A-15419, OCTOBER 6, 1926, 6 COMP. GEN. 237

A-15419: Oct 6, 1926

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HAD TO DO WITH THE COMPENSATION TO WHICH THEY WERE ENTITLED FOR THE USUAL HOURS OF SERVICE. WHERE SUCH OVERTIME SERVICES ARE NECESSARY IN CONNECTION WITH THE INSPECTION OF BAGGAGE ON AN ARMY TRANSPORT THE ADDITIONAL COMPENSATION IS A PROPER CHARGE AGAINST THE APPROPRIATION "ARMY TRANSPORTATION. " FOR THE FISCAL YEAR IN WHICH THE SERVICE IS RENDERED. WHEREIN CREDIT WAS DISALLOWED IN THE AGGREGATE SUM OF $25.28. THE TREASURY DECISION CITED IS BASED UPON THE ACT OF FEBRUARY 13. PROVIDED THAT THE OVERTIME IS NOT LESS THAN ONE HOUR. OFFICERS AND EMPLOYEES RECEIVING A RATE OF COMPENSATION PER MONTH WILL BE PAID TWICE ONE THIRTIETH OF THEIR REGULAR MONTHLY SALARY FOR WORK PERFORMED DURING REGULAR WORKING HOURS ON SUNDAYS OR HOLIDAYS UNDER THE ABOVE ACT.

A-15419, OCTOBER 6, 1926, 6 COMP. GEN. 237

COMPENSATION - OVERTIME - CUSTOMS SERVICE THE CLASSIFICATION OF THE SALARIES OF CUSTOMS INSPECTORS UNDER THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS EXTENDED TO THE FIELD BY ACT OF JANUARY 22, 1925, 43 STAT. 764, HAD TO DO WITH THE COMPENSATION TO WHICH THEY WERE ENTITLED FOR THE USUAL HOURS OF SERVICE, I.E., BETWEEN THE HOURS OF 8 A.M. AND 5 P.M., AND DOES NOT AFFECT THEIR RIGHT TO OVERTIME COMPENSATION AUTHORIZED BY THE ACT OF FEBRUARY 13, 1911, 36 STAT. 901, AS AMENDED BY ACT OF FEBRUARY 7, 1920, 41 STAT. 402. WHERE SUCH OVERTIME SERVICES ARE NECESSARY IN CONNECTION WITH THE INSPECTION OF BAGGAGE ON AN ARMY TRANSPORT THE ADDITIONAL COMPENSATION IS A PROPER CHARGE AGAINST THE APPROPRIATION "ARMY TRANSPORTATION," FOR THE FISCAL YEAR IN WHICH THE SERVICE IS RENDERED.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 6, 1926:

MAJOR W. A. MACNICHOLL, FINANCE DEPARTMENT, REQUESTED UNDER DATE OF AUGUST 4, 1926, REVIEW OF SETTLEMENTS M-18598-W, DATED MARCH 22, 1926, AND M-20766-W, DATED JULY 3, 1926, WHEREIN CREDIT WAS DISALLOWED IN THE AGGREGATE SUM OF $25.28, REPRESENTING THE AMOUNT PAID FROM THE APPROPRIATION ,ARMY TRANSPORTATION, 1926" TO COLLECTOR OF CUSTOMS, CUSTOMHOUSE, SAN FRANCISCO, CALIF., FOR OVERTIME SERVICES OF CUSTOMS EMPLOYEES IN CONNECTION WITH THE INSPECTION OF BAGGAGE EX UNITED STATES ARMY TRANSPORTS THOMAS, CHATEAU THIERRY, AND SOMME, UNDER DATES OF AUGUST 15, AUGUST 27, AND NOVEMBER 8, 1925.

THE PAYMENTS IN QUESTION REPRESENT OVERTIME COMPENSATION FOR SERVICES RENDERED BETWEEN 6 A.M. AND 8 A.M., AND COUNTED AS ONE-HALF DAY FOR EACH TWO HOURS OR FRACTION THEREOF; ALSO FOR DOUBLE TIME FOR SERVICES PERFORMED ON SUNDAY, THE VOUCHERS REFERRING TO TREASURY DECISION 38290, DATED FEBRUARY 21, 1920 (VOL. 38, P. 157), AS AUTHORITY.

THE TREASURY DECISION CITED IS BASED UPON THE ACT OF FEBRUARY 13, 1911, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402, WHICH PROVIDES AS FOLLOWS:

SEC. 5. THAT 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 ANTE-MERIDIAN, 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 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 SUNDAYS 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: * * *

SECTION 450 OF THE TARIFF ACT OF 1922, APPROVED SEPTEMBER 21, 1922, 42 STAT. 954, PROVIDES:

SEC. 450. SAME--- SUNDAYS AND HOLIDAYS.---NO MERCHANDISE, BAGGAGE, OR PASSENGERS ARRIVING IN THE UNITED STATES FROM ANY FOREIGN PORT OR PLACE, AND NO BONDED MERCHANDISE OR BAGGAGE BEING TRANSPORTED FROM ONE PORT TO ANOTHER, SHALL BE UNLADEN FROM THE CARRYING VESSEL OR VEHICLE ON SUNDAY, A HOLIDAY, OR AT NIGHT, EXCEPT UNDER SPECIAL LICENSE GRANTED BY THE COLLECTOR UNDER SUCH REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE.

THE REGULATIONS PRESCRIBED BY THE SECRETARY OF THE TREASURY (T.D. 38290) PROVIDE THAT:

CUSTOMS OFFICERS AND EMPLOYEES PERFORMING SERVICES AT NIGHT OR ON SUNDAYS AND HOLIDAYS SHALL RECEIVE COMPENSATION AS FOLLOWS:

FOR SERVICES PERFORMED AFTER 5 P.M. OF ANY DAY, INCLUDING SUNDAYS AND HOLIDAYS, ONE-HALF DAY'S PAY FOR EACH TWO HOURS OR FRACTION THEREOF THAT THE OVERTIME EXTENDS BEYOND 5 P.M., PROVIDED THAT THE OVERTIME IS NOT LESS THAN ONE HOUR, BUT THE MAXIMUM AMOUNT WHICH MAY BE PAID AN EMPLOYEE FOR SERVICES BETWEEN 5 P.M. AND 8 A.M. SHALL NOT EXCEED TWO AND ONE-HALF DAYS' PAY.

FOR SERVICES PERFORMED ON SUNDAYS AND HOLIDAYS THE MAXIMUM COMPENSATION SHALL BE TWO DAYS' PAY, THE COMPUTATION OF WHICH SHALL BE AS FOLLOWS:

EMPLOYEES RECEIVING A PER DIEM RATE OF COMPENSATION SHALL BE PAID TWO DAYS' PAY FOR EACH DAY'S WORK OR PART THEREOF PERFORMED BY THEM DURING THE REGULAR WORKING HOURS IN ADDITION TO THE REGULAR COMPENSATION PAID THEM BY THE GOVERNMENT. OFFICERS AND EMPLOYEES RECEIVING A RATE OF COMPENSATION PER MONTH WILL BE PAID TWICE ONE THIRTIETH OF THEIR REGULAR MONTHLY SALARY FOR WORK PERFORMED DURING REGULAR WORKING HOURS ON SUNDAYS OR HOLIDAYS UNDER THE ABOVE ACT, AND OFFICERS AND EMPLOYEES RECEIVING A COMPENSATION PER ANNUM WILL BE PAID TWICE ONE THREE-HUNDRED-AND-SIXTIETH OF THEIR REGULAR ANNUAL SALARY FOR SUCH EXTRA WORK ON SUNDAYS AND HOLIDAYS.

THE EXTRA COMPENSATION PROVIDED FOR IN THE ABOVE ACT IS IN ADDITION TO THE REGULAR COMPENSATION PAID BY THE GOVERNMENT IN THE CASE OF OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS FIXED ON THE ORDINARY PER DIEM BASIS AND THOSE RECEIVING A COMPENSATION PER MONTH OR PER ANNUM. OFFICERS AND EMPLOYEES WHO ARE PAID ON A PER DIEM BASIS "WHEN EMPLOYED" WILL RECEIVE NO OTHER COMPENSATION FOR SERVICES RENDERED BY THEM ON SUNDAYS AND HOLIDAYS THAN THAT ALLOWED UNDER THE ABOVE ACT.

