B-139887, SEP. 8, 1959

B-139887, SEP. 8, 1959

TO MR. RUBEN M. VALENCIA:

YOUR LETTER OF MAY 24, 1959, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR OVERTIME COMPENSATION FOR "STAND-BY TIME" DURING THE PERIOD NOVEMBER 19, 1953, TO JANUARY 31, 1956, AS A MARITIME EMPLOYEE OF THE U.S. AIR FORCE, MANILA PORT AREA.

YOUR CLAIM WAS DISALLOWED IN OUR SETTLEMENT OF APRIL 6, 1959, FOR THE REASON THAT THE WAGE RATE SPECIFIED IN YOUR CONTRACT INCLUDED COMPENSABLE STAND-BY TIME AS ONE OF THE FACTORS IN ESTABLISHING SUCH RATE OF PAY, AND THE RECORD DOES NOT SHOW THAT YOU WERE NOT PAID IN ACCORDANCE WITH THE TERMS OF YOUR CONTRACT. HOWEVER, WE HAVE OBTAINED FROM THE DEPARTMENT OF THE AIR FORCE A FURTHER REPORT UPON YOUR CLAIM.

PARAGRAPHS 2 AND 6 OF THE CONTRACT YOU SIGNED NOVEMBER 19, 1953, READ AS FOLLOWS:

"2. FROM THE EFFECTIVE DATE OF THIS CONTRACT, THE EMPLOYEE AGREES TO SERVE AT THE MINIMUM WAGE INDICATED IN PARAGRAPH 18 OR AT THE WAGES AUTHORIZED BY US AIR FORCE FOR OTHER CAPACITIES OR CLASSIFICATIONS TO WHICH HE MAY BE ASSIGNED BUT IN NO EVENT AT A WAGE LESS THAN THE MINIMUM WAGE SET FORTH IN SAID PARAGRAPH 18.

"6. THE EMPLOYEE SHALL WORK WHATEVER HOURS ARE REQUIRED AND OVERTIME COMPENSATION WILL NOT BE ALLOWED FOR WORK PERFORMED ON SUNDAYS, SATURDAY AFTERNOONS, HOLIDAYS OR FOR EXTRA HOURS DURING ANY DAY IN EXCESS OF THAT NORMALLY CONSIDERED A WORKING DAY, SINCE IT IS HEREBY AGREED AND UNDERSTOOD THAT THE PROBABLE PERFORMANCE OF SUCH EXTRA WORK BY THE EMPLOYEE HAS BEEN TAKEN INTO CONSIDERATION IN ESTABLISHING THE WAGE SPECIFIED HEREIN.'

PARAGRAPH 18 OF THAT AGREEMENT PROVIDED FOR AN INDEFINITE APPOINTMENT AS "ABLE SEAMAN" AT BASE PAY OF 660 PESOS ($329.59) PLUS A 50 PERCENT DIFFERENTIAL PER ANNUM. THE PAY RECORD SHOWS YOU WERE PROMOTED SEPTEMBER 1, 1955, TO "OILER," 960 PESOS PER ANNUM BASE WAGE, AND WERE CHANGED BACK TO "SEAMAN" ON OCTOBER 1, 1955, AT 660 PESOS PER ANNUM INCREASED TO 1500 PESOS EFFECTIVE FEBRUARY 1, 1956. IN THAT REGARD THE AIR FORCE REPORTS THAT DURING THE PERIOD NOVEMBER 19, 1953, TO JANUARY 31, 1956, YOU WERE CORRECTLY PAID IN ACCORDANCE WITH YOUR ABOVE-MENTIONED AGREEMENT WHICH WAS SUPERSEDED BY YOUR EMPLOYMENT UNDER CONTRACT OF APRIL 15, 1958. WE FIND NOTHING IN THE RECORD TO INDICATE THAT EITHER OF SUCH CONTRACTS WAS "ILLEGAL" AS YOU ALLEGE. THE PROVISIONS OF THE LATER CONTRACT HAVE NO EFFECT UPON THE VALIDITY OF THE PRIOR AGREEMENT OF NOVEMBER 19, 1953. MOREOVER,EVEN UNDER THE 1958 CONTRACT FORM YOU SIGNED, THE PARAGRAPH 6 PROVISIONS FOR EXTRA PAY FOR WORK ON A HOLIDAY WOULD HAVE NO BEARING UPON THE STAND-BY TIME YOU CLAIM.

REGARDING THE "LOG BOOK" TO WHICH YOU REFER, IT APPEARS SUCH LOG CONTAINED ONLY THE HISTORY OF THE VESSEL, TIME, AND DATES OF DEPARTURES AND ARRIVALS, ENGINE TROUBLES, AND OTHER INCIDENTS ENCOUNTERED PERTAINING TO THE VESSEL'S OPERATIONS. IT DID NOT CONTAIN A ROSTER OF THE CREW NOR THE TIME WORKED BY INDIVIDUAL CREW MEMBERS. THEREFORE, NO ACTUAL RECONSTRUCTION OF THE WORKING HOURS YOU CLAIM IS POSSIBLE FROM SUCH LOG BOOK.

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