A-43643, AUGUST 25, 1932, 12 COMP. GEN. 283

A-43643, AUGUST 25, 1932, 12 COMP. GEN. 283

ECONOMY ACT - LONGSHOREMEN LONGSHOREMEN OR STEVEDORES 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 THE SECRETARY OF WAR, AUGUST 25, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 22, 1932, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION, A-43643, DATED AUGUST 10, 1932, ADDRESSED TO MAJOR W. D. DABNEY, F.D., IN WHICH IT WAS HELD THAT STEVEDORES TEMPORARILY EMPLOYED BY THE QUARTERMASTER CORPS UNDER A LONGSHOREMEN'S AGREEMENT ENTERED INTO BY THE UNITED STATES SHIPPING BOARD IN BEHALF OF THE UNITED STATES, DEEP WATER STEAMSHIP LINES AND CONTRACTING STEVEDORES OF THE PORT OF GREATER NEW YORK AND VICINITY, PARTIES OF THE FIRST PART, AND THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION AND ITS AFFILIATED LOCALS, PARTIES OF THE SECOND PART, ARE NOT CONSIDERED "OFFICERS" OR "EMPLOYEES" OF THE UNITED STATES WITHIN THE MEANING OF THE ECONOMY ACT OF JUNE 30, 1932, BUT COME WITHIN EXCEPTION 11 OF SECTION 104 OF THE ACT, AND THAT THE WAGE RATES, INCLUDING OVERTIME RATES, STIPULATED IN SAID AGREEMENT, MAY BE PAID TO SUCH STEVEDORES WITHOUT DEDUCTION BY REASON OF ANY PROVISION IN THE ACT.

A QUESTION HAS ARISEN AS TO WHETHER THE PRINCIPLES OF THE ABOVE CITED DECISION ARE APPLICABLE TO STEVEDORES EMPLOYED BY THE ARMY TRANSPORT SERVICE AT THE PORT OF SAN FRANCISCO, WHO, IT IS UNDERSTOOD, ARE EMPLOYED UNDER A WAGE AGREEMENT OF THE LONGSHOREMEN'S ASSOCIATION OF SAN FRANCISCO WITH THE WATERFRONT EMPLOYERS' UNION REPRESENTING THE VARIOUS STEAMSHIP COMPANIES AT THE PORT OF SAN FRANCISCO, INCLUDING SHIPPING BOARD LINES, WHICH AGREEMENT FIXES WAGE SCALES AND WORKING RULES TO GOVERN EMPLOYMENT OF STEVEDORES. IN THIS CONNECTION THERE IS INCLOSED COPY OF A RADIOGRAM DATED AUGUST 15, 1932, FROM THE SUPERINTENDENT, ARMY TRANSPORT SERVICE, SAN FRANCISCO PORT OF EMBARKATION, SAN FRANCISCO, CALIFORNIA, IN WHICH IT IS STATED THAT THE AGREEMENT IN QUESTION IS BINDING ON ALL COMPANIES EMPLOYING STEVEDORES AND HAS BEEN SO CONSIDERED FOR THE ARMY TRANSPORT SERVICE, PAYMENTS AT THE PORT OF SAN FRANCISCO BEING MADE IN ACCORDANCE THEREWITH. THERE IS ALSO INCLOSED COPY OF A TELEGRAM DATED AUGUST 15, 1932, FROM THE LONGSHOREMEN'S ASSOCIATION OF SAN FRANCISCO, IN WHICH STATEMENTS ARE MADE TO THE SAME EFFECT AS THOSE CONTAINED IN THE RADIOGRAM FROM THE SUPERINTENDENT OF THE ARMY TRANSPORT SERVICE.

IT IS UNDERSTOOD THAT THE AGREEMENT UNDER WHICH STEVEDORES ARE EMPLOYED AT THE PORT OF SAN FRANCISCO IS SIMILAR IN PRINCIPLE TO THE AGREEMENT CONSIDERED IN YOUR DECISION OF AUGUST 10, 1932, REFERRED TO ABOVE, AND YOUR DECISION IS ACCORDINGLY REQUESTED AS TO WHETHER THE PRINCIPLES OF THE PREVIOUS DECISION HAVE APPLICATION IN THE CASE OF THE STEVEDORES CONSIDERED HEREIN.

IN ORDER TO AVOID THE POSSIBILITY OF STRIKES AND CONSEQUENT INTERFERENCE WITH THE OPERATION OF THE ARMY TRANSPORT SERVICE, IT IS REQUESTED THAT DECISION IN THIS CASE BE RENDERED AT THE EARLIEST PRACTICABLE DATE.

IN DECISION OF AUGUST 10, 1932, A-43643, 12 COMP. GEN. 224, TO WHICH YOU REFER, IT WAS HELD, WITH RESPECT TO THE LONGSHOREMEN AND STEVEDORES AT NEW YORK, AS FOLLOWS:

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 A "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 EXCEPTIONS (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 FACTS PRESENTED IN THE INSTANT MATTER APPEAR TO BE NOT ESSENTIALLY DIFFERENT FROM THOSE INVOLVED IN THE CASE WHICH WAS THE SUBJECT OF THAT DECISION. HENCE, SAID DECISION WOULD APPEAR TO BE APPLICABLE HERE.

YOU ARE ADVISED, THEREFORE, THAT THE PROVISIONS OF THE ECONOMY ACT DO NOT REQUIRE A REDUCTION IN THE COMPENSATION RATES IN EXISTENCE ON JULY 1, 1932, FOR THE STEVEDORES AND LONGSHOREMEN AT SAN FRANCISCO, REFERRED TO IN YOUR LETTER.