Opposition Brief — Conn v. United States

INDEX

Page

SOR cc anncvaddhinsoccsnccdakeucenceWeabbnehel 1

Jurisdiction - 1

Question presented ‘ 2

Statutes and regulations involved _ - 2

Statement. on 2

No 4 eta ied kne6 the eskcdenty some alae ees 9

Conclusion _ - 16

Ps tinnnscastenenncevessennienacsuncnicedansbaen 17

CITATIONS

Cases:

Armour & Co. v. Wantock, 323 U.S. 126 a

Bell v. Porter, No. 993, Oct. T., 1946, certiorari denied

April 7, 1947. __- 9

Bowers v. Remington Rand, Inc., No. 995, Oct. T., 1946,

certiorari denied March 31, 1947_ . : 9

Helvering v. Wilshire Oil Co., 308 U. 8. 90-. ear 13

Rokey v. Day & Zimmerman, No. 994, Oct. T., 1946,

certiorari denied March 31, 1947... 2... ee 9

Skidmore v. Swift & Co., 323 U.S. 134__....__-- . 9,14

United States v. Jackson, 280 U.S. 183___. - ‘ 12

United States v. Townsley, 323 U. 8. 557_.- .---- .. 9,10,14

Statutes:

Act of March 28, 1934, 48 Stat. 522..._...__....._..... 14

Act of June 28, 1940, 54 Stat. 678. ‘ ; : 10

Act of October 21, 1940, 54 Stat. 1205 +‘ 10

Joint Resolution of December 22, 1942, 56 Stat. 1068___. 5,6

See. 1_. ee RE, a ike aie dawns 7,17

Sec. 4 ce ee ak ain es 18

War Overtime Pay Act of May 7, 1943, 57 Stat. 75 (50

a Ss i TI, Wy BGiicn cc ccencccunsccssqanesse 5, 6

Dt ckana tintin desks eehukaskseuendukewe wenn 8, 12, 21

Sl Cine sve kik sé yiGueea weeded a chesenneeuee - ae

Miscellaneous:

Civil Servie> Commission, War Overtime Pay Regulations,

fe fo ee ere ee rere 7

See, 20.4 oxeueles Lipide bee weateac 22

Sec. 20.7 yaa? SC

See. 20.12 . jssanebasnseeevensb<eukeeeeen 23

RE nin 60.055 60ACRS Kann neceeeendnasewies 23

753302—4T-——-1 a)

Mircellaneous Continued

Civil Service Commission, War Overtime Pay Regulations,

Amended, January 4, 1045 ClO BOR. 772)

See, 20.8

Executive Order 0280, Deoeomber 26, 1042 (7 FL RR. 10807)

See, 2

Reo, 7 ‘

Hoarings before a Subcommittee of the Committee on Civil

Servier, UL S. Senate, TRth Cong, Ist Sess, on 8, 635,

pp. dd 36 ne

S. Rep. 1847, 77th Cong, 2d Sess

War Department Civilian Personnel Regulation No, 80,

December 15, 1048

See, 31)

See 31 (7)

Soo. Ta (2)

See, 3-7b.

War Department Civilian Personnel Circular No. 13,

January 25, 1045

Seo, 2...

See. 3...

See, 8a...

See. 4.

War Department Orders U, December 26, 1942

See, de...

See, 9

See, Sa...

7,8,

Authe Supreme Court of the United States

Ocroper Term, 1947

No, 1038

Apert F, Conn, Roserr D. Fuyxt anp Wine

EK. NELSON, PETITIONERS

v.

Tue Unrrep Staves

ON PRTITION POR A WRIT OF CERTIORARI TO THE COURT

OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Claims (R. 48-61)

is reported at 68 F. Supp. 966.

JURISDICTION

The judgment of the Court of Claims was

entered on December 2, 1946 (R. 61). A motion

for new trial, filed by petitioners on J anuary 30,

1947, was overruled on March 3, 1947 (R. 61).

The petition for a writ of certiorari was filed on

May 26, 1947. The jurisdiction of this Court

is invoked under Section 3 (b) of the Act of

February 13, 1925, as amended.

(1)

9

QUESTION PRESENTED

Whether the War Department and the Civil

Service Commission exceeded the authority

granted by federal overtime-pay statutes and

executive orders in classifying firemen, civil serv-

ice employees of the War Department who were

working on a two-platoon work schedule, as inter-

mittent or irregular workers to be paid, in

addition to their basie pay, the statutory com-

pensation ‘in lieu of overtime” authorized for

such workers,

STATUTES AND REGULATIONS INVOLVED

The pertinent portions of the Joint Resolution

of December 22. 1942, 56 Stat. 1068, the War

Overtime Pay Act of May 7, 1943, 57 Stat. 7

(30 UL S.C. App., Supp. V, 1401), Executive Order

Q89 of December 26, 1942 (7 Fed. Reg. 10897),

and the regulations of the Civil Service Commis-

sion and the War Department promulgated pur-

suant thereto are set forth in the Appendix, trfra,

pp. 17-27.

STATEMENT

At all times material to this suit, petitioners

were civil service employees of the United States,

with salaries fixed on a per annum basis (R. 20).

They were continuously employed, from the dates

of their respective hirings* through June 30, 1945,

as civilian fire fighters at the United States Army

Air Base, Gulfport, Mississippi (R. 20). Except

1 Petitioner Conn began work September 24, 1942; peti-

tioner Nelson began work July 17, 1943; and petitioner Flynt

began work February 17, 1944 (R. 20).

3

for the 12-month period ending June 30, 1944,’

the tours of duty of all civilian fire fighters at the

Gulfport Air Base, including petitioners, were

based on the two-platoon system whereby the work-

week was divided into two alternate shifts of 24

consecutive hours each (R. 38). During the same

period,’ petitioners received, in addition to their

regular salaries, monthly compensation ‘‘in lieu of

overtime” authorized for intermittent or irregular

workers by applicable federal overtime pay

statutes.

The present suit was instituted by them in the

court below to recover additional overtime com-

pensation. Primarily, petitioners contended that

they were improperly classified as intermittent or

irregular workers and should have been classified

as employees whose entire shift, under the two-

platoon system, was compensable working time.

In addition, they sought to have their claimed ad-

ditional overtime compensation calculated by a

formula other than that authorized by the ap-

plicable federal overtime statutes. 'The facts may

be summarized as follows:

During the periods for which they seek over-

time compensation, ¢. e., while working under the

* From July 1, 1943, to June 30, 1944, petitioners’ tours of

duty were fixed at 8 hours a day for six days a week and no

claim is here involved for overtime pay during that period

(R. 39).

* Petitioner Conn’s claim covers the periods December 1,

1942, to June 30, 1943, and July 1, 1944, to June 30, 1945 (R.

44); the claims of petitioners Flynt and Nelson cover the

period July 1, 1944, to June 30, 1945, (R. 45, 47).

Retin eeerrnmensectesesrensnneonsemsuenensssemnn -

4

two platoon syatem, potitionors were attached to

the “erash station. so dostenated: boentae i was

the primary duty of firemen stationed there to

provide fre tighting services necessary i eonnee

tron with flees tn aireratt and: fires or havarda eve

ated by erash bindings CROSS) heir hours of

duty were 6 POM to6 PS Moon eaeh shitt OR. So),

There activities consisted of the rerular routine

duties performed avound the fire station,’ and

their duties tnerdent to arrerantt fires CR. Sod),

The court below found that the hours during eaeh

tour of duty when petitioners were aetually en

gaeed ra working were tntermittent and trregular

CR. 4D): it concluded from: all the evidenee that

petitioners were aetually working a total of 77

hours in each biweekly period, or an average of

S8by hours per week CR. S0-91)."

* The fire fighters at the other stations on the Base were

classified as “structural” tire fighters because their principal

duties consisted of tighting fires in buildings (RL Ss),

‘In addition to their tire fighting activities petitioners

duties consisted of keeping their station and the surrounding

grounds clean, cleaning and polishing equipment, checking

and maintenance of equipment, repairing tire extinguishers,

and poutine inspection tours. A regular course of instrue-

ton, in whieh the tire fighters spent one or two hours each

day, was offered. In addition two members of the crew of

the “erash station” were on watch duty at all times. The

“watch” duty was alternated by the firemen. (R. 40.)

* it was found that the time required in the performance of

petitioners’ duties, aside from tire fighting, varied from day

to day and from week to week according to the conditions at

the Base, but averaged approximately eight hours per day

(R.40). During the remaining periods of their tours of duty

petitioners were required to remain on the Base in the vicinity

h

From December 1, 1942, to June OO, 1943, and

rom duly 1, 1944, to December 31, 1944. the War

Department classified petitioners, for overtime

PAY PUPpowes, as employees whose hours of duty

(tine devoted to aetual work) were intermittent

and irregular CR. 20). They were duly paid their

base annual compensation plus additional sums

as monthly compensation in lew of overtime com-

pensation CR. 447). Their classifieation as

Infermiftent or irregular employees and the de-

formination of their rates of pay were made pur-

stant to the Jomt Resolution of December 22,

IN, Appendix, rafra, pp. 17-18, the War Over-

time Pay Aet of May 7, 1943, Appendix, infra,

pp. 21-22, and the Executive Order and depart-

mental regulations promulgated in accordance

therewith CR, 20). Subsequent to December ol,

Id, petitioners were classified for overtime pay

purposes under amended regulations as having an

administrative work week of 56 hours (R. 20).

Petitioners’ hourly rates of pay, for the purpose

enact

of their station, and to hold themselves in readiness to re-

spond to alarms (R.39). A period of one hour per day was

allowed for eating the two meals which were served at the

station (R. 39-40), and the hours from 10 p.m. to 6 a. m.

each day were designated as rest periods during which peti-

tioners were free to sleep in the facilities provided, subject

to their being called out to fight fires or perform other neces-

_Sary work (R. 40-41). It was the general rule that when the

sleep of the firemen was interrupted for fire fighting work,

they were allowed to sleep later the following morning. or

some of their routine duties would be cancelled for that day

(R. 41).

* See note 2, swpra, p. 3.

