B-158795, APR. 27, 1966

B-158795: Apr 27, 1966

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VIEIRA IS ONE OF 33 CLAIMANTS SEEKING OVERTIME COMPENSATION FOR WORK ALLEGEDLY PERFORMED IN EXCESS OF 8 HOURS PER DAY AND 40 HOURS PER WEEK. VIEIRA SEEKS ADDITIONAL PAY AT THE RATE OF TIME AND ONE- HALF OF HIS BASIC RATE OF COMPENSATION UNDER 5 U.S.C. 673C FOR ALL HOURS OF APPROVED OVERTIME WORK FOR WHICH HE PREVIOUSLY WAS PAID OVERTIME COMPENSATION AT RATES PREVAILING IN THE MARITIME INDUSTRY. YOUR REQUEST FOR A DECISION IN THIS MATTER WAS TRANSMITTED TO OUR OFFICE THROUGH THE DEPARTMENT OF JUSTICE. THE PROCEEDINGS IN THE ALESIANI CASE WERE STAYED BY THE COURT PENDING THE LIBELANTS' EXHAUSTION OF THEIR ADMINISTRATIVE REMEDIES. YOU HAVE LIMITED YOUR REVIEW OF ALL CLAIMS TO HOURS OF OVERTIME WORK PERFORMED BY THE CLAIMANTS SUBSEQUENT TO SEPTEMBER 1.

B-158795, APR. 27, 1966

TO DISBURSING OFFICER, MILITARY SEA TRANSPORTATION SERVICE, DEPARTMENT OF THE NAVY:

THIS REFERS TO YOUR LETTER OF MARCH 18, 1966, AND ENCLOSURES, YOUR REFERENCE SER 207L54, REQUESTING OUR DECISION WHETHER, UNDER THE FACTS RELATED BELOW, YOU MAY PAY OVERTIME COMPENSATION TO MR. MANUEL G. VIEIRA, A LICENSED DESK OFFICER EMPLOYED BY THE MILITARY SEA TRANSPORTATION SERVICE, ATLANTIC AREA, DEPARTMENT OF THE NAVY.

MR. VIEIRA IS ONE OF 33 CLAIMANTS SEEKING OVERTIME COMPENSATION FOR WORK ALLEGEDLY PERFORMED IN EXCESS OF 8 HOURS PER DAY AND 40 HOURS PER WEEK. IN ADDITION, MR. VIEIRA SEEKS ADDITIONAL PAY AT THE RATE OF TIME AND ONE- HALF OF HIS BASIC RATE OF COMPENSATION UNDER 5 U.S.C. 673C FOR ALL HOURS OF APPROVED OVERTIME WORK FOR WHICH HE PREVIOUSLY WAS PAID OVERTIME COMPENSATION AT RATES PREVAILING IN THE MARITIME INDUSTRY.

YOUR REQUEST FOR A DECISION IN THIS MATTER WAS TRANSMITTED TO OUR OFFICE THROUGH THE DEPARTMENT OF JUSTICE, ADMIRALTY AND SHIPPING SECTION, IN VIEW OF THE PENDING CASE OF ALESIANI ET AL. V. UNITED STATES, SOUTHERN NEW YORK, ADMIRALTY NO. 63 AD. 1103, INVOLVING OVERTIME CLAIMS SIMILAR TO THAT OF MR. VIEIRA. THE PROCEEDINGS IN THE ALESIANI CASE WERE STAYED BY THE COURT PENDING THE LIBELANTS' EXHAUSTION OF THEIR ADMINISTRATIVE REMEDIES. IN VIEW OF THE TWO-YEAR LIMITATION ADMIRALTY ACTIONS AGAINST THE UNITED STATES WHICH WOULD APPLY IN THE COURT ACTION, YOU HAVE LIMITED YOUR REVIEW OF ALL CLAIMS TO HOURS OF OVERTIME WORK PERFORMED BY THE CLAIMANTS SUBSEQUENT TO SEPTEMBER 1, 1961.

MR. VIEIRA SUBMITTED HIS CLAIM FOR OVERTIME COMPENSATION TO YOU IN VERY GENERAL TERMS AND WITHOUT ANY OFFICIAL DOCUMENTATION OF THE HOURS ALLEGEDLY PERFORMED AS OVERTIME WORK. HOWEVER, IN YOUR REVIEW OF THE 33 CLAIMS INVOLVED YOU HAVE OBTAINED STATEMENTS FROM THE MASTERS OF THE VARIOUS SHIPS UPON WHICH CLAIMANTS ALLEGEDLY PERFORMED THEIR OVERTIME DUTIES, WHICH STATEMENTS REPRESENT EACH MASTER'S EVALUATIONS AS TO THE VALIDITY OF THE PARTICULAR CLAIMS PRESENTED FOR HIS ANALYSIS.

