B-98054, OCTOBER 16, 1950, 30 COMP. GEN. 158

B-98054: Oct 16, 1950

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IT IS MANDATORY UNDER SAID SECTION 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. THE EFFECT OF SECTION 202 (8) IS TO RENDER INAPPLICABLE TO SUCH PILOTS THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. WHICH QUESTIONS HAVE ARISEN BECAUSE OF THE CLASSIFICATION ACT OF 1949. WHOSE COMPENSATION 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. THE CIVIL SERVICE COMMISSION * * * IS AUTHORIZED AND DIRECTED TO DETERMINE FINALLY THE APPLICABILITY OF SECTIONS 201 AND 202 TO SPECIFIC POSITIONS.

B-98054, OCTOBER 16, 1950, 30 COMP. GEN. 158

COMPENSATION - PANAMA CANAL PILOTS - EFFECT OF CLASSIFICATION ACT OF 1949 PANAMA CANAL PILOTS, HAVING BEEN HELD BY THE CIVIL SERVICE COMMISSION TO BE OFFICERS OR MEMBERS OF CREWS OF VESSELS WITHIN THE MEANING OF SECTION 202 (8) OF THE CLASSIFICATION ACT OF 1949 AND, AS SUCH, EXCEPTED FROM THE COMPENSATION PROVISIONS OF THAT ACT, IT IS MANDATORY UNDER SAID SECTION 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; ALSO, THE EFFECT OF SECTION 202 (8) IS TO RENDER INAPPLICABLE TO SUCH PILOTS THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE GOVERNOR OF THE PANAMA CANAL, OCTOBER 16, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 5, 1950, WITH ENCLOSURES, SUBMITTING FOR DECISION CERTAIN QUESTIONS HEREINAFTER SET FORTH CONCERNING THE BASIC AND OVERTIME COMPENSATION OF PANAMA CANAL PILOTS, WHICH QUESTIONS HAVE ARISEN BECAUSE OF THE CLASSIFICATION ACT OF 1949, AND OF A RECENT RULING THEREUNDER BY THE CIVIL SERVICE COMMISSION.

SECTIONS 201, 202, AND 203 OF SAID CLASSIFICATION ACT OF 1949, APPROVED OCTOBER 28, 1949, 63 STAT. 954, 955, 956, PROVIDE IN PERTINENT PART AS FOLLOWS:

SEC. 201. (A) FOR THE PURPOSES OF THIS ACT, THE TERM "DEPARTMENT" INCLUDES (1) THE EXECUTIVE DEPARTMENTS, (2) THE INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH, INCLUDING CORPORATIONS WHOLLY OWNED BY THE UNITED STATES * * *

(B) SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 202, AND EXCEPT AS PROVIDED IN SECTIONS 204 AND 205, THIS ACT SHALL APPLY TO ALL CIVILIAN POSITIONS, OFFICERS, AND EMPLOYEES IN OR UNDER THE DEPARTMENTS.

SEC. 202. THIS ACT (EXCEPT TITLE XII) SHALL NOT APPLY TO---

(8) OFFICERS AND MEMBERS OF CREWS OF VESSELS, WHOSE COMPENSATION 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.

SEC. 203. THE CIVIL SERVICE COMMISSION * * * IS AUTHORIZED AND DIRECTED TO DETERMINE FINALLY THE APPLICABILITY OF SECTIONS 201 AND 202 TO SPECIFIC POSITIONS, OFFICERS, AND EMPLOYEES.

