B-167825, OCT. 6, 1969

B-167825: Oct 6, 1969

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AS WAS REQUIRED UNDER STATUTE AND REGULATIONS GOVERNING ENTITLEMENT TO OVERTIME COMPENSATION. WHEN HE WAS ALLEGEDLY ASSIGNED 7-DAY WORKWEEK AND HOURS TO COINCIDE WITH THOSE OF MILITARY SEA TRANSPORTATION SERVICE. IS DISALLOWED CLAIM SINCE COURT OF CLAIMS HAS HELD. WE HAVE REVIEWED OUR SETTLEMENT DISALLOWING YOUR CLAIM FOR PAYMENT OF OVERTIME COMPENSATION IN THE AMOUNT OF $6. DURING THE PERIOD INVOLVED YOU WERE ASSIGNED TO SAIGON. YOU STATE YOU WERE ASSIGNED A 7-DAY WORKWEEK AND HOURS TO COINCIDE WITH THOSE OF THE MILITARY SEA TRANSPORTATION SERVICE. PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR * * *.'. UNLESS IT IS INCLUDED IN THE REGULARLY SCHEDULED WORKWEEK. PRIOR APPROVAL OF THE MARITIME ADMINISTRATOR IS REQUIRED * UNDER THE STATUTE AND REGULATIONS CITED.

B-167825, OCT. 6, 1969

COMPENSATION--OVERTIME--WORK IN EXCESS OF DAILY AND WEEKLY LIMITATION WHERE MARITIME ADMINISTRATOR DID NOT AUTHORIZE RECURRING OVERTIME OR CHANGE IN NORMAL ADMINISTRATIVE WORKWEEK, AS WAS REQUIRED UNDER STATUTE AND REGULATIONS GOVERNING ENTITLEMENT TO OVERTIME COMPENSATION, UNTIL MAY 20, 1968, EMPLOYEE WHO CLAIMS OVERTIME AND HOLIDAY PAY FROM JUNE 20, 1967, WHEN HE WAS ALLEGEDLY ASSIGNED 7-DAY WORKWEEK AND HOURS TO COINCIDE WITH THOSE OF MILITARY SEA TRANSPORTATION SERVICE, IS DISALLOWED CLAIM SINCE COURT OF CLAIMS HAS HELD, UNDER SIMILAR REGULATIONS, THAT ENTITLEMENT TO OVERTIME COMPENSATION REQUIRES APPROVAL OF OVERTIME BY AUTHORIZED OFFICIAL OR ACTIVE INDUCEMENT TO PERFORM OVERTIME ON PART OF SUCH AUTHORIZED OFFICIAL.

TO MR. DONALD T. PIDGEON:

IN ACCORDANCE WITH THE REQUEST OF REPRESENTATIVE LAWRENCE J. HOGAN, ON YOUR BEHALF, WE HAVE REVIEWED OUR SETTLEMENT DISALLOWING YOUR CLAIM FOR PAYMENT OF OVERTIME COMPENSATION IN THE AMOUNT OF $6,705.12 AS AN EMPLOYEE OF THE MARITIME ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE, DURING THE PERIOD JUNE 20, 1967, TO MAY 18, 1968.

DURING THE PERIOD INVOLVED YOU WERE ASSIGNED TO SAIGON, VIETNAM. YOU STATE YOU WERE ASSIGNED A 7-DAY WORKWEEK AND HOURS TO COINCIDE WITH THOSE OF THE MILITARY SEA TRANSPORTATION SERVICE. YOUR CLAIM COVERS 1,069 HOURS OF OVERTIME AND 56 HOURS OF HOLIDAY PAY.

SECTION 5542 OF TITLE 5, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR * * * IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR * * *.'

