B-126200, DEC. 21, 1955

B-126200: Dec 21, 1955

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LEE GELBER: REFERENCE IS MADE TO LETTER OF NOVEMBER 11. THE RECORD SHOWS THAT DURING THE ABOVE-MENTIONED PERIOD YOU WERE A PER ANNUM EMPLOYEE OF THE WAR DEPARTMENT ASSIGNED TO DUTY AT PORT ORDNANCE OFFICE. YOU WERE PROMOTED TO THE POSITION OF ASSISTANT CLERK. YOU WERE PROMOTED TO THE POSITION OF CLERK. YOU WERE TRANSFERRED TO THE PORT FISCAL OFFICE. PAYMENT OF YOUR CLAIM FOR OVERTIME SERVICES WAS DENIED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 26. YOU WERE INELIGIBLE TO RECEIVE OVERTIME COMPENSATION UNDER THE STATUTES THEN IN EFFECT. THE REPORT OF THE ADMINISTRATIVE OFFICE SHOWS THAT YOU WERE PAID COMPENSATION AT THE OVERTIME RATE FOR ALL SERVICES RENDERED IN EXCESS OF 40 HOURS PER WEEK ON AND AFTER DECEMBER 1.

B-126200, DEC. 21, 1955

TO MRS. LEE GELBER:

REFERENCE IS MADE TO LETTER OF NOVEMBER 11, 1955, FROM MR. FRANCIS M. DANISI, JR., ATTORNEY AT LAW, CONCERNING YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR OVERTIME SERVICES RENDERED WHILE AN EMPLOYEE OF THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY), BROOKLYN, NEW YORK, DURING THE PERIOD FEBRUARY 19, 1942, THROUGH MAY 30, 1943.

THE RECORD SHOWS THAT DURING THE ABOVE-MENTIONED PERIOD YOU WERE A PER ANNUM EMPLOYEE OF THE WAR DEPARTMENT ASSIGNED TO DUTY AT PORT ORDNANCE OFFICE, NEW YORK PORT OF EMBARKATION, BROOKLYN, NEW YORK. YOU RECEIVED A WAR SERVICE INDEFINITE APPOINTMENT EFFECTIVE FEBRUARY 19, 1942, AS JUNIOR STENOGRAPHER, CAF-2, $1,440 PER ANNUM. THEREAFTER, EFFECTIVE AUGUST 1, 1942, YOU WERE PROMOTED TO THE POSITION OF ASSISTANT CLERK, CAF-3, AT AN ANNUAL SALARY OF $1,620 AND, ON DECEMBER 16, 1942, YOU WERE PROMOTED TO THE POSITION OF CLERK, CAF-4, $1,800 PER ANNUM. ON MAY 1, 1943, YOU WERE TRANSFERRED TO THE PORT FISCAL OFFICE, NEW YORK PORT OF EMBARKATION, BROOKLYN, NEW YORK.

PAYMENT OF YOUR CLAIM FOR OVERTIME SERVICES WAS DENIED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 26, 1950, FOR THE REASON THAT FOR THE PERIOD FEBRUARY 19 THROUGH NOVEMBER 30, 1942, YOU WERE INELIGIBLE TO RECEIVE OVERTIME COMPENSATION UNDER THE STATUTES THEN IN EFFECT, AND THE REPORT OF THE ADMINISTRATIVE OFFICE SHOWS THAT YOU WERE PAID COMPENSATION AT THE OVERTIME RATE FOR ALL SERVICES RENDERED IN EXCESS OF 40 HOURS PER WEEK ON AND AFTER DECEMBER 1, 1942.

PRIOR TO DECEMBER 1, 1942, PER ANNUM EMPLOYEES GENERALLY WERE NOT ENTITLED TO COMPENSATION FOR OVERTIME WORK ADMINISTRATIVELY ORDERED OR REQUIRED IN EXCESS OF A REGULAR TOUR OF DUTY IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING. WITH THE EXCEPTION OF LABORERS AND MECHANICS WHO WERE ENGAGED IN THE MANUFACTURE OR PRODUCTION OF MILITARY EQUIPMENT, MUNITIONS OR SUPPLIES THE PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES OF THE WAR DEPARTMENT PRIOR TO DECEMBER 1, 1942, WAS GOVERNED BY THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205, AND THE ACT OF JUNE 3, 1941, 55 STAT. 241. SECTION 1 OF THE ACT OF OCTOBER 21, 1940, PROVIDED FOR PAYMENT OF ADDITIONAL COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK TO (A) EMPLOYEES OF THE FIELD SERVICE OF THE WAR DEPARTMENT EMPLOYED ON MONTHLY, PER DIEM, HOURLY, OR PIECEWORK BASIS, WHOSE WAGES ARE SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITY, AND, ALSO, TO (B) PROFESSIONAL AND SUBPROFESSIONAL EMPLOYEES, BLUEPRINTERS, PHOTOSTAT AND ROTOPRINT OPERATORS, INSPECTORS, STOREKEEPERS, TOOLKEEPERS, AND SHOP SUPERINTENDENTS OF THE CAF SERVICE, AS SHALL BE DESIGNATED FROM TIME TO TIME BY THE SECRETARY OF WAR. SINCE YOU WERE A PER ANNUM EMPLOYEE AND NOT EMPLOYED IN A PROFESSIONAL OR SUBPROFESSIONAL CAPACITY, OR IN ANY OF THE PARTICULAR TRADES OR PROFESSIONS ENUMERATED IN THE 1940 ACT, IT IS EVIDENT THAT THE POSITIONS WHICH YOU OCCUPIED DURING THE PERIOD INVOLVED DID NOT FALL WITHIN THE SCOPE OF SAID ACT SO AS TO ENTITLE YOU TO OVERTIME COMPENSATION.

THE ONLY OTHER STATUTE IN EFFECT FROM FEBRUARY 19 TO NOVEMBER 30, 1942, WHICH MIGHT HAVE BEEN APPLICABLE TO THE POSITIONS OF JUNIOR STENOGRAPHER, ASSISTANT CLERK, AND CLERK, WAS THE ACT OF JUNE 3, 1941, SUPRA, THE PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS:

"THAT COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE OF ONE AND ONE-HALF TIMES THE REGULAR RATE IS HEREBY AUTHORIZED TO BE PAID UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, TO THOSE PER ANNUM EMPLOYEES IN THE FIELD SERVICE OF THE WAR DEPARTMENT * * * WHOSE OVERTIME SERVICES ARE ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN * * * SECTION 1 OF THE ACT OF OCTOBER 21, 1940, ARE ENGAGED * * *.'

UNDER THE PROVISIONS OF THE 1941 ACT AND EXECUTIVE ORDER NO. 8837, DATED JULY 30, 1941, ISSUED PURSUANT THERETO, THE PAYMENT OF OVERTIME COMPENSATION TO PER ANNUM FIELD EMPLOYEES OF THE WAR DEPARTMENT WAS AUTHORIZED ONLY IN THE EVENT THE SECRETARY OF WAR OR A DESIGNATED SUBORDINATE OFFICER MADE A DETERMINATION THAT THE OVERTIME SERVICES OF SUCH EMPLOYEES WERE "ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN * * * SECTION 1 OF THE ACT OF OCTOBER 21,1940, ARE ENGAGED.' SINCE THE WAR DEPARTMENT, IN RECOMMENDING DISAPPROVAL OF YOUR CLAIM, REPORTS THAT NO ADMINISTRATIVE DETERMINATION WAS MADE TO BRING THE POSITIONS WHICH YOU HELD WITHIN THE SCOPE OR PURVIEW OF THE ACT OF JUNE 3, 1941, IT FOLLOWS THAT THE PAYMENT OF COMPENSATION FOR ANY OVERTIME SERVICES RENDERED PRIOR TO DECEMBER 1, 1942, WOULD BE IN CONTRAVENTION OF THE PROVISIONS OF SAID ACT AND THE PRESIDENT'S REGULATIONS PRESCRIBED PURSUANT THERETO.

FOR THE REASONS INDICATED NO BASIS IS FOUND FOR THE PAYMENT OF YOUR CLAIM OR ANY PART THEREOF. ACCORDINGLY, THE SETTLEMENT OF JANUARY 26, 1950, MUST BE AND IS SUSTAINED.