YOU STATE THAT THE RATES OF PAY FOR PANAMA CANAL PILOTS NOW ARE AND HAVE BEEN FIXED ADMINISTRATIVELY BY THE GOVERNOR OF THE PANAMA CANAL PURSUANT TO THE AUTHORITY VESTED IN THE PRESIDENT BY SECTION 81 OF TITLE 2 OF THE CANAL ZONE CODE, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 9, 1937, 50 STAT. 487, AND DELEGATED TO THE GOVERNOR BY SECTION 1 OF THE EXECUTIVE ORDER NO. 1888 OF FEBRUARY 2, 1914. IT FURTHER IS STATED THAT IN ADMINISTRATIVELY FIXING THE RATES OF PAY OF PANAMA CANAL PILOTS, A WAGE- BOARD PROCEDURE IN THE USUAL SENSE HAS NOT BEEN USED AND SUCH RATES HAVE NOT BORNE A DIRECT RELATION TO RATES OF PAY IN THE MARITIME INDUSTRY, ALTHOUGH THE LATTER RATES HAVE BEEN CONSIDERED AS A GUIDE TO THE EXTENT THAT ANY SUCH RATES HAVE APPEARED TO INVOLVE ANALOGOUS POSITIONS AND HAVE BEEN SUSCEPTIBLE OF COORDINATION WITH COMPENSATION RATES GENERALLY IN PANAMA CANAL ORGANIZATIONS. ALSO, YOU STATE THAT THE PILOTS WERE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.

AS POINTED OUT IN YOUR LETTER, THE CLASSIFICATION ACT OF 1949, WHICH APPLIES TO FEDERAL EMPLOYEES GENERALLY UNLESS EXCEPTED THEREFROM, DOES NOT SPECIFICALLY EXCEPT THEREFROM THE PANAMA CANAL PILOTS. HOWEVER, UNDER DATE OF AUGUST 11, 1950, THE CIVIL SERVICE COMMISSION RULED PURSUANT TO AUTHORITY CONTAINED IN SECTION 203, QUOTED ABOVE, THAT THE PILOTS ARE TO BE CONSIDERED EXCEPTED FROM SUCH ACT BY REASON OF SECTION 202 (8) THEREOF, ALSO QUOTED ABOVE.

THE FIRST TWO QUESTIONS, TOGETHER WITH YOUR DISCUSSION THEREOF, ARE STATED IN YOUR LETTER, AS FOLLOWS:

IT WILL BE NOTED THAT THE QUOTED PARAGRAPH (8) OF SECTION 202 (LIKE PARAGRAPH (7) OF THAT SECTION, RE WAGE BOARD EMPLOYEES), REFERS TO A CLASS OF EMPLOYEES "WHOSE COMPENSATION SHALL BE FIXED" IN ACCORDANCE WITH CERTAIN PREVAILING RATES AND PRACTICES. OF THE 31 EXCEPTING PARAGRAPHS, PARAGRAPH (7) AND (8) ARE THE ONLY ONES THAT USE THIS FORM OF REFERENCE AS TO HOW THE COMPENSATION OF THE EXCEPTED CLASSES IS FIXED. ALL OTHER EXCEPTING PARAGRAPHS THAT CONTAIN ANY SUCH REFERENCE ARE STATED IN TERMS OF EXCEPTING CLASSES OF EMPLOYEES WHOSE COMPENSATION "IS IXED" IN ACCORDANCE WITH CITED STATUTES, OR SIMILAR MERELY DESCRIPTIVE LANGUAGE.

QUESTION 1. DOES THE LANGUAGE OF SECTION 202 (8) OF THE CLASSIFICATION ACT OF 1949, WHICH HAS BEEN HELD TO EXCLUDE PANAMA CANAL PILOTS FROM THAT ACT, HAVE THE EFFECT OF AFFIRMATIVELY ESTABLISHING THE BASIS UPON WHICH THE GOVERNOR MUST AS A MATTER OF LAW FIX AND ADJUST THE PILOTS' BASIC COMPENSATION: NAMELY, IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST?

