B-127867, JUN. 29, 1956

B-127867: Jun 29, 1956

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BERNARD ROSENBERG: REFERENCE IS MADE TO YOUR RECENT LETTER RELATIVE TO OUR SETTLEMENT DATED AUGUST 5. IN THE ABOVE-MENTIONED SETTLEMENT IT WAS STATED THAT THE RECORDS OF THIS OFFICE SHOW THAT YOU WERE PAID ADDITIONAL COMPENSATION FOR ALL OVERTIME SERVICES RENDERED IN EXCESS OF 40 HOURS PER WEEK. YOU CONTEND THAT THE OTHER FEDERAL EMPLOYEES WERE PAID INCREASED COMPENSATION FOR NIGHT SERVICES RENDERED. YOUR RECENT LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT PART OF THE SETTLEMENT RELATING TO NIGHT DIFFERENTIAL PAY. AS FOLLOWS: "ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY. EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS.

B-127867, JUN. 29, 1956

TO MR. BERNARD ROSENBERG:

REFERENCE IS MADE TO YOUR RECENT LETTER RELATIVE TO OUR SETTLEMENT DATED AUGUST 5, 1948, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME WORK AND FOR NIGHT DIFFERENTIAL PAY COVERING SERVICES PERFORMED DURING THE PERIOD FROM SEPTEMBER 1, 1943, TO OCTOBER 12, 1945, WHILE AN EMPLOYEE OF THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) ARMY SERVICES FORCES, SECOND TRANSPORTATION ZONE, NEW YORK, NEW YORK.

IN THE ABOVE-MENTIONED SETTLEMENT IT WAS STATED THAT THE RECORDS OF THIS OFFICE SHOW THAT YOU WERE PAID ADDITIONAL COMPENSATION FOR ALL OVERTIME SERVICES RENDERED IN EXCESS OF 40 HOURS PER WEEK; ALSO, THAT A REPORT FURNISHED THIS OFFICE FROM THE DEPARTMENT OF THE ARMY SHOWS THAT YOUR CLAIM FOR INCREASED COMPENSATION COVERING NIGHT WORK PERFORMED SUBSEQUENT TO JULY 1, 1945, HAD BEEN ADJUSTED BY THE WAR DEPARTMENT.

HOWEVER, IN YOUR LETTER OF APRIL 16, 1956, YOU CONTEND THAT THE OTHER FEDERAL EMPLOYEES WERE PAID INCREASED COMPENSATION FOR NIGHT SERVICES RENDERED, AND YOU EXPRESS THE VIEW THAT YOU NEVER RECEIVED ANY ADDITIONAL COMPENSATION AS A RESULT OF NIGHT DUTY PERFORMED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. PRIOR TO JULY 1, 1945. CONSEQUENTLY, YOUR RECENT LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT PART OF THE SETTLEMENT RELATING TO NIGHT DIFFERENTIAL PAY.

SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, THE PROVISIONS OF WHICH BECAME EFFECTIVE ON JULY 1, 1945, READS IN PERTINENT PART, AS FOLLOWS:

"ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE 10 PERCENTUM IN EXCESS OF HIS BASIC RATE OF COMPENSATION FOR DUTY BETWEEN OTHER HOURS: PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED * *

PRIOR TO THE PASSAGE OF THE ABOVE-CITED STATUTE THERE EXISTED NO AUTHORITY TO INCREASE THE RATE OF COMPENSATION FOR PER ANNUM EMPLOYEES OF THE WAR DEPARTMENT WHOSE SCHEDULED TOURS OF DUTY REQUIRED THEM TO PERFORM NIGHT WORK--- NOT IN EXCESS OF 40 HOURS PER WEEK--- BETWEEN THE HOURS OF 6 P.M. AND 6 A.M.

OUR SETTLEMENT WAS IN PART BASED UPON THE ORIGINAL REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY WHICH READS IN PART, AS FOLLOWS:

"ADVICE IS FURNISHED THAT PER ANNUM EMPLOYEES DID NOT BECOME ELIGIBLE TO RECEIVE NIGHT DIFFERENTIAL PAY UNTIL 1 JULY 1945,EFFECTIVE DATE OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. IT WILL BE NOTED THAT THE CLAIMANT STATED THAT SUBSEQUENT TO THAT DATE HE DID RECEIVE NIGHT DIFFERENTIAL PAY.'

IN VIEW OF THE ABOVE, THIS OFFICE HAS NO ALTERNATIVE BUT TO CONCLUDE THAT THE SETTLEMENT OF AUGUST 5, 1948, WAS CORRECT AND MUST BE SUSTAINED.