announced for federal employees separated prior to June 1. This was a standard, government-wide annuity increase option. It by no means reflected a conscious effort to force any particular employee to sacrifice Civil Service appellate rights for higher retirement benefits. Plaintiff was advised in no uncertain terms on May 28 that his resignation to take advantage of the annuity increase would cut off all rights to appeal the approaching RIF. He had no special right to “verify” this advice from his personnel office.

Under these circumstances, it does not make good sense to find the resignation was involuntarily extracted. Plaintiff clearly wanted the financial benefits early retirement brought. He cannot be heard to claim simultaneous retention of employment protections.

The court-developed test is that the element of voluntariness is vitiated only when resignation is submitted under duress brought on by government action. The explicit elements of such duress, which the court here chooses not to apply, are:

* * * (1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party. * * *

McGucken v. United States, 407 F.2d 1349, 1351, 187 Ct.Cl. 284, 289, cert, denied, 396 U.S. 894, 90 S.Ct. 190, 24 L. Ed.2d 170 (1969) ; Pitt v. United States, 420 F.2d 1028, 1032, 190 Ct.Cl. 506, 513-514 (1970).

Because coercion is a necessary element of this test, a former employee’s burden of establishing his resignation was involuntarily extracted is a heavy one. Reflecting the case law on the subject, Civil Service regulations point out:

The fact that the employee may be faced with an inherently unpleasant situation or that his choice may be limited to two unpleasant alternatives, does not make the resulting action an involuntary action.

Federal Personnel Manual (FPM) Supp. 752-1, subchapter Sl-2a(3).

Thus, resignations have been held voluntary when submitted in order to avoid geographical reassignment, McGucken v. United States, supra, and criminal prosecution, Pitt v. United States, supra. See also Rich v. Mitchell, 106 U.S.App. D.C. 343, 273 F.2d 78 (1959). Even resignation “under protest” to avoid a charge of gross insubordination has been found voluntary and binding. Cosby v. United States, 417 F.2d 1345, 189 Ct.Cl. 528 (1969).

Resignation- has been found involuntary and thus without legal effect by this court in instances of mental incompetence, Manzi v. United States, 198 Ct.Cl. 489 (1972), and where the employee sought to withdraw the resignation before its effective date, Cunningham v. United States, 423 F.2d 1379, 191 Ct.Cl. 471, (1970). Neither of these special circumstances is here present.

The court cites an FPM provision which lists “time pressure” as one factor reducing apparently voluntary resignation to an adverse action. It is doubtful, however, that the regulation was intended to cover the situation at hand. Duress has been found when the resigning party was required to tender resignation on the spot, without time to consider the move or consult with family members. Paroczay v. Hodges, 111 U.S. App.D.C. 362, 297 F.2d 439 (1961). On the other hand, however, this and other courts have found as little as three days a sufficient time in which to make a truly voluntary determination to resign. McGucken v. United States, supra, 407 F.2d at 1351, 187 Ct.Cl. at 289; Rich v. Mitchell, supra, 106 U.S.App.D.C. at 344, 273 F.2d at 79.

In the present case, plaintiff was informed of the opportunity to resign for increased retirement benefits a full four weeks ahead of the option-exercised deadline. As suggested above, the assertion that plaintiff had to “verify” the fact that he would lose administrative appellate rights by resigning represents an effort to inject into the facts an artificial element of “time pressure.”

It is manifest that the Government’s action in this situation betrayed no coer-sive element and that resignation was not the “only alternative” under the circumstances. Consequently, the Civil Service determination that plaintiff’s surrender of his appellate rights was voluntary is supported by substantial evidence. I would dismiss the petition.

      . At oral argument, it was explained that since Monday, May 31, 1971, was a legal holiday, plaintiff actually submitted backdated retirement forms on Tuesday morning, June 1, 1971. This factor does not alter our view of the limited time in which plaintiff had to make his decision.

      . On May 20, 1971, the plaintiff had been notified of an offer of the position of Calibration and Measurement Quality Control Specialist, GS-10, at the West Palm Beach

      . See, also, Federal Personnel Manual Supp. 752-1, subchapter Sl-2b(3).

      . 5 U.S.C. § 8336(d) (1970) :
      “§ 8336. Immediate retirement.

      * :!: :!! =1= *
      “(d) An employee who is involuntarily separated from the service, except by removal for cause on charges of misconduct or delinquency, after completing 25 years of service or. after becoming 50 years of age and completing 20 years of service is entitled to a reduced annuity.”