B-124035, JUL. 20, 1955

B-124035, JUL. 20, 1955

TO MR. E. C. FETNER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1955, REGARDING YOUR CLAIM FOR OVERTIME SERVICES RENDERED IN THE FIRE DEPARTMENT AT THE MILITARY INSTALLATION AT MYRTLE BEACH FROM FEBRUARY 1, 1943, TO JANUARY 15, 1945. ALSO YOUR LETTER OF MAY 11, 1955, TO THE HONORABLE OLIN D. JOHNSTON, UNITED STATES SENATE, REGARDING THE SAME MATTER HAS BEEN REFERRED TO US FOR CONSIDERATION.

AS OUR OFFICE WAS WITHOUT KNOWLEDGE OF THE FACTS IN YOUR CASE AN ADMINISTRATIVE REPORT WAS REQUESTED. THERE NOW HAS BEEN RECEIVED A REPORT DATED JULY 2, 1955, FROM THE HONORABLE, SECRETARY OF THE AIR FORCE, WHO IS NOW VESTED WITH JURISDICTION OVER THE RECORDS OF THE FORMER ARMY AIR FORCE ACTIVITIES. FROM THAT REPORT IT APPEARS THAT THE HOURS OF WORK OF EMPLOYEES AT FIRE DEPARTMENTS OF THE ARMY AIR FORCE DURING THE PERIOD IN QUESTION WERE 24 HOURS ON DUTY FOLLOWED BY 24 HOURS OFF DUTY. THIS RESULTED IN FIREFIGHTER EMPLOYEES BEING ON A WORK OR STANDBY STATUS FOR FIFTEEN 24-HOUR SHIFTS IN A 30-DAY CALENDAR MONTH. EMPLOYEES WERE PAID ON A SEMIMONTHLY BASIS.

UNDER THE ACT OF DECEMBER 22, 1942, PUBLIC RES. 821, 77TH CONGRESS, EFFECTIVE 1 DECEMBER 1942, A SPECIAL PROVISION WAS MADE FOR 10 PERCENT OF BASE PAY TO ON-CALL EMPLOYEES (FIRE-FIGHTERS) AS COMPENSATION IN LIEU OF OVERTIME. THAT PROVISION WAS TO COMPENSATE FIREFIGHTER EMPLOYEES FOR THE EXTRA TIME THEY WERE REQUIRED TO REMAIN IN OR NEAR THEIR DUTY STATION EVEN THOUGH NO ACTUAL WORK WAS PERFORMED. DURING EACH 24-HOUR DUTY PERIOD TIME OFF WAS PROVIDED FOR EATING AND SLEEPING.

THE ACT OF MAY 7, 1943, PUBLIC LAW 49, 78TH CONGRESS, WHICH EXTENDED THE OVERTIME ACT, CHANGED ON-CALL PAY PROVISIONS TO GUARANTEE A MINIMUM PAY, IN LIEU OF OVERTIME, AT A RATE OF $300 OR 15 PERCENT OF BASE PAY, WHICHEVER WAS GREATER.

BASED UPON THE SUPREME COURT DECISION IN THE CASE OF ARMOUR AND CO. V. WANTOCK, ET AL., 323 U.S. 126, THE APPLICATION OF THE WAR OVERTIME PAY ACT WAS MODIFIED REGARDING ITS APPLICATION TO ON-CALL FIREFIGHTER EMPLOYEES FOR HOURS ACTUALLY WORKED WHERE THE EMPLOYEES WERE REQUIRED TO REMAIN WITHIN THE CONFINES OF A DESIGNATED POST OF DUTY FOR MORE THAN 40 HOURS A WEEK FOR THE PURPOSE OF RENDERING STANDBY SERVICE. WITHIN THE WAR DEPARTMENT STANDARD TOURS WERE SCHEDULED WHICH REQUIRED THESE EMPLOYEES TO WORK 16 HOURS OF EACH 24-HOUR SHIFT, WITH THE BALANCE OF THEIR TIME AVAILABLE FOR SLEEPING AND EATING. A MAXIMUM TOUR OF DUTY WAS THREE 24- HOUR PERIODS EACH WEEK OR 144 HOURS FOR EACH TWO-WEEK PERIOD. IT WAS ADMINISTRATIVELY DETERMINED THAT TWO-THIRDS OF THE TIME IN A DUTY STATUS WAS ACTUAL WORK TIME. THIS 96 HOURS OF ACTUAL WORK TIME CONSISTED OF 80 HOURS AT REGULAR PAY AND 16 HOURS AT OVERTIME PAY. THE WAR DEPARTMENT REGULATION WAS REVIEWED AND APPROVED BY OUR DECISION, 25 COMP. GEN. 161.

IN YOUR LETTER OF MAY 11, 1955, TO SENATOR JOHNSTON YOU SAY THAT SCHEDULES TOURS OF DUTY FOR FIREMEN AT SOME MILITARY INSTALLATIONS WERE ONLY 40 HOURS PER WEEK AND THAT TIME IN EXCESS OF THE 40-HOUR WEEK WAS PAID AT ONE AND ONE-HALF TIMES THE BASIC RATE. IT IS TRUE THAT PRIOR TO THE SUPREME COURT RULING ON PAYMENT FOR ACTUAL HOURS WORKED, THERE WAS SOME LACK OF UNIFORMITY IN WORK REQUIREMENTS AT ARMY AIR FORCE INSTALLATIONS. HOWEVER, INSTALLATION COMMANDERS WERE AUTHORIZED TO SCHEDULE ON-CALL TOURS OF DUTY UNDER THE PROVISIONS OF THE WAR OVERTIME ACT. WHERE THESE LONGER TOURS WERE SCHEDULED AND EMPLOYEES WERE PAID THE STIPULATED ADDITION TO BASE PAY IN LIEU OF OVERTIME, THE PAYMENT OF PRORATED OVERTIME WAS PROHIBITED BY THE ACT. SINCE IT APPEARS THAT YOU WERE PAID IN ACCORDANCE WITH REGULATIONS COVERED BY STATUTES IN EFFECT DURING THE TIME OF YOUR EMPLOYMENT, THERE IS NO APPARENT LEGAL BASIS FOR YOUR CLAIM.

ASIDE FROM THE FOREGOING, AS MORE THAN 10 YEARS HAVE ELAPSED SINCE YOUR CLAIM FIRST AROSE ITS CONSIDERATION BY OUR OFFICE IS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.