UPON THE RECEIPT OF ANY PAYMENTS FOR THE SERVICES OF OFFICERS AND EMPLOYEES AT NIGHT OR ON SUNDAYS AND HOLIDAYS, COLLECTORS SHALL IMMEDIATELY DEPOSIT THE SAME IN THEIR SPECIAL DEPOSIT ACCOUNTS AND MAKE PAYMENT THEREFROM BY CHECK TO THE OFFICERS AND EMPLOYEES WHO RENDERED THE SERVICES, AND REFUND IN THE SAME MANNER ANY FUNDS DEPOSITED IN EXCESS, THESE FUNDS TO BE ACCOUNTED FOR IN THE SAME MANNER AS OTHER MONEYS DEPOSITED IN SPECIAL DEPOSIT ACCOUNTS.

THE ADDITIONAL COMPENSATION AUTHORIZED BY THE ACT OF FEBRUARY 7, 1920, AND THE REGULATIONS, SUPRA, IS FOR OVERTIME REPRESENTED BY SERVICES TO BE PERFORMED FOR STEAMSHIPS AND COVERS THE HOURS THAT "CUSTOMS OFFICERS AND EMPLOYEES WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF 5 O- CLOCK POST MERIDIAN AND 8 O-CLOCK ANTEMERIDIAN.' THE OTHER HOURS--- THAT IS, THE HOURS FROM 8 O-CLOCK ANTEMERIDIAN TO 5 O-CLOCK POST MERIDIAN--- REPRESENT THE FIXED USUAL HOURS OF THE REGULAR DUTY, AND IT WAS WITH REFERENCE TO THE USUAL HOURS OF THE REGULAR DUTY, THAT THE SALARIES OF CUSTOMS OFFICERS AND EMPLOYEES WERE FIXED BY LAW AS EXPRESSED BY THE ACT OF DECEMBER 6, 1924, SUPRA, AND AS EXTENDED, AND FOR PAYMENT OF WHICH THE REGULAR APPROPRIATION IS PROVIDED. THE ADDITIONAL COMPENSATION FOR OVERTIME IS A SPECIFIC GRANT, PAYABLE FROM FUNDS OTHERWISE PROVIDED, AND HENCE IS NOT AN INCREASE IN THE COMPENSATION AS ESTABLISHED BY OR IN ACCORDANCE WITH THE CLASSIFICATION ACT. THE FACT THAT IN THIS CASE THE AMOUNT IS PAID FROM THE APPROPRIATION FOR ARMY TRANSPORTATION DOES NOT ALTER THE CASE, FOR IF THERE EXISTS A DISTINCT LEGAL RIGHT TO ADDITIONAL COMPENSATION FOR SERVICES RENDERED TO VESSELS OVER AND BEYOND THE REGULAR HOURS FIXED FOR THE PERFORMANCE OF THE USUAL DUTIES, PAYMENT THEREFOR MAY NOT BE DENIED BECAUSE SOME OF SUCH SERVICES MAY HAPPEN TO BE RENDERED TO AN ARMY TRANSPORT.

ACCORDINGLY, UPON REVIEW IT MUST BE HELD THAT THE PAYMENT TO CUSTOMS INSPECTORS FOR SERVICES RENDERED UNDER THE ACT OF FEBRUARY 7, 1920, SUPRA, IS NOT IN CONTRAVENTION OF THE DECISION, 5 COMP. GEN. 77. THE COMPENSATION FOR OVERTIME BEING A RIGHT SPECIFICALLY GRANTED, AS SET FORTH, SUPRA, PAYMENT FOR SUCH SERVICES RENDERED TO THE ARMY TRANSPORTS WAS VALID, AND CREDIT THEREFOR WILL NOT BE ALLOWED.

THIS CASE IS DISTINGUISHED FROM THE DECISION DATED OCTOBER 27, 1922, A.D. 7182, 14 MS. COMP. GEN. 1836, IN THE CASE OF THE ARMY TRANSPORT SOMME OF CLAIM FOR OVERTIME BY INSPECTORS OF THE PANAMA CANAL, AS THE CLAIM IN THAT CASE WAS FOUNDED UPON PANAMA CANAL ACTS AND REGULATIONS AND NOT UPON THE ACT OF FEBRUARY 7, 1920.