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Opinion of the Court each of plaintiffs spent more time waiting for fire alarms than in actual work of responding to alarms and fighting fires, that each plaintiff spent approximately 5 hours waiting and 3 hours actually working in responding to alarms during each of the seven 24-hour tours of duty. There was, therefore, a total of about 21 hours out of this period of 56 hours when plaintiffs were actually working in each biweekly period. The addition of this period of 21 hours spent in active work to the 56 hours spent on an average on active work in the performance of routine duties during such bi
eekly period, gives a total of 77 hours during which plaintiffs were actually working in each biweekly period. This shows that plaintiffs were actually working approximately 3842 hours during each week while on their tours of duty of 24 hours on duty and 24 hours off duty.
Plaintiffs base their claims for additional overtime compensation at time and one-half under the act of December 22, 1942, supra (finding 5), and the act of May 7, 1943 (finding 8), on the contention "that the entire 24 consecutive hours on duty under the facts and circumstances of these cases were hours of employment” for which they were entitled to receive overtime pay for the number of hours of such scheduled tours of duty in each week in excess of 40 hours. Plaintiffs insist that at no time were their "hours of duty” within the meaning of the statutes, intermittent or irregular, and that the regulations (findings 6, 7, 8 and 9), in effect from December 1, 1942 to December 31, 1944, which classified them as employees whose hours of work were intermittent and irregular, and the regulations (findings 11, 12 and 13), in effect from January 1, 1945 to June 30, 1945, in which plaintiffs were classified as employees having administrative workweeks of 56 hours each for overtime pay purposes, were unauthorized and, therefore, invalid under the statutes.
As to the total amounts of additional overtime to which plaintiffs claim they are entitled for the total number of hours of their tours of duty in excess of 40 hours per week, as set forth in findings 23, 24, and 25, subsections (c), plaintiffs claim in the alternative. They say, first, in reliance on Townsley v. United States, 101 C. Cls. 237, that the correct method of ascertaining the overtime compensation is to di
107 C. Cls.
Opinion of the Court
vide the basic annual compensation by 52 to ascertain the weekly compensation, and divide the result by 40 to ascertain the regular hourly rate, which is to be multiplied by 142 to arrive at the overtime hourly rate, which is the equivalent of dividing the basic annual compensation by 2,080 to ascertain the regular hourly rate, and that plaintiff Conn is entitled to recover $3,526.35 for the periods involved in his claim; plaintiff Flynt, $1,971.78; and plaintiff Nelson, $1,765.24. Secondly, plaintiffs say that if the Government's view as to the method of calculation of the daily and hourly rate is correct, and it is necessary to divide the basic annual compensation by 360 to ascertain the daily rate and divide the daily rate by 8 to obtain the regular hourly rate, which, as plaintiffs contend, is to be multiplied by 11/2 to arrive at the overtime hourly rate, then plaintiff Conn is entitled to recover $2,344.91; plaintiff Flynt, $1,284.82; and plaintiff Nelson, $1,142.44, for the excess hours on duty over 40 per administrative workweek.
Under the terms of the act of 1942, the act of 1943, and regulations issued thereunder, providing for overtime рау
at time and one-half in certain circumstances and additional compensation in lieu of overtime in certain cases, we are of opinion that plaintiffs are not entitled to recover overtime compensation in excess of the amounts which have been allowed and paid to them for the periods involved.
As set forth in finding 5, the Congress by certain acts of June 28 and October 21, 1940, and June 3, 1941, made provision for the payment of overtime compensation to certain specified classes of employees (not including employees such as plaintiffs) in the Navy Department, the Coast Guard, the War Department, and the Panama Canal, for "employment in excess of forty hours in any administrative workweek computed at a rate not less than one and one-half times the regular rate." These acts, which authorized regulations in regard to hours of work and compensation for overtime, contained the further provision that "in determining the overtime compensation of per annum Government employees, the pay for one day shall be considered to be one three-hundred-and-sixtieth of their respective per annum salaries.” The last above quoted provision was by reference
Opinion of the Court carried into Senate Joint Resolution 170 (finding 5), approved December 22, 1942 (56 Stat. 1068), and the War Overtime Pay Act (finding 8), approved May 7, 1943 (57 Stat. 75).
Plaintiffs contend, and their claims for additional overtime are primarily based upon this contention, that the first above quoted provision from the earlier acts of 1940 and 1941 for payment of overtime at time and one-half for employment in excess of 40 hours in any administrative workweek” was also by reference carried into the Joint Resoluton 170 of December 22, 1942 and the War Overtime Pay Act of May 1, 1943, and, therefore, the entire time covered by the regular tours of duty of plaintiffs of 24 hours each, from 6 p. m. to 6 p. m. the following day, followed by 24 hours off duty, or 84 hours a week, were hours of employment within the intent and meaning of Joint Resolution 170 of December 22, 1942 and the act of May 7, 1943, for which they were entitled to overtime pay at time and one-half per hour for the total number of hours on duty in excess of 40 hours per week.
