B-125436, OCT. 21, 1955

B-125436: Oct 21, 1955

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YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU. THIS ACT WAS FOLLOWED BY THE ACT OF JUNE 3. WHICH AUTHORIZED THE PRESIDENT OF THE UNITED STATES TO ISSUE REGULATIONS FOR THE PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES WHOSE OVERTIME WORK WAS ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN THE ACT OF OCTOBER 21. WERE ENGAGED. AUTHORIZED THE SECRETARY OF WAR OR SUCH SUBORDINATE OFFICERS AS HE MIGHT DESIGNATE TO DETERMINE WHICH PER ANNUM EMPLOYEES WERE PERFORMING SERVICES ENTITLING THEM TO OVERTIME COMPENSATION UNDER SUCH ACT. IT WILL BE OBSERVED FROM THE ABOVE-CITED ACT AND EXECUTIVE ORDER THAT. BEFORE OVERTIME COMPENSATION COULD HAVE BEEN PAID TO PER ANNUM EMPLOYEES FOR THE PERIOD COVERED BY YOUR CLAIM.

B-125436, OCT. 21, 1955

TO MR. ERIC H. WINKLER:

YOUR LETTER OF JULY 26, 1955, REQUESTS REVIEW OF OUR SETTLEMENT OF AUGUST 25, 1949, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION ALLEGED TO BE DUE FOR SERVICES RENDERED DURING THE PERIOD FROM FEBRUARY 9 THROUGH NOVEMBER 1942, AS A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY), SIGNAL CORPS GROUND SIGNAL AGENCY, CAMP EVANS, BELMAR, NEW JERSEY.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU, A PER ANNUM EMPLOYEE, DID NOT OCCUPY A POSITION WITHIN THE CLASSES ENUMERATED IN THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205 (PUBLIC LAW 873), AND YOU HAD NOT BEEN DESIGNATED AS ENTITLED TO OVERTIME COMPENSATION UNDER THE ACT OF JUNE 3, 1941, 55 STAT. 241.

THE ACT OF OCTOBER 21, 1940, AUTHORIZED OVERTIME COMPENSATION TO PER ANNUM EMPLOYEES OF THE WAR DEPARTMENT WITHIN THE FOLLOWING-DESCRIBED CLASSES: PROFESSIONAL AND SUBPROFESSIONAL EMPLOYEES, BLUE PRINTERS,PHOTOSTAT AND ROTAPRINT OPERATORS, INSPECTORS, STOREKEEPERS, TOOLKEEPERS, AND SHOP SUPERINTENDENTS OF THE CAF SERVICE. THIS ACT WAS FOLLOWED BY THE ACT OF JUNE 3, 1941, WHICH AUTHORIZED THE PRESIDENT OF THE UNITED STATES TO ISSUE REGULATIONS FOR THE PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES WHOSE OVERTIME WORK WAS ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN THE ACT OF OCTOBER 21, 1940, WERE ENGAGED. BY EXECUTIVE ORDER NO. 8837, JULY 30, 1941, THE PRESIDENT ISSUED REGULATIONS UNDER THE ACT OF JUNE 3, 1941, AND AUTHORIZED THE SECRETARY OF WAR OR SUCH SUBORDINATE OFFICERS AS HE MIGHT DESIGNATE TO DETERMINE WHICH PER ANNUM EMPLOYEES WERE PERFORMING SERVICES ENTITLING THEM TO OVERTIME COMPENSATION UNDER SUCH ACT. IT WILL BE OBSERVED FROM THE ABOVE-CITED ACT AND EXECUTIVE ORDER THAT, BEFORE OVERTIME COMPENSATION COULD HAVE BEEN PAID TO PER ANNUM EMPLOYEES FOR THE PERIOD COVERED BY YOUR CLAIM, IT WAS ESSENTIAL THAT AN ADMINISTRATIVE DETERMINATION BE MADE THAT THE SERVICES PERFORMED WERE "ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK" UPON WHICH THE EMPLOYEES ENUMERATED IN THE ACT OF OCTOBER 21, 1940, WERE ENGAGED. HOWEVER, SUCH DETERMINATION HAD TO BE MADE WHILE THE ACTS INVOLVED WERE STILL IN EFFECT, OR PRIOR TO DECEMBER 1, 1942, BECAUSE ALL OF THE REGULATIONS ISSUED BY THE PRESIDENT PURSUANT THERETO, OR ANY ADMINISTRATIVE AUTHORITY TO MAKE CERTIFICATION THEREUNDER, EXPIRED BY OPERATION OF LAW AT THAT TIME.

IT APPEARS FROM THE RECORD THAT YOU WERE EMPLOYED AS A SENIOR RADIO MECHANIC, BEGINNING FEBRUARY 10, 1942, AT $2,000 PER ANNUM, WHICH WAS NOT ONE OF THE CLASSES NAMED IN THE ACT OF OCTOBER 21, 1940; ALSO, IT IS ADMINISTRATIVELY REPORTED THAT PRIOR TO DECEMBER 1, 1942, YOU WERE NOT DESIGNATED AS ENTITLED TO OVERTIME COMPENSATION UNDER THE ACT OF JUNE 3, 1941.

CONCERNING THE PERIOD BEGINNING DECEMBER 1, 1942, IT IS REPORTED BY FIRST INDORSEMENT OF MARCH 16, 1948, FROM HEADQUARTERS FORT MONMOUTH, NEW JERSEY, THAT YOU WERE PAID EXCESS AND PRORATED OVERTIME SUBSEQUENT TO NOVEMBER 30, 1942.

ACCORDINGLY, IT THUS APPEARS THAT YOU WERE ACTUALLY PAID FOR ALL EXCESS AND PRO RATA OVERTIME TO WHICH YOU WERE ENTITLED AS A PER ANNUM EMPLOYEE FOR THE PERIOD OF YOUR EMPLOYMENT. UPON REVIEW, THE SETTLEMENT APPEARS TO BE CORRECT AND IS SUSTAINED.

AS PREVIOUSLY INDICATED, THE REPORTS FROM THE DEPARTMENT OF THE ARMY IN YOUR CASE SHOWED THAT YOU WERE A PER ANNUM SALARIED EMPLOYEE, THERE BEING NO REFERENCE WHATEVER TO YOUR BEING PAID ON A PER DIEM BASIS. MOREOVER, THE RECORD INDICATES THAT THE OVERTIME COMPENSATION PAID TO YOU ON AND AFTER DECEMBER 1, 1942, WAS PREDICATED ON YOUR STATUS AS A PER ANNUM EMPLOYEE. HENCE, NO CONSIDERATION MAY BE GIVEN TO YOUR REQUEST THAT YOUR CLAIM ALSO BE REVIEWED ON THE BASIS THAT YOUR POSITION WAS CONSIDERED BY THE DEPARTMENT OF THE ARMY AS A PER DIEM POSITION.