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"As the repairs were important it was necessary that some one in authority should supervise the work, and under orders from the head of the department I not only directed but assisted the mechanics in making the repairs."
Mr. Hussey is employed under the following letter of appointment by the Secretary of the Navy, dated July 11,
"You are hereby promoted from foreman machinist at $5.75 per diem, department of steam engineering, navy yard, Mare Island, Cal., and appointed foreman machinist in the same department with pay at the rate of $6 per diem, to take effect when you have executed the required oath."
He is therefore a per diem employee and his compensation is governed by the contract of employment. Any law or regulation relating to his duties and compensation is a part of his contract of employment. The letter of appointment defines his position as that of a foreman machinist and fixes his pay at $6 per diem. The number of hours for a day's service is not specified, and they are not limited.
Section 3738 of the Revised Statutes provides:
"Eight hours shall constitute a day's work for all laborers, workmen, and mechanics who may be employed by or on behalf of the Government of the United States."
It has been decided by the courts that no promise or contract to pay laborers, workmen, or mechanics employed by or on behalf of the Government extra pay when they work over eight hours a day can be implied from this statute (Martin v. United States, 10 Ct. Cl., 276, and 94 U. S., 400; Averill v. United States, 14 Ct. Cl., 207; Driscoll v. United States, 13 Ct. Cl., 13, and 96 U. S., 421), nor from the act of August 1, 1892. (See 126 Fed. Rep., 581.)
Navy regulations, however, provide additional and extra pay for work in excess of eight hours per day in certain cases, by article 1600, as follows:
"(5) The following rules shall be observed for estimating the pay of laborers, workmen, and mechanics for work performed in excess of eight hours per day, and for work performed outside of yard hours:
"(a) For work performed, by reason of extraordinary emergency, in excess of eight hours per day, the ordinary rate of pay with 50 per cent additional shall be allowed.
(b) Men employed on relays shall be paid at the rate allowed for day work whether they work by day or night.
"(c) For work performed on Sundays or on legal holidays the ordinary rate of pay with 50 per cent additional shall be allowed.
"(e) The foregoing provisions relate solely to laborers, workmen, and mechanics whose compensation has been fixed upon a basis of eight hours per day, and have no application to employees whose ordinary duties require their presence before or after yard hours, at night, on Sundays, or on legal holidays, and whose compensation has been fixed with reference to the irregular and unusual character of their employment."
The words "laborers, workmen, and mechanics" are those used in section 3738 of the Revised Statutes, and the regulation was probably made to accord with that statute.
That the regulation was intended to apply to laborers, workmen, and mechanics only is made clear by the last paragraph of the regulation quoted.
I know of no statute or other regulation which provides pay for overtime in Mr. Hussey's case, and whether he is entitled under this regulation depends entirely upon whether he is a laborer, workman, or mechanic within its meaning. It is presumed he has the knowledge and skill of a mechanic or he would not be competent as a foreman of machinists; but he is something more than a mechanic, he is a foreman of mechanics. Webster defines a foreman as: "The chief of a set of hands employed in a shop, or on work of any kind, who superintends the rest; an overseer.”
His position in practical business is well recognized. The duties of a foreman require his presence when the men under him are at work, and frequently at other times, before and after shop hours, in laying out work, consulting with those in higher authority, etc.; in short, his employment could not have contemplated a hiring on the theory of just the same time as those under his superintendence. It is presumed that this peculiar status of a foreman is taken into consideration in fixing the higher pay that a foreman receives.
The Court of Claims in Collins v. United States (24 Ct. Cl., 340), held that a watchman was not a laborer, workman, or mechanic, within the meaning of the eight-hour law, as his duties required him to be employed outside of ordinary hours of work.
The Second Comptroller held that superintendents, clerks, and policemen were not laborers, workmen, or mechanics
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(Second Comp. Dec., vol. 34, p. 664), neither were master builders, master carpenters, master mechanics, foremen of bricklayers, carpenters, painters, and laborers, superintendents of shoeing shops and storekeepers (id., vol. 35, p. 527). If it had been intended that foremen should be entitled to the pay and extra pay for overtime provided by article 1600, Navy Regulations, language could easily have been used to make such intention unmistakable; but care seems to have been taken in the preparation of the regulation to exclude all employees from its operation except laborers, workmen, and mechanics.
I am of opinion that Mr. Hussey is not one of the class mentioned in the regulation.
He is entitled by his letter of appointment to $6 per diem for every day he works, so that he is as much entitled to $6 for services performed on Sunday as on any other day. I am therefore of opinion that he is entitled to $6 for Sunday, January 22, but not to pay for time over eight hours on that or the preceding day.
COMPUTING PAYMENTS OF ANNUAL COMPENSATION FOR A FRACTIONAL PART OF A MONTH. Where an employee is either promoted or reduced to another position, requiring a new appointment, he is entitled for his services during the month to one-thirtieth of the monthly installment of the annual salary of each position held by him for each day he actually held such position.