WITH RESPECT TO MR. VIEIRA'S CLAIM YOU REPORT AS FOLLOWS:

"15. THE CLAIMANT LISTS 25 HOURS UNCOMPENSATED OVERTIME FOR CHART WORK DURING THE MONTHS OF NOVEMBER AND DECEMBER 1961 WHILE SERVING AS 2ND OFFICER IN THE USNS REDBUD. THE MASTER ASSERTS THAT THE USNS REDBUD WAS A 3-MATE SHIP AND REQUIRED THAT THE CHART CORRECTIONS BE MAINTAINED ON OFF- DUTY TIME AND THAT THE AMOUNT OF TIME INVOLVED WAS NOT CONSIDERED EXCESSIVE.

"16. THE CLAIMANT LISTS 82 HOURS OF UNCOMPENSATED OVERTIME FOR CHECKING LIFEBOATS, FIREFIGHTING AND DAMAGE CONTROL EQUIPMENT, AND TRAINING LOG WHILE SERVING IN 4TH OR 3RD OFFICER POSITIONS IN THE USNS MARINE FIDDLER, DURING THE MONTHS OF MARCH, APRIL, MAY, JUNE, JULY, OCTOBER, NOVEMBER, DECEMBER 1961 (1962) AND JANUARY 1963. THE MASTER OF THE SHIP STATES THAT THE CLAIMANT WAS ORDERED TO PERFORM THIS WORK, THAT HE DID AN EXCELLENT JOB, THAT THE "80 HOURS" CLAIMED WAS CONSERVATIVE AND THAT DUE TO THE HEAVY CARGO WORK IN THE SHIP, COLLATERAL DUTIES HAD TO BE PERFORMED OUTSIDE OF NORMAL WORKING HOURS.

"17. THE CLAIMANT LISTS 240 HOURS (60 HOURS A MONTH) UNCOMPENSATED OVERTIME FOR PUBLICATIONS AND CHART CORRECTIONS, AND NOON SIGHTS DURING THE MONTHS OF AUGUST AND SEPTEMBER 1962 AND FEBRUARY AND MARCH 1963 WHILE SERVING AS 2ND OFFICER IN THE USNS MARINE FIDDLER. A REVIEW OF THE SHIP'S LOG BOOKS REVEALED THAT THE CLAIMANT SERVED AS 2ND OFFICER FROM 11 JULY TO 15 AUGUST 1962 RATHER THAN DURING AUGUST AND SEPTEMBER 1962 AS CLAIMED. PROPORTIONATELY, THIS SHOULD VOID 52 OF THE OVERTIME HOURS LISTED.

"18. THE CLAIMANT LISTS 252 HOURS OF UNCOMPENSATED OVERTIME FOR PUBLICATIONS AND CHART CORRECTIONS, AND NOON AND OTHER SIGHTS WHILE SERVING AS 2ND OFFICER IN THE USNS MARINE FIDDLER DURING THE MONTHS OF AUGUST THROUGH DECEMBER 1963. IN REGARD TO THE CLAIMANT'S 2ND OFFICER ASSIGNMENTS IN THE USNS MARINE FIDDLER, THE MASTER STATES THAT IT WAS NOT NECESSARY TO ORDER THE WORK DONE AS IT WAS A COLLATERAL DUTY ASSIGNED THE OFFICER, THE WORK WAS EXPECTED TO BE ACCOMPLISHED, WAS ACCOMPLISHED AND THE AMOUNT OF TIME LISTED WAS A FAIR ESTIMATE.

"19. THE CLAIMANT LISTS 25 HOURS OF UNCOMPENSATED OVERTIME FOR SIGHTS AND CHART WORK WHILE SERVING AS 2ND OFFICER IN THE USNS MISSION CAPISTRANO DURING JUNE AND JULY 1963. THE MASTER STATES THAT HE DID NOT ORDER THE CLAIMANT TO TAKE SIGHTS OR TO WORK ON CHARTS DURING OFF DUTY HOURS, THAT IT WAS A COMMON PRACTICE ABOARD THE SHIP AND THE 25 HOURS OVERTIME LISTED WAS CONSIDERED A FAIR ESTIMATE.'