AS STATED ABOVE, THE PILOTS WERE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND HAVE NEVER BEEN CONSIDERED TO BE "WAGE BOARD" EMPLOYEES. THEIR COMPENSATION HAS BEEN FIXED ADMINISTRATIVELY BY THE GOVERNOR AS DESCRIBED ABOVE. IT IS SUGGESTED THAT THE CONGRESS DID NOT HAVE IN MIND AFFIRMATIVELY CHANGING THE BASIS UPON WHICH THE COMPENSATION OF PANAMA CANAL PILOTS SHOULD BE FIXED; BUT THE CIVIL SERVICE COMMISSION HAVING RULED THAT SUCH PILOTS ARE OFFICERS OR MEMBERS OF CREWS OF VESSELS WITHIN THE EXCEPTING CLAUSE, THE EFFECT OF THE LANGUAGE OF THAT CLAUSE AS TO THE BASIS UPON WHICH THE COMPENSATION "SHALL" BE FIXED IS IMPORTANT. THE PRACTICAL IMPORTANCE OF THE MATTER IS, HOWEVER, MORE APPARENT IN CONNECTION WITH QUESTION 2, BELOW, CONCERNING OVERTIME COMPENSATION, SINCE THE BASIC COMPENSATION WOULD PROBABLY BE AFFECTED VERY LITTLE, IF AT ALL, BY AN AFFIRMATIVE ANSWER TO QUESTION 1.

QUESTION 2. IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, DOES THE STATUTORY LANGUAGE IN QUESTION ALSO RELATE TO OVERTIME COMPENSATION, SO AS TO MAKE INAPPLICABLE TO PANAMA CANAL PILOTS THE OTHERWISE APPLICABLE OVERTIME COMPENSATION PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED?

THIS QUESTION IS OF SUBSTANTIAL AND IMMEDIATE IMPORTANCE, BECAUSE IT IS PROBABLE THAT IF OVERTIME COMPENSATION IS REQUIRED TO BE FIXED "AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN MARITIME INDUSTRY," SUCH OVERTIME COMPENSATION WILL DIFFER FROM THE OVERTIME COMPENSATION SCHEDULES (AND NIGHT PAY DIFFERENTIALS) PRESCRIBED BY THE 1945 PAY ACT AS AMENDED. THIS OFFICE'S INFORMATION CONCERNING OVERTIME PAY IN THE MARITIME INDUSTRY THAT MAY BE PERTINENT TO PANAMA CANAL PILOTS IS NOT YET COMPLETE, BUT IT IS BELIEVED THAT IT INVOLVES PAYMENT OF SO-CALLED "TRUE TIME AND ONE HALF" FOR OVERTIME WORK.

FOR THE SAKE OF THE RECORD, IT IS DEEMED APPROPRIATE TO OBSERVE AT THIS POINT THAT THE DISCRETIONARY AUTHORITY CONFERRED BY SECTION 81 OF TITLE 2 OF THE CANAL ZONE CODE, AS AMENDED, SUPRA, WITH RESPECT TO THE FIXING OF THE COMPENSATION OF EMPLOYEES OF THE PANAMA CANAL IS SUBJECT TO THE EXPRESS CONDITION,"UNTIL SUCH TIME AS CONGRESS MAY BY LAW REGULATE THE SAME.' CONSEQUENTLY, IF AN ACT OF CONGRESS RELATIVE TO FEDERAL EMPLOYEES' COMPENSATION OTHERWISE IS APPLICABLE TO ALL OR A CLASS OF EMPLOYEES OF THE PANAMA CANAL, SUCH ACT WOULD SUPERSEDE, PRO TANTO, THE DISCRETIONARY AUTHORITY. 10 COMP. GEN. 519, 520.

SECTIONS 102 (D) AND 606 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 8 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, REFERRED TO IN YOUR LETTER, PROVIDE AS OLLOWS:

SEC. 8. (A) SECTION 102 (D) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS AMENDED TO READ AS FOLLOWS:

"/D) THIS ACT, EXCEPT SECTIONS 606 AND 607, SHALL NOT APPLY TO EMPLOYEES OF THE TRANSPORTATION CORPS OF THE ARMY OF THE UNITED STATES ON VESSELS OPERATED BY THE UNITED STATES, TO VESSEL EMPLOYEES OF THE COAST AND GEODETIC SURVEY, TO VESSEL EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR, OR TO VESSEL EMPLOYEES OF THE PANAMA RAILROAD COMPANY.'

(B) SECTION 606 OF SUCH ACT IS AMENDED TO READ AS FOLLOWS:

" VESSEL EMPLOYEES

" SECTION. 606. EMPLOYEES OF THE TRANSPORTATION CORPS OF THE ARMY OF THE UNITED STATES ON VESSELS OPERATED BY THE UNITED STATES, VESSEL EMPLOYEES OF THE COAST AND GEODETIC SURVEY, VESSEL EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR, AND VESSEL EMPLOYEES OF THE PANAMA RAILROAD COMPANY, MAY BE COMPENSATED IN ACCORDANCE WITH THE WAGE PRACTICES OF THE MARITIME INDUSTRY.' SEE, ALSO, SECTION 13 OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 78, WHICH CONTAINED SIMILAR PROVISIONS WITH REFERENCE TO VESSEL EMPLOYEES OF THE TRANSPORTATION CORPS OF THE ARMY OF THE UNITED STATES, ONLY.

CLEARLY, THE PROVISIONS OF LAW JUST QUOTED NOT ONLY EXCEPTED THE VESSEL EMPLOYEES ENUMERATED THEREIN FROM THE COMPENSATION PROVISIONS OF THE 1945 AND 1946 ACTS BUT ALSO CONFERRED BROAD PERMISSIVE AUTHORITY TO COMPENSATE SUCH EMPLOYEES IN ACCORDANCE WITH WAGE PRACTICES OF THE MARITIME INDUSTRY. SIMILARLY, IN THE CASE OF EMPLOYEES WHO ARE HELD BY THE CIVIL SERVICE COMMISSION UNDER AUTHORITY OF SECTION 203 TO BE OFFICERS OR MEMBERS OF CREWS OF VESSELS, THE CONCLUSION IS INESCAPABLE THAT THE EFFECT OF THE LAST CLAUSE OF SECTION 202 (8) OF THE 1949 ACT IS TO REQUIRE THAT THEIR COMPENSATION BE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY, SUBJECT ONLY TO THE DISCRETION WHICH MAY BE EMBODIED IN THE TERM "AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST.' IN THAT CONNECTION, IT IS FOR NOTING THAT SAID SECTION 202 (8) USED THE WORD "SHALL"--- A TERM OF MANDATE--- AS DISTINGUISHED FROM THE PERMISSIVE WORD,"MAY," AS USED IN THE PRIOR ENACTMENTS. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION 2, YOU POINT OUT THAT PANAMA CANAL PILOTS WERE NOT INCLUDED WITHIN THE EXCEPTIONS OF CERTAIN VESSELS EMPLOYEES FROM THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED (SECTIONS 102 (D) AND 606, AS AMENDED, QUOTED ABOVE), AND STATE THAT SUCH PILOTS HAVE BEEN PAID OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS PER WEEK UNDER SECTION 201 OF THE 1945 ACT, 59 STAT. 296. THE QUESTION THUS ARISES WHETHER, NOTWITHSTANDING THE ABSENCE OF SPECIFIC EXCEPTIONS FROM THE COVERAGE OF SAID SECTION 201, AS IN THE CASE OF CERTAIN OTHER VESSEL EMPLOYEES, SECTION 202 (8) HAS THE EFFECT OF SUPPLYING SUCH EXCEPTION BY IMPLICATION. I AM OF THE VIEW THAT IT DOES HAVE SUCH EFFECT.

