B-128864, SEP. 13, 1956

B-128864, SEP. 13, 1956

TO MRS. LUCILLE M. DWYER:

REFERENCE IS MADE TO YOUR LETTER REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED NOVEMBER 17, 1948, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR OVERTIME SERVICES RENDERED AS AN EMPLOYEE OF THE WAR DEPARTMENT (NOW DEPARTMENT OF THE AIR FORCE), DUNCAN FIELD, SAN ANTONIO, TEXAS, DURING THE PERIOD MARCH 26, 1941, TO JULY 22, 1942.

YOUR CLAIM WHICH APPARENTLY WAS BASED ON PUBLIC LAW 575, APPROVED JULY 31, 1946, 60 STAT. 747, WAS DISALLOWED BECAUSE THAT STATUTE--- STEMMING FROM CERTAIN SPECIFIC DECISIONS OF OUR OFFICE--- DID NOT RELATE TO OVERTIME SERVICES OF THE NATURE UNDERSTOOD TO HAVE BEEN RENDERED BY YOU.

YOUR ENTITLEMENT TO OVERTIME COMPENSATION, IF ANY, WOULD HAVE DERIVED INITIALLY FROM THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205, WHICH READS IN PART AS FOLLOWS:

"THAT NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AS A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE IS HEREBY AUTHORIZED TO BE PAID AT SUCH AND TO SUCH MONTHLY, PER DIEM, HOURLY, AND PIECEWORK EMPLOYEES OF THE FIELD SERVICES OF THE WAR DEPARTMENT AND THE FIELD SERVICES OF THE PANAMA CANAL WHOSE WAGES ARE SET BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES * * * AS SHALL BE DESIGNATED FROM TIME TO TIME BY THE SECRETARY OF WAR * * *.'

THE DEPARTMENT OF THE AIR FORCE (FORMERLY AN INTEGRAL PART OF THE WAR DEPARTMENT) REPORTED IN REGARD TO YOUR ORIGINAL CLAIM THAT YOU WERE A PER ANNUM EMPLOYEE--- A CLASS EXCLUDED FROM THE WAGE BOARD GROUP REFERRED TO IN THE ABOVE-QUOTED LANGUAGE.

THE LATER ACT OF JUNE 3, 1941, 55 STAT. 241, WHICH AUTHORIZED THE PRESIDENT OF THE UNITED STATES TO ISSUE REGULATIONS FOR THE PAYMENT OF OVERTIME COMPENSATION TO CERTAIN PER ANNUM EMPLOYEES WHOSE OVERTIME WAS ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN THE ACT OF OCTOBER 21, 1940, WERE ENGAGED. BY EXECUTIVE ORDER NO. 8837, JULY 30, 1941, THE PRESIDENT ISSUED REGULATIONS UNDER THE ACT OF JUNE 3, 1941, AND AUTHORIZED THE SECRETARY OF WAR OR SUCH SUBORDINATE OFFICERS AS HE MIGHT DESIGNATE TO DETERMINE WHICH PER ANNUM EMPLOYEES WERE PERFORMING SERVICES ENTITLING THEM TO OVERTIME COMPENSATION UNDER SUCH ACT.

IT WILL BE APPARENT FROM THE LAST-CITED ACT AND EXECUTIVE ORDER THAT, BEFORE OVERTIME COMPENSATION COULD HAVE BEEN PAID TO PER ANNUM WAGE BOARD EMPLOYEES FOR THE PERIOD COVERED BY YOUR CLAIM, IT WAS ESSENTIAL THAT AN ADMINISTRATIVE DETERMINATION BE MADE THAT THE SERVICES PERFORMED WERE "ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK" UPON WHICH THE EMPLOYEES ENUMERATED IN THE ACT OF OCTOBER 21, 1940, WERE ENGAGED. FURTHER, SUCH DETERMINATION HAD TO BE MADE WHILE THE ACTS INVOLVED WERE STILL IN EFFECT, OR PRIOR TO DECEMBER 1, 1942, BECAUSE ALL THE REGULATIONS ISSUED BY THE PRESIDENT PURSUANT THERETO, OR ANY ADMINISTRATIVE AUTHORITY TO MAKE CERTIFICATION THEREUNDER, EXPIRED BY LAW AT THAT TIME.

THE RECORDS ESTABLISH THAT YOU WERE A PER ANNUM EMPLOYEE UNDER THE 1940 ACT AND THAT YOU WERE NOT TIMELY DETERMINED BY COMPETENT AUTHORITY TO HAVE BEEN ENTITLED TO OVERTIME UNDER THE 1941 STATUTE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND, UPON REVIEW, SUCH ACTION MUST BE AND IS SUSTAINED UPON THE BASIS OF THE PRESENT RECORD.

IT IS BELIEVED THAT THE SUPREME COURT CASE TO WHICH YOUR LETTER REFERS IS THAT OF THE UNITED STATES V. ALFRED C. BERGH, ET AL., NO. 17 56, WHICH, IT IS UNDERSTOOD, WILL NOT BE DECIDED UNTIL THE NEXT TERM OF THE COURT. THE BERGH CASE, HOWEVER, WHETHER DECIDED IN FAVOR OF THE GOVERNMENT OR THE DEFENDANT WOULD NOT APPEAR TO AFFECT THE CONCLUSION REACHED ABOVE.