THE CLAIMANT CONTENDS THAT THE COLLATERAL DUTIES DESCRIBED IN THE PRECEDING PARAGRAPHS WERE PERFORMED BY HIM DURING OVERTIME HOURS WITHOUT COMPENSATION THEREFOR, AND SUCH WAS NOT CONSISTENT WITH THE PRACTICES PREVAILING IN THE MARITIME INDUSTRY.

SECTION 202/8) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082/8) EXCEPTS OFFICERS AND MEMBERS OF CREWS AND VESSELS FROM THE PROVISIONS OF THAT ACT AND SPECIFICALLY PROVIDES THAT THE COMPENSATION OF SUCH EMPLOYEES "SHALL 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.'

DURING THE PERIOD COVERED BY MR. VIEIRA'S CLAIM (SEPTEMBER 1, 1961, TO DECEMBER 31, 1963), PARAGRAPH 1-16 OF CIVILIAN MARINE PERSONNEL INSTRUCTION 610, HOURS OF WORK AND PREMIUM PAY, PRESCRIBED A LIST OF DUTIES WHICH WERE EXEMPTED FROM PREMIUM PAY. PARAGRAPH 1-16 PROVIDED THAT THE DUTIES LISTED THEREIN WERE EXPECTED TO BE PERFORMED DURING STRAIGHT TIME HOURS IN ACCORDANCE WITH THE PRACTICES PREVAILING IN THE MARITIME INDUSTRY. SINCE THE DUTIES WHICH CLAIMANT ALLEGES HE PERFORMED DURING OVERTIME HOURS FELL WITHIN THOSE EXEMPTED FROM PREMIUM PAY IT APPEARS THAT IF SUCH INSTRUCTION BE APPLIED LITERALLY HE WOULD NOT BE ENTITLED TO ANY ADDITIONAL COMPENSATION FOR THE SERVICES IN QUESTION.

THE PROVISIONS OF PARAGRAPH 1-16 WERE SLIGHTLY AMENDED BY COVER SHEET NO. 51, DATED APRIL 29, 1963, AND ENTIRELY DELETED (WITH THE EXCEPTION OF ONE PARAGRAPH PERTAINING TO THE OPERATION OF MOVIE PROJECTORS) BY COVER SHEET NO. 59, DATED MARCH 13, 1964. YOUR REPORT THAT "THIS LAST MEASURE WAS TAKEN AFTER A CONCLUSION THAT THE DUTIES WERE NOT BEING PERFORMED IN THE MARITIME INDUSTRY DURING OVERTIME HOURS; OR IF SO, OVERTIME COMPENSATION WAS PAYABLE.'

AS EVIDENCE OF THE PRACTICES PREVAILING IN THE MARITIME INDUSTRY DURING THE PERIOD HERE INVOLVED, YOU HAVE FURNISHED AN EXCERPT FROM THE COLLECTIVE BARGAINING AGREEMENT NEGOTIATED BETWEEN THE PRIVATE OPERATORS OF UNITED STATES FLAG PASSENGER AND DRY CARGO SHIPS OPERATING FROM THE ATLANTIC AND GULF COAST PORTS AND THE INTERNATIONAL ORGANIZATION OF MASTERS, MATES, AND PILOTS. THE PERTINENT PARAGRAPH OF THAT EXCERPT, AS QUOTED IN YOUR LETTER, READS AS FOLLOWS:

"IT IS RECOMMENDED THAT WHERE A COMPANY, AS A MATTER OF POLICY, DOES NOT WISH TO PAY OVERTIME FOR THE PERFORMANCE OF NAVIGATIONAL DUTIES, ETC., THAT THE SHIP'S OFFICERS SHOULD BE SO NOTIFIED. AT THE SAME TIME IT IS EMPHASIZED THAT THE SECOND PARAGRAPH OF SUBSECTION (C) OF THIS SECTION PROVIDES THAT "IT IS UNDERSTOOD THAT FOR THE PURPOSE OF THIS PARAGRAPH ALL WORK IN EXCESS OF EIGHT (8) HOURS PER DAY AND ALL WORK PERFORMED IN EXCESS OF THE REGULAR WATCHES ON SATURDAYS, SUNDAYS AND HOLIDAYS SHALL BE PAID FOR AT THE OVERTIME RATE.'"

IN VIEW OF THE REQUIREMENT IMPOSED BY SECTION 202 (8) OF THE CLASSIFICATION ACT OF 1949, ABOVE, THE EVIDENCE AS TO THE ACTUAL PRACTICES PREVAILING IN THE MARITIME INDUSTRY WITH RESPECT TO OVERTIME WORK AND PREMIUM PAY, AND THE STATEMENTS OF THE SHIPS' MASTERS AS TO THE VALIDITY OF MR. VIEIRA'S CLAIM, YOU PROPOSE TO SETTLE THE CLAIM FOR ALL HOURS OF OVERTIME WORK LISTED BY THE CLAIMANT (PARAGRAPHS 15 THROUGH 19 OF YOUR LETTER, QUOTED ABOVE) WITH THE EXCEPTION OF 52 HOURS REFLECTING MR. VIEIRA'S ERRONEOUS STATEMENT OF SERVICE DURING SEPTEMBER 1962 (PARAGRAPH 17 OF YOUR LETTER, QUOTED ABOVE). PAYMENT TO MR. VIEIRA FOR SUCH OVERTIME WORK IS PROPOSED AT THE OVERTIME RATES PRESCRIBED IN THE APPROPRIATE MSTS SCHEDULE OF WAGES FOR MARINE PERSONNEL, WHICH IS BASED ON THE PREMIUM PAY RATES PREVAILING IN THE MARITIME INDUSTRY, RATHER THAN AT THE RATE OF TIME AND ONE-HALF HIS BASIC RATE OF COMPENSATION UNDER 5 U.S.C. 673C.

AS WAS MENTIONED ABOVE, THE RECORD HERE IS LACKING IN OFFICIAL DOCUMENTATION OF THE HOURS OF OVERTIME WORK PERFORMED BY MR. VIEIRA. HOWEVER, THE STATEMENTS OF THE VARIOUS MASTERS ARE TO THE EFFECT THAT MR. VIEIRA WAS EITHER DIRECTLY ORDERED OR WAS EXPECTED TO PERFORM THE OVERTIME DUTIES IN QUESTION; THE DUTIES WERE ACTUALLY PERFORMED BY HIM; AND THE HOURS CLAIMED BY MR. VIEIRA AS OVERTIME WORK REPRESENT A REASONABLE AND FAIR ESTIMATE OF THE TIME REQUIRED TO PERFORM SUCH WORK. WE WILL ACCEPT SUCH STATEMENTS AS CONSTITUTING SUFFICIENT EVIDENCE OF THE FACT THAT THE CLAIMANT DID PERFORM THE OVERTIME WORK CLAIMED BY HIM WITH THE EXCEPTION OF THE 52 HOURS NOTED IN PARAGRAPH 17 YOUR LETTER, QUOTED ABOVE.

IN VIEW OF THE MANDATORY LANGUAGE OF SECTION 202/8) OF THE CLASSIFICATION ACT OF 1949, ABOVE, AND AS APPARENTLY THE AGENCY INTENDED TO FOLLOW THE PRACTICE IN THE MARITIME INDUSTRY, THE INSTRUCTION TO THE CONTRARY HAVING RESULTED FROM A MISUNDERSTANDING, WE CONCUR IN YOUR PROPOSAL TO PAY THE CLAIMANT FOR ALL HOURS OF OVERTIME WORK PERFORMED BY HIM (LESS 52 HOURS) ASSUMING, OF COURSE, THAT THE DEPARTMENT OF THE NAVY HAS NOT DETERMINED THAT PAYMENT OF PREMIUM COMPENSATION FOR SUCH WORK WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST.

CONCERNING THE RATE OF PAY APPLICABLE TO THE OVERTIME WORK PERFORMED BY THE CLAIMANT, WE HAVE HELD THAT THE LANGUAGE OF SECTION 202/8) OF THE CLASSIFICATION ACT OF 1949, ABOVE, REQUIRES THE FIXING OF ALL ELEMENTS OF COMPENSATION, INCLUDING OVERTIME COMPENSATION, IN ACCORDANCE WITH THE RATES AND PRACTICES IN THE MARITIME INDUSTRY, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST AND, THEREFORE,THE OVERTIME COMPENSATION PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND SECTION 23 OF THE ACT OF MARCH 28, 1934, AS AMENDED, ARE INAPPLICABLE TO VESSEL EMPLOYEES. SEE 30 COMP. GEN. 158; B-157784, OCTOBER 27, 1965 (COPY ENCLOSED); AND PANAMA CANAL V. ANDERSON ET AL., 312 F.2D 98. THEREFORE, PAYMENT SHOULD BE MADE TO THE CLAIMANT AT THE OVERTIME RATES PRESCRIBED IN THE APPROPRIATE MSTS SCHEDULE OF WAGES FOR MARINE PERSONNEL.

THE OTHER 32 CLAIMS WHICH ARE SIMILAR TO THE PRESENT CLAIM MAY BE SETTLED BY YOUR OFFICE UPON THE SAME BASIS.