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION CONTAINED IN CHAPTER 550, SUBCHAPTER 1-3A, FEDERAL PERSONNEL MANUAL, PROVIDE IN PERTINENT PART AS FOLLOWS:

"* * * ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF THE EMPLOYEE'S BASIC WORKWEEK CONSTITUTE OVERTIME WORK. IT MAY BE EITHER PART OF THE REGULARLY SCHEDULED WORKWEEK OR IT MAY BE UNSCHEDULED WORK OF AN IRREGULAR OR OCCASIONAL NATURE. UNLESS IT IS INCLUDED IN THE REGULARLY SCHEDULED WORKWEEK, OVERTIME MUST BE ORDERED OR APPROVED IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM THE NECESSARY AUTHORITY HAS BEEN SPECIFICALLY DELEGATED.'

MARITIME ADMINISTRATION MANAGEMENT ORDER 500 ESTABLISHED A 40-HOUR BASIC WORKWEEK AS FOLLOWS:

"SECTION 3. ADMINISTRATIVE WORK WEEK:

"3.01 THE NORMAL ADMINISTRATIVE WORK WEEK SHALL COINCIDE WITH THE CALENDAR WEEK (SUNDAY THROUGH SATURDAY), AND INCLUDE A BASIC WORK WEEK OF FIVE EIGHT HOUR DAYS, MONDAY THROUGH FRIDAY.

"3.03 WHEN WORK CONDITIONS FOR ANY GROUP OF EMPLOYEES REQUIRE ESTABLISHMENT OF TOURS OF DUTY DIFFERENT FROM THOSE PRESCRIBED IN SECTIONS 3.01 AND 3.02, THE MARITIME ADMINISTRATOR MAY ESTABLISH AN ADMINISTRATIVE WORK WEEK OF 40 HOURS EXTENDING OVER A PERIOD OF NOT MORE THAN SIX CONSECUTIVE DAYS, SUBJECT TO THE PROVISIONS SPECIFIED IN SECTION 4.05 OF THIS ORDER.' SECTION 4.01 OF THE ORDER CITED ABOVE PROVIDED THAT THE REGULAR HOURS OF WORK FOR THE MARITIME ADMINISTRATION WOULD BE FROM :30 A.M. TO 5 P.M. MONDAY THROUGH FRIDAY WITH ONE-HALF HOUR FOR LUNCH.

MARITIME ADMINISTRATION MANAGEMENT ORDER 500 ALSO PROVIDES IN PART AS FOLLOWS:

"SECTION 9. PRIOR APPROVAL REQUIREMENTS FOR OVERTIME AND HOLIDAY WORK:

"9.01 EVERY EFFORT MUST BE MADE THROUGH PROPER PLANNING OF WORK AND UTILIZATION OF PERSONNEL, ETC. TO ACCOMPLISH WORK ASSIGNMENTS WITHIN THE REGULARLY SCHEDULED HOURS OF WORK AND TO RESORT TO OVERTIME OR HOLIDAY WORK ONLY WHEN ABSOLUTELY NECESSARY * * *

"9.02 ADMINISTRATIVE FUNDS. ADVANCE AUTHORIZATION BY THE FOLLOWING OFFICIALS SHALL BE SECURED FOR ALL OVERTIME AND HOLIDAY WORK:

"3. THE APPROPRIATE CHIEF OF OFFICE IN WASHINGTON, D.C. FOR ALL OVERTIME AND HOLIDAY WORK PERFORMED BY OVERSEAS PERSONNEL.'SECTION 10. PROCEDURE FOR OBTAINING APPROVAL OF OVERTIME AND HOLIDAY WORK:

"10.02 REQUESTS FOR COMPENSATORY OVERTIME FOR EMPLOYEES SHALL BE MADE ON FORM CD-81 AND SHALL BE SUBMITTED FOR PRIOR APPROVAL BY THE APPROPRIATE OFFICIAL SPECIFIED IN SECTIONS 9.02 AND 9.03 ABOVE.

