Per Curiam;:
This case was referred to Trial Commissioner Boald A. Hogenson with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 134(h). The commissioner has done so in an opinion and report filed on January 26, 1971. Exceptions to the commissioner’s opinion, findings of fact and recommended conclusion of law were filed by defendant and the case has been submitted to the court on the briefs of the parties and oral argument of counsel.
The court agrees with the commissioner’s opinion, findings of fact, and recommended conclusion of law, as hereinafter set forth,* except in the following particulars. A difficult issue was whether the persons found to have ordered or approved plaintiffs’ overtime had authority to do this. The commissioner’s opinion and finding 19 recite how the defendant stipulated that certain persons had such authority. Subsequent to the trial defendant learned, as it came to believe, that the stipulation was in fact in error and sought to withdraw the same, being willing plaintiffs should reopen the proof if they so desired. Some of us would handle the matter exactly as the commissioner has. Others would prefer not to rely wholly on a repudiated stipulation under the facts of this particular case. They agree with plaintiffs’ alternative argument. They would construe the regulations set forth in findings 21 and 22 as not reserving to the departmental level authority to order or approve overtime not recognized at the time as being overtime, such reservation being applicable only to a regular and intentional extension of the workweek. Since either view would justify the result, it is unnecessary to choose between them and we do not do so.
[364] The case was tried, submitted to the trial commissioner, and decided by him without differentiating between, on the one hand, the plaintiffs’ changing into and out of uniform, and, on the other hand, the pre-shift activities described in findings 14 and 15. All these activities were lumped and treated together, and the considerations specially incident to the compensability of uniform changing were not treated. Accordingly, the court does not consider in this particular case, whether time required for changing into or out of uniforms, when considered separately, is or is not compensable, and our holding here is not a precedent, one way or the other, on that separate problem.
In view of the foregoing, the court concludes as a matter of law that plaintiffs are entitled to recover, and judgment is entered to that effect, with the amounts of recovery to be determined in further proceedings pursuant to Buie 131 (c).
OPINION 0E COMMISSIONER
Hogenson, Commissioner:
By their joint petition filed May 13, 1968, plaintiffs seek to recover overtime compensation pursuant to the provisions of the Federal Employees Pay Act of 1945, 59 Stat. 295, 296, as amended, 68 Stat. 1109 (1954), 5 U.S.C. § 911 (1964).
It is my opinion that plaintiffs are entitled to recover, that judgment should be entered to that effect, with the amounts of recovery to be determined in further proceedings.
During all or part of the claim period (May 13, 1962 to April 6, 1966), each of the plaintiffs was a classified civil service employee (Grade GS-3 or 4) at the Lenwood Division of the Veterans Administration Hospital, Augusta, Georgia, serving either as a Nursing Assistant or as a Physical Therapy Assistant.
Throughout the claim period, existing regulations of that hospital, signed and issued by Dr. E. P. Brannon, the Hospital Director, or by Mr. Donald Cowley, the Assistant Hospital Director, by direction of the Hospital Director, required plaintiffs to wear Government-issued uniforms in the performance of their official duties. Liberally starched in the laundering process at the hospital, such uniforms consisted of white jackets, or shirts, and white trousers. The [365] regulations provided that plaintiffs could wear such uniforms only while on duty, and the wearing of them to and from work was specifically prohibited.
As of April 6,1966, the hospital regulations were amended by memorandum signed and issued by Dr. Brannon as the Hospital Director, to permit plaintiffs and other employees to wear such uniforms to and from work, and such date marks the end of the claim period.
To implement the uniform regulations, each plaintiff was provided with a locker in the basement of one of the hospital buildings, and on each of his working days was required to go to his locker, remove his civilian clothing, and change into the Government-issued uniform prior to the start of his scheduled shift. After the end of each shift, each plaintiff had to return to his locker and remove the uniform and change into his civilian clothes. Clean uniforms were regularly provided by the hospital.
Plaintiffs Earnest B. Holley (4) and Bobby C. Jones (7) were Physical Therapy Assistants. The other 10 plaintiffs were Nursing Assistants.
