B-41933, MARCH 26, 1946, 25 COMP. GEN. 670

B-41933, MARCH 26, 1946, 25 COMP. GEN. 670

OVERTIME COMPENSATION - FORTY-HOUR WEEK EMPLOYEES - NIGHT WORK - CLAIM PROCEDURE UNDER THE GENERAL RULE THAT COMPENSATION UNDERPAYMENTS MAY BE ADJUSTED ADMINISTRATIVELY AS TO EMPLOYEES ON THE ROLLS TO THE EXTENT EXISTING APPROPRIATIONS ARE AVAILABLE THEREFOR, IT WAS PROPER FOR THE GOVERNMENT PRINTING OFFICE TO MAKE SUCH ADJUSTMENTS WITH THE THEN CURRENTLY AVAILABLE APPROPRIATIONS FOR THE FISCAL YEARS 1943 AND 1944 ON THE BASIS OF THE DECISION OF JUNE 17, 1944 (23 COMP. GEN. 962), THAT A NIGHT DIFFERENTIAL IS FOR INCLUSION IN COMPUTING THE OVERTIME COMPENSATION OF EMPLOYEES SUBJECT TO THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, WITHOUT REQUIRING THAT INDIVIDUAL CLAIMS THEREFOR BE FILED IN THE GENERAL ACCOUNTING OFFICE. IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, PROHIBITING CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED LATER THAN 10 FULL YEARS AFTER THE DATE SUCH CLAIMS FIRST ACCRUED, THIS OFFICE MAY NOT CONSIDER CLAIMS OF GOVERNMENT PRINTING OFFICE EMPLOYEES WHICH EXTEND BACK MORE THAN 10 YEARS FROM THE DATE THE CLAIM WAS FILED IN THIS OFFICE, FOR ADDITIONAL COMPENSATION ARISING OUT OF THE DECISION OF THIS OFFICE (23 COMP. GEN. 962) RESPECTING THE INCLUSION OF A NIGHT DIFFERENTIAL IN COMPUTING OVERTIME COMPENSATION UNDER THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934. CLAIMS FOR ADDITIONAL COMPENSATION FOR PERIODS NOT COVERED BY CURRENT AVAILABLE APPROPRIATIONS WHICH AROSE UNDER THE RULES STATED BY THIS OFFICE (23 COMP. GEN. 962) RESPECTING THE INCLUSION OF A NIGHT DIFFERENTIAL IN COMPUTING OVERTIME COMPENSATION UNDER THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, ARE REQUIRED BY THE PROVISIONS OF SECTION 236, REVISED STATUTES, AS AMENDED, TO BE FILED IN THE GENERAL ACCOUNTING OFFICE BY PRESENT, AS WELL AS FORMER, EMPLOYEES.

COMPTROLLER GENERAL WARREN TO THE PUBLIC PRINTER, MARCH 26, 1946:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 6, 1946, AS FOLLOWS:

THERE HAS BEEN RECEIVED BY SEVERAL EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE FROM THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, CERTIFICATE OF SIGNATURE ( FORM C-56), TOGETHER WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, NOTIFYING THESE EMPLOYEES THAT IN ACCORDANCE WITH THE ABOVE-CITED ACT THERE IS NO BALANCE FOUND DUE THEM FROM THE UNITED STATES REGARDING THEIR CLAIM FOR ADDITIONAL COMPENSATION FOR NIGHT OVERTIME PAY IN ACCORDANCE WITH THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES DATED JUNE 17, 1944, B 41933.

WHEN OUR LETTER OF OCTOBER 3, 1944, (COPY ENCLOSED) WAS PREPARED OUTLINING THE PROCEDURE TO BE FOLLOWED IN THE PREPARATION OF THE PAY ROLLS AND OTHER STATEMENTS TO EFFECT PAYMENT PURSUANT TO THE SAID DECISION OF THE COMPTROLLER GENERAL, IT WAS UNDERSTOOD THAT THE PREVIOUS PAY ROLLS IN QUESTION SHOULD BE CONSIDERED IN ERROR BECAUSE OF THE FACT THAT THE PARTICULAR EMPLOYEES INVOLVED WERE PAID AN INCORRECT AMOUNT BY THE USE OF THE INCORRECT NIGHT OVERTIME RATE.

UPON THE RECEIPT OF OUR LETTER OF OCTOBER 3, 1944, IN THE GENERAL ACCOUNTING OFFICE, AN INFORMAL CONFERENCE WAS HELD BETWEEN THE REPRESENTATIVES OF THE GENERAL ACCOUNTING OFFICE AND THIS OFFICE. AS A RESULT OF THIS CONFERENCE THE PROCEDURE AS OUTLINED FOR HANDLING THESE PAY ROLLS AND OTHER STATEMENTS TO EFFECT PAYMENT WAS APPROVED BY THE GENERAL ACCOUNTING OFFICE WITH MINOR CHANGES AND FURTHER, IT WAS DECIDED THAT THE DATE OF OUR LETTER, OCTOBER 3, 1944, WOULD BE CONSTRUED AS THE TIME OF FILING CLAIM ON BEHALF OF THOSE EMPLOYEES NOW EMPLOYED IN THE GOVERNMENT PRINTING OFFICE AND IT WOULD NOT BE NECESSARY FOR EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE THEN ON THE ROLLS WHO ARE ENTITLED TO ADDITIONAL COMPENSATION UNDER THE SAID DECISION TO FILE. IT WAS AGREED THAT THIS PROCEDURE WOULD ELIMINATE THE MULTIPLICITY OF WORK INVOLVED IN HANDLING SEPARATELY THOUSANDS OF INDIVIDUAL CLAIMS.

UPON THE RECEIPT OF THE COMPTROLLER GENERAL'S LETTER OF NOVEMBER 11, 1944, WHICH READS IN PART AS FOLLOWS:

"THE OTHER GROUP OF INDIVIDUAL OVERTIME STATEMENTS FOR EMPLOYEES NOW EMPLOYED AT THE GOVERNMENT PRINTING OFFICE AND COVERING FISCAL YEARS PRIOR TO 1943 WILL BE CERTIFIED TO AS BEING CORRECT IN ACCORDANCE WITH THE RECORDS OF THE GOVERNMENT PRINTING OFFICE AND WILL BE FORWARDED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

"FOR EMPLOYEES NOT NOW EMPLOYED AT THE GOVERNMENT PRINTING OFFICE BUT WHO WERE PAID AT THE INCORRECT NIGHT OVERTIME RATE, INDIVIDUAL OVERTIME STATEMENTS WILL BE PREPARED TO COVER THE ADDITIONAL AMOUNTS EARNED BY FISCAL YEARS FOR THE PERIOD, OR PARTS THEREOF, FROM MARCH 28, 1934, THROUGH JUNE 17, 1944, AND SUCH STATEMENTS WILL LIKEWISE BE CERTIFIED TO AND FORWARDED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE FOR USE IN PROCESSING THE CLAIMS IF AND WHEN RECEIVED FROM SUCH FORMER EMPLOYEES.'

THIS OFFICE IMMEDIATELY CONTACTED THE GENERAL ACCOUNTING OFFICE BY TELEPHONE WITH RESPECT TO THE SUBJECT AND AT THIS TIME OUR ATTENTION WAS INVITED TO THE ACT OF OCTOBER 9, 1940. WE WERE INFORMED, HOWEVER, THAT OUR LETTER OF OCTOBER 3, 1944, COULD BE CONSIDERED AS A CLAIM BY THIS OFFICE ON BEHALF OF THE EMPLOYEES THEN ON THE ROLLS, BUT NO PAYMENT COULD BE MADE TO EMPLOYEES PRIOR TO OCTOBER 3, 1934.

SINCE IT WAS UNDERSTOOD THAT THE DATE OF OUR LETTER OF OCTOBER 3, 1944, IS THE GOVERNING DATE FOR FILING CLAIM, AND THAT EACH EMPLOYEE WOULD NOT BE REQUIRED TO FILE A SEPARATE CLAIM, THIS OFFICE PREPARED NOTICE UNDER DATE OF NOVEMBER 22, 1944, (COPY ATTACHED) TO THE EFFECT THAT IT WILL NOT BE NECESSARY FOR ANY EMPLOYEE OF THE GOVERNMENT PRINTING OFFICE TO FILE CLAIM WITH THE GENERAL ACCOUNTING OFFICE. THIS NOTICE IN ADDITION TO BEING POSTED WAS FURNISHED EACH EMPLOYEE AFFECTED BY THE DECISION; LIKEWISE, INDIVIDUAL OVERTIME STATEMENTS WERE PREPARED TO COVER THE ADDITIONAL AMOUNTS EARNED FROM OCTOBER 3, 1934, THROUGH JUNE 17, 1944, ALTHOUGH THE DECISION APPEARS TO BE RETROACTIVE TO MARCH 28, 1934.