In addition plaintiffs rely upon the decisions in Armour & Co. v. Wantock, 323 U. S. 126, 127, 128, 132–134, and Skidmore v. Swift & Co., 323 U. S. 134, 135–137, decided under Section 7 (29 U. S. Code 207) of the Fair Labor Standards Act of 1938 (52 Stat. 1060, 1063), as amended by the Act of October 29, 1941 (55 Stat. 756).
We agree with plaintiffs that Joint Resolution 170 of December 22, 1942, supra, by extending the expiration date of the earlier overtime pay acts of June 28 and October 21, 1940 and June 3, 1941, supra, and by enacting in the first proviso *That the authorization contained herein to pay overtime compensation to certain groups of employees is hereby extended, effective December 1, 1942, to all civilian employees in or under the United States Government,
(with certain exceptions), included and carried forward the language of the earlier acts which provided for the payment of overtime compensation to certain employees "for employment in excess of forty hours in any administrative workweek computed at a rate of not less than one and one-half times the regular rate.” However, we cannot agree with plaintiffs argument that because the last quoted provision was by ref107 C. Cls. Opinion of the Court erence carried into Joint Resolution 170 and the War Overtime Pay Act of 1943, it must be held that Congress intended to treat the entire time covered by the scheduled tours of duty of employees engaged in work such as that performed by plaintiffs as "hours of employment" or "hours of duty," to be compensated for as overtime work at time and one-half to the extent that the maximum number of hours in such tours of duty exceeded 40 hours per week.
The statutes providing for payment of overtime compensation “for employment in excess of forty hours," in effect prior to the approval of Joint Resolution 170, included only certain groups of employees who, by reason of the nature of their employment, devoted all of their time on duty to actual work. Section 1 of Joint Resolution 170 extended these acts from November 30, 1942, to April 30, 1943, and, in addition, by the first proviso extended, effective December 1, 1942, the authorization therein contained to pay overtime compensation to the previously named groups of employees, “to all civilian employees in or under the United States Government, including Government-owned or controlled organizations (except employees in the legislative and judicial branches), and to those employees of the District of Columbia municipal government who occupy positions subject to the Classification Act of 1923, as amended.” If the statute had ended with the enlarged provision just quoted we would have a different question to decide. However, the language and legal effect of the earlier overtime pay statutes and of the first proviso above quoted, so far as concerned certain classes of employees and also employees such as plaintiffs, were materially modified and limited by other provisions in Section 1 of Joint Resolution 170. The second proviso entirely excluded three specified groups of officers and employees from the benefits of the overtime pay provisions. The third proviso limited the right to overtime pay of those employees not excluded to that part of their basic compensation not in excess of $2,900 per annum. The third proviso, which we think is controlling with respect to the claims here involved, provided as follows:
And provided further, That officers or employees whose compensation is based on mileage, postal receipts, fees,
Opinion of the Court piecework, or other than a time period basis or whose hours of duty are intermittent, irregular, or less than full time, substitute employees whose compensation is based upon a rate per hour or per day, and employees in or under the legislative and judicial branches, shall be paid additional compensation, in lieu of the overtime compensation 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 employee 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. (Italics
supplied.) The War Overtime Pay Act (finding 8), effective May 1, 1943 (57 Stat. 75), superseded Joint Resolution 170, and, after specifying in Section 1 certain groups of officers and employees to whom the Act should not apply, provided in Section 2 that "Officers and employees to whom this Act applies and who are not entitled to additional compensation under section 3 shall be paid overtime compensation computed on the same basis as the overtime compensation which was authorized to be paid under Public Law 821 [Joint Resolution 170], Seventy-seventh Congress.” Section 3 provided, so far as here material, that "Except as provided in subsection (c), officers and employees to whom this Act applies and whose hours of duty are intermittent or irregular,
* shall be paid, in lieu of overtime compensation [time and one-half of the hourly rate computed as specified) authorized under section 2 of this Act, additional compensation at the rate of (1) $300 per annum if their earned basic compensation is at a rate of less than $2,000 per annum, or (2) 15 per centum of so much of their earned basic compensation as is not in excess of the rate of $2,900 per annum if their earned basic compensation is at a rate of $2,000 per annum or more.” It will be noted that this Act of 1943, so far as the merits of the claims made in these cases are concerned, did not materially change the provisions of Joint Resolution 170 of December 22, 1942.
Viewed as a whole it seems clear that in these acts, Congress intended to authorize the payment of overtime compensation at time and one-half of the hourly rate for excess hours of actual work or additional compensation, in lieu of over