B-68562, APRIL 23, 1948, 27 COMP. GEN. 655

B-68562, APRIL 23, 1948, 27 COMP. GEN. 655

COMPENSATION - OVERTIME - CUSTOMS SERVICE EMPLOYEES UNDER SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, PROVIDING FOR THE PAYMENT OF EXTRA COMPENSATION FOR CERTAIN OVERTIME SERVICES PERFORMED BY CUSTOMS EMPLOYEES BETWEEN THE HOURS OF 5 P.M. AND 8 A.M. CUSTOMS EMPLOYEES WHO ARE REQUIRED TO PERFORM SUCH SERVICES BETWEEN 8 A.M. AND 5 P.M. IN ADDITION TO 8 HOURS' SERVICE ARE NOT ENTITLED TO COMPENSATION AT OVERTIME RATES, NOTWITHSTANDING THE HOLDING IN TIMOTHY E. O-ROURKE V. UNITED STATES, C.1CLS. NO. 46657, THAT "WORK AT NIGHT" AS CONTEMPLATED BY SAID SECTION 5 WAS "WORK IN EXCESS OF 8 HOURS IN ANY ONE 24-HOUR PERIOD REGARDLESS OF THE TIME OF DAY THAT IT WAS DONE.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, APRIL 23, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MARCH 30, 1948, FILE 129.15, REQUESTING A DECISION AS TO THE EFFECT OF THE RULING OF THE COURT OF CLAIMS IN THE CASE OF TIMOTHY E. O-ROURKE V. UNITED STATES, C.1CLS. NO. 46657, DECIDED JUNE 2, 1947, AND RELATED CASES, UPON THE ADMINISTRATION OF THE CUSTOMS OVERTIME ACT OF FEBRUARY 13, 1911, AS AMENDED (19 U.S.C. 267), SECTION 5 OF WHICH PROVIDES IN PERTINENT PART AS FOLLOWS, QUOTING FROM THE CODE:

THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS, STOREKEEPERS, WEIGHERS, AND OTHER CUSTOMS OFFICERS AND EMPLOYEES WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O-CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM SERVICES IN CONNECTION WITH THE LADING OR UNLADING OF CARGO, OR THE LADING OF CARGO OR MERCHANDISE FOR TRANSPORTATION IN BOND OR FOR EXPORTATION IN BOND OR FOR EXPORTATION WITH BENEFIT OF DRAWBACK, OR IN CONNECTION WITH THE RECEIVING OR DELIVERY OF CARGO ON OR FROM THE WHARF, OR IN CONNECTION WITH THE UNLADING, RECEIVING, OR EXAMINATION OF PASSENGERS' BAGGAGE, SUCH RATES TO BE FIXED ON THE BASIS OF ONE-HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O-CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM FIVE O-CLOCK POST MERIDIAN TO EIGHT O-CLOCK ANTEMERIDIAN), AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY OR HOLIDAY DUTY. THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE WHENEVER SUCH SPECIAL LICENSE OR PERMIT FOR IMMEDIATE LADING OR UNLADING OR FOR LADING OR UNLADING AT NIGHT OR ON SUNDAY OR HOLIDAYS SHALL BE GRANTED TO THE COLLECTOR OF CUSTOMS, WHO SHALL PAY THE SAME TO THE SEVERAL CUSTOMS OFFICERS AND EMPLOYEES ENTITLED THERETO ACCORDING TO THE RATES FIXED THEREFOR BY THE SECRETARY OF THE TREASURY. SUCH EXTRA COMPENSATION SHALL BE PAID IF SUCH OFFICERS OR EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, WHETHER THE ACTUAL LADING, UNLADING, RECEIVING, DELIVERY, OR EXAMINATION TAKES PLACE OR NOT. IN THOSE PORTS WHERE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HEREINABOVE MENTIONED, THE COLLECTOR OF CUSTOMS IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF CUSTOMS EMPLOYEES SO AS TO AGREE WITH PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR CUSTOMS EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED ( FEB. 13, 1911, CH. 46, SEC. 5, 36 STAT. 901; FEB. 7, 1920, CH. 61, 41 STAT. 402).