6

of computing overtime compensation, was deter-

mined in aeeordance with the formula set forth

in the Joint Resolution of December 22, 1942, and

the War Overtime Pay Act, Appendix, tufra, pp.

17-18, 21-22, by which the annual rate of pay is

divided by 360 to determine the daily rate and the

resulting figure is then divided by 8 to determine

the hourly rate of pay (R. 48).*

* Petitioners were paid the following sums for the indi-

cated work periods (R. 43-47) :

penne | " ,

compensation on »

p.....* e ioe of ouny | As

Period compen. | OverUme and | excess of

sation monthly* | 40 hours

overtime — | per week

compensation

Conn

Deo. 1, 1942 to Dee. 31, 1842 $1, 500.00 $12.50 137

Jan. 1, 1943 to Jan, 30, 1948 1, 680. 00 14.00 1, 076

July 1, 1944 to Dee. 31, 144 2, 040. 00 25. 50 90144

Jan. 1, 1945 to June 30, 145 - ee 2, 100. 00 *75. 82 WA

Flynt

July 1, 144 to Oct. 18 10440 aad 1, 680. 00 25.00 514

Oct. 16, 1944 to Deo. 31, 144 : 1, 860. 00 25. 00 351

Jan. 1, 19%45 to June 30, 1945 peanniae 1, 860. 00 *67. 16 1, 069

Nelson:

July 1, 1944 to Dee. 31, 1944... 1, 860, 00 25. 00 770

Jan. 1, 1945 to June 30, 1645 ayaa 1, 860. 00 *67.16 960

From Dee. 1, 142, to June 30, 1943, Conn was paid

additional compensation in leu of overtime equal to 10 per-

cent of his monthly compensation; from July 1, 1944, to Dee.

31, 1944, he was paid additional compensation in lieu of over-

time equal to 15 percent of his monthly compensation ; from

Jan. 1, 1945, to June 30, 1945, he was paid overtime compensa-

tion at the rate of one and one-half times his hourly rate for

an average of 16 hours overtime per week (R. 43). From

July 1, 1944, to December 31, 1944, Flynt and Nelson were paid

additional compensation in lieu of overtime equal to $300 per

year: from Jan. 1, 1945, to June 30, 1945, they were paid over-

time compensation at the rate of one and one-half times their

hourly rate for an average of 16 hours of overtime per week

(R. 45-47).

7

Section 1 of the Joint Resolution December 22,

1942," Appendix, infra, pp. 17-18, provided that

employees whose hours of duty were intermittent

or irregular or less than full time should be paid

additional compensation, in lieu of overtime com-

pensation, a sum equal to 10 percent of their

earned basic compensation not in excess of $2,900.

Section 7 of Executive Order No. 9289 of De-

cember 26, 1942, 7 Fed. Reg. 10897, Appendix,

infra, pp. 18-19, directed, in part, that employees

“whose work (as determined by the head of the

department or agency concerned) requires them

to remain at or within the confines of their posts

of duty for more than 40 hours per week but

does not require that all of their time be devoted

to actual work * * * be considered to have

intermittent or irregular hours of duty within

the meaning of section 1 of * * * Senate

Joint Resolution 170 * * *° (R. 23). War

Department Orders U, December 26, 1942, Ap-

pendix, infra, pp. 19-21, specifically included fire

fighters in the class of employees considered to

have intermittent or irregular hours of duty (R.

23-25). Similar provisions were contained in

Section 3 of the War Overtime Pay Act, Ap-

pendix, infra, pp. 21-22, and the War Overtime

Pay Regulations of the Civil Service Commission

of May 8, 1943, 8 Fed. Reg. 6149, Appendix,

* Prior to this resolution the existing pay statutes did not

grant the right of overtime pay to civilian employees such

as petitioners (R. 48-49).

753302—47 2

8

infra, pp. 22-24, whieh were issued pursuant to

that Aet CR. 25-29). Fire fighters were again

specifieally ineluded in’ the class of employees

considered to be intermittent or irregular em-

ployees for purposes of overtime compensation by

War Department Civilian Personnel Regulation

No. 80 of December 15, 1943, Appendix, infra,

pp. 24-25, whieh superseded Orders U, supra,

p. 7 CR. 29-34). On January 4, 1945, the Civil

Service Commission amended its War Overtime

Pay Regulations and provided that the adminis-

trative work week for those employees rendering

“stand-by service’? at or within the confines of

their stations included the total number of duty

hours per week less time allowed for sleep and

meals, 10 Bed. Reg. 772. Appendix, mfra, pp.

YW CR. 34-35). War Department Civilian Per-

sonnel Circular No. 13 of January 25, 1945,

Appendix, trfra, pp. 26-27, contained a similar

provision (R. 35-37).

As stated above, petitioners instituted the in-

stant actions in the Court of Claims on the theory

* Section 3 (a) of the Act provided that employees whose

hours of work were intermittent or irregular be paid in

lieu of overtime $300 per annum if their earned basic com-

pensation was at a rate of less than $2,000 per annum, or 15

per cent. of their earned basic compensation not in excess of

$2,900, if their earned basic compensation was at a rate of

$2,000 per annum or more (R. 26-27). Section 20.7 of the

War Overtime Pay Regulations defined intermittent or

irregular employees as employees whose work required them

to remain at their posts of duty for more than 40 hours per

week but did not require that all of their time be devoted to

actual work (R. 28).