The Nursing Assistants worked variously on three shifts, with each subject to periodic rotation from one shift to another. The three shifts were 7:00 a.m. to 3:30 pan., 3:30 p.m. to 12 midnight, and 12 midnight to 8:00 a.m. With respect to the two 8%-hour shifts, an off-duty lunch period of y2 hour was provided. With respect to the midnight shift, Nursing Assistants were permitted to consume food while on duty observing the patients in the wards of the hospital. Eating time is not involved in the subject claims for overtime compensation.
During the overlap of 1 hour between the midnight and day shifts, the Nursing Assistants of the prior shift engaged in serving breakfast to patients, while those of the succeeding shift were in part assigned duties relating to daytime operations.
The Physical Therapy Assistants worked only one shift, 8:00 a.m. to 4:30 p.m., with y2 hour off-duty for lunch.
At all relevant times the Lenwood Division of the subject YA facilities was a neuropsychiatric hospital. The patients were mentally disturbed, and some were also stricken with [366] tuberculosis or other serious ailments requiring surgical or special medical treatment. They presented unusual behavior problems by the nature of their illness, such as extreme depression to the point of self-harm, acute panic, actively homicidal tendencies and extreme restlessness.
When injuries occurred to a patient, an investigation was conducted by the hospital authorities to determine responsibility.
The Nursing Assistants received their daily assignments from and were subject to the supervision of the head nurse of their ward and of the other professional nurses assigned to the ward. Their principal duties were to observe, guide and assist the patients assigned to their care and to accomplish some treatment of the patients under the supervision of the physicians and registered nurses. They served as team members with the doctors and nurses to plan the treatment of and to treat the patients assigned to their care.
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Per Curiam;:
This case was referred to Trial Commissioner Boald A. Hogenson with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 134(h). The commissioner has done so in an opinion and report filed on January 26, 1971. Exceptions to the commissioner’s opinion, findings of fact and recommended conclusion of law were filed by defendant and the case has been submitted to the court on the briefs of the parties and oral argument of counsel.
The court agrees with the commissioner’s opinion, findings of fact, and recommended conclusion of law, as hereinafter set forth,* except in the following particulars. A difficult issue was whether the persons found to have ordered or approved plaintiffs’ overtime had authority to do this. The commissioner’s opinion and finding 19 recite how the defendant stipulated that certain persons had such authority. Subsequent to the trial defendant learned, as it came to believe, that the stipulation was in fact in error and sought to withdraw the same, being willing plaintiffs should reopen the proof if they so desired. Some of us would handle the matter exactly as the commissioner has. Others would prefer not to rely wholly on a repudiated stipulation under the facts of this particular case. They agree with plaintiffs’ alternative argument. They would construe the regulations set forth in findings 21 and 22 as not reserving to the departmental level authority to order or approve overtime not recognized at the time as being overtime, such reservation being applicable only to a regular and intentional extension of the workweek. Since either view would justify the result, it is unnecessary to choose between them and we do not do so.
[364] The case was tried, submitted to the trial commissioner, and decided by him without differentiating between, on the one hand, the plaintiffs’ changing into and out of uniform, and, on the other hand, the pre-shift activities described in findings 14 and 15. All these activities were lumped and treated together, and the considerations specially incident to the compensability of uniform changing were not treated. Accordingly, the court does not consider in this particular case, whether time required for changing into or out of uniforms, when considered separately, is or is not compensable, and our holding here is not a precedent, one way or the other, on that separate problem.
In view of the foregoing, the court concludes as a matter of law that plaintiffs are entitled to recover, and judgment is entered to that effect, with the amounts of recovery to be determined in further proceedings pursuant to Buie 131 (c).
OPINION 0E COMMISSIONER
Hogenson, Commissioner:
By their joint petition filed May 13, 1968, plaintiffs seek to recover overtime compensation pursuant to the provisions of the Federal Employees Pay Act of 1945, 59 Stat. 295, 296, as amended, 68 Stat. 1109 (1954), 5 U.S.C. § 911 (1964).
