A-43643, AUGUST 10, 1932, 12 COMP. GEN. 224

A-43643, AUGUST 10, 1932, 12 COMP. GEN. 224

ECONOMY ACT - LONGSHOREMEN LONGSHOREMEN OR STEVEDORS WHILE TEMPORARILY ENGAGED IN LOADING OR UNLOADING FEDERAL GOODS, WHOSE RATE OF WAGES IS PAID BY THE GOVERNMENT PURSUANT TO A GENERAL AGREEMENT BETWEEN A GROUP OF EMPLOYERS, INCLUDING A FEDERAL AGENCY, AND AN ORGANIZATION OF SUCH EMPLOYEES, ARE NOT "EMPLOYEES" OF THE GOVERNMENT WORKING UNDER A PERSONAL-SERVICE CONTRACT WITH THE GOVERNMENT, AND THEIR RATE OF WAGES IS NOT SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED BY THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO MAJ. W. D. DABNEY, UNITED STATES ARMY, AUGUST 10, 1932:

THERE HAVE BEEN RECEIVED YOUR TWO LETTERS DATED JULY 21, 1932, AS FOLLOWS:

1. THE INCLOSED PAY ROLL OF THE WAR DEPARTMENT, QUARTERMASTER CORPS, OFFICE OF THE SUPERINTENDENT, ARMY TRANSPORT SERVICE, BROOKLYN, N.Y., COVERING SERVICES OF EDWARD G. DRIVER, STEVEDORE (LONGSHOREMAN), ON JULY 21, 1932, IN THE SUM OF $6.80, HAVING BEEN PRESENTED TO ME, A DISBURSING OFFICER, FOR PAYMENT, IS FORWARDED REQUESTING ADVANCE DECISION AS TO THE CORRECT AMOUNT PAYABLE.

2. THIS EMPLOYEE WAS HIRED AT THE RATE OF 85 CENTS PER HOUR FOR A PERIOD OF 8 HOURS (ONE DAY) 8 A.M. TO 12 NOON AND 1 P.M. TO 5 P.M. UNDER THE LONGSHOREMEN'S AGREEMENT DATED OCT. 1, 1931, ENTERED INTO BY THE U.S. SHIPPING BOARD AS REPRESENTING THE UNITED STATES, DEEPWATER STEAMSHIP LINES AND CONTRACTING STEVEDORES OF THE PORT OF GREATER NEW YORK AND VICINITY, ALL PARTY OF THE FIRST PART; AND THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION AND ITS AFFILIATED LOCALS, PARTY OF THE SECOND PART. HE WAS REQUIRED TO PERFORM SERVICES IN CONNECTION WITH NECESSARY STEVEDORING INCIDENT TO LOADING AN ARMY TRANSPORT. HIS EMPLOYMENT IS OF SHORT DURATION AND LIMITED TO COMPLETION OF A PARTICULAR JOB.

WITH REFERENCE TO THE LONGSHOREMEN'S AGREEMENT OF OCT. 1, 1931, THIS AGREEMENT REGULATES THE WAGES TO BE PAID LONGSHOREMEN EMPLOYED LOADING AND DISCHARGING FOREIGN AND DOMESTIC SHIPS AT THIS PORT. THE AGREEMENT SPECIFIES AN 8-HOUR DAY, 5 1/2-DAY WEEK (44 HOURS), AND A MAXIMUM OF 277 WORKING DAYS A YEAR FOR LONGSHOREMEN AT THE PRESCRIBED RATE OF 85 CENTS PER HOUR.

3. DOES THIS CLASS OF EMPLOYEE COME UNDER THE EXCEPTION SPECIFIED IN SECTION 104, ACT OF JUNE 30, 1932, PUBLIC NO. 212, SUBDIVISION (A) (11); I.E.: * * *

"ANY PERSON IN RESPECT OF ANY OFFICE, POSITION, OR EMPLOYMENT THE COMPENSATION OF WHICH IS PAID UNDER THE TERMS OF ANY CONTRACT IN EFFECT ON THE DATE OF ENACTMENT OF THIS ACT, IF SUCH COMPENSATION MAY NOT LAWFULLY BE REDUCED," OR DOES THIS CLASS OF EMPLOYEE COME UNDER THE PROVISIONS OF SECTION 101 (B) PROVIDING FOR A DEDUCTION OF 8 1/3 PERCENT FOR SHORT-TIME TEMPORARY EMPLOYEES.