9)

that the entire time covered by their shifts under

the two-platoon system, whieh averaged 84 hours

per week, were hours of employment within the

intent and meaning of the Joint Resolution of

December 22, 1942, and the War Overtime Pay

Act (R. 1-18, 52-53). The Court of Claims re-

jected this theory, held that petitioners were not

entitled to recover overtime compensation in ex-

cess of the amounts which had been allowed and

paid them for the periods involved (R. 52), and

accordingly dismissed the petition (R. 61).

ARGUMENT

Petitioners seek to recover overtime compensa-

tion for an asserted work week of 84 hours. They

argue that to allow this claim is merely to carry

out the intention of Congress, which, they con-

tend, has been thwarted by the adoption of de-

partmental orders and regulations. In support

of their claim petitioners assert that the opinion

of the court below is in conflict with Armour d:

Vo. v. Wantock, 323 U. 8. 126; Skidmore vy. Swift

& Co., 323 U. S. 134; Rokey v. Day & Zimmer-

man, No. 994, Oct. T. 1946, certiorari denied,

March 31, 1947; Bell vy. Porter, No. 993, Oct. T.

1946, certiorari denied, April 7, 1947; and Bowers

v. Remington Rand, Inc., No. 995, Oct. T. 1946,

certiorari denied, March 31, 1947 (Pet. 12-15) ;

aud that the method used in the ealculation of the

sums which they were paid in lieu of overtime

conflicts with the method used in United States

10

v. Townsley, 323 U. 8. 557. We submit that peti-

tioners’ claims lack substance, and that, contrary

to petitioners’ suggestion (Pet. 16-17), the case

was correctly determined by the court below.

Moreover, the petition presents no question re-

quiring decision by this Court.

1. As the court below pointed out, petitioners’

contention, that the entire time covered by their

regular tours of duty were hours of employment

within the intent and meaning of the Joint Reso-

lution of December 22, 1942, and the War Over-

time Act, is based on a false premise (R. 52-53).”

While those Acts provided overtime compensation

for certain classes of employees ‘‘for employment

in excess of forty hours,”’’ they also specifically

provided that employees whose hours of employ-

ment were considered to be intermittent or irregu-

lar were to be paid a bonus as additional compen-

sation in lieu of overtime compensation (R. 53-

" Earlier Acts which provided for the payment of overtime

compensation to certain employees of the Navy Department,

the Coast Guard, the War Department, and the Panama

Canal (Act of June 28, 1940, 54 Stat. 678; Act of October 21,

1940, 54 Stat. 1205) stated that “employment in excess of

forty hours in any administrative workweek” was to be com-

puted “at a rate not less than one and one-half times the

regular rate” (R.21). Petitioners contend that this provise

was, by reference, carried into the Joint Resolution of De-

cember 22, 1942, and the War Overtime Pay Act and there-

fore covered the entire time included in their regular tours

of duty (R. 53).

11

55). The Executive Order and departmental reg-

ulations which were promulgated pursuant to

these Acts (see supra, pp. 5-8), and which classi-

fied petitioners as intermittent or irregular

employees, merely restated this explicit Congres-

sional intention.

Petitioners contend that it was the intention of

Congress to provide for the payment of overtime

compensation. It does not follow, however, that

Congress intended to direct the computation of

overtime compensation based on the total hours

of duty for employees such as fire fighters, light-

house keepers and forest rangers, the nature of

whose employment required them to remain at

their posts of duty for extended periods of time,

but did not require that their entire duty periods

be devoted to actual work. Quite to the contrary,

Congress specifically recognized that the nature of

the work of certain classes of employees did not

readily lend itself to an overtime pay program.

Thus, Senate Report 1847, 77th Cong., 2d SeSs.,

which accompanied S. J. Res. 170 (which became

the Joint Resolution of December 22, 1942), stated

that employees, whose hours of duty were inter-

mittent or irregular and thus could not readily be

included in an overtime pay program, were to be

paid additional compensation in lieu of overtime

Neen

12

in an amount equal to 10 per cent. of their basic

salary not in excess of $2,900." By contemporane-

ous executive constructions of the Act, petitioners

were considered to be included in this latter group

of employees (see supra, pp. 5-8). Great weight

is to be given this construction of the statute,

which will not be overturned unless clearly wrong.

See United States v. Jackson, 280 U.S. 183, 193.

It is clear that had Congress felt that this

construction of the Joint Resolution of December

22, 1942, was inaccurate, it had an early op-

portunity to correct it since the Joint Resolution

expired by its own terms on April 30, 1943."

Yet identical coverage was written into Section

3 (a) of the War Overtime Pay Act of 1948

for intermittent and irregular workers, together

with a formalized power in the Civil Service Com-

mission to issue necessary regulations (Section 9).

” This report read in pertinent part (at p. 2): “Provision

is made for the payment of additional compensation to cer-

tain employees, the nature of whose work does not readily

lend itself to an overtime pay program, Such additional

compensation would amount to 10 percent of so much of an

employee's salary as does not exceed a rate of $2,900 per

annum * * *, Included in this category would be

employees * * * whose hours of duty are intermittent,

irregular, or less than fulltime * * *.”

