B-127350, APR. 2, 1956

B-127350, APR. 2, 1956

TO MR. THOMAS L. LUND, JR.:

YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT OF JANUARY 16, 1956, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME SERVICES STATED TO HAVE BEEN PERFORMED BY YOU AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, LAJES FIELD IN THE AZORES, DURING THE PERIOD FROM SEPTEMBER 1952, TO MAY 1954.

YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORD FAILS TO SHOW THAT THE OVERTIME SERVICES WERE ,OFFICIALLY ORDERED OR APPROVED" AS REQUIRED BY THE PERTINENT PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, AND THE APPLICABLE REGULATIONS.

IT APPEARS THAT YOU WERE EMPLOYED AS CIVILIAN SUPERINTENDENT OF THE LAUNDRY AND DRY CLEANING PLANT AT LAJES FIELD AIR FORCE STATION DURING THE PERIOD INVOLVED, AND YOU STATE THAT THE OVERTIME SERVICES WERE RENDERED PURSUANT TO THE ORDER OF YOUR IMMEDIATE SUPERVISOR, FIRST LIEUTENANT DONALD E. FREUD, WHO WAS THE STATION LAUNDRY OFFICER AT THE TIME.

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, REFERRED TO IN THE SETTLEMENT OF JANUARY 16, 1956, PROVIDES AS FOLLOWS:

"SEC. 201. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK, AT OVERTIME RATES AS FOLLOWS: * * *"

SECTION 25.221, PAGE 21-322 OF THE FEDERAL PERSONNEL MANUAL, IN EFFECT AT THE TIME, PROVIDED:

"SEC. 25.221. AUTHORIZATION OF OVERTIME COMPENSATION. (A) OFFICERS AND EMPLOYEES TO WHOM THIS SUBPART APPLIES SHALL BE PAID OVERTIME COMPENSATION COMPUTED AS PROVIDED IN SECTION 25.223, FOR ALL HOURS OF EMPLOYMENT OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK, INCLUDING IRREGULAR OR OCCASIONAL OVERTIME DUTY.'

PARAGRAPH 1, CHAPTER AF H2.4, OF THE AIR FORCE MANUAL PROVIDES THAT COMMANDING OFFICERS OF AIR FORCE INSTALLATIONS ARE AUTHORIZED TO APPROVE IRREGULAR AND OCCASIONAL OVERTIME OUTSIDE THE REGULARLY SCHEDULED HOURS OF DUTY AND THAT WHILE SUCH AUTHORITY MAY BE REDELEGATED IT MUST BE RETAINED AT A HIGH ADMINISTRATIVE LEVEL. IT APPEARS THAT AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME SERVICES WAS NOT REDELEGATED TO LIEUTENANT FREUD, OR TO ANY OTHER OFFICER, BY THE COMMANDING OFFICER, LAJES FIELD AIR FORCE STATION. IN THAT REGARD THERE APPEARS OF RECORD THE FOLLOWING STATEMENT BY THE COMMANDING OFFICER, LIEUTENANT COLONEL LAWRENCE H. AVAIL:

"THESE REQUESTS FOR OVERTIME WERE FIRST SUBMITTED IN JULY 1953 BY MR. LUND. THEY WERE DISAPPROVED BY ME PRIMARILY BECAUSE PRIOR APPROVAL WAS NOT ASKED FOR OR SOUGHT BEFORE WORK WAS ACCOMPLISHED EITHER FROM ME OR BY HIGHER AUTHORITY. THIS DISAPPROVAL WAS EXPLAINED TO MR. LUND AND ACCEPTED BY HIM.'

IN ADDITION THE AUTHORIZED CERTIFYING OFFICER CONCERNED OFFERED THE FOLLOWING COMMENT REGARDING YOUR CLAIM:

"A. EMPLOYEE SOON AFTER HIS ARRIVAL AT THIS STATION (24 SEP 52) CONTACTED THIS AUTHORIZED CERTIFYING OFFICER AND COMPLAINED THAT HE WAS REQUIRED TO WORK OVERTIME WITHOUT COMPENSATION. AT THAT TIME, THE EMPLOYEE, AS WELL AS HIS IMMEDIATE SUPERVISOR, WHO WAS ALSO THE CERTIFYING OFFICER OF THE EMPLOYEE'S TIME AND ATTENDANCE REPORT, WAS CLEARLY BRIEFED ON THE FOLLOWING REQUIREMENTS FOR OVERTIME COMPENSATION:

"/1) THAT OVERTIME WORKED HAD TO BE REPORTED ON THE TIME AND ATTENDANCE REPORT AND SUPPORTED BY AN AUTHORIZATION IN WRITING BY THE COMMAND OFFICE BEFORE PAYMENT COULD BE EFFECTED.

"/2) THAT IN THE ABSENCE OF SUCH AUTHORIZATION, THE EMPLOYEE COULD NOT BE REQUIRED TO WORK OVERTIME, AND THAT ANY OVERTIME WORK PERFORMED BY THE EMPLOYEE WOULD BE ON A VOLUNTARY BASIS.

"B. THE EMPLOYEE AND HIS SUPERVISOR BOTH ADVISED AT THAT TIME THAT THE COMMANDING OFFICER OF THE M AND S SQUADRON WOULD NOT PERMIT THE SUBMISSION OF REQUESTS FOR OVERTIME AND REQUESTED INFORMATION ON AVAILABILITY OF COMPENSATORY TIME. ADVICE WAS FURNISHED:

"/1) THAT COMPENSATORY TIME WAS AVAILABLE TO THE EMPLOYEE IN ACCORDANCE WITH AF P9.2-7 AND AF H2.4-2, AFM 40-1.

"/2) THAT COMPENSATORY TIME WORKED AND TAKEN MUST BE REPORTED ON THE TIME AND ATTENDANCE REPORT.

"/3) THAT COMPENSATORY TIME WORKED HAD TO BE TAKEN DURING THE SAME PAY PERIOD OR NOT LATER THAN THE FOLLOWING PAY PERIOD.

"/4) THAT, IN THE EVENT COMPENSATORY TIME OFF COULD NOT BE TAKEN IN THE ALLOTTED TIME, DUE TO EXIGENCIES OF THE SERVICE, PAYMENT ON AN OVERTIME BASIS COULD BE EFFECTED UPON SUCH CERTIFICATION BY THE SUPERVISOR AND SUBSEQUENT APPROVAL OF THE COMMANDING OFFICER.

"5) THAT, UNDER THE CIRCUMSTANCES OUTLINED, IT WAS APPARENT THAT EMPLOYEE COULD NOT TAKE THE COMPENSATORY TIME WORKED WITHIN THE REQUIRED PERIOD AND THEREFORE, IF REQUIRED TO WORK, IT SHOULD BE ON AN OVERTIME BASIS AND PROPER OVERTIME AUTHORIZATION OBTAINED.'

IN VIEW OF THE FOREGOING, WE WOULD NOT BE WARRANTED IN DISREGARDING THE STATEMENTS OF FACT FURNISHED BY THE RESPONSIBLE OFFICERS OF THE STATION THAT YOUR STATED OVERTIME SERVICES WERE NOT ORDERED OR APPROVED BY COMPETENT AUTHORITY; NOR IN NEGATING THE CLEAR PROVISIONS OF THE STATUTE AND APPLICABLE REGULATIONS. ACCORDINGLY, OUR SETTLEMENT OF JANUARY 16, 1956, DISALLOWING YOUR CLAIM, MUST BE AND IS SUSTAINED.