"10.04 WHERE RECURRING NEEDS FOR OVERTIME ARISE NECESSITATING THE SCHEDULING OF ONE OR MORE EMPLOYEES FOR OVERTIME DUTY ON A MORE OR LESS REGULAR BASIS, PRIOR APPROVAL OF THE MARITIME ADMINISTRATOR IS REQUIRED *

UNDER THE STATUTE AND REGULATIONS CITED, ENTITLEMENT TO COMPENSATION FOR THE PERFORMANCE OF OVERTIME WORK IS DEPENDENT ON AUTHORIZATION BY THE OFFICIAL HAVING AUTHORITY TO ORDER OVERTIME WORK. UNDER REGULATIONS SIMILAR TO THOSE IN THIS CASE THE COURT OF CLAIMS HAS ALLOWED OVERTIME PAY WHEN THEY FOUND THAT SUPERVISORS HAVING AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME ACTIVELY INDUCED EMPLOYEES TO PERFORM OVERTIME DUTIES. SEE BYRNES V UNITED STATES, 163 CT. CL. 167 (1963). ON THE OTHER HAND, THE COURT HAS HELD THAT EMPLOYEES WERE NOT ENTITLED TO OVERTIME PAY EVEN THOUGH THEY WERE INFORMALLY TOLD BY THEIR SUPERVISORS (WHO LACKED AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME) TO REPORT FOR OVERTIME DUTIES BECAUSE THE AUTHORIZATION OR APPROVAL REQUIREMENTS OF THE GOVERNING STATUTE AND REGULATIONS WERE NOT COMPLIED WITH. SEE BILELLO V UNITED STATES, 174 CT. CL. 1253 (1966). THEREFORE, ENTITLEMENT TO OVERTIME COMPENSATION REQUIRES APPROVAL OF OVERTIME BY AN AUTHORIZED OFFICIAL OR ACTIVE INDUCEMENT TO PERFORM OVERTIME ON HIS PART. SEE B-163866, MAY 7, 1968, COPY ENCLOSED.

IN THE INSTANT CASE YOU CLAIM OVERTIME FOR WORK RECURRING ON A REGULAR BASIS FOR APPROXIMATELY 11 MONTHS. IN SUCH A SITUATION THE REGULATION SPECIFICALLY REQUIRES PRIOR APPROVAL OF THE MARITIME ADMINISTRATOR. MOREOVER, THE REGULATIONS REQUIRE HIS APPROVAL FOR A WORKWEEK OTHER THAN THE NORMAL ADMINISTRATIVE WORKWEEK. HOWEVER, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE NECESSITY FOR ANY CHANGE IN THE WORKWEEK OR OVERTIME ON A RECURRING BASIS WAS BROUGHT TO THE ATTENTION OF THE MARITIME ADMINISTRATOR UNTIL MAY 14, 1968, AND HE DID NOT AUTHORIZE RECURRING OVERTIME OR A CHANGE IN THE WORKWEEK UNTIL MAY 20, 1968.

WITH REFERENCE TO THE STATEMENT IN YOUR LETTER OF MARCH 10, 1969, TO THE EFFECT THAT YOU FAILED TO UNDERSTAND WHY 32 HOURS OF OVERTIME WAS APPROVED FOR THE PERIOD DECEMBER 31, 1967, TO JANUARY 13, 1968, WHEN IT WAS SIMILAR TO OVERTIME FOR THE OTHER PAY PERIODS WHICH WAS DISAPPROVED, YOU ARE ADVISED THAT WE INFORMALLY CONTACTED THE MARITIME ADMINISTRATION AS TO THE REASON FOR THE APPROVAL BUT THEIR RECORDS FAILED TO REVEAL SUCH REASON. HOWEVER, IT WAS POINTED OUT THAT THE PROPER FORM WAS SENT IN (CD-81) FOR THIS OVERTIME AND THAT THERE MUST HAVE BEEN SPECIAL CIRCUMSTANCES WHICH WARRANTED THE APPROVAL WHICH WERE NOT RECORDED.

IN VIEW OF THE ABOVE, THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED.