B-21534, NOVEMBER 21, 1941, 21 COMP. GEN. 471

B-21534, NOVEMBER 21, 1941, 21 COMP. GEN. 471

COMPENSATION - OVERTIME - NAVY DEPARTMENT PER ANNUM FIELD EMPLOYEES SINCE PER ANNUM FIELD EMPLOYEES OF THE NAVY DEPARTMENT ARE NOT ENTITLED TO THE OVERTIME COMPENSATION AUTHORIZED BY THE ACT OF JUNE 3, 1941, UNLESS THE OVERTIME WORK IS ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK OF EMPLOYEES ENUMERATED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, FOR WHICH THEY ARE BEING PAID OVERTIME COMPENSATION, AND SINCE ENLISTED PERSONNEL OF THE NAVY ARE NOT WITHIN THE ENUMERATED CLASS AND ARE NOT PAID OVERTIME COMPENSATION, SAID PER ANNUM EMPLOYEES ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR OVERTIME WORK ESSENTIAL TO AND DIRECTLY CONNECTED WITH WORK OF SAID ENLISTED PERSONNEL.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, NOVEMBER 21, 1941:

I HAVE YOUR LETTER OF OCTOBER 29, 1941, REFERENCE LL/L16-4/11) (410801/S, AS FOLLOWS:

THE ACT OF JUNE 3, 1941 ( PUBLIC LAW 100, 77TH CONGRESS), READS IN PART THAT:

"COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE OF ONE AND ONE-HALF TIMES THE REGULAR RATE IS HEREBY AUTHORIZED TO BE PAID, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, TO THOSE PER ANNUM EMPLOYEES IN THE FIELD SERVICE OF THE WAR DEPARTMENT, THE PANAMA CANAL, THE NAVY DEPARTMENT, AND THE COAST GUARD, WHOSE OVERTIME SERVICES ARE ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, * * * ARE ENGAGED.'

EXECUTIVE ORDER NO. 8837, APPROVED JULY 30, 1941, PROMULGATED THE REGULATIONS FOR THE ADMINISTRATION OF THE CITED ACT. THE SECRETARY OF THE NAVY, BY LETTER OF AUGUST 2, 1941, DELEGATED TO COMMANDANTS AND COMMANDING OFFICERS THE ADMINISTRATIVE AUTHORITY TO DETERMINE THE PER ANNUM EMPLOYEES REQUIRED TO WORK IN EXCESS OF FORTY HOURS A WEEK AND THE NUMBER OF HOURS A WEEK THAT THE SERVICES OF SUCH EMPLOYEES SHALL BE REQUIRED, SUBJECT TO THE RESTRICTIONS EMBODIED IN SAID LETTER, A COPY OF WHICH IS ENCLOSED.

SINCE THE PROMULGATION OF EXECUTIVE ORDER NO. 8837 AND THE DIRECTIVE OF THE SECRETARY OF THE NAVY IN LETTER OF AUGUST 2, 1941, ABOVE MENTIONED, NUMEROUS QUESTIONS HAVE ARISEN CONCERNING THE RIGHT TO OVERTIME COMPENSATION OF THOSE PER ANNUM EMPLOYEES ON DUTY AT NAVAL STATIONS AND INDEPENDENT OFFICES WHERE THERE ARE NO EMPLOYEES OF THE CLASSIFICATIONS MENTIONED IN PUBLIC ACT 671, 76TH CONGRESS, APPROVED JUNE 28, 1940.

THESE QUESTIONS ARISE BY REASON OF THE PROVISIONS IN PUBLIC LAW 100, 77TH CONGRESS, SUPRA, RESTRICTING THE OVERTIME PAY TO THOSE EMPLOYEES "WHOSE OVERTIME SERVICES ARE ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940 * * * ARE ENGAGED," AND INVOLVE OVERTIME EMPLOYMENT AT NAVAL AIR STATIONS WHERE THE ASSEMBLY AND REPAIR OF AIRPLANES IS PERFORMED ENTIRELY BY ENLISTED MEN.

AS THE ENTIRE EFFORT OF THE FIELD SERVICES OF THE NAVY DEPARTMENT IS NOW DEVOTED TO THE NATIONAL DEFENSE PROGRAM, A BROAD INTERPRETATION OF THE TERM "ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF OVERTIME WORK" WOULD AUTHORIZE PAYMENT OF OVERTIME COMPENSATION TO ANY GROUP OF IVB EMPLOYEES IN THE FIELD SERVICES OF THE NAVY DEPARTMENT WHEREVER LOCATED, PROVIDED OF COURSE THAT IT WAS ADMINISTRATIVELY DETERMINED THAT THE OVERTIME WORK BEING PERFORMED WAS ESSENTIAL TO AND CONNECTED WITH OVERTIME WORK WITH RELATION TO THE NATIONAL DEFENSE.

IN VIEW OF THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER, UNDER THE TERMS OF PUBLIC LAW 100, 77TH CONGRESS, AND OF EXECUTIVE ORDER NO. 8837, THE SECRETARY OF THE NAVY IS AUTHORIZED TO PAY OVERTIME COMPENSATION TO PER ANNUM EMPLOYEES OF THE FIELD SERVICES OF THE NAVY DEPARTMENT EMPLOYED OVERTIME UNDER THE FOLLOWING CONDITIONS:

"AT NAVAL AIR STATIONS WHERE THERE ARE NO EMPLOYEES OF THE CLASSES MENTIONED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, THE WORK NORMALLY PERFORMED BY THIS CLASS OF CIVILIAN EMPLOYEES NOW BEING PERFORMED EXCLUSIVELY BY ENLISTED MEN.'

BY DIRECTION OF THE SECRETARY OF THE NAVY:

THE FOLLOWING CLASSES OF EMPLOYEES ARE ENUMERATED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, 54 STAT. 678:

* * * MONTHLY, PER DIEM, HOURLY, AND PIECE-WORK EMPLOYEES, WHOSE WAGES ARE SET BY THE ACT OF JULY 16, 1862 (12 STAT. 587), AS AMENDED OR MODIFIED; AND ALSO TO PROFESSIONAL AND SUBPROFESSIONAL EMPLOYEES AND TO BLUEPRINTERS, PHOTOSTAT AND ROTAPRINT OPERATORS, INSPECTORS, SUPERVISORY PLANNERS AND ESTIMATORS, AND SUPERVISORY PROGRESSMEN, AND ASSISTANTS TO SHOP AND PLANT SUPERINTENDENTS OF THE CAF SERVICE, AS DEFINED BY THE CLASSIFICATION ACT OF MARCH 4, 1923 (42 STAT. 1488; U.S.C. 5, CH. 13), AS AMENDED: * * *

SECTIONS 1 AND 4 OF EXECUTIVE ORDER NO. 8837 ISSUED UNDER THE ACT OF JUNE 3, 1941, PUBLIC LAW 100, PROVIDE AS FOLLOWS:

SECTION 1. WHENEVER THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, THE SECRETARY OF THE TREASURY, OR THE GOVERNOR OF THE PANAMA CANAL, AS THE CASE MAY BE, SHALL DETERMINE THAT EMPLOYMENT IN EXCESS OF FORTY HOURS A WEEK OF ANY PER-ANNUM EMPLOYEE IN THE FIELD SERVICES OF THE WAR DEPARTMENT, THE NAVY DEPARTMENT, THE COAST GUARD, OR THE PANAMA CANAL IS ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF OVERTIME WORK WHICH IS BEING REQUIRED OF EMPLOYEES ENUMERATED IN SECTION 5 (A) OF THE SAID ACT OF JUNE 28, 1940, AND SECTION 1 OF THE SAID ACT OF OCTOBER 21, 1940, AND FOR WHICH OVERTIME COMPENSATION IS BEING PAID, HE IS AUTHORIZED TO PROVIDE COMPENSATION FOR SUCH EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK AT ONE AND ONE-HALF TIMES SUCH EMPLOYEE'S REGULAR RATE OF PAY. ( ITALICS SUPPLIED.)

SECTION 4. NO OVERTIME COMPENSATION MAY BE PAID UNDER SECTION 1 HEREOF TO ANY PER-ANNUM EMPLOYEE WHO DURING HIS REGULAR HOURS OF EMPLOYMENT IS NOT NORMALLY ENGAGED ON WORK ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE WORK UPON WHICH EMPLOYEES ENUMERATED IN SECTION 5 (A) OF THE SAID ACT OF JUNE 28, 1940, AND SECTION 1 OF THE SAID ACT OF OCTOBER 21, 1940, ARE ENGAGED.

