B-140324, SEP. 24, 1959

B-140324, SEP. 24, 1959

TO MR. RAY R. MURDOCK, ATTORNEY AT LAW:

YOUR LETTER OF JUNE 26, 1959, REQUESTS RECONSIDERATION OF THE CLAIMS OF WALTER J. ABSHIER, Z-1847316, AND THE 97 OTHER ALASKA RAILROAD EMPLOYEES LISTED WITH YOUR LETTER OF JUNE 26. ALSO, WE HAVE YOUR LETTER OF AUGUST 6, 1949, CONCERNING THE CLAIM OF CHARLES E. INGERSOLL, Z 1816200.

EACH OF THE REFERRED-TO CLAIMS WAS DISALLOWED PRINCIPALLY UPON THE GROUND 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 CONCLUSION SIMPLY APPLIES THE COMMON LAW RULE OF SETOFF.

YOU TAKE ISSUE WITH THE CONCLUSIONS IN THE SETTLEMENTS, SOLELY UPON THE GROUND THAT THE COURT OF CLAIMS IN THE CASES OF SAMPLES, ET AL. V. UNITED STATES, 135 C.CLS. 548, FOUND FOR THE PLAINTIFFS. THE COURT IN EFFECT GAVE THE PLAINTIFFS 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 TO WAIVE, GIVE, OR GRANT SUCH BENEFITS TO CLAIMANTS UNDER 31 U.S.C. 71 AND 74. WE NECESSARILY MUST CONSIDER THE UNDERSTANDINGS 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 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.

REGARDING THE RAILROAD'S RECORDS YOU HOLD--- FOR USE TO COMPUTE OR PERFECT THE VARIOUS CLAIMS WHICH ARE STILL PENDING BEFORE THE COURT OF CLAIMS--- WE DIRECT YOUR ATTENTION TO OUR LETTER OF SEPTEMBER 4, 1958, B- 131085, B-136629, REPLYING TO YOUR LETTERS OF MAY 26 AND AUGUST 15, 1958, CONCERNING THE CLAIMS FILED HERE, INGERSOLL, BAEHM, ABSHIER, AND OTHERS. YOU ARE ADVISED THAT AN ADMINISTRATIVE EXAMINATION WAS MADE OF THE FILES IN YOUR POSSESSION COVERING THE PERIOD JANUARY 1, 1955, TO MARCH 9, 1957, IN THE CASE OF CHARLES E. INGERSOLL. THE TABULAR DETAILED REPORTS OF THE RAILROAD'S SPECIAL REPRESENTATIVE IN INGERSOLL'S CASE, UNDERSTOOD TO BY TYPICAL OF OPERATING EMPLOYEES OF THE RAILROAD, SHOW THAT HE RECEIVED SUBSTANTIALLY GREATER PAY UNDER THE DUAL SYSTEM THAN HE WOULD HAVE RECEIVED HAD HIS PAY BEEN COMPUTED UNDER THE RULES REGARDING STRAIGHT TIME AND OVERTIME RATES FOR ACTUAL WORK UNDER THE 40-HOUR WORKWEEK STATUTE, 5 U.S.C. 673C.

YOU SAY "ARBITRARIES WERE NOT PAYMENT FOR WORK OR TIME.' WE DO NOT CONSIDER THAT THE FINDINGS OF FACT 41, 42, AND 43, ADOPTED BY THE COURT OF CLAIMS, 135 C.CLS. 548, 584-587, SUPPORT SUCH A CONCLUSION. UNDERSTAND THAT MANY OF THE ARBITRARIES, DESCRIBED IN FINDING OF FACT 42 AS ,SITUATIONS WHERE NO WORK WAS ACTUALLY PERFORMED," NEVERTHELESS REPRESENTED "PAY FOR THEIR TIME" WHICH WAS CREDITED AS THOUGH THE EMPLOYEE HAD WORKED AND THE EMPLOYEE WAS PAID AN APPROPRIATE ALLOWANCE. FOR EXAMPLE, THE ARBITRARY "TIE UP BETWEEN TERMINALS" IS UNDERSTOOD TO REPRESENT TIME SPENT TIED UP BETWEEN TERMINALS. IN THAT REGARD THE COURT SAID "THE EMPLOYEE RECEIVED PAY THOUGH HE DID NOT WORK, OR RECEIVED PAY FOR SOMETHING EXTRA WHICH HE DID DURING THE TIME THAT HE WAS ALREADY WORKING AND BEING PAID.'

AS TO YOUR STATEMENT THAT "ON THE AVERAGE, LESS THAN 5 ARBITRARY PAYMENTS WERE MADE TO EACH EMPLOYEE EACH YEAR," WE HAVE BEEN ADVISED THAT CAREFUL EXAMINATION OF THE TIME SLIPS--- BOTH THOSE IN THE COURT CASES AS WELL AS THOSE HERE IN QUESTION--- WILL DEMONSTRATE THE FACT THAT ARBITRARY PAYMENTS WERE FAR GREATER IN NUMBER THAN AS ALLEGED IN YOUR LETTER OF JUNE 26, 1959. IN INGERSOLL'S CLAIM THE TRANSCRIPT FURNISHED AS ABUNDANTLY DEMONSTRATES THAT COMPUTATION AND PAYMENT FOR DUTY TIME AND ACTUAL WORK UNDER THE 40-HOUR RULES OF THE 1934 ACT WOULD RESULT IN CONSIDERABLY LESS PAY THAN THAT WHICH HE HAS RECEIVED. SUCH DIFFERENCE LARGELY WOULD RESULT FROM THE ARBITRARIES HE RECEIVED. THE ADMINISTRATIVE EXAMINATION OF THE TIME TICKETS AVAILABLE, INCLUDING MANY OF THOSE IN YOUR POSSESSION, WE ARE TOLD REVEALED THAT MANY ITEMS OF "ARBITRARIES" WERE PAID EACH MONTH TO TRAIN AND ENGINE EMPLOYEES IN THE PASSENGER SERVICE AS WELL AS IN THE FREIGHT SERVICE--- AS MANY AS FOUR IN A SINGLE DAY TO SOME EMPLOYEES.

THEREFORE, BASED UPON THE PRESENT RECORD, THE DISALLOWANCE MADE IN EACH OF THE CASES LISTED WITH YOUR LETTER OF JUNE 26, 1959, INCLUDING THAT OF CHARLES E. INGERSOLL, IS SUSTAINED.