WITH RESPECT TO THE FOREGOING STATUTORY PROVISION, THE COURT OF CLAIMS HELD IN THE O-ROURKE CASE THAT THE LEGAL MEANING OF THE EXPRESSION "WORK AT NIGHT" WAS "WORK IN EXCESS OF 8 HOURS IN ANY ONE 24 HOURS PERIOD REGARDLESS OF THE TIME OF DAY THAT IT WAS DONE.' IN VIEW THEREOF YOU PRESENT THE FOLLOWING SPECIFIC QUESTIONS:

1. UNDER THE O-ROURKE DECISION, IS OVERTIME COMPENSATION PAYABLE UNDER THE 1911 ACT FOR SERVICES PERFORMED BETWEEN 8 A.M. AND 5 P.M. IF SUCH SERVICES ARE IN ADDITION TO 8 HOURS' SERVICE? IF OVERTIME COMPENSATION IS PAYABLE TO THE EMPLOYEE IN SUCH A CASE, IS THE GOVERNMENT ENTITLED TO REIMBURSEMENT FROM THE PARTY IN INTEREST?

2. IS PAYMENT OF OVERTIME COMPENSATION TO AN EMPLOYEE UNDER THE 1911 ACT FOR SERVICES PERFORMED BETWEEN 5 P.M. AND 8 A.M. ON A WEEKDAY (OTHER THAN A HOLIDAY) PRECLUDED WHEN SUCH SERVICES ARE NOT IN ADDITION TO 8 HOURS' SERVICE ALREADY PERFORMED WITHIN THE 24-HOUR PERIOD, AS (1) WHEN SUCH SERVICES ARE PERFORMED ON OTHER THAN A REGULAR WORK DAY FOR THE PARTICULAR EMPLOYEE, (2) WHEN THE EMPLOYEE HAS BEEN ALLOWED ANNUAL LEAVE FOR ALL OR PART OF A REGULAR WORK DAY, OR (3) WHEN THE SERVICES ARE PERFORMED AFTER MIDNIGHT AND BEFORE 8 A.M.?

3. IF THE PAYMENT OF EXTRA COMPENSATION UNDER THE 1911 ACT IS DEPENDENT UPON 8 HOURS' SERVICE HAVING ALREADY BEEN PERFORMED DURING THE 24-HOUR PERIOD, WHAT IS THE CONTROLLING 24-HOUR PERIOD? FOR EXAMPLE, IF THE ANSWER TO THE FIRST PART OF QUESTION (1) IS IN THE AFFIRMATIVE, IS AN EMPLOYEE, WHO HAS WORKED FROM 8 P.M. ON A MONDAY TO 4 A.M. ON THE FOLLOWING TUESDAY, AND THEN IS ASSIGNED TO WORK FROM 8 A.M. TO 4 P.M. THAT SAME DAY, ENTITLED TO OVERTIME COMPENSATION UNDER THE 1911 ACT FOR THE ENTIRE PERIOD FROM 8 A.M. TO 4 P.M. TUESDAY OR ONLY FOR THE PERIOD FROM 12 NOON TO 4 P.M. TUESDAY BECAUSE THE 4-HOUR PERIOD FROM 8 A.M. TO 12 NOON MUST BE ADDED TO THE PERIOD FROM 12 A.M. TO 4 A.M. IN ORDER TO COMPLETE HIS FIRST 8 HOURS OF SERVICE ON THAT DAY? IF THE ANSWER TO QUESTION (2) IS IN THE AFFIRMATIVE, IS AN EMPLOYEE ASSIGNED TO WORK FROM 12 A.M. TO 2 A.M. ENTITLED TO OVERTIME COMPENSATION FOR SUCH PERIOD IF HE HAS PERFORMED NO SERVICES SINCE 5 P.M. OF THE PRECEDING CALENDAR DAY?

THE PORTION OF THE OPINION OF THE COURT OF CLAIMS IN THE O-ROURKE CASE, RELATING TO THE MATTERS HERE INVOLVED, READS AS FOLLOWS:

AS TO WORK IN EXCESS OF EIGHT HOURS IN ONE DAY, FOR WHICH THE PLAINTIFF CLAIMS THE EXTRA COMPENSATION PROVIDED FOR NIGHT WORK UNDER THE ACT OF FEBRUARY 3, 1911, AS AMENDED, THE GOVERNMENT URGES THAT, UNLESS SUCH WORK WAS DONE BEFORE EIGHT O-CLOCK A.M. OR AFTER FIVE O CLOCK P.M., IT IS NOT NIGHT WORK WITHIN THE MEANING OF THE STATUTE. WE THINK THAT THE SUPREME COURT'S DECISION IN THE MYERS CASE, SUPRA, THAT NO NIGHT WORK EXTRA COMPENSATION WAS DUE EVEN THOUGH ALL OR A PART OF ONE'S ASSIGNED TOUR OF DUTY OF EIGHT HOURS WAS PERFORMED AFTER FIVE AND BEFORE EIGHT O-CLOCK WAS A DETERMINATION THAT THE LEGAL MEANING OF THE EXPRESSION "WORK AT NIGHT," WAS WORK IN EXCESS OF EIGHT HOURS IN ANY ONE TWENTY-FOUR PERIOD, REGARDLESS OF THE TIME OF DAY THAT IT WAS DONE. WE THINK, THEREFORE, THAT WHENEVER THE PLAINTIFF WORKED MORE THAN AN EIGHT-HOUR TOUR OF DUTY IN ANY ONE DAY, HE IS ENTITLED TO COMPENSATION FOR HIS OVERTIME ON THE STATUTORY BASIS.

