A-79474, SEPTEMBER 15, 1936, 16 COMP. GEN. 243

A-79474: Sep 15, 1936

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COMPENSATION - OVERTIME - CUSTOMS SERVICE EMPLOYEES A CUSTOMS INSPECTOR IS NOT ENTITLED TO OVERTIME COMPENSATION UNDER THE ACT OF FEBRUARY 13. FOR SERVICES PERFORMED ON SUNDAYS AND HOLIDAYS WITHIN THE REGULAR TOUR OF DUTY FOR WHICH HE WAS ALLOWED COMPENSATORY TIME OFF DUTY. 1936: REFERENCE IS MADE TO YOUR LETTERS OF JULY 3 AND AUGUST 10. FOR SERVICES ALLEGED TO HAVE BEEN RENDERED ON SUNDAYS AND HOLIDAYS FROM NOVEMBER 1. THERE IS NO AUTHORITY FOR PAYING MR. THE CLAIM IS. EGE ON THE SUNDAYS AND HOLIDAYS MENTIONED WERE PERFORMED BY HIM WITHIN THE REGULAR TOUR OF DUTY. FOR WHICH HE WAS GIVEN COMPENSATORY TIME OFF DUTY. YOU CONTEND AMONG OTHER THINGS THAT YOU WERE NOT GRANTED COMPENSATORY TIME OFF FOR ALL WORK ON SUNDAYS AND HOLIDAYS.

A-79474, SEPTEMBER 15, 1936, 16 COMP. GEN. 243

COMPENSATION - OVERTIME - CUSTOMS SERVICE EMPLOYEES A CUSTOMS INSPECTOR IS NOT ENTITLED TO OVERTIME COMPENSATION UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402, FOR SERVICES PERFORMED ON SUNDAYS AND HOLIDAYS WITHIN THE REGULAR TOUR OF DUTY FOR WHICH HE WAS ALLOWED COMPENSATORY TIME OFF DUTY, IT BEING WITHIN ADMINISTRATIVE DISCRETION TO ADJUST THE WORKING HOURS OF INDIVIDUAL INSPECTORS TO INCLUDE DUTY ON SUNDAYS AND HOLIDAYS.

ACTING COMPTROLLER GENERAL ELLIOTT TO CARL EGE, SEPTEMBER 15, 1936:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 3 AND AUGUST 10, 1936, REQUESTING REVIEW OF SETTLEMENT NO. 0564425, DATED JUNE 10, 1936, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402, FOR SERVICES ALLEGED TO HAVE BEEN RENDERED ON SUNDAYS AND HOLIDAYS FROM NOVEMBER 1, 1929, TO JUNE 7, 1932, AS A CUSTOMS INSPECTOR AT DETROIT, MICH.

IN LETTER DATED APRIL 10, 1936, THE COMMISSIONER OF CUSTOMS IN REPORTING ON YOUR CLAIM STATED:

THE RECORDS OF THE BUREAU WOULD SHOW THAT MR. EGE PERFORMED NO OVERTIME SERVICES DURING THESE PERIODS, ALL WORK HAVING BEEN PERFORMED DURING HIS REGULAR TOUR OF DUTY. UNDER THESE CIRCUMSTANCES, THERE IS NO AUTHORITY FOR PAYING MR. EGE OVERTIME COMPENSATION UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED. THE CLAIM IS, ACCORDINGLY, RETURNED DISAPPROVED BY THIS BUREAU.

AND IN LETTER DATED MAY 8, 1936, MAKING A FURTHER REPORT, THE ACTING COMMISSIONER OF CUSTOMS STATED:

THE SERVICES PERFORMED BY MR. EGE ON THE SUNDAYS AND HOLIDAYS MENTIONED WERE PERFORMED BY HIM WITHIN THE REGULAR TOUR OF DUTY, FOR WHICH HE WAS GIVEN COMPENSATORY TIME OFF DUTY.

YOU CONTEND AMONG OTHER THINGS THAT YOU WERE NOT GRANTED COMPENSATORY TIME OFF FOR ALL WORK ON SUNDAYS AND HOLIDAYS. IT IS NECESSARILY THE RULE OF THIS OFFICE THAT WHERE THERE ARE DISPUTED QUESTIONS OF FACT BETWEEN THE ADMINISTRATIVE OFFICER AND A CLAIMANT, THE REPORT OF THE ADMINISTRATIVE OFFICER MUST BE ACCEPTED AS THE BASIS FOR SETTLEMENT OF THE CLAIM.

APPARENTLY YOU CONTEND, ALSO, THAT THE LAW DID NOT AUTHORIZE GRANTING COMPENSATORY TIME AND THAT EVEN IF COMPENSATORY TIME WAS GRANTED FOR ALL WORK ON SUNDAYS AND HOLIDAYS, NEVERTHELESS YOU WOULD STILL BE ENTITLED TO OVERTIME COMPENSATION FOR SUCH WORK.

THE AMENDATORY ACT OF FEBRUARY 7, 1920, 41 STAT. 402, CONTAINS THE FOLLOWING PROVISIONS:

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 ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM SERVICES* * * PROVIDED FURTHER, THAT 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 PROVISO SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR CUSTOMS EMPLOYEES OF THE OVERTIME PAY HEREIN FIXED.

YOU WILL NOTE FROM THE FIRST PART OF THE QUOTED STATUTE THAT IT RELATES ONLY TO EXTRA COMPENSATION FOR OVERTIME SERVICE. IN OTHER WORDS, THERE MUST HAVE BEEN SERVICE PERFORMED IN ADDITION TO THE REGULAR TOUR OF DUTY OF THE EMPLOYEE. THE QUOTED PROVISO AUTHORIZES THE COLLECTOR OF CUSTOMS TO ADJUST WORKING HOURS OF INDIVIDUAL EMPLOYEES. AT DETROIT WHERE THERE WAS SUCH HEAVY TRAVEL BETWEEN THE UNITED STATES AND CANADA DURING THE PERIOD COVERED BY YOUR CLAIM, UNQUESTIONABLY THE STATUTE AUTHORIZED THE COLLECTOR OF CUSTOMS TO FIX THE REGULAR TOUR OF DUTY OF INDIVIDUAL EMPLOYEES TO EMBRACE ANY EIGHT HOURS OF THE DAY OR NIGHT AND ANY SIX DAYS OF THE WEEK AND TO VARY THE HOURS AND DAYS FROM TIME TO TIME TO MEET THE EXIGENCIES OF THE SERVICE.

IN DECISION OF APRIL 22, 1931, 10 COMP. GEN. 487, 489, THE TERM "OVERTIME" AS USED IN THE ACT OF MARCH 2, 1931, 46 STAT. 1467, APPLICABLE TO THE IMMIGRATION SERVICE AND PRACTICALLY IDENTICAL WITH THE CUSTOMS SERVICE STATUTE, WAS DEFINED AS FOLLOWS:

1. "OVERTIME" IN THE USUAL SENSE MEANS TIME ON DUTY IN ADDITION TO THE NUMBER OF HOURS FIXED ADMINISTRATIVELY AS THE REGULAR WORKDAY OF EMPLOYEES. TO CONSTITUTE OVERTIME FOR THE PURPOSE OF THIS ACT THERE MUST EXIST TWO FACTORS, TO WIT, (1) TIME ON DUTY IN ADDITION TO THE NUMBER OF HOURS FIXED ADMINISTRATIVELY AS THE REGULAR WORKDAY OF THE EMPLOYEES, AND (2) TIME ON DUTY FOR AT LEAST ONE HOUR BETWEEN 5 P.M. AND 8 A.M. ON ANY DAY. THEREFORE,"OVERTIME" FOR THE PURPOSE OF THIS ACT MAY BE DEFINED AS SERVICE OF THE CHARACTER MENTIONED IN THE ACT OF AT LEAST ONE HOUR BETWEEN 5 P.M. AND 8 A.M. OF ANY DAY BY INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE IN ADDITION TO THE NUMBER OF HOURS ADMINISTRATIVELY PRESCRIBED AS THEIR REGULAR WORKDAY.

ALSO, IN THE SAME DECISION, A QUESTION WAS STATED AND ANSWERED AS FOLLOWS:

2. IS ANY DISTINCTION TO BE MADE BETWEEN THE OFFICER WHOSE REGULAR SHIFT OF DUTY IS AFTER 5 P.M. AND PRIOR TO 8 A.M. OR ON SUNDAYS AND HOLIDAYS, AND THE OFFICER WHO IS COMPELLED TO WORK AFTER 5 P.M. AND PRIOR TO 8 A.M., OR ON SUNDAYS AND HOLIDAYS, IN ADDITION TO HIS REGULAR SHIFT OF DUTY;

2. THIS QUESTION MAY BE ANSWERED THAT THE EMPLOYEES OF EITHER CLASS -- THAT IS, THOSE WHOSE REGULAR SHIFT IS BETWEEN 8 A.M. AND 5 P.M. AND THOSE WHOSE REGULAR SHIFT IS BETWEEN 5 P.M. AND 8 A.M.--- WORK "OVERTIME" ONLY AS DEFINED IN THE ANSWER TO QUESTION 1. SEE GENERALLY 2 COMP. GEN. 512.

EACH OF YOUR CONTENTIONS HAS BEEN GIVEN CONSIDERATION BUT THIS OFFICE IS UNABLE TO CONCLUDE ON THE BASIS OF THE RECORD BEFORE IT THAT YOU ARE ENTITLED TO THE OVERTIME COMPENSATION CLAIMED UNDER SAID STATUTE.

YOU ARE ADVISED, THEREFORE, THAT THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED.