B-159283, JUL. 22, 1966

B-159283, JUL. 22, 1966

TO HARBOR MASTER, U.S. ARMY TERMINAL OKINAWA:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 27, 1966, APPEALING FROM OUR OFFICE SETTLEMENT OF MAY 2, 1961. IN YOUR LETTER YOU HAVE ASKED FOR REVIEW OF OUR DECISION DENYING YOUR CLAIM FOR PAY AS A CHIEF OFFICER AT $9,300 PER ANNUM FROM FEBRUARY 15, 1954, TO MARCH 1, 1956.

YOU ASSERT THAT YOU WERE PAID AT THE PER ANNUM RATES OF EITHER $6,988 OR $7,126 AS A FIRST OFFICER ON A CLASS E OR A CLASS D VESSEL RESPECTIVELY, BETWEEN FEBRUARY 15, 1954, AND MARCH 1, 1956, WHEREAS YOU SHOULD HAVE BEEN PAID AT THE RATE OF $9,300 PER ANNUM, THE RATE OF PAY FOR A CHIEF OFFICER. YOU POINT OUT THAT YOU WERE DESIGNATED AND SERVING AS A CHIEF OFFICER IN OCTOBER 1953 AND THAT AS AN INCUMBENT YOU SHOULD HAVE CONTINUED TO RECEIVE PAY AT THAT ANNUAL RATE ($9,300) UNTIL YOUR PROMOTION TO MASTER ON MARCH 1, 1956. IT IS YOUR CONTENTION THAT YOUR PAY SHOULD NOT HAVE BEEN DOWNGRADED TO $6,988 ON FEBRUARY 15, 1954, AND THAT THE PROCEDURE FOLLOWED WAS NOT IN ACCORDANCE WITH THE CHIEF OF TRANSPORTATION LETTER OF JANUARY 8, 1951, ARMY CIVILIAN PERSONNEL REGULATIONS (CPR) P2, C3, OF OCTOBER 27, 1953, CPR R1.3A, AND SECTION 4, CIVILIAN PERSONNEL PROCEDURES MANUAL NO. 1 (CPPM NO. 1).

UNDER PARAGRAPH (8) OF SECTION 202 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1082, THE COMPENSATION OF OFFICERS AND MEMBERS OF CREWS OF VESSELS IS REQUIRED TO 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.' YOU WILL NOTE THAT THE QUOTED LANGUAGE DOES NOT REQUIRE THAT THE RATES OF PAY FOR OFFICERS AND CREWS OF VESSELS OPERATED BY THE GOVERNMENT COINCIDE EXACTLY WITH THE RATES OF PAY FOR COMPARABLE POSITIONS IN THE MARITIME INDUSTRY BUT ONLY THAT SUCH RATES BE FIXED AND ADJUSTED AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY.

IT SHOULD ALSO BE NOTED THAT THIS EXEMPTION TO THE CLASSIFICATION ACT IS SEPARATE AND DISTINCT FROM THE EXEMPTION FOR THE RECOGNIZED TRADES AND CRAFTS SET FORTH IN THE IMMEDIATELY PRECEDING PARAGRAPH (7) OF SECTION 202.

ARMY REGULATION (AR) 55-305, OF OCTOBER 10, 1942, IN EFFECT ON FEBRUARY 15, 1954, PROVIDED IN PERTINENT PART AS FOLLOWS:

"4. PERSONNEL.--- THE ALLOCATION AND ASSIGNMENT OF PERSONNEL FOR THE OPERATION AND MAINTENANCE OF WATER TRANSPORTATION ACTIVITIES, INCLUDING VESSELS, FLOATING EQUIPMENT, AND SHORE INSTALLATIONS (EXCEPT THOSE VESSELS ASSIGNED TO ORGANIZATIONS REFERRED TO IN 2B WHICH UTILIZE MILITARY PERSONNEL) WILL BE MADE BY THE CHIEF OF TRANSPORTATION, AND THