B-153544, APRIL 3, 1964, 43 COMP. GEN. 661

B-153544, APRIL 3, 1964, 43 COMP. GEN. 661

LEAVES OF ABSENCE - ANNUAL - WAGE BOARD EMPLOYEES - INDUSTRY BENEFITS ENTITLEMENT ALTHOUGH CIVILIAN MARINE PERSONNEL WHO SERVE ON GOVERNMENT-OWNED SHIPS OPERATED BY THE MILITARY SEA TRANSPORTATION SERVICE HAVE THEIR WAGES FIXED IN ACCORDANCE WITH THE PREVAILING RATES AND PRACTICES OF THE MARITIME INDUSTRY, WHICH HAS ADOPTED A LEAVE PLAN THAT PERMITS SEAMEN TO EARN 5 DAYS' VACATION LEAVE FOR EACH 30 DAYS OF EMPLOYMENT, SUCH VESSEL EMPLOYEES ARE NOT INCLUDED IN THE CLASSES OF EMPLOYEES SPECIFICALLY EXEMPT FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2061, AND, THEREFORE, THE LEAVE BENEFITS APPLICABLE TO THE MARITIME INDUSTRY MAY NOT BE ADOPTED BY THE MILITARY SEA TRANSPORTATION SERVICE.

TO THE SECRETARY OF THE NAVY, APRIL 3, 1964:

THIS REFERS TO A LETTER DATED FEBRUARY 14, 1964, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING OUR DECISION WHETHER CIVILIAN MARINE EMPLOYEES OF THE MILITARY SEA TRANSPORTATION SERVICE (MSTS) MAY BE GRANTED LEAVE BENEFITS IN ACCORDANCE WITH THE PREVAILING PRACTICE OF THE MARITIME INDUSTRY, RATHER THAN IN ACCORDANCE WITH THE ANNUAL AND SICK LEAVE ACT OF 1951.

THE LETTER STATES THAT GOVERNMENT-OWNED SHIPS OPERATED BY MSTS ARE MANNED BY CIVILIAN MARINE PERSONNEL WHO ARE CIVIL SERVICE EMPLOYEES OCCUPYING EXCEPTED POSITIONS UNDER SCHEDULE A APPOINTMENTS. CURRENTLY, AS IN THE PAST, THESE EMPLOYEES EARN LEAVE IN ACCORDANCE WITH THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061.

SECTION 202/8) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082/8), SPECIFICALLY EXEMPTS THE EMPLOYEES CONCERNED FROM THE CLASSIFICATION ACT AND 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. IT IS CONTENDED THAT SINCE THE LANGUAGE OF SECTION 202/8) REQUIRES THE EMPLOYEES' COMPENSATION TO BE FIXED IN ACCORDANCE WITH THE RATES AND PRACTICES IN THE MARITIME INDUSTRY, MSTS MARINE EMPLOYEES SHOULD BE ENTITLED TO THE SAME VACATION BENEFITS AS ARE GRANTED OTHER EMPLOYEES OF THE MARITIME INDUSTRY.