SINCE THE CLASSIFICATION ACT OF 1949 DEALS PRIMARILY WITH THE FIXING OF BASIC RATES OF COMPENSATION, IT MIGHT BE SAID THAT THE PROVISIONS OF SECTION 202 (8) ALSO RELATE ONLY TO BASIC COMPENSATION, AND THAT OTHER ELEMENTS OF COMPENSATION, SUCH AS PREMIUM RATES FOR OVERTIME SERVICES, WERE NOT INTENDED TO BE AFFECTED THEREBY. HOWEVER, IN CONTRADISTINCTION TO SECTION 202 (7), 63 STAT. 955, RELATIVE TO EMPLOYEES IN RECOGNIZED TRADES OR CRAFTS, ETC., WHICH USES THE EXPRESSION ,IN ACCORDANCE WITH PREVAILING RATES," WITHOUT MORE, SECTION 202 (8) USES THE EXPRESSION "IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY.' (ITALICS SUPPLIED.) THE ADDITION OF THE ITALICIZED WORDS IS SIGNIFICANT AND IF THOSE WORDS ARE TO BE GIVEN FULL EFFECT, THEY MUST BE HELD TO REQUIRE THE FIXING OF ALL ELEMENTS OF COMPENSATION, INCLUDING OVERTIME COMPENSATION, IN ACCORDANCE WITH "PRACTICES" IN THE MARITIME INDUSTRY, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST. FURTHERMORE, ANY OTHER CONCLUSION WOULD IN ALL LIKELIHOOD CREATE A DISPARITY BETWEEN THE TOTAL COMPENSATION OF VESSEL EMPLOYEES ALREADY COVERED BY THE PROVISIONS OF THE 1945 AND 1946 PAY ACTS AND THE RESIDUE OF SUCH EMPLOYEES COVERED BY SECTION 202 (8/--- A RESULT WHICH WOULD NOT SEEM TO BE IN KEEPING WITH THE PURPOSES OF THE CLASSIFICATION ACT OF 1949. ACCORDINGLY, IN VIEW OF THE FOREGOING AND OF THE PROVISIONS OF SECTION 1204 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 973, THAT ALL LAWS OR PARTS OF LAWS INCONSISTENT WITH THE ACT ARE REPEALED TO THE EXTENT OF SUCH INCONSISTENCY, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

WHILE, AS INDICATED IN YOUR LETTER, UNDER SECTION 1105 (A) (2) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 972, THE PROVISIONS OF THAT ACT RESPECTING THE CLASS OF EMPLOYEES HERE INVOLVED BECAME EFFECTIVE ON THE DATE OF ENACTMENT THEREOF--- OCTOBER 28, 1949--- NEVERTHELESS, SINCE SOME LAPSE OF TIME TO EFFECTUATE ANY CHANGES CONTEMPLATED BY THE LAW WOULD HAVE OCCURRED IN ANY EVENT AND SINCE IT APPEARS THAT THE DELAY TO THE PRESENT TIME HAS BEEN OCCASIONED BY THE DOUBT WHETHER SECTION 202 (8) WAS APPLICABLE TO PANAMA CANAL PILOTS, THIS OFFICE WILL INTERPOSE NO OBJECTION TO THE CONTINUANCE OF OTHERWISE PROPER FORMER PRACTICES FOR A REASONABLE PERIOD, PENDING THE TAKING OF THE NECESSARY ADMINISTRATIVE ACTION TO ADJUST THE COMPENSATION OF THIS CLASS OF EMPLOYEES TO ACCORD WITH SAID SECTION 202 (8).

IN VIEW OF THE ANSWER TO QUESTIONS 1 AND 2 AND IN THE ABSENCE OF ANY INFORMATION HERE CONCERNING THE APPLICABLE PRACTICES IN THE MARITIME INDUSTRY, IT IS NOT DEEMED APPROPRIATE TO ATTEMPT AT THE PRESENT TIME AN ANSWER TO QUESTION 3 WHICH DEALS WITH THE MATTER OF WHETHER TRAVEL TIME OF THE PILOTS IN CONNECTION WITH THEIR RETURN TO THEIR HOME STATIONS AFTER COMPLETING A CANAL TRANSIT IS TO BE INCLUDED IN COMPUTING THE HOURS OF SERVICE OF THE BASIC 40-HOUR WORKWEEK AND IN COMPUTING THE HOURS OF OVERTIME IN EXCESS OF THE 40-HOUR WORKWEEK.

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