B-105112, JANUARY 2, 1953, 32 COMP. GEN. 307

B-105112, JANUARY 2, 1953, 32 COMP. GEN. 307

COMPENSATION - PANAMA CANAL PILOTS - CLASSIFICATION ACT OF 1949 IN VIEW OF THE CIVIL SERVICE COMMISSION HOLDING THAT PANAMA CANAL PILOTS ARE OFFICERS OR MEMBERS OF CREWS OF VESSELS WITHIN THE MEANING OF SECTION 202 (8) OF THE CLASSIFICATION ACT OF 1949, THE COMPENSATION OF THE PILOTS IS TO BE FIXED AND ADJUSTED IN ACCORDANCE WITH THE PREVAILING RATES IN THE MARITIME INDUSTRY AND SAID PILOTS ARE NOT SUBJECT TO THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, EVEN THOUGH THE PILOTS HAVE ALSO BEEN HELD TO BE WITHIN THE EXEMPTION OF SECTION 202 (20) OF THE CLASSIFICATION ACT OF 1949 WITH RESPECT TO THE PANAMA CANAL COMPANY. 31 COMP. GEN. 87, OVERRULED.

ACTING COMPTROLLER GENERAL YATES TO THE PRESIDENT, PANAMA CANAL COMPANY, JANUARY 2, 1953:

AS REQUESTED IN LETTER OF OCTOBER 10, 1952, FROM THE VICE PRESIDENT, PANAMA CANAL COMPANY, THERE HAS BEEN CONSIDERED THE MATTER OF WHETHER A LETTER DATED SEPTEMBER 22, 1952, FROM THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION TO FRANCIS P. NOONAN, ESQUIRE--- THE REPRESENTATIVE OF CERTAIN PANAMA CANAL PILOTS--- AFFECTS THE DECISION OF THIS OFFICE DATED SEPTEMBER 12, 1951, 31 COMP. GEN. 87, IN WHICH IT WAS HELD, AS FOLLOWS (QUOTING THE SYLLABUS):

IN VIEW OF THE ORGANIZATIONAL CHANGES TRANSFERRING CERTAIN FORMER PERSONNEL OF THE PANAMA CANAL INCLUDING PANAMA CANAL PILOTS, TO THE PANAMA CANAL COMPANY AND THE HOLDING OF THE CIVIL SERVICE COMMISSION THAT SUCH PILOTS ARE NOW EXCLUDED FROM THE PROVISIONS OF THE CLASSIFICATION ACT OF 1949 BY SECTION 202 (20), PANAMA CANAL PILOTS ARE NOT TO BE CONSIDERED VESSEL EMPLOYEES WITHIN THE MEANING OF SECTION 102 (D) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND THEREFORE ARE SUBJECT TO THE OVERTIME COMPENSATION, NIGHT DIFFERENTIAL AND HOLIDAY EXTRA COMPENSATION PROVISIONS OF THE 1945 ACT.

THE HOLDING OF THE CIVIL SERVICE COMMISSION REFERRED TO IN THE QUOTED SYLLABUS WAS CONTAINED IN LETTER DATED AUGUST 6, 1951, FROM THE CHAIRMAN OF THE COMMISSION TO THE CHIEF OF OFFICE, PANAMA CANAL COMPANY, WASHINGTON, D.C., IN WHICH IT WAS STATED---

* * * ALL EMPLOYEES OF THE PANAMA CANAL COMPANY ARE EXCLUDED FROM THE CLASSIFICATION ACT (OF 1949) BY SECTION 202 (20). NO OTHER EXCLUDING PARAGRAPH OF SECTION 202 HAS ANY APPLICATION TO SUCH EMPLOYEES. PILOTS WHO, WHEN EMPLOYED BY THE PANAMA CANAL PRIOR TO THEIR TRANSFER TO THE CORPORATION, WERE EXCLUDED FROM THE ACT UNDER SECTION 202 (8) ARE NOW EXCLUDED UNDER THE BROAD PROVISION OF SECTION 202 (20).

PREVIOUSLY, UNDER DATE OF AUGUST 11, 1950, THE COMMISSION HAD HELD THAT PANAMA CANAL PILOTS WERE EXCEPTED FROM THE CLASSIFICATION ACT OF 1949 UNDER THE PROVISIONS OF SECTION 202 (8), 63 STAT. 955, THEREOF RELATIVE TO "OFFICERS AND MEMBERS OF CREWS OF VESSELS.' AS A RESULT OF THAT HOLDING, THIS OFFICE HAD HELD IN DECISION OF OCTOBER 16, 1950, 31 COMP. GEN. 158, THAT IT WAS MANDATORY UNDER THE SECOND CLAUSE OF SECTION 202 (8) THAT THEIR COMPENSATION BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY, AND THAT THE EFFECT OF SUCH SECOND CLAUSE WAS TO RENDER INAPPLICABLE TO THE PILOTS THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, AS AMENDED, THERE BEING FOR APPLICATION INSTEAD THE PRACTICES OF THE MARITIME INDUSTRY IN THAT REGARD.

THE COMMISSION'S LETTER OF SEPTEMBER 22, 1952, INDICATES AN ADHERENCE TO ITS PRIOR HOLDING THAT PANAMA CANAL PILOTS ARE EXCLUDED FROM THE CLASSIFICATION ACT BY SECTION 202 (20), 63 STAT. 956, BUT EXPRESSES THE OPINION THAT THE AFFIRMATIVE PROVISIONS CONTAINED IN THE SECOND CLAUSE OF SECTION 202 (8), MENTIONED ABOVE, MAY NEVERTHELESS BE APPLIED TO THE PILOTS.

FURTHER EXAMINATION INTO THE MATTER IN CONNECTION WITH PRESENT SUBMISSION LEADS ME NOW TO CONCLUDE THAT THE OFFICE DECISION OF SEPTEMBER 12, 1951, ACCORDED TO THE CIVIL SERVICE COMMISSION'S LETTER OF AUGUST 6, 1951, QUOTED IN PERTINENT PART ABOVE, UNDUE--- AND APPARENTLY, FROM THE TENOR OF THE COMMISSION'S LETTER OF SEPTEMBER 22, 1952, UNINTENDED--- FINALITY UNDER SECTION 203 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 953, IN THAT THE COMMISSION'S DETERMINATION THAT "NO OTHER EXCLUDING PARAGRAPH OF SECTION 202 HAS ANY APPLICATION * * *" WAS REGARDED AS PRECLUDING APPLICATION OF THE COMPENSATION-FIXING AUTHORITY PROVIDED BY THE SECOND CLAUSE OF SUBSECTION (8).

A READING OF THE COMMITTEE REPORTS IN CONNECTION WITH PROPOSED LEGISLATION EVENTUALLY ENACTED AS THE CLASSIFICATION ACT OF 1949 (PAGE 8, HOUSE REPORT NO. 1264, AND PAGE 33, SENATE REPORT NO. 847, 81ST CONGRESS) SHOWS THAT THE PURPOSE OF SECTION 203 WAS TO MAKE UNIFORM AS TO BOTH THE FIELD SERVICE AND THE DEPARTMENTAL SERVICE THE AUTHORITY OF THE CIVIL SERVICE COMMISSION (THEN APPLICABLE ONLY TO THE DEPARTMENTAL SERVICE, WITH ONE EXCEPTION) TO DETERMINE WHETHER PARTICULAR POSITIONS, OFFICERS AND EMPLOYEES ARE COVERED BY OR EXEMPT FROM THE CLASSIFICATION ACT. THE SECOND CLAUSE OF SECTION 202 (8) GOES BEYOND A MERE EXEMPTION PROVISION--- IT BEING, IN EFFECT, LEGISLATION RELATIVE TO THE COMPENSATION OF OFFICERS AND MEMBERS OF CREWS OF VESSELS SEPARATE AND DISTINCT FROM THE GENERAL PURPOSE OF SECTION 202 TO SET FORTH EXEMPTIONS FROM THE ACT. 30 COMP. GEN. 158, 161. I AM OF THE OPINION, THEREFORE, THAT QUESTIONS REGARDING THE OPERATION OF SAID SECOND CLAUSE WITH RESPECT TO PERSONNEL HELD BY THE COMMISSION TO BE OFFICERS OR MEMBERS OF CREWS OF VESSELS, PARTICULARLY THOSE QUESTIONS RELATING TO THE APPLICABILITY OR NONAPPLICABILITY OF OTHER COMPENSATION LAWS, ARE WITHIN THE DECISION JURISDICTION OF THIS OFFICE AS CONTEMPLATED BY SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 207, AS AMENDED BY TITLE III OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 23.

CONSIDERING THE MERITS OF THE CASE, IT IS MY VIEW THAT THE SECOND CLAUSE OF SECTION 202 (8) OF THE 1949 ACT IS APPLICABLE TO PANAMA CANAL PILOTS, WHO HAVE BEEN HELD BY THE COMMISSION TO BE WITHIN THE TERM "OFFICERS AND MEMBERS OF CREWS OF VESSELS" AS USED THEREIN, NOTWITHSTANDING THE FACT THAT THE PILOTS HAVE ALSO BEEN HELD TO BE WITHIN THE EXEMPTION OF SECTION 202 (20) APPLICABLE TO THE PANAMA CANAL COMPANY. ACCORDINGLY, THE PRINCIPLES ENUNCIATED IN 30 COMP. GEN. 158 AGAIN MAY BE APPLIED TO THE PILOTS; HENCE, TO THE EXTENT THAT THE DECISION IN 31 COMP. GEN. 87, SUPRA, IS INCONSISTENT HEREWITH, IT NO LONGER NEED BE FOLLOWED.