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Nelson v. United States

135 Ct. Cl. 877, 1956 U.S. Ct. Cl. LEXIS 191, 1956 WL 8353
CourtUnited States Court of Claims
DecidedJuly 12, 1956
DocketNo. 48566
StatusPublished

This text of 135 Ct. Cl. 877 (Nelson v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. United States, 135 Ct. Cl. 877, 1956 U.S. Ct. Cl. LEXIS 191, 1956 WL 8353 (cc 1956).

Opinion

[878]*878Opinion

per curiam:

In our former decision in this case, 126 C. Cls. 558, we concluded that the case had to be referred to a commissioner of this court for the trial of certain unresolved issues of fact. The only one of those issues which was dependent on oral testimony was the question of how many hours, on the average, did the plaintiff work on Sundays while he was a section foreman. Our commissioner has concluded, on the basis of evidence which is by no means conclusive, that the plaintiff, on the average, worked about six hours on Sundays. We think that is as fair an approximation as can be deduced from the evidence, and we adopt it.

For the reasons given in Samples, et al., No. 48637, Anderson, et al., No. 48891, and Beebe, et al., No. 49891, v. United States, decided this day ante, p. 548, no recovery is allowed for the additional straight-time pay to which the plaintiff would have been entitled under section 23 of the act of March 28, 1934.

The plaintiff is entitled to a judgment for $2,126.23.

It is so ordered.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Eichard Hi Akers, and the briefs and argument of counsel, makes the following findings of fact:

• 1. This case was previously submitted to the court on plaintiff’s motion for summary judgment. In its decision of November 3, 1953, 126 C. Cls. 553, the court said:

The plaintiff has made a motion for a summary judgment. He says that, as to the issue of liability, his case is governed by our decisions in the Poggas. and Parmenter cases, supra [118 C. Cls. 385, and 125 C. Cls. 35]. In this he is correct, and we adhere to our decisions in those cases. The question is, then, how much overtime the plaintiff worked and what was his regular rate of pay at the time the overtime was worked. The plaintiff says that on this point there is no genuine issue as to any material fact, and that he is, therefore, entitled to a summary judgment for $4,440.78.
[879]*879The computation upon which the plaintiff’s claim to $4,440.78 is based, was made by the plaintiff’s attorney from data contained in a report furnished him by the Government. A copy of this report is attached to the plaintiff’s motion as Exhibit 2. The plaintiff, in his computation, treated this report as showing that he worked seven eight-hour days per. week and thus had sixteen hours of overtime each week. But the report itself says that the payroll records showing that , the plaintiff worked every day in the month were made that way because the plaintiff was paid a monthly salary. It says that in fact the plaintiff worked only six days per week.
The plaintiff reminds us that in the Poggas case, supra, it was shown that section foremen, such as the plaintiff was, were required to patrol their sections of the track on Sunday. We did so find, but we did not find that they in all cases devoted a full eight-hour day to doing so.
There are unresolved genuine issues as to material facts as to the extent of the Government’s liability. The case must be referred to a commissioner of this court for the trial of those issues.

2. The plaintiff was employed by The Alaska Bailroad as a section foreman in the maintenance-of-way department on January 8, 1939, at a monthly salary of $181.50. He worked during that month from the 8th through the 22nd, and from the 27th through the 31st, a total of 19 days. During the month of February, 1939, he worked from the 1st through the 10th, and from the 17th through the 28th, at a monthly rate of $187.91; he was on leave without pay from February 11 through February 16. He worked the entire month of March, the first three days at a monthly rate of $192.50, and the balance of the month at a monthly rate of $203.50. He also worked the entire month of April at a monthly rate of $203.50 on the first four days, and a monthly rate of $181.50 for the balance of the month. During May, 1939, he worked the first 27 days of the month at a monthly rate of $181.50, and was on leave without pay [880]*880from May 28 through. June 2; during the period from May 9 through May 18, he was on annual leave. During the month of June 1939, he was on leave without pay on the 1st, 2nd, 12th, and 16th, worked at a monthly rate of $181.50 from the 6th through the 11th, and worked for 136 hours as a section laborer at an hourly rate of 64 cents during the balance of the month. He was on leave without pay on July 1 and 2, 1939, and thereafter worked regularly as a section foreman at a monthly rate of $181.50 through January 1941; during this period he took annual leave from March 2 to, March 4, 1940, and again went on annual leave on January 15,1941, continuing in this status to February 25,1941, when he went on leave without pay through April 15, 1941. Returning to The Alaska Railroad on April 16,1941, he worked as a section foreman at a monthly rate of $181.50 through June 22, 1941, when he became an acting roadmaster at a monthly rate of $275. Except for the short period referred to above when he was a section laborer, the plaintiff was a section foreman for all periods he worked from January 8, 1939, through June 22,1941. His title changed to assistant roadmaster on August 1, 1941, and to roadmaster on September 1, 1941, but his rate of pay remained unchanged through September 30,1941, when it was increased to $297.50. It was increased to $300 a month on January 1,1942, and to $330 a month on April 1, 1943. During this latter period the plaintiff was on sick leave from March 5 through March 8, from May 13 through June 2, and from June 17 through June 29, 1942.

Subsequent to May 1, 1943, and continuing at least until March 31, 1948, the plaintiff continued his employment as roadmaster. He was paid overtime compensation under the provisions of the War Overtime Pay Act of 1943, and subsequent to July 1, 1945, he was paid overtime compensation under the provisions of the Federal Employees Pay Act of 1945.

The plaintiff’s payment record from January 8, 1939, to March 31,1948, is summarized as follows:

[881]

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Related

Parmenter v. United States
125 Ct. Cl. 35 (Court of Claims, 1953)
Nelson v. United States
126 Ct. Cl. 553 (Court of Claims, 1953)
Shelton v. United States
126 Ct. Cl. 555 (Court of Claims, 1953)

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Bluebook (online)
135 Ct. Cl. 877, 1956 U.S. Ct. Cl. LEXIS 191, 1956 WL 8353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-united-states-cc-1956.