Where employees of the War Department were transferred, for administrative reasons, from one bureau to another, on the eighteenth day of a 28-day month, and their salary remained the same and was paid from the same appropriation, and their service was continuous and did not require a new appointment, they are entitled for their services during the remainder of the month in the bureau to which transferred to thirteen-thirtieths of their monthly salary.
(Comptroller Tracewell to Sydney E. Smith, disbursing clerk, War Department, February 27, 1905.)
I have received your letter of the 24th instant, the material part of which is as follows:
"I have the honor to submit herewith pay rolls for the current month for the following offices of this Department, which are before me to arrange for payment on the last day of this
month: Chief of Staff (regular and temporary rolls); SurgeonGeneral (temporary roll), and Quartermaster-General (regular and temporary rolls).
"On the regular roll of the Office of the Chief of Staff notation is made opposite the name of Mr. Smolinski 'reduced to clerk, $1,200, temporary roll, February 6, 1905. Five days' pay is allowed him as clerk of class 3 on the regular roll, and twenty-five days' pay as clerk at $1,200 on the temporary roll is allowed. On the regular roll of the same office Mr. Gerhard's name appears as clerk of class 2 with the notation 'promoted from clerk, $1,400, appropriation "Support of the Army," February 6, 1905,' and he is allowed pay for twenty-five days. I am informed that the period of five days, February 1 to 5, inclusive, is to be paid him from the appropriation for the clerks at military headquarters, which is not disbursed by
"The temporary roll of the Surgeon-General's Office carries the name of Mrs. Egerton, clerk at $900, with the notation transferred from clerk, $900, Office of the Quartermaster-General, temporary roll, February 18, 1905,' thus giving her thirteen days' pay.
"On the temporary roll of the Quartermaster-General's Office the name of Mrs. Higley appears as clerk at $900 with the notation transferred from clerk, $900, Office of the Surgeon-General, temporary roll, February 18, 1905,' thus paying her for thirteen days on the temporary roll of the Quartermaster-General's Office.
In the Quartermaster-General's Office Miss Hunt was promoted February 17 from skilled typewriter at $1,000 on the regular roll to clerk at $1,200 on the temporary roll, and is allowed fourteen days on the temporary roll at the increased salary. Mrs. Graves and Mr. Thomas were promoted February 17 from clerks at $900 on the temporary roll to clerks at $1,000 on the regular roll, and are allowed fourteen days each on such regular roll. Mr. Perveil was promoted February 17 from clerk at $840 on the temporary roll to skilled typewriter at $1,000 on the regular roll, and is allowed fourteen days on the regular roll. Miss Webster was transferred February 17 from clerk of class 1 on the regular roll to clerk at $1,200 on the temporary roll, and is allowed fourteen days on the temporary roll. Miss Heth was transferred February 17 from clerk at $1,000 on the regular roll to clerk at $1,000 on the temporary roll, and is allowed fourteen days. Mr. Loving was promoted February 17 from clerk at $1,000 to clerk of class 1 on the regular roll, and is allowed fourteen days as clerk of class 1.
"I have the honor to request your decision on the following questions:
"1. Am I authorized to pay Mr. Smolinski for twenty-five
days on the temporary roll, and Mr. Gerhard for twenty-five days on the regular roll for the Office of the Chief of Staff;
2. Mrs. Egerton for thirteen days on the temporary roll of the Surgeon-General's Office, and Mrs. Higley for thirteen days on the temporary roll of the Quartermaster-General's Office:
3. Miss Hunt, Miss Webster, and Miss Heth for fourteen days each on the temporary roll, and Mrs. Graves, Mr. Thomas, and Mr. Perveil for fourteen days on the regular roll of the Quartermaster-General's Office;"
"4. Mr. Loving for fourteen days as clerk of class 1 on the regular roll of the Quartermaster-General's Office.
To summarize, these changes may be classed as follows: "Transfer from the roll of employees paid from the appropriation for the support of the Army to the regular roll for the War Department, with change of salary;
"Transfer from one bureau to another bureau on the temporary roll without any change of salary.
"Transfer from the temporary to the regular roll in the same bureau, with change of salary.
"Transfer from the regular to the temporary roll in the same bureau without change of salary.
"Promotion on the regular roll of the same bureau.
"All of these employees have been in the service from some date prior to the 1st instant. In other words, they will have worked, unless some casualty happens before the end of the month, during the whole month of February, and the substantial question presented is whether a change of salary or a change from one roll to another roll at any time during the month of February will operate to allow the employees to be paid for twenty-eight thirtieths of a month or thirty thirtieths of a month."
As I understand your statement and the questions arising therefrom, each promotion or reduction, whether on a permanent roll or to a temporary roll, or from one roll to the other, involves a new appointment to the position to which promoted or reduced. If this be so, the service in each position represents service for a fractional part of a month in each position held by the clerk during the month by such promotion or reduction.
The act of April 28, 1904 (33 Stat., 513), provides:
* * *
"That in making payments for a fractional part of a month, one-thirtieth of one of such installments, or of a monthly compensation, shall be the rate of pay for each day."
For such service of a part of a month the clerk affected should therefore be paid one-thirtieth of the monthly install