1. THE INCLOSED PAY ROLL OF THE WAR DEPARTMENT, QUARTERMASTER CORPS, OFFICE OF THE SUPERINTENDENT, ARMY TRANSPORT SERVICE, BROOKLYN, N.Y., FOR JULY 16, 1932, IN THE SUM OF $5.30 COVERING SERVICES OF LONGSHOREMEN FOR OVERTIME, HAVING BEEN PRESENTED TO ME, A DISBURSING OFFICER, FOR PAYMENT, IS FORWARDED REQUESTING ADVANCE DECISION AS TO THE CORRECT AMOUNT PAYABLE.

2. THESE EMPLOYEES WERE HIRED FOR OVERTIME WORK 7 A.M. TO 8 A.M. UNDER THE LONGSHOREMEN'S AGREEMENT DATED OCT. 1, 1931, ENTERED INTO BY U.S. SHIPPING BOARD, AS REPRESENTING THE UNITED STATES, DEEPWATER STEAMSHIP LINES, AND CONTRACTING STEVEDORS OF THE PORT OF GREATER NEW YORK AND VICINITY, ALL PARTY OF THE FIRST PART, AND THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION AND ITS AFFILIATED LOCALS, PARTY OF THE SECOND PART. THIS OVERTIME SERVICE WAS REQUIRED IN CONNECTION WITH NECESSARY STEVEDORING INCIDENT TO DOCKING AN ARMY TRANSPORT. THEIR EMPLOYMENT FOR THIS SERVICE IS OF SHORT DURATION AND LIMITED TO COMPLETION OF A PARTICULAR JOB.

3. SHALL THIS PAY ROLL BE PAID UNDER THE PROVISIONS OF SECTION 101 (B), ACT OF JUNE 30, 1932, PUBLIC NO. 212, PROVIDING FOR A DEDUCTION OF 8 1/3 PERCENT FOR SHORT-TIME TEMPORARY EMPLOYEES, OR

DOES THIS CLASS OF SHORT-TIME TEMPORARY EMPLOYEES COME UNDER THE EXCEPTION SPECIFIED IN SECTION 104 (A) (11); I.E., "ANY PERSON IN RESPECT OF ANY OFFICE, POSITION, OR EMPLOYMENT THE COMPENSATION OF WHICH IS PAID UNDER THE TERMS OF ANY CONTRACT IN EFFECT ON THE DATE OF THE ENACTMENT OF THIS ACT, IF SUCH COMPENSATION MAY NOT LAWFULLY BE REDUCED.'

IS THIS CLASS OF EMPLOYEES AFFECTED BY THE PROVISIONS OF SECTION 211?

THE INDIVIDUAL LONGSHOREMAN OR STEVEDORE, WHILE TEMPORARILY ENGAGED IN LOADING OR UNLOADING FEDERAL GOODS, IS NOT WORKING UNDER A PERSONAL SERVICE CONTRACT WITH THE UNITED STATES GOVERNMENT, AND HE WOULD NOT, ORDINARILY, BE CLASSED AS AN "OFFICER" OR "EMPLOYEE" OF THE UNITED STATES WITHIN THE MEANING OF THE ECONOMY ACT.

IT IS BELIEVED, THEREFORE, THAT THE SITUATION HERE PRESENTED COMES WITHIN THE TERMS OF EXCEPTION (11) TO THE DEFINITION OF "OFFICER" AND "EMPLOYEE" IN SECTION 104 OF THE ECONOMY ACT. ACCORDINGLY, YOU ARE ADVISED THAT THE WAGE RATES OF THE INDIVIDUALS APPEARING ON THE PAY ROLL VOUCHERS FORWARDED WITH YOUR LETTERS NEED NOT BE REDUCED BY REASON OF ANY PROVISION IN THE ECONOMY ACT.

THE PAY-ROLL VOUCHERS ARE RETURNED AND PAYMENT THEREON IS AUTHORIZED IN THE ABSENCE OF ANY OTHER OBJECTION.