B-177645, MAR 12, 1973

B-177645, MAR 12, 1973

CIVILIAN EMPLOYEE - DETERMINATION OF WAGE RATES - ENTITLEMENT TO BONUS DECISION DISALLOWING THE ENTITLEMENT OF THE OFFICERS AND CREW OF THE DREDGE "DAVISON" TO PAYMENT OF A 100 PERCENT BONUS AS AUTHORIZED FOR OFFICERS AND CREWS OF VESSELS WHOSE PAY IS FIXED BY THE MARITIME INDUSTRY DURING THE DREDGE'S SERVICE IN VIETNAM. BECAUSE OF 5 U.S.C. 5348(C) WHICH PROVIDES THAT VESSEL EMPLOYEES OF THE CORPS OF ENGINEERS WILL BE PAID AS WAGE BOARD EMPLOYEES AND 5 U.S.C. 946 WHICH AUTHORIZES EMPLOYEES SERVING ON VESSELS OF SEVERAL AGENCIES, WITH THE EXCEPTION OF THE CORPS OF ENGINEERS, TO BE PAID IN ACCORDANCE WITH THE WAGE RATES OF THE MARITIME INDUSTRY, PAYMENT OF THE BONUS WOULD BE PRECLUDED SINCE THE CREW AND OFFICERS OF THE DREDGE ARE WAGE BOARD EMPLOYEES RATHER THAN EMPLOYEES PAID IN ACCORDANCE WITH PREVAILING MARITIME INDUSTRY RATES.

TO MR. SECRETARY:

WE REFER TO THE LETTER OF MR. E. D. MEIGS, CHIEF, REGULATIONS & ANALYSIS BRANCH, CIVILIAN PERSONNEL DIVISION, OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, REFERENCE DAEN-EPC-R, DATED NOVEMBER 29, 1972, CONCERNING THE RIGHT OF THE OFFICERS AND CREW OF THE DREDGE "DAVISON" TO BE PAID A 100 PERCENT BONUS AS AUTHORIZED FOR OFFICERS AND CREWS OF VESSELS WHOSE PAY IS FIXED IN ACCORDANCE WITH THE PREVAILING RATES AND PRACTICES OF THE MARITIME INDUSTRY DURING THE PERIOD THE DREDGE WAS IN SERVICE IN VIETNAM FROM MARCH 1966 TO FEBRUARY 1972.

A LABOR ORGANIZATION WHICH REPRESENTS SOME OF THE EMPLOYEES ASSIGNED TO THE "DAVISON" DURING THE PERIOD IN QUESTION HAS SUBMITTED A CLAIM TO THE CORPS OF ENGINEERS ON BEHALF OF THOSE EMPLOYEES FOR PAYMENT OF THE 100 PERCENT BONUS. APPARENTLY SUCH A BONUS IS PAID BY THE MARITIME INDUSTRY, BOTH GOVERNMENT AND PRIVATE, TO THE OFFICERS AND CREWS OF VESSELS WHILE THEY ARE WITHIN THE AREA DESIGNATED AS A COMBAT ZONE BY EXECUTIVE ORDER NO. 11216, APRIL 24, 1965. THE LABOR ORGANIZATION HAS NOT QUESTIONED THE PRACTICE OF THE CORPS OF ENGINEERS UNDER WHICH DREDGE EMPLOYEES ARE PAID AT RATES DETERMINED BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES UNDER THE EXCEPTION TO THE EMPLOYEE CLASSIFICATION PROVISIONS AS NOW CONTAINED IN 5 U.S.C. 5102(C)(7), RATHER THAN UNDER THE EXCEPTION PROVIDED BY 5 U.S.C. 5102(C)(8), WHICH APPLIES TO THE OFFICERS AND CREWS OF VESSELS.

WE ARE AWARE OF NO AUTHORITY UNDER WHICH THE PAYMENT OF THE 100 PERCENT BONUS TO MARITIME EMPLOYEES OF THE GOVERNMENT COULD BE JUSTIFIED OTHER THAN AS A PART OF COMPENSATION WHICH IS FIXED IN ACCORDANCE WITH THE PRACTICES OF THE MARITIME INDUSTRY.

IN VIEW OF THE ABOVE, IT IS APPARENT THAT TO BE ENTITLED TO THE BONUS THE EMPLOYEES OF THE DREDGE WOULD HAVE TO BE REGARDED AS EMPLOYEES WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY. AS INDICATED IN MR. MEIGS' LETTER, 5 U.S.C. 5348(C) AS ADDED BY THE ACT OF AUGUST 19, 1972, PUBLIC LAW 92 392, 86 STAT. 564, PROVIDES SPECIFICALLY THAT VESSEL EMPLOYEES OF THE CORPS OF ENGINEERS MAY BE PAID AS WAGE BOARD EMPLOYEES WITHOUT REGARD TO THE AUTHORITY CONTAINED IN SUBSECTION (A) OF THAT SECTION WHICH PROVIDES THAT THE PAY OF CREWS OF VESSELS WILL BE FIXED "AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH THE PREVAILING RATES AND PRACTICE IN THE MARITIME INDUSTRY." HOUSE REPORT NO. 92-339, JULY 8 1971, CONTAINS THE FOLLOWING STATEMENT AT PAGE 19 WITH REGARD TO VESSEL EMPLOYEES:

"*** MOST VESSEL EMPLOYEES OF THE CORPS OF ENGINEERS NOW ARE PAID UNDER THE REGULAR WAGE BOARD SCHEDULES RATHER THAN IN ACCORDANCE WITH MARITIME RATES AND PRACTICES. THIS IS SO BECAUSE OF THE UNIQUE NATURE OF THE VESSELS OPERATED BY THE CORPS OF ENGINEERS. SECTION 5348(C) SPECIFICALLY AUTHORIZES THE CONTINUATION OF SUCH PRACTICE."

THUS, THE CONGRESS IN ENACTING PUBLIC LAW 92-392, DID NOT ESTABLISH A NEW AUTHORITY BUT RECOGNIZED AND APPROVED OF THE PRACTICE WHICH HAD BEEN FOLLOWED FOR MANY YEARS.

THE PRACTICE OF THE CORPS OF ENGINEERS UNDER WHICH DREDGE EMPLOYEES HAVE BEEN PAID AT WAGE BOARD RATES RATHER THAN AS CREWS OF VESSELS IS ALSO SUPPORTED IN LAW BY THE FACT THAT SECTION 606 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (5 U.S.C. (1964 ED.) 946) WHICH AUTHORIZES EMPLOYEES SERVING ON VESSELS OF SEVERAL AGENCIES, INCLUDING THE TRANSPORTATION CORPS OF THE ARMY, TO BE PAID IN ACCORDANCE WITH THE WAGE RATES AND PRACTICES OF THE MARITIME INDUSTRY DOES NOT PROVIDE SUCH AUTHORITY WITH RESPECT TO THE CREWS OF VESSELS OF THE CORPS OF ENGINEERS. FURTHER, IN A CASE IN THE UNITED STATES COURT OF CLAIMS INVOLVING CORPS OF ENGINEERS DREDGE EMPLOYEES THE COURT IN RENDERING JUDGMENT RELIED UPON THE LAWS AND REGULATIONS APPLICABLE TO WAGE BOARD EMPLOYEES RATHER THAN THOSE APPLICABLE TO THE CREWS OF VESSELS. DETLING ET AL. V. UNITED STATES, 193 CT. CL. 125 (1970).

ACCORDINGLY, OUR VIEW IS THAT THE DREDGE EMPLOYEES ARE NOT ENTITLED TO THE 100 PERCENT BONUS HERE INVOLVED.