It is my opinion that plaintiffs are entitled to recover, that judgment should be entered to that effect, with the amounts of recovery to be determined in further proceedings.
During all or part of the claim period (May 13, 1962 to April 6, 1966), each of the plaintiffs was a classified civil service employee (Grade GS-3 or 4) at the Lenwood Division of the Veterans Administration Hospital, Augusta, Georgia, serving either as a Nursing Assistant or as a Physical Therapy Assistant.
Throughout the claim period, existing regulations of that hospital, signed and issued by Dr. E. P. Brannon, the Hospital Director, or by Mr. Donald Cowley, the Assistant Hospital Director, by direction of the Hospital Director, required plaintiffs to wear Government-issued uniforms in the performance of their official duties. Liberally starched in the laundering process at the hospital, such uniforms consisted of white jackets, or shirts, and white trousers. The [365] regulations provided that plaintiffs could wear such uniforms only while on duty, and the wearing of them to and from work was specifically prohibited.
As of April 6,1966, the hospital regulations were amended by memorandum signed and issued by Dr. Brannon as the Hospital Director, to permit plaintiffs and other employees to wear such uniforms to and from work, and such date marks the end of the claim period.
To implement the uniform regulations, each plaintiff was provided with a locker in the basement of one of the hospital buildings, and on each of his working days was required to go to his locker, remove his civilian clothing, and change into the Government-issued uniform prior to the start of his scheduled shift. After the end of each shift, each plaintiff had to return to his locker and remove the uniform and change into his civilian clothes. Clean uniforms were regularly provided by the hospital.
Plaintiffs Earnest B. Holley (4) and Bobby C. Jones (7) were Physical Therapy Assistants. The other 10 plaintiffs were Nursing Assistants.
The Nursing Assistants worked variously on three shifts, with each subject to periodic rotation from one shift to another. The three shifts were 7:00 a.m. to 3:30 pan., 3:30 p.m. to 12 midnight, and 12 midnight to 8:00 a.m. With respect to the two 8%-hour shifts, an off-duty lunch period of y2 hour was provided. With respect to the midnight shift, Nursing Assistants were permitted to consume food while on duty observing the patients in the wards of the hospital. Eating time is not involved in the subject claims for overtime compensation.
During the overlap of 1 hour between the midnight and day shifts, the Nursing Assistants of the prior shift engaged in serving breakfast to patients, while those of the succeeding shift were in part assigned duties relating to daytime operations.
The Physical Therapy Assistants worked only one shift, 8:00 a.m. to 4:30 p.m., with y2 hour off-duty for lunch.
At all relevant times the Lenwood Division of the subject YA facilities was a neuropsychiatric hospital. The patients were mentally disturbed, and some were also stricken with [366] tuberculosis or other serious ailments requiring surgical or special medical treatment. They presented unusual behavior problems by the nature of their illness, such as extreme depression to the point of self-harm, acute panic, actively homicidal tendencies and extreme restlessness.
When injuries occurred to a patient, an investigation was conducted by the hospital authorities to determine responsibility.
The Nursing Assistants received their daily assignments from and were subject to the supervision of the head nurse of their ward and of the other professional nurses assigned to the ward. Their principal duties were to observe, guide and assist the patients assigned to their care and to accomplish some treatment of the patients under the supervision of the physicians and registered nurses. They served as team members with the doctors and nurses to plan the treatment of and to treat the patients assigned to their care.
The Physical Therapy Assistants worked in various therapy rooms and clinics throughout the hospital, not on the wards. Under the direction of a physical therapy supervisor, they provided to patients physical therapy treatments of various types.
As to the Nursing Assistants, the pertinent chain of responsibility, or inverse order of authority, was from them through levels of registered nurse positions, i.e., ward nurse, head ward nurse, unit supervisor, Assistant Chief and Chief, Nursing Service, to the Chief of Staff, who was a doctor, to the Assistant Hospital Director and Hospital Director.