AT THE PRESENT TIME AN UNLICENSED SEAMAN, WHO IS A MEMBER OF THE NATIONAL MARITIME UNION, EARNS 30 CALENDAR DAYS VACATION LEAVE PER YEAR IF HE WORKS FOR MORE THAN ONE OPERATOR DURING THE YEAR AND 60 DAYS IF HE WORKS A FULL YEAR FOR JUST ONE OPERATOR. HOWEVER, EFFECTIVE JUNE 1965, THE N.M.U. SEAMAN WILL EARN 5 DAYS VACATION LEAVE FOR EACH 30 DAYS OF EMPLOYMENT REGARDLESS OF WHETHER HE WORKS FOR ONE OR MORE PARTICIPATING COMPANIES DURING THE YEAR. THE UNDER SECRETARY STATES THAT BECAUSE OF THE DISPARITY BETWEEN THE ANNUAL LEAVE BENEFITS OFFERED THE MSTS EMPLOYEE AND THE VACATION BENEFITS OFFERED THE N.M.U. EMPLOYEE, MSTS IS NOW IN A DISADVANTAGEOUS POSITION AND IS EXPERIENCING DIFFICULTY IN RECRUITING CIVILIAN MARINE PERSONNEL. THEREFORE, THE UNDER SECRETARY HAS ASKED US TO DECIDE WHETHER THE NAVY DEPARTMENT MAY AUTHORIZE A CONVERSION OF MSTS CIVILIAN MARINE EMPLOYEES FROM THEIR PRESENT LEAVE SYSTEM TO A VACATION PLAN SIMILAR TO THAT PREVALENT IN THE MARITIME INDUSTRY, SO THAT IN ALL GEOGRAPHIC LOCATIONS ALL CIVILIAN MARINE EMPLOYEES, BOTH OFFICERS AND NONOFFICERS, WOULD ACCRUE 5 DAYS VACATION LEAVE FOR EACH 30 DAYS OF EMPLOYMENT WITH MSTS.

AS STATED ABOVE, THE COMPENSATION OF MSTS MARINE EMPLOYEES MUST BE FIXED IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY. IN OUR DECISION 30 COMP. GEN. 158, WE SAID THAT THE ADDITION OF THE WORDS "AND PRACTICES" IN SECTION 202/8) OF THE CLASSIFICATION ACT OF 1949 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 IN ACCORDANCE WITH "PRACTICES" IN THE MARITIME INDUSTRY, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST. THAT STATEMENT, HOWEVER, WAS NOT INTENDED TO AUTHORIZE THE UNLIMITED ADOPTION OF ALL INDUSTRY WAGE BENEFITS, ESPECIALLY IF SIMILAR BENEFITS ARE GRANTED UNDER OTHER FEDERAL STATUTES.

WE HAVE RECOGNIZED THE GENERAL AUTHORITY OF WAGE BOARDS OR OTHER WAGE- FIXING AUTHORITIES TO GRANT PAY BENEFITS SUCH AS NIGHT DIFFERENTIAL, HOLIDAY PAY, PAY FOR STANDBY TIME, ETC., TO ACCORD WITH THE PREVAILING PRACTICES IN PRIVATE INDUSTRY WITHOUT OBTAINING PRIOR STATUTORY AUTHORITY THEREFOR. SEE 25 COMP. GEN. 584; 27 COMP. GEN. 613; AND 34 COMP. GEN. 216. HOWEVER, WE HAVE CONSISTENTLY LIMITED THE EXERCISE OF SUCH AUTHORITY TO INSTANCES WHERE THE PROPOSED WAGE BENEFITS ARE NOT IN CONTRAVENTION OF LAW OR ARE NOT OTHERWISE INCONSISTENT WITH THE PUBLIC INTEREST. 25 COMP. GEN. 584; B-147849, FEBRUARY 9, 1962 (COPY ENCLOSED).

THE CONGRESS HAS PROVIDED THAT CERTAIN CLASSES OF EMPLOYEES, BECAUSE OF THE NATURE OF THEIR EMPLOYMENT, SHALL BE EXEMPT FROM COVERAGE OF THE ANNUAL AND SICK LEAVE ACT OF 1951. OFFICERS AND MEMBERS OF CREWS AND VESSELS, ALTHOUGH RECOGNIZED BY THE CLASSIFICATION ACT OF 1949 AS BEING A PARTICULAR CLASS OF EMPLOYEES, WERE NOT INCLUDED IN THE LIST OF SUCH EXEMPTIONS. ACCORDINGLY, SINCE THE EMPLOYEES HERE INVOLVED ARE ENTITLED TO LEAVE BENEFITS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, OUR VIEW IS THAT THERE IS NO AUTHORITY FOR ADOPTING LEAVE BENEFITS SIMILAR TO THOSE PREVAILING IN THE MARITIME INDUSTRY REGARDLESS OF WHETHER THEY BE IN ADDITION TO OR IN LIEU OF SUCH STATUTORY BENEFITS.