B-155290, MAY 19, 1965

B-155290, MAY 19, 1965

TO MR. JOVITO O. VITANZO, JUAN LUNA, MANILA:

WE REFER TO YOUR LETTER OF JANUARY 23, 1965, IN BEHALF OF THE CLAIM OF YOUR CLIENT, MR. BENJAMIN S. GARCIA, FOR OVERTIME COMPENSATION FOR ALLEGEDLY HAVING BEEN REQUIRED TO REPORT 30 MINUTES PRIOR TO THE START OF HIS TOUR OF DUTY AS AN EMPLOYEE (SECURITY GUARD) OF THE DEPARTMENT OF THE AIR FORCE, CAMP CAVITE, PHILIPPINES, FROM DECEMBER 5, 1947, TO FEBRUARY 23, 1954. THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF MAY 20, 1958, AND, UPON RECONSIDERATION, THE DISALLOWANCE WAS SUSTAINED BY OUR DECISION OF DECEMBER 28, 1964, TO MR. GARCIA.

WE POINTED OUT IN THE SETTLEMENT AND OUR AFFIRMING DECISION THAT THE EMPLOYING DEPARTMENT HAD DETERMINED, IN THE CASE OF EMPLOYEES (SECURITY GUARDS) AT INSTALLATIONS OUTSIDE THE UNITED STATES WHO ARE NATIVES OF THE LOCALITY PAID AT NATIVE WAGE RATES AND WHOSE HOURS OF WORK CORRESPOND TO LOCAL CUSTOM OR LOCAL LAW, THAT THE EMPLOYEES WOULD NOT BE CONSIDERED IN A PAY STATUS PRIOR TO THE ACTUAL BEGINNING OF A SHIFT WHEN THEY ARE REQUIRED TO REPORT EARLY AT A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTIONS, AND UNDERGO INSPECTION. WE ALSO REFERRED IN THE SETTLEMENT TO THE FINDING BY THE EMPLOYING DEPARTMENT THAT THE PREVAILING PRACTICE IN THE LOCALITY AT THE TIME HERE INVOLVED WAS FOR GUARDS TO REPORT FOR INSTRUCTIONS PRIOR TO THE OFFICIAL TOUR OF DUTY HOUR. THE REQUIREMENT FOR EARLY REPORTING WAS EXPLAINED IN ADVANCE TO THE PROSPECTIVE EMPLOYEE AND BECAME A CONDITION OF EMPLOYMENT UPON ACCEPTANCE THEREOF BY THE INDIVIDUAL CONCERNED IN THE ABSENCE OF ANY APPLICABLE LAW SPECIFYING DIFFERENT CONDITIONS.

THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, PRESCRIBES THE BASIC HOURS OF WORK AND COMPENSATION FOR OVERTIME WORK OF EMPLOYEES OF THE UNITED STATES GOVERNMENT GENERALLY. HOWEVER, SECTION 102 (B) OF THAT ACT, 59 STAT. 296, 5 U.S.C. 902 (B), EXCLUDES, AMONG OTHER CLASSES, ,EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES * * * WHO ARE PAID IN ACCORDANCE WITH LOCAL NATIVE PREVAILING WAGE RATES FOR THE AREA IN WHICH EMPLOYED.' THUS, THE HOURS OF WORK AND OVERTIME COMPENSATION FOR THE CLASS OF EMPLOYEES DESCRIBED IN THE EXCEPTION ARE STRICTLY FOR REGULATION BY THE EMPLOYING AGENCY, TAKING INTO ACCOUNT LOCAL CUSTOM OR LAW. OUR OFFICE HAS NO INDEPENDENT POWER OF REGULATION IN THOSE REGARDS. INDICATED ABOVE, THE EMPLOYING AGENCY HAS FOUND THAT YOUR CLIENT'S HOURS OF WORK AND COMPENSATION THEREFOR WERE FIXED IN ACCORDANCE WITH THE LOCAL CUSTOM PREVAILING AT THE TIME FOR THE TYPE OF EMPLOYMENT INVOLVED. YOU CONTEND THAT LOCAL CUSTOM WAS OTHER THAN AS SO FOUND, PARTICULARLY SINCE PHILIPPINE INDEPENDENCE IN 1946. HOWEVER, THE FINDING OF THE EMPLOYING AGENCY, WHICH MUST BE PRESUMED TO HAVE FIRSTHAND KNOWLEDGE OF LOCAL CONDITIONS AND CHANGES THEREIN, IS BINDING UPON US.

YOU APPEAR TO SAY THAT THE WORD "NATIVE" IN THE EXPRESSION "EMPLOYEES * * * PAID AT NATIVE WAGE RATES" USED IN THE ADMINISTRATIVE REGULATIONS HAD NO APPLICATION IN THE CASE OF FILIPINO EMPLOYEES AFTER PHILIPPINE INDEPENDENCE AND THAT IT CARRIES A DISPARAGING IMPLICATION. WE CANNOT AGREE. THE WORD "NATIVE" IN THE SENSE IN WHICH IT IS USED IN THE REGULATIONS, AS WELL AS IN THE STATUTORY PROVISION CITED ABOVE AND OTHERS, IS DESCRIPTIVE OF THINGS (WAGE RATES AND CUSTOM, IN THIS CASE) ASSOCIATED WITH OR PERTAINING TO A PARTICULAR COUNTRY, PLACE OR REGION. IT HAS WORLDWIDE APPLICATION; THAT IS, IT APPLIES IN ANY COUNTRY OR REGION OUTSIDE THE UNITED STATES IN WHICH AGENCIES OF THE CONTINENTAL UNITED STATES GOVERNMENT HAVE OCCASION TO HIRE LOCAL INHABITANTS, AND DOES NOT, IN AND OF ITSELF, CARRY ANY COLONIALISTIC IMPLICATION. FAR FROM BEING OPPRESSIVE, THE AUTHORITY TO COMPENSATE SUCH LOCAL INHABITANTS UNDER RULES OTHER THAN THOSE APPLYING TO UNITED STATES CITIZEN EMPLOYEES PERMITS IN MANY INSTANCES THE GRANTING OF BENEFITS IN ACCORDANCE WITH PREVAILING LOCAL PRACTICES WHICH COULD NOT BE GRANTED UNDER LAWS AND REGULATIONS GENERALLY APPLICABLE TO SUCH CITIZEN EMPLOYEES. FURTHERMORE, THE FOLLOWING OF LOCAL WAGE RATES, CUSTOMS AND LAWS TENDS TO PREVENT DISRUPTION OF THE LOCAL ECONOMY--- BY PERMITTING UNITED STATES AGENCIES TO COMPETE IN THE LABOR MARKET UPON THE SAME BASIS AS LOCAL BUSINESS ESTABLISHMENTS--- WHICH MIGHT OTHERWISE RESULT IF A DIFFERENT COURSE WERE TO BE FOLLOWED.

WE HAVE CAREFULLY CONSIDERED THE REPRESENTATIONS MADE IN YOUR LETTER IN BEHALF OF YOUR CLIENT'S CLAIM BUT WE FIND NO BASIS THEREIN FOR ALLOWING ANY AMOUNT ON THE CLAIM. THEREFORE, UPON RECONSIDERATION, OUR PRIOR ACTION IS SUSTAINED.