B-143243, JUN. 29, 1960

B-143243: Jun 29, 1960

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REQUESTS RECONSIDERATION OF YOUR CLAIM FOR OVERTIME COMPENSATION AS AN EMPLOYEE OF THE ALASKA RAILROAD WHICH WAS DISALLOWED BY OUR SETTLEMENT OF MAY 28. YOU SAY THAT YOU WERE EMPLOYED AS A BRAKEMAN ON THE ALASKA RAILROAD FROM JUNE 1947 UNTIL MAY 16. YOU FURTHER SAY THAT WHEN YOU STARTED SUCH EMPLOYMENT THE RATE OF PAY FOR A BRAKEMAN WAS $11.44 PER EIGHT HOURS OR ONE HUNDRED MILES AND THAT AT THE TIME OF YOUR RESIGNATION THE PAY RATE WAS $15.28 PER EIGHT HOURS OR ONE HUNDRED MILES. YOUR CLAIM WAS DISALLOWED PRINCIPALLY UPON THE BASIS THAT IN DETERMINING WHETHER WE MAY CERTIFY ANY BALANCE AS BEING DUE ON CLAIMS OF THIS CLASS WITHIN THE PURVIEW OF SECTION 8 OF THE ACT OF JULY 31. NECESSARILY MUST CONSIDER THE UNDERSTANDING AND AGREEMENTS BETWEEN THE RAILROAD AND ITS EMPLOYEES WHICH WERE SCRUPULOUSLY OBSERVED AND FOLLOWED BY THE RAILROAD THROUGHOUT THE YEARS IN QUESTION.

B-143243, JUN. 29, 1960

TO MR. JOSEPH E. WOMBLE:

YOUR LETTER OF JUNE 3, 1960, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR OVERTIME COMPENSATION AS AN EMPLOYEE OF THE ALASKA RAILROAD WHICH WAS DISALLOWED BY OUR SETTLEMENT OF MAY 28, 1959, FOR THE REASONS STATED THEREIN.

YOU SAY THAT YOU WERE EMPLOYED AS A BRAKEMAN ON THE ALASKA RAILROAD FROM JUNE 1947 UNTIL MAY 16, 1950. YOU FURTHER SAY THAT WHEN YOU STARTED SUCH EMPLOYMENT THE RATE OF PAY FOR A BRAKEMAN WAS $11.44 PER EIGHT HOURS OR ONE HUNDRED MILES AND THAT AT THE TIME OF YOUR RESIGNATION THE PAY RATE WAS $15.28 PER EIGHT HOURS OR ONE HUNDRED MILES. YOUR CLAIM INCLUDES NO FURTHER FACTS; HOWEVER, YOU BASE YOUR CLAIM SQUARELY UPON THE DECISION IN THE COURT OF CLAIMS CASE OF SAMPLES, ET AL. V. UNITED STATES, 135 C.CLS. 548.

YOUR CLAIM WAS DISALLOWED PRINCIPALLY UPON THE BASIS THAT IN DETERMINING WHETHER WE MAY CERTIFY ANY BALANCE AS BEING DUE ON CLAIMS OF THIS CLASS WITHIN THE PURVIEW OF SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT.207, 31 U.S.C. 74, THE TOTAL COMPENSATION INCLUDING "ARBITRARIES OR CONSTRUCTIVE ALLOWANCES" PREVIOUSLY PAID UNDER THE DUAL SYSTEM OF COMPENSATION APPLIED TO THE RAILROAD'S OPERATING (TRAIN AND ENGINE SERVICE) EMPLOYEES MUST NECESSARILY BE TAKEN AS A CREDIT. SEE 31 U.S.C. 71. THE FOREGOING RULE SIMPLY APPLIES THE COMMON LAW RULE OF SETOFF. THE SAMPLES CASE, ABOVE, THE COURT IN EFFECT GAVE THE PLAINTIFF THE VARIOUS "ARBITRARIES" IN ADDITION TO THE STRAIGHT TIME AND OVERTIME PAY THE COURT FOUND TO BE PAYABLE UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, 5 U.S.C. 673C. OUR OFFICE HAS NO SUCH AUTHORITY UNDER 31 U.S.C. 71 AND 74 TO WAIVE, GIVE, OR GRANT SUCH BENEFITS TO CLAIMANTS. NECESSARILY MUST CONSIDER THE UNDERSTANDING AND AGREEMENTS BETWEEN THE RAILROAD AND ITS EMPLOYEES WHICH WERE SCRUPULOUSLY OBSERVED AND FOLLOWED BY THE RAILROAD THROUGHOUT THE YEARS IN QUESTION. THE RECORD SHOWS THAT WAGES COMPUTED UNDER THE DUAL SYSTEM ARE CURRENTLY BEING PAID UNDER THE DEPARTMENT OF THE INTERIOR'S APPROVAL GRANTED MARCH 16, 1956, AS CONTINUED MARCH 25, 1957, AND THAT NO SECRETARY OF THE INTERIOR HAS EVER APPROVED THE PAYMENT OF ARBITRARIES IN ADDITION TO WAGES SUCH AS ARE REQUIRED BY THE ACT OF MARCH 28, 1934, NOTWITHSTANDING THE COURT'S OPINION.

THEREFORE, BASED UPON THE RECORD BEFORE US, OUR SETTLEMENT OF MAY 28, 1959, DISALLOWING YOUR CLAIM, IS SUSTAINED.

YOU SAY IN YOUR LETTER OF JUNE 3, 1960, THAT ANOTHER SIMILARLY SITUATED CLAIMANT, MR. CHALRES WEIMER INFORMED YOU THAT WE HAD ALLOWED HIS CLAIM. A SETTLEMENT CERTIFICATE DATED MAY 28, 1959, WAS ISSUED TO MR. WEIMER BY OUR OFFICE DISALLOWING HIS CLAIM. NO FURTHER INFORMATION APPEARS IN OUR CLAIMS DIVISION FOLDER PERTAINING TO MR. WEIMER'S CLAIM. HOWEVER, WE NOTE THAT IN THE PETITION FILED IN THE COURT OF CLAIMS IN THE CASE OF BEEBE, ET AL. V. UNITED STATES, C.CLS. NO. 49891, THE NAME OF CHARLES M. WEIMER APPEARS AS A CO-PETITIONER.