IN VIEW OF THE FACTS AND CIRCUMSTANCES, IT IS REQUESTED THAT THE GENERAL ACCOUNTING OFFICE OFFICIALLY RECOGNIZE IN THIS INSTANT CASE THE DATE OF OUR LETTER OF OCTOBER 3, 1944, AS THE DATE ON WHICH THE CLAIM WAS FILED BY THIS OFFICE ON BEHALF OF THE PARTICULAR EMPLOYEES INVOLVED.

IN THE DECISION OF JUNE 17, 1944, B-41933, 23 COMP. GEN. 962, REFERRED TO IN YOUR LETTER, IT WAS HELD (QUOTING THE LAST PARAGRAPH OF THE SYLLABUS):

IN THE CASE OF A GOVERNMENT PRINTING OFFICE EMPLOYEE ASSIGNED TO NIGHT DUTY, THE NIGHT RATE--- THAT IS, THE RATE OF COMPENSATION RECEIVED DURING HIS REGULAR FORTY-HOUR WEEKLY TOUR OF DUTY AT NIGHT--- RATHER THAN THE REGULAR DAY RATE, IS HIS BASE PAY ON WHICH THE OVERTIME COMPENSATION AUTHORIZED BY THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, FOR WORK IN EXCESS OF FORTY HOURS PER WEEK SHOULD BE COMPUTED. 7 COMP. GEN. 778 AND 22 ID. 791, DISTINGUISHED.

THE ABOVE CONCLUSION HAVING CONSTITUTED AN ORIGINAL CONSTRUCTION OF THE TERMS OF THE SAID ACT OF MARCH 28, 1934, 48 STAT. 522, PROPERLY IS TO BE REGARDED AS EFFECTIVE FROM AND AFTER THE DATE OF ENACTMENT OF THAT STATUTE. CONSEQUENTLY, THAT HOLDING NECESSARILY HAS GIVEN RISE TO CLAIMS FOR AMOUNTS DUE AS ADDITIONAL OVERTIME COMPENSATION TO PERSONS WITHIN THE PURVIEW OF THE 1934 STATUTE AND WHO WERE IN THE FEDERAL SERVICE AT ANY TIME SUBSEQUENT TO MARCH 28, 1934. THE DECISION OF JUNE 17, 1944, WAS RENDERED WITH RESPECT TO THE SPECIFIC CLAIM OF MR. STUART KELLY, AN EMPLOYEE OF THE UNITED STATES GOVERNMENT PRINTING OFFICE, WHICH THEN WAS PENDING BEFORE THIS OFFICE AND, THEREFORE, IT CONTAINED NO DISCUSSION OF THE PROCEDURE TO BE FOLLOWED BY OTHER EMPLOYEES OF THAT OFFICE, AFFECTED BY THE DECISION, IN PERFECTING THEIR CLAIMS FOR AMOUNTS BELIEVED TO BE DUE AND NO FORMAL DECISION HAS BEEN RENDERED BY THIS OFFICE IN THAT RESPECT. THE OFFICE COMMUNICATION OF NOVEMBER 11, 1944, TO YOU, PRIMARILY WAS DIRECTED TO MATTERS PERTAINING TO THE FORM IN WHICH INFORMATION SUPPORTING CLAIMS FOR SUCH ADDITIONAL OVERTIME COMPENSATION SHOULD BE PRESENTED TO THIS OFFICE FOR EXPEDITIOUS PROCESSING THEREOF AND DID NOT RECOGNIZE, AND WAS NOT INTENDED AS RECOGNIZING, YOUR LETTER OF OCTOBER 3, 1944, AS A CLAIM ON BEHALF OF ANY EMPLOYEE OF THE GOVERNMENT PRINTING OFFICE FOR SUCH AMOUNTS.

IT IS SETTLED THAT NOT EVERY UNDERPAYMENT ADMINISTRATIVELY MADE MUST BE MADE THE SUBJECT OF A CLAIM FOR CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE. RATHER, IT CONSISTENTLY HAS BEEN HELD THAT, SO FAR AS CONCERNS EMPLOYEES STILL ON THE ROLLS, SUCH MATTERS MAY BE ADJUSTED ADMINISTRATIVELY TO THE EXTENT THAT EXISTING APPROPRIATIONS UNDER THE JURISDICTION OF THE PARTICULAR DEPARTMENT, AGENCY, OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT ARE AVAILABLE THEREFOR. HENCE, SINCE APPROPRIATIONS FOR THE GOVERNMENT PRINTING OFFICE, COVERING WAGES, SALARIES, ETC., FOR THE FISCAL YEARS 1943 AND 1944 CURRENTLY WERE AVAILABLE TO YOUR OFFICE AT THE TIME THE DECISION OF JUNE 17, 1944, WAS RENDERED, PAYMENT OF AMOUNTS FOUND DUE UNDER THAT DECISION TO EMPLOYEES THEN ON THE ROLLS WAS AUTHORIZED TO BE MADE ADMINISTRATIVELY WITHOUT REQUIRING THAT INDIVIDUAL CLAIMS THEREFOR BE FILED IN THIS OFFICE. HOWEVER, NO APPROPRIATION BEING AVAILABLE TO THE GOVERNMENT PRINTING OFFICE FOR THE PAYMENT OF AMOUNTS FOUND DUE FOR THE PERIODS PRIOR TO THE FISCAL YEAR 1943, IT FOLLOWS THAT BEFORE PAYMENT MAY BE AUTHORIZED IN SUCH CASES, A CLAIM MUST BE FILED IN THE GENERAL ACCOUNTING OFFICE. SEE SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 42 STAT. 24. AND IN THAT CONNECTION, THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES:

THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

SEC. 2. WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.

THE QUOTED STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THIS OFFICE HAS BEEN GRANTED NO POWERS OF DISPENSATION IN THE MATTER AND, CONSEQUENTLY, IT LEGALLY MAY MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE. ACCORDINGLY, YOU ARE ADVISED THAT THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE, TO WHICH REFERENCE IS MADE IN THE FIRST PARAGRAPH OF YOUR LETTER, IS IN ACCORDANCE WITH THE TERMS OF THE ACT OF OCTOBER 9, 1940, AND, THEREFORE, MUST BE SUSTAINED.

WITH RESPECT TO THE MATTERS MENTIONED IN THE THIRD PARAGRAPH OF YOUR LETTER, IT MAY BE STATED THAT I AM UNAWARE OF ANY AUTHORITY IN LAW WHEREBY A COMMUNICATION FROM THE HEAD OF A DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT MAY BE CONSIDERED AS A "CLAIM" IN BEHALF OF EMPLOYEES OF THAT DEPARTMENT OR ESTABLISHMENT AS THAT TERM IS USED IN THE BUDGET AND ACCOUNTING ACT, GENERAL REGULATIONS NO. 50, 5 COMP. GEN. 1058, OF THIS OFFICE, OR THE ACT OF OCTOBER 9, 1940. IT WILL BE NOTED THAT THE LAST- MENTIONED ACT SPECIFICALLY PROVIDES THAT A CLAIM SHALL BEAR "THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY," AND GENERAL REGULATIONS NO. 50 PROVIDE THAT CLAIMS COGNIZABLE BY THIS OFFICE WILL NOT BE CONSIDERED UNLESS "PRESENTED IN WRITING OVER THE BONA FIDE SIGNATURE AND ADDRESS OF THE CLAIMANT AND ONLY THE CLAIMANT WILL BE RECOGNIZED THEREIN EXCEPT PURSUANT TO HIS DULY EXECUTED POWER OF ATTORNEY.'

WHILE IT IS REGRETTED THAT THERE APPEARS TO HAVE BEEN A MISUNDERSTANDING IN THE MATTER, POSSIBLY ARISING FROM INFORMAL DISCUSSIONS WITH EMPLOYEES OF THIS OFFICE--- WHICH, AS YOU ARE AWARE, ARE NOT BINDING EITHER ON THE GENERAL ACCOUNTING OFFICE OR THE ADMINISTRATIVE OFFICES--- I FEEL SURE YOU WILL AGREE THAT, UNDER THE PROVISIONS OF THE CONTROLLING STATUTES, THIS OFFICE HAS NO ALTERNATIVE OTHER THAN TO ADVISE THAT FOR PERIODS NOT COVERED BY APPROPRIATIONS AVAILABLE TO THE GOVERNMENT PRINTING OFFICE FOR PAYMENT OF CLAIMS OF THE CHARACTER HERE INVOLVED, CLAIMS MUST BE FILED IN THE GENERAL ACCOUNTING OFFICE BY EMPLOYEES PRESENTLY EMPLOYED IN THE GOVERNMENT PRINTING OFFICE AS WELL AS THOSE NOT NOW SO EMPLOYED, AND SUCH CLAIMS, IF AND WHEN RECEIVED, SHALL BE SUBJECT TO THE PROVISIONS OF THE SAID ACT OF OCTOBER 9, 1940.