B-132292, SEP. 24, 1957

B-132292, SEP. 24, 1957

TO MR. MICHAEL J. MUSMECI:

YOUR LETTER OF AUGUST 1, 1957, CONCERNS YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME SERVICES PERFORMED BY YOU AS AN EMPLOYEE OF THE WAR DEPARTMENT, NEW ORLEANS PORT OF EMBARKATION, NEW ORLEANS, LOUISIANA. YOU SAY "I FEEL SURE THAT YOU WILL BE CONVINCED UPON RECEIPT OF THE ENCLOSED PHOTOSTATIC COPY OF APPROVED OVERTIME BALANCE AND THE TRUE COPY OF OVERTIME RECORD THAT THIS OVERTIME WAS APPROVED IN ADVANCE IN ORDER FOR ME TO BE OFFICIALLY CREDITED WITH IT BY AN OFFICER OF THE U.S. ARMY.'

THE ENCLOSED DOCUMENTS SHOW THE OVERTIME WAS PERFORMED BY YOU AND ENTERED ON YOUR LEAVE RECORD. WE EXPLAINED TO YOU IN OUR SETTLEMENT CERTIFICATE DATED DECEMBER 12, 1945, AND OUR LETTER OF JULY 24, 1957,THAT THE RECORD SHOWS YOU PERFORMED OVERTIME SERVICES IN EXCESS OF YOUR REGULAR TOUR OF DUTY OF FORTY-EIGHT HOURS PER WEEK DURING THE PERIOD MAY 16 TO DECEMBER 1, 1942. PRESUMABLY, THIS ADDITIONAL OVERTIME WAS THE SUBJECT OF ORAL INSTRUCTIONS, SINCE THERE IS NO RECORD OF ITS HAVING BEEN AUTHORIZED IN WRITING IN ADVANCE OF THE PERFORMANCE OF THE WORK. WE POINTED OUT IN THE SETTLEMENT AND ALSO IN OUR LETTER THAT IN ORDER TO RECEIVE PAYMENT FOR THE OVERTIME IT WAS NECESSARY, UNDER THE REGULATIONS IN EFFECT AT THAT TIME, THAT THE PAYMENT FOR OVERTIME WORK BE AUTHORIZED IN WRITING IN ADVANCE OF THE OVERTIME WORKED.

IRRESPECTIVE OF WHETHER THE OVERTIME SERVICES MAY OR MAY NOT HAVE BEEN AUTHORIZED IN WRITING IN ADVANCE, THE RECORD FAILS TO CONTAIN ANY INDICATION THAT ANY DETERMINATION WAS EVER MADE AT THE NEW ORLEANS PORT OF EMBARKATION THAT PER ANNUM EMPLOYEES WERE ENTITLED TO OVERTIME COMPENSATION FOR SERVICES PERFORMED IN EXCESS OF FORTY-EIGHT HOURS PER WEEK AS REQUIRED BY THE APPLICABLE LAW AND REGULATIONS. IT IS NOTED THAT PERSONNEL MEMORANDUM, DATED MAY 16, 1942, ISSUED BY THAT INSTALLATION AUTHORIZED OVERTIME COMPENSATION FOR PER ANNUM EMPLOYEES, BUT BY THE SPECIFIC TERMS OF THAT ORDER SUCH COMPENSATION WAS LIMITED TO EIGHT HOURS IN EXCESS OF THE REGULAR FORTY-HOUR WORK WEEK. MOREOVER, THE FACT THAT COMPENSATION FOR OVERTIME SERVICES IN EXCESS OF FORTY-EIGHT HOURS PER WEEK WAS NEVER AUTHORIZED FOR PER ANNUM EMPLOYEES AT THE NEW ORLEANS PORT OF EMBARKATION IS CORROBORATED BY PARAGRAPH 3D/2) OF MEMORANDUM NO. 35 ISSUED BY HEADQUARTERS, NEW ORLEANS PORT OF EMBARKATION ON FEBRUARY 7, 1943, WHICH READS AS FOLLOWS:

"OVERTIME WHICH HAS ACCRUED BEYOND THE FORTY-EIGHT HOUR WORK WEEK PRIOR TO DECEMBER 1, 1942, FOR WHICH NO PAYMENT WAS AUTHORIZED, WILL BE CARRIED AS A CREDIT TO THE EMPLOYEES, AS THERE IS NO LAW WHICH WILL PERMIT EITHER PAYMENT OR COMPENSATORY LEAVE UNTIL PERMANENT LEGISLATION IS ENACTED WHICH MIGHT OR MIGHT NOT APPLY TO SUCH OVERTIME.'

WHILE PAYMENT FOR OVERTIME SERVICES MAY HAVE BEEN MADE TO CERTAIN EMPLOYEES IN THE ENGINEERS' OFFICE, CORPS OF ENGINEERS, AND THE FINANCE OFFICE IN NEW ORLEANS, UNDOUBTEDLY SUCH PAYMENTS WERE PREDICATED ON PROPER DETERMINATION AND AUTHORIZATION WHICH WERE APPLICABLE TO EMPLOYEES OF THOSE PARTICULAR ACTIVITIES. IN ANY EVENT SUCH PAYMENTS WOULD HAVE NO EFFECT UPON YOUR RIGHT TO OVERTIME COMPENSATION.

ACCORDINGLY, THE SETTLEMENT CERTIFICATE DATED DECEMBER 12, 1945, WAS CORRECT AND IS SUSTAINED.