I CANNOT AGREE THAT THE REFERRED-TO HOLDING OF THE UNITED STATES SUPREME COURT IN THE CASE OF UNITED STATES V. MYERS, 320 U.S. 561, IS SUSCEPTIBLE OF THE BROAD INTERPRETATION PLACED UPON IT BY THE COURT OF CLAIMS. THE 1911 ACT, AS AMENDED, IS SPECIFIC IN ITS PROVISION THAT EXTRA COMPENSATION FOR NIGHT WORK IS PAYABLE ONLY FOR SERVICES RENDERED BETWEEN THE HOURS 5:00 P.M. AND :00 A.M. ALTHOUGH THE SUPREME COURT HELD THAT "WORK AT NIGHT," AS CONTEMPLATED BY THE SAID ACT, WAS OVERTIME, AND THAT SUCH OVERTIME AS APPLIED TO WEEKDAYS REFERS TO HOURS LONGER THAN THE DAILY LIMIT OF 8:00 A.M. TO 5: 100 P.M., THERE APPEARS TO BE NO SUGGESTION IN ITS DECISION THAT SUCH OVERTIME IS PAYABLE BEYOND THE SPECIFIC LIMITATIONS OF THE ACT.

AS EVIDENCED BY THE QUESTIONS IN YOUR LETTER, PROPER ADMINISTRATION OF THE CUSTOMS OVERTIME STATUTES IN THE LIGHT OF THE COURT OF CLAIMS DECISION IN THE O-ROURKE CASE WOULD REQUIRE A FURTHER READING INTO THE 1911 ACT, AN INTENT FAR BEYOND THAT WHICH LOGICALLY MAY BE IMPUTED TO THE EXPRESS LANGUAGE THEREOF. I DO NOT BELIEVE THAT SUCH DEPARTURE FROM THE UNAMBIGUOUS TERMS OF THE ACT LEGALLY IS PERMISSIBLE UNDER THE RULES OF STATUTORY CONSTRUCTION. ACCORDINGLY, IN THE SETTLEMENT OF ACCOUNTS AND CLAIMS THE GENERAL ACCOUNTING OFFICER MUST DECLINE TO FOLLOW THE HOLDING IN THE O-ROURKE CASE IN RESPECT OF THE MATTERS HERE INVOLVED.

IN YOUR LETTER REFERENCE IS MADE TO DECISION OF FEBRUARY 16, 1948, B 15487, WHEREIN IT WAS STATED THAT "THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE WILL FOLLOW THE PRINCIPLES OF THE SAID CASES ( TIMOTHY E. O-ROURKE V. UNITED STATES, AND RELATED CASES) IN THE SETTLEMENT OF THE CLASS OF CLAIMS COVERED THEREBY.' THAT DECISION RELATES TO A GENERAL APPLICATION OF THE O-ROURKE CASE TO CLAIMS FALLING WITHIN ITS FOUR CORNERS AND WAS NOT INTENDED TO BE CONSTRUED AS AN ADOPTION OF ANY SPECIFIC PRINCIPLE THEREOF.

IN VIEW OF THE FOREGOING, QUESTION NO. 1 PRESENTED IN YOUR LETTER IS ANSWERED IN THE NEGATIVE, WHICH ANSWER RENDERS UNNECESSARY ANY ANSWERS TO QUESTIONS NOS. 2 AND 3. FROM THAT CONCLUSION IT NECESSARILY FOLLOWS THAT OVERTIME COMPENSATION UNDER THE 1911 ACT IS LIMITED TO SERVICES PERFORMED BETWEEN 5:00 P.M. AND 8:00 A.M., STANDARD TIME, IN ACCORDANCE WITH THE DECISION OF SEPTEMBER 2, 1947, B-68562, 27 COMP. GEN. 148.