B-158930, OCT 23, 1974

B-158930, OCT 23, 1974

1. FILIPINO MARITIME EMPLOYEE OF THE DEPARTMENT OF THE ARMY ON OKINAWA WOULD NOT FOR THE PERIOD PRIOR TO JUNE 28, 196. BE ENTITLED TO OVERTIME COMPENSATION RATES UNDER THE UNITED STATES PHILIPPINE OFFSHORE AGREEMENTS OF 1947 AND 1968; SINCE PRIOR TO JUNE 28, 1969, THE DEPARTMENT OF THE ARMY INTERPRETED THE PROVISIONS OF THE 1947 AND 1968 AGREEMENTS AS NOT BEING APPLICABLE TO FILIPINO MARITIME EMPLOYEES ON VESSELS WHERE UNUSUAL CONDITIONS PREVAILED. 2. THE ACT OF OCTOBER 9, 1940, 31 U.S.C. SEC. 71A, PRECLUDES THE CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF ANY CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS FROM THE DATE THE CLAIM FIRST ACCRUED.

SEVERO G. GARCIA - CLAIM FOR OVERTIME COMPENSATION:

THIS IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF A SETTLEMENT CERTIFICATE OF JULY 1, 1970, OF OUR TRANSPORTATION AND CLAIMS DIVISION DENYING THE CLAIM OF MR. SEVERO G. GARCIA, A FILIPINO MARITIME EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR PAYMENT OF OVERTIME COMPENSATION FOR THE PERIOD AUGUST 15, 1951, TO FEBRUARY 28, 1969 THIS CLAIM AROSE WHILE MR. GARCIA WAS EMPLOYED BY THE DEPARTMENT IN THE AREA OF OKINAWA. HE CLAIMS COMPENSATION FOR WORK PERFORMED IN EXCESS OF 40 HOURS PER WEEK.

THE ACT OF OCTOBER 9, 1940, 31 U.S.C. SEC. 71A, PROVIDES THAT CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE WILL BE BARRED IF NOT RECEIVED WITHIN 10 YEARS AFTER THE DATE THEY FIRST ACCRUED. THE CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JUNE 20, 1969. THEREFORE, CONSIDERATION OF THAT PART OF THE CLAIM FOR THE PERIOD PRIOR TO JUNE 20, 1959, IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. SEC. 71A.

MR. GARCIA'S CLAIM IS BASED UPON THE PROVISIONS OF THE UNITED STATES PHILIPPINE OFFSHORE AGREEMENT OF 1947. THIS AGREEMENT HAS BEEN SUPERSEDED BY A LATER OFFSHORE AGREEMENT SIGNED BY THE UNITED STATES AND THE PHILIPPINES ON DECEMBER 28, 1968. MR. GARCIA CLAIMED THAT HIS EMPLOYMENT WAS GOVERNED BY THE 1968 OFFSHORE AGREEMENT AND THAT HE WAS ENTITLED TO COMPENSATION AT 1-1/2 TIMES HIS REGULAR HOURLY RATE FOR WORK PERFORMED IN EXCESS OF 40 HOURS PER WEEK.

MR. GARCIA'S CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE OF JULY 1, 1970, ON THE GROUND THAT THE DEPARTMENT OF THE ARMY HAS CONSISTENTLY INTERPRETED THE PROVISIONS OF THE 1947 AGREEMENT AS NOT BEING APPLICABLE TO MARITIME PERSONNEL AND THE 1968 AGREEMENT CONTAINS NO PROVISION WHICH MAY BE INTERPRETED AS ALTERING THE 1947 AGREEMENT WITH RESPECT TO WHETHER MARITIME EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION FOR HOURS OF WORK IN EXCESS OF 40 HOURS PER WEEK.

AT THE TIME OF THE 1947 AGREEMENT IT WAS NOT THE MARITIME PRACTICE IN THE PHILIPPINES FOR VESSEL EMPLOYEES TO WORK A 40-HOUR WEEK AND BE COMPENSATED FOR ALL HOURS IN EXCESS THEREOF AT THE RATE OF 1-1/2 TIMES THE BASIC HOURLY RATE. MR. GARCIA HAS BEEN PAID FOR OVERTIME WORK IN ACCORDANCE WITH WAGE-AND-BENEFIT SURVEYS OF THE MARITIME INDUSTRY IN THE PHILIPPINES. LATE IN 1967 A WAGE SURVEY OF MARITIME INDUSTRY IN THE PHILIPPINES RESULTED IN THE PAYING OF 1-1/4 TIMES THE BASIC HOURLY RATE FOR WORK PERFORMED IN EXCESS OF 8 HOURS A DAY AND 48 HOURS A WEEK.

IN REQUESTING RECONSIDERATION OF HIS CLAIM MR. GARCIA REFERS TO A LETTER OF MARCH 31, 1970, FROM THE FIRST SECRETARY OF LABOR ATTACHE OF THE EMBASSY OF THE UNITED STATES OF AMERICA, MANILA, PHILIPPINES. THAT LETTER MERELY ADVISES THE SECRETARY OF LABOR THAT THE UNITED STATES AMONG OTHER THANGS IS PREPARED TO APPLY THE OVERTIME COMPENSATION PROVISIONS OF THE UNITED STATES - PHILIPPINES OFFSHORE LABOR AGREEMENT TO FILIPINO MARITIME EMPLOYEES RETROACTIVE TO THE FIRST PAY PERIOD BEGINNING PRIOR TO JUEN 28, 1969, DATE OF FULL EFFECTIVITY OF THE AGREEMENT FOR ALL OTHER FILIPINO EMPLOYEES COVERED THEREBY. THE LETTER OF MAY 22, 1970, TO MR. GARCIA, FROM THE CIVILIAN PERSONNEL DIRECTOR, HEADQUARTERS, UNITED STATES ARMY, RYUKYU ISLANDS AND FORT BUCKNER, REFERS TO A RECENT DIRECTIVE FROM CINPAC THAT PROVIDES THAT DIRECT-HIRE OFFSHORE FILIPINO MARITIME EMPLOYEES OF THE UNITED STATES FORCES ON OKINAWA WILL RECEIVE, AMONG TO HER THINGS, OVERTIME COMPENSATION UNDER THE PROVISIONS OF THE UNITED STATES- PHILIPPINES OFFSHORE AGREEMENT RETROACTIVE TO JUNE 16, 1969.

THE POLICY OF GRANTING OVERTIME COMPENSATION TO FILIPINO MARITIME EMPLOYEES OF THE UNITED STATES FORCES ON OKINAWA RETROACTIVE TO THE FIRST PAY PERIOD BEGINNING PRIOR TO JUNE 28, 1969, UNDER THE PROVISIONS OF THE UNITED STATES-PHILIPPINES OFFSHORE AGREEMENTS OF 1947 AND 1968 WOULD HAVE NO EFFECT ON MR. GARCIA'S CLAIM SINCE IT IS EFFECTIVE ON A DATE SUBSEQUENT TO MR. GARCIA'S CLAIM.

IN VIEW OF THE FOREGOING WE MUST SUSTAIN THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING MR. GARCIA'S CLAIM.