*S. Rep. 1847, op cit., described S. J. Res. 170 as a tem-

porary expedient, and stated that the date of April 30,

1943 had been selected in order to permit the Civil Service

Committee to continue its study of the problems involved

with a view to making additional recommendations early in

the new Congress. /bid., p. 2.

13

The legislative history of the 1943 statute is

devoid of any suggestion that Congress disagreed

with the prior administrative construction of the

Joint Resolution of which Congress had been ap-

prised “ in classifying petitioners’ group as inter-

mittent or irregular workers. It thus may be

assumed that the reenactment without material

change of a provision of a statute constituted leg-

islative approval of the prior administrative con-

struction. See Helvering vy. Wilshire Oil Co., 308

U.S. 90, 99.

Arguing that there ‘‘* * * is no substantial

difference between the cases here and_ those

decided under the Fair Labor Standards

“ Congressional knowledge of the administrative inter-

pretation of the Joint Resolution of December 22, 1942, is

evidenced by Executive Order No. 9289, Appendix, infra,

pp. 18-19; War Department Orders U of December 26, 1942,

Appendix, infra, pp. 19-21; and the following explanation by

Mr. Edgar B. Young of the Bureau of the Budget to Senator

Mead during the nearings on S. 635 (78th Cong. Ist Sess.)

which was later enacted as the War Overtime Pay Act of

1943:

“Mr. Youne. As I understand it, the Senator was point-

ing his question solely to those groups, the nature of whose

work was such that they could not work overtime, and it

had no reference to the overtime group.

* * * * *

“Again, I point out that the large group of bonus payments

occur in the Postal Service, and there are only a scattered

number who would receive it among the balance of the Fed-

eral employees, and the largest single group who would re-

ceive any benefit or payment under that clause would be in

the War Department, where the fire fighters, guards, and so

forth, are covered.” (Hearings before a Sub-Committee of

the Committee on Civil Service, United States Senate, 78th

Congress, Ist Session, on S. 635, pp. 35-36.)

14

Act * * 8 (Ret. 15), petitioners rest heavily

on this Court's devisions ino Armour db Co. v.

Wantoek, B23 UL S. 126, and Skidmore vo Swift

& Co, WWW USS. 14 (Pet, 12-14), The Wantock

and Skidmore eases held that the waiting time

of privately employed firemen was compensable

time within the meaning of the Fair Labor

Standards Aet, But the dispositive issue here

is not one of compensation but of classifleation

of government employees, Petitioners have re-

coived the proper compensation “in lieu of over:

time’? whieh, as stated above, Congress speeith

cally provided for federal employees the nature

of whose work did not lend itself to a conven.

tional overtime pay program.” Nor is” there

anything in the Wantock or Skidmore decisions,

nor in the other Bair Labor Standards Act cases

® There is no merit to petitioners’ contention that the court

below should have employed the formula for determining

hourly rates of pay approved in United States v. Townsley,

aVWs UL SLOT. Since petitioners were classified as intermit-

tent or irregular workers, there was no question of comput-

ing hourly rates of pay. The formula for computing com-

pensation “in lieu of overtime” was prescribed for such

workers by the war overtime pay statutes. See footnote 8,

supra, p. 6& Moreover, for Federal employees entitled to

overtime compensation for work in excess of 40 hours per

week, the war overtime pay statutes specifically provided that

in “determining the overtime compensation of per annum

Government employees the pay for one day shall be con-

sidered to be one three-hundred-and-sixtieth of the respec-

tive per annum salaries” (R. 59). The Act of March 28,

1934, 48 Stat. 522, involved in the Townsley case, contained

no such statutory formula.

15

referred to by petitioners, whieh limits or in-

validates the classifications of federal employees

made administratively under the 1942 and 1943

federal overtime statutes here involved, Con-

codedly, governmental employment policy sought

to conform, insofar as feasible, to the national

poliey established for private industry by the

Fair Labor Standards Act. Pursuant to this

policy, the Civil Service Commission changed

petitioners’ classifieation on January 4, 1945,

the chanve stated to be “* * * in aeeord with

two reeent decisions * * * dealing with a

similar situation in industry under the Fair

Labor Standards Act * * *"', citing the Wan-

lock and Skidmore eases (RL 34-35). But this

change in classification cannot bear the weight

which petitioners seek to place upon it. It was

not compelled nor was it made to “* * *

correct the previous erroneous — classification

. * *" as petitioners contend (Pet. 14). It

constituted merely an exercise of the power of

classification under the 1942 and 1943 statutes.

The change was not retroactive and did not in-

validate the prior classification of petitioners as

“intermittent or irregular workers’’. The court

below correctly recognized the administrative

power to classify specific groups of employees by

“‘necessary and proper regulations’? and refused

to set aside the regulations here involved as

“clearly beyond the authority conferred * * *”

(R. 57).

16

CONCLUBION

Tho decision of the Court of Claima is clearly

eorroet, there is no contliet, and the ease does not

warrant further review, ‘The petition for a writ

of certiorari should therefore be denied,

Respectfully submitted,

Guoran TT. WASHINGTON,

Aeting Solicitor General,

~ Prvvon orp,

Assistant Attorney General,

*Samunn D. Siape,

Kuery Cox, dr.,

Attorneys.

¥

Jury LAT,

17

APPENDIX

The Joint Resolution of December 22, 142 (56

Stat, LOGH) provides in part as follows:

The joint resolution entitled Joint reso

lution extending the period for which over:

fine rates of compensation may be paid

wider certain Acta’, approved July 3,

HM2, in amended by striking out “Novem

ber BO, 1942," and inserting “April 0,

14": Provided, Vhat the authorization

contamed herein to pay overtime compen

wition to certain groups of employees is

hereby extended, effective December 1, 1942,

fo all civilian employees in or under the

United States Government, including Gov

ernment-owned or controlled organizations

(exeept employees ino the legislative and

Judicial branches), and to those employees

of the District of Columbia rounicipal gov-

ernment Who occupy positions subject to the

Classification Act of 1923, as amended:

Provided further, That such extension shall

not apply to (a) those whose wages are

fixed on a daily or hourly basis and

adjusted from time to time in accordance

with prevailing rates by wage boards or

shnilar administrative authority serving

the same purpose, (b) elected officials, («)

heads of departments, independent estab-

lishments and agencies, and (d) employees

outside the continental limits of the United

States, including Alaska, who are paid in

accordance with local prevailing native

wage rates for the area in which employed:

Provided further, That overtime compen-

sation authorized herein and under the Act

approved February 10, 1942 (Public Law

Numbered 450, Seventy-seventh Congress),

18

and seetion 4 of the Aet approved May 2,

IM CPublie Law Numbered 46, Seventy.

woventh Congress), as amended, shall be

oye only on that part of an me

waie Compensation not in excess o 2.1100

aoe annum, and each such employee shall

w paid only sueh overtime compensation

or portion thereof as will not eause his

vepregate compensation to exceed a rate of

®5,000 por annum: And provided further,

That ofloors or employees whose compensa

tien is based on mileage, postal receipts,

feos, ploeework, or other * a time pe-

ried basis or whose hours of duty are inter

mittent, irregular, or less than full time,

substitute employees whose compensation is

based upon arate per hour or per day, and

omplovees in oor under the legislative and

judicial branehes, shall be paid additional

compensation, in lieu of the overtime eom-

ponsation authorized herein, amounting to

10 per centum of so much of their earned

basic compensation as is not in excess of a

rate of $2,900) per annum, and each such

emplovee shall be paid only such additional

compensation or portion thereof as will

not cause his aggregate compensation to

exceed a rate of $5,000 per annum.

7 tl * * ”

Sree. 4. This joint resolution shall take

effect as of December 1, 1942, and shall ter-

minate on April 30, 1943, or such earlier

date as the Congress by concurrent resolu-

tion may prescribe.

Executive Order No. 9289 (7 F. R. 10897) pro-

vided in part:

Section 2. Overtime compensation for

employment in excess of 40 hours dur-

ing an officially established regular work-

1

week, and for work ordered or gp in

addition to the regular workweek so esatab-

lished shall be paid at the rate of one and

one-half times the employee's regular rate

of compensation, subjeet to the following

limitations:

(a) No overtime compensation shall be

paid on any part of an employee's basie

rate of compensation in excess of ®2,900 per

An;

* « » « a

For the purpose of computing overtime

compensation the pay for one hour shall be

considered to be VYWaoof the employee's pay

for one day and the pay for one day afiail

he considered to be Vigg of the employee's

per-annum salary.

Section 7. Employees sueh as certain

forest-fire lookouts, forest guards, and

lighthouse keepers the nature of whose

work (as determined by the head of the de-

partment or ageney concerned) requires

them to remain at or within the confines of

their posts of duty for more than 40 hours per

week but does not require that all of their

time be devoted to actual work shall be con-

sidered to have intermittent or irregular

hours of duty within the meaning of the last

— of section 1 of the said Senate Joint

‘solution 170, 77th Congress.

War Department Orders U, December 26, 1942,

provide in part:

4 ° * *

e. Method of computing.

(1) Overtime compensation of employees

paid on an annual basis, for employment in

excess of 40 hours during the regular 48

hour weekly tour of duty, will be calculated

on an annual basis and paid in equal

amounts at the regular pay periods. The

20

annual rate of overtime pay is obtained by

multiplying the overtime day rate by 52,

the number of regular overtime days dur-

ing the year. Thus an employee paid a

basic salary of $1,800 per annum will be

paid, when in a pay status, for a full semi-

monthly pay period, the regular salary of

$75 plus $16.25, or $91.25, less appropriate

deductions. The overtime compensation is

in addition to the regular rate of pay and

is computed at the rate of time and one-half

of the regular rate of pay, the regular

daily rate being 44,69 of the basie annual

rate.

(2) Overtime compensation for approved

work beyond the 48-hour weekly tour of

duty will be computed by the hour—the

hourly overtime rate being 1469 of the basic

annual rate, divided by eight, multiplied by

14%4—and will be paid in addition to the

basic salary and overtime for the regular

weekly tour of duty.

* * * * *

9. Employees whose compensation is

based on mileage, fees, piece-work, or other

than a time period basis or whose hours of

duty are intermittent, irregular, or less

than full time (in this instance, a ‘“‘less than

full time’? employee is one employed on a

part-time basis for less than 42 hours per

week in the departmental service, and less

than 40 hours in the field service), and who

are not subject to section 23, Act of March

28, 1934 (48 Stat. 522); the Act of July 2,

1940 (Public Law 703, 76th Congress) ; or

Executive Order No. 8848, will be paid ad-

ditional compensation at the rate of 10 per-

cent provided the salary paid does not ex-

ceed a rate of $2,900 per annum, excluding

the 10 percent. Employees paid salaries

21

exceeding a rate of $2,900 per annum but

not over $5,000, will be paid the 10 percent

additional compensation on a rate of $2,900

per annum, but the aggregate of salary and

additional compensation paid at any one

time will not exceed a rate of $5,000 per

annum. The ceiling rates listed in para-

graph 4b (2), and the provisions of para-

graph 4f, will apply.

a. Employees such as firefighters who

because of the nature of their work are

required to remain at or within the confines

of their posts of duty for more than 40

hours per week, but who are not required to

devote all their time to actual work, will be

considered to have intermittent or irregular

hours of duty and are subject to the pro-

visions of this paragraph.

The War Overtime Pay Act of 1943, 57 Stat.

75 (50 U. 8S. C. App., Supp. V, 1401) provides in

part:

* * * * *

Sec. 3. (a) Except as provided in sub-

section (¢), officers and employees to whom

this Act applies and whose hours of duty

are intermittent or irregular, officers and

employees in or under the legislative and

judicial branches (except those in the

ibrary of Congress, or the Botanic Gar-

den, and per annum employees in or under

the Office of the Architect of the Capitol

who are regularly required to work not less

than forty-eight hours per week) to whom

this Act applies, and, subject to the ap-

proval of the Civil Service Commission,

officers and employees whose hours of work

are governed by those of private establish-

ments which they serve and for whom on

this account overtime work schedules are

not feasible, shall be paid, in lieu of the

overtime compensation authorized under

22

seotion 2 of this Aet, additional compen ©

sation at the rate of (1) R300 per annum

if their earned basie compensation is at

a orate of less than #2000 per annum, or

(2) 15 per eentum of so mueh of their

carned basic compensation ae is Hot in Exe

coss of a rate of R2900 per annum if their

earned basie compensation is at arate of

2,000 por annum or more,

x” ” ” » “

See. & The Civil Service Commission is

authorived and Uireeted to promulgate sueh

rules and regulations as may be necessary

and proper for the purpose of coordinating

and supervising the administration of the

provisions of the foregoing sections of this

Act insofar as such provisions affeet em-

Ploy ves incor under the exeeutive branch of

the Government.

nN N nS _ -

The War Overtime Pay Regulations of the Civil

Service Commission of May 8, 1943 (8 F. RR. 6149)

provide in part:

~ om ” is o

204 Fuut-rime empLoYers. Full-time

employees are employees who are regu-

larly required to work, as a minimum, the

number of hours in the administrative

workweek specified for employees in their

respective groups.

20.7 INTERMITTENT OR IRREGULAR EM-

pLoYers. Intermittent or irregular em-

ployees who are not regularly required

to work a specified minimum number of

hours. Employees whose work requires

them to remain at, or within, the con-

fines of their posts of duty for more than

forty hours per week, but does not require

that all of their time be devoted to actual

24

work, may be considered to be intermittent

or irregular employees, or in the diseretion

of the head of the department or ageney

concerned, may be considered to be full-

fime employees having such administrative

workweek as is specified by such head.

* » * * ; *

20.12 COMPUTATION OF OVERTIME COM-

PENSATION. Overtime compensation shall

he paid at a rate of one and one-half

times the employee's regular rate of com-

pensation computed as provided in’ this

Keefion: Provided, however, Vhat when the

overtime compensation for any pay period

is less than a rate of #300 per annum, in

liew of such overtime compensation, there

shall be paid the employee an additional

amount equal to either (a) a rate of *300

per annum or (b) 25%, of the employee’s

earned basie compensation for the pay

period, whichever 1s less, but this proviso

shall not be construed to reduce the over-

time compensation to which the employee

is entitled by virtue of actual overtime em-

ployment. a determining whether an

‘employee shall be eligible for additional

compensation in lieu of overtime compensa-

tion, leave without pay during any pay

period shall not be construed as reducing

the rate of overtime compensation.

The computation of overtime compensa-

tion shall be subject to the following eon-

ditions.

(a) HowRLY RATES AND DAILY RATES. For

employees paid at an annual rate, the daily

rate shall be considered to be Yeo of the

ainual rate, and the hourly rate shall be

considered to be 14 of the daily rate.

(b) MAXIMUM BASE FOR COMPUTATION.

Overtime compensation shall be paid only

upon such portion of the basic rate of com-

24

pensation of an officer or employee as does

not exceed $2,900 per annum.

* * * * *

20.14 INTERMITTENT, TRREGULAR, AND

OTHER EMPLOYEES. Intermittent and irreg-

ular employees and, subject to the approval

of the Civil Service Commission, employees

whose hours of work are governed by those

of private establishments which they serve

and for whom, on this account, overtime

work schedules are not feasible, shall be

paid, in lieu of overtime compensation, addi-

tional compensation at a rate of (a) $300 per

annum if their earned basic compensation

is at a rate of less than $2,000 per annum

or (b) 15 per centum of so much of their

‘arned basic compensation as is not in

excess of a rate of $2,900 if their earned

basic compensation is at a rate of $2,000

per annum or more, subject to the limita-

tion in § 20.17 of this chapter.

War Department Civilian Personnel Regula-

tion No. 80 of December 15, 1943 provides in

part:

= * * * *

3-1. (3) Full time employees.—Those

employees who are regularly required to

work an established weekly tour of duty of

48 hours, and, with the approval of the com-

manding general of the appropriate force

or his designated representative, those

classes of employees at any installation who

regularly work a minimum number of hours

set by proper authority at more or less

than 48 hours, but not less than 40, per

week.

* * * * *

(7) ‘On call’? employees.——Employees

whose work requires them to remain at, or

25

within the confines of, their posts of duty

more than 40 hours per week, but does not

require that all of their time be devoted

to actual work (for example, fire-fighters

on duty 24 hours and off duty 24 hours).

* * * * *

3-7. a (2) Other intermittent and irregu-

lar employees, ‘‘on call’? employees, ‘‘ when

actually employed’’ employees (including

experts and consultants appointed under the

provisions of the Military Appropriations

Act of 1944 at a per diem rate on a “*when

actually employed”’ basis (23 Comp. Gen.

17)), and employees serving private estab-

lishments for whom overtime work sched-

ules are not feasible shall be paid, in lieu

of overtime compensation, additional com-

pensation at a rate of 25 percent of earned

basic compensation, if such compensation

is at a rate of less than $1,200 per annum;

$300 per annum, if earned basic compensa-

tion is at a rate of $1,200 per annum or

more but less than $2,000 per annum; 15

percent of so much of earned basic compen-

sation as is not in excess of the rate of

2,900 per annum, if earned basic compen-

sation equals or exceeds the rate of $2,000

per annum.

b. Intermittent or irregular employees

who are paid additional compensation at

a rate of $300 per annum shall be paid

M69 Of $300 for each day in a pay status.

The amended War Overtime Pay Regulations

of the Civil Service Commission of January

4, 1945 (10 F. R. 772) provide in part:

20.3 Administrative work-week for full-

time employees. (a) The administrative

work-week for each group of full-time em-

ployees shall be the minimum number of

‘ 26

hours of work per week specified by the

general public regulations issued by the

head of a department or independent es-

tablishment pursuant to section 2 of the

Act of March 14, 1936, 49 Stat. 1161, 5

U. S. C. 29a, and in accordance with ap-

plicable circulars of the Bureau of the

Budget.

(b) In the case of employees whose work

includes periods during which they are re-

quired to remain on duty and _ render

‘stand-by service’ at or within the con-

fines of their stations, the administrative

workweek, for the purposes of the regula-

tions in this part shall be the total number

of regularly scheduled hours of duty per

week (or in rotating-shift systems, the aver-

age number of regularly scheduled hours of

duty per week for the cycle), including all

such “‘standby’”’ or ‘fon call’ time except

that allowed by regulation of the depart-

ment or independent establishment for sleep

and meals. Effective January 1, 1945.

War Department Civilian Personnel Circular

No. 13 of January 25, 1945, provides in part:

2. On-call employees are those employees

who are required to remain at or within the

confines of a designated post of duty for

more than 40 hours a week for the purpose

of rendering stand-by service, but who are

not requi to spend all of their tour of

duty in the actual performance of work. A

notable example of on-call employees are

fire fighters who are on duty 24 hours and

off duty 24 hours, or whose tour is a varia-

tion of this form of the two-platoon

wee. °* * *

3. Not later than 1 April 1945 the tours

of duty for all on-call employees will be

fixed upon one of the following bases:

27

a. Twenty-four hours on duty followed

by 24 hours off duty, thus completing a

total of 168 hours of duty in a biweekly

period.

* ~ om * *

4. The employees referred to in para-

graph 3a * * * will be considered as

working 16 hours within the spread of each

24 hours daily tour of duty. The other 8

hours of the tour will be considered as the

amount of time spent in stand-by service

during which the employee is free to eat or

sleep. No action will be taken to set aside

a specific portion or portions of the tour

for this purpose and there is no change

in the present requirement that employees

be present for duty or in a leave-with-pay

status during the full tour in order to be

eligible for full compensation. Rather, the

employee will be considered as being on

duty the total time, but the fact that a

portion of the tour is not active duty will be

recognized in computing overtime com-

pensation. This arrangement results, in

effect, in the establishment of an average

workweek of 56 hours for the employees

referred to in paragraph 3a and of 48 hours

for the employees referred to in paragraph

3b. Regular prorated overtime compen-

sation will be computed on the basis of the

average workweek so established.

B.S. GOVERRMENT PRINTING OFFICE: 1947