THE ACT OF JUNE 3, 1941, PUBLIC LAW 100, 55 STAT. 241, AND THE EXECUTIVE ORDER ISSUED THEREUNDER ARE NOT MANDATORY BUT VEST A LIMITED DISCRETION IN THE SECRETARY OF THE NAVY TO DETERMINE THE INDIVIDUAL EMPLOYEES OR CLASSES OF EMPLOYEES WHO MAY BE REQUIRED TO WORK OVERTIME, WHICH DETERMINATION IS SUBJECT TO THE TERMS AND CONDITIONS OF THE STATUTE AND EXECUTIVE ORDER. WITH REGARD TO THE ACT OF JUNE 3, 1941, AND THE EXECUTIVE ORDER, IT WAS STATED IN DECISION OF NOVEMBER 3, 1941, B-21237, AS FOLLOWS:

* * * THAT IS TO SAY, AS THE ACT OF JUNE 3, 1941, SUPRA, IS NOT MANDATORY BUT DISCRETIONARY, IT DOES NOT FOLLOW THAT EVERY FIELD EMPLOYEE OF THE WAR DEPARTMENT PAID ON AN ANNUAL BASIS WHO WORKS OR IS EMPLOYED, EITHER IN A TRAVEL STATUS OR OTHERWISE, MORE THAN 40 HOURS PER WEEK, IS ENTITLED TO OVERTIME COMPENSATION. SAID STATUTE AND THE PRESIDENT'S REGULATIONS THEREUNDER CONTEMPLATE (1) ADMINISTRATIVE ACTION TO DETERMINE WHICH EMPLOYEES OR CLASSES OF EMPLOYEES MENTIONED IN THE ACTS WILL BE BROUGHT WITHIN THEIR SCOPE; (2) THE FIXING OF THE REGULAR HOURS OF WORK OR TOURS OF DUTY OF THOSE EMPLOYEES BROUGHT WITHIN THE STATUTES AT 40 HOURS PER WEEK; (3) AND THE PAYMENT OF OVERTIME EMPLOYMENT REQUIRED BY ADMINISTRATIVE ACTION IN EXCESS OF THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK.

ONE OF THE EXPRESS CONDITIONS OF THE ACT OF JUNE 3, 1941, IS THAT THE OVERTIME WORK OF THE PER-ANNUM EMPLOYEES BROUGHT WITHIN ITS SCOPE MUST BE "ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, * * * ARE ENGAGED.' ONE OF THE EXPRESS CONDITIONS OF SECTION 1 OF THE EXECUTIVE ORDER IS THAT "OVERTIME COMPENSATION IS BEING PAID" FOR THE OVERTIME WORK OF EMPLOYEES MENTIONED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940.

IN VIEW OF THESE EXPRESS CONDITIONS OF THE LAW AND THE REGULATIONS OF THE PRESIDENT, I AM UNABLE TO CONCUR IN THE SUGGESTED BROAD APPLICATION OF THE LAW THAT "ANY GROUP OF IVB EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT WHEREVER LOCATED" ENGAGED ON NATIONAL DEFENSE WORK, MAY BE PAID OVERTIME COMPENSATION FOR OVERTIME WORK. THE LAW AND EXECUTIVE ORDER CLEARLY CONTEMPLATE ADMINISTRATIVE ACTION AS TO EACH EMPLOYEE OR CLASS OF EMPLOYEES AND THE CLASS OF EMPLOYEES MAY NOT BE BROADENED BY CONSTRUCTION- -- IT BEING A GENERAL RULE OF STATUTORY CONSTRUCTION THAT THE EXPRESS MENTION OF A CLASS ("EMPLOYEES MENTIONED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940") IS TANTAMOUNT TO AN EXPRESS EXCLUSION OF ALL OTHERS.

THERE WOULD BE NO AUTHORITY IN THE SECRETARY OF THE NAVY TO PAY OVERTIME COMPENSATION TO PER-ANNUM EMPLOYEES OF THE FIELD SERVICE OF THE NAVY DEPARTMENT FOR OVERTIME WORK WHICH WAS ESSENTIAL TO AND DIRECTLY CONNECTED WITH WORK OF THE ENLISTED PERSONNEL OF THE NAVY--- SUCH ENLISTED PERSONNEL NOT COMING WITHIN THE CLASS OF EMPLOYEES MENTIONED IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, AND NOT BEING ENTITLED TO OVERTIME COMPENSATION REGARDLESS OF THE LENGTH OF TIME PER WEEK THEY MAY BE REQUIRED TO REMAIN ON DUTY.