# Opposition Brief — Conn v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1947
- **Citation:** 332 U.S. 757

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1208%3A2. Public record. Not legal advice.