Illustrative of the practices at the subject hospital, both before and during the claim period, concerning the pre-shift functions of oncoming Nursing Assistants was the testimony of Mrs. Laura W. Fitzsimmons, who was Chief, Nursing Service, of subject hospital from October 1947 to the spring of 1960. Toward the end of her period of service, there had been accidents or injuries to patients, concerning which there were conflicts between oncoming and outgoing shifts of Nursing Assistants as to when such injuries had occurred, thus complicating the hospital’s program of investigating the cause of any injury sustained by a patient.
[367] In early 1960, Mrs. Fitzsimmons was instructed by the former Hospital Director of subject hospital, who was deceased at the time of the trial of this case, to issue a memorandum to the effect that all Nursing Assistants were to report in uniform 15 minutes before the scheduled start of their shifts, and that the oncoming Nursing Assistants and those ending their duty hours would make rounds jointly to inspect the patients on the wards. Mrs. Fitzsimmons prepared such a memorandum, issued it to the various head nurses of the wards, and caused the same to be posted on the bulletin boards in the various wards of the hospital.
There is no showing that Dr. Brannon, who thereafter became the Hospital Director, was ever aware of the existence or issuance of the Fitzsimmons memorandum.
However, on February 28,1962, Dr. Brannon, as the Hospital Director, issued written instructions to all employees, commented that there had been apparent laxity of employees in their adherence to the established duty hours, and in that respect stated:
* * * Strict conformity to the scheduled hours of duty and the authorized period granted for eating purposes must be a mandatory requirement. All employees should be at their respective areas sufficiently in advance of the scheduled duty hours to commence work at the scheduled time. * * *
Certainly the reasonable inference is that Dr. Brannon used the above-quoted terminology in contemplation of the standing practice, of which he must have been aware, that oncoming Nursing Assistants were required to be on their wards in uniform to perform certain duties prior to the scheduled start of their shift jointly with the outgoing Nursing Assistants.
The Nursing Assistants reasonably understood, from the instructions issued by Dr. Brannon, as implemented by directions issued by supervisory personnel, and in accordance with long-standing practice, of which Dr. Brannon must have been aware, that they were required to report, and in fact they did report throughout the claim period, in uniform to their assigned wards in advance of the scheduled start of their assigned shift. During such pre-shift period, each of [368] the oncoming Nursing Assistants signed the personnel roster of his ward, reported to the assigned head nurse who briefed him on any problem or unusual circumstance existing on the ward, received his assignments for the shift, and proceeded with other oncoming Nursing Assistants to conduct with the outgoing Nursing Assistants a tour of observation of the patients and inspection of the security of locks and window grills on the ward.
The responsibility for patient count, as distinguished from the other pre-shift duties, was regularly assigned by the head nurse to one of the oncoming and one of the outgoing Nursing Assistants, who during the pre-shift activities by visual observation and by check-list accounted for all patients assigned to the ward.
The Physical Therapy Assistants also reasonably understood that they were required to report, and throughout the claim period, they did report in uniform to their physical therapy supervisors in advance of the scheduled start of their shifts. During such pre-shift period, each Physical Therapy Assistant received his instructions and assignments for the shift from his physical therapy supervisor. The reasonable inference is that the Hospital Director was aware of such practices at all relevant times.
From all of the evidence in this case, it is found that throughout the claim period, each plaintiff who was a Nursing Assistant was required to spend 25 minutes per shift, and each plaintiff who was a Physical Therapy Assistant was required to spend 15 minutes per shift, in the pre-shift and post-shift changing into and out of his uniform and in the performance of the pre-shift duties described above. Such time was in excess of the 8 hours of duty performed by each plaintiff on his shift. Each plaintiff worked five shifts per week.
Plaintiffs have never been paid by defendant for the time spent in changing into and out of the uniforms and in the performance of the pre-shift duties.
Whenever a Nursing Assistant failed to report on his assigned ward in uniform in time to engage in pre-shift activ[369] ities, Ms head nurse admonished him and requested an explanation as to why he was late.
During the claim period, and prior thereto, plaintiffs generally voiced objections to their head nurse or supervisor concerning the requirements for reporting in uniform to perform duties in advance of the scheduled start of their shifts, and the response was generally in substance that such requirements were those of the Hospital Director whose authority was not to be questioned.
During the pretrial procedures in this case, plaintiffs by letter to the previously assigned trial commissioner of this court suggested that among other matters, the following be made the subject of pretrial stipulation:
2. The names and positions of supervisory personnel who were duly authorized by regulation or otherwise during the period from June, 1962 through December, 1965 officially to order or approve overtime for Nursing Assistants at the hospital.
In response to such letter, defendant by letter advised plaintiffs among other matters, that individuals authorized to approve overtime during the claim period were Mr. Donald Cowley and Dr. E. P. Brannon.
During the claim period, Dr. Bramón and Mr. Cowley were respectively the Hospital Director and the Assistant Hospital Director of the subject hospital.
Both plaintiffs’ letter and defendant’s letter were received in evidence without objection at the pretrial conference, as shown by the previously assigned commissioner’s Memorandum Ke Pretrial Conference, filed August 6, 1969.
During the course of the trial of tHs case, held December 10 and 11, 1969, at Augusta, Georgia, defendant’s assigned attorney conceded, when plaintiffs’ attorney was undertaking to prove authority of local personnel of the subject hospital, that it was stipulated that Dr. Bramón and Mr. Cowley had the authority to order and approve overtime during the claim period at the subject hospital. Such concession was made near the outset of the trial and also during the second day of trial procedures. Neither Dr. Brannon nor Mr. Cowley was called as a witness in this case.
[370] The pertinent statutory provisions governing plaintiffs’ claims are as follows:
§ 911. Payment of overtime; rates.
All hours of work officially ordered or approved in excess of forty hours in any administrative workweek performed by officers and employees to whom this sub-chapter 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 the following rates:
(1) For each officer and employee whose basic compensation is at a rate which does not exceed the minimum scheduled rate of basic compensation provided for grade GS-9 in the Classification Act of 1949, as amended, the overtime hourly rate of compensation shall be an amount equal to one and one-half times the hourly rate of basic compensation of such officer or employee, and all of such amount shall be considered premium compensation. [5 U.S.C. § 911 (1964)]
The determinative issue in this case is whether or not the overtime work performed by plaintiffs in this case was “work officially ordered or approved.” If defendant is to be held bound by its stipulation that Dr. Brannon and Mr. Cowley had the authority to order and approve overtime during the claim period at subject hospital, then any discussion concerning the interpretation to be given to Veterans Administration regulations and regulations of the subject hospital would clearly be obiter dieta.
It is well settled that absent special considerations, a stipulation by a party in interest is binding upon such party. It is my conclusion that there are no special considerations in this case which justify a departure from such rule. F & D Property Co. v. Alkire, 385 F. 2d 97, 100 (10th Cir. 1967) ; Missouri-Illinois R.R. v. United States, 180 Ct. Cl. 1179-1184-1185, 381 F. 2d 1001, 1003 (1967); John McShain, Inc. v. United States, 179 Ct. Cl. 632, 635, 375 F. 2d 829, 831 (1967); Diapulse Corp. of America v. Birtcher Corp., 362 F. 2d 736, 744 n. 7 (2d Cir. 1966), petition for cert. dismissed 385 U.S. 801; II. B. Zachry Co. v. United States, 170 Ct. Cl. 115, 123, 344 F. 2d 352, 357 (1965); Bruno New York Industries Corp. v. United States, 169 Ct. Cl. 999, 1001, 1005, 1007, 342 F. 2d 75, 76, 78-79 (1965). On the basis of the stipulation, [371] entered into as described above, and the regulations and instructions issued by or under the direction of Dr. Brannon, it is concluded that the subject overtime work was officially ordered and approved.
Defendant’s further contention is rejected that the overtime work performed by plaintiffs was not compensable as being “de minimis" in amount. Albright v. United States, 161 Ct. Cl. 356, 358 (1963). Cf. Bantom v. United States, 165 a. Cl. 312, 315, cert. denied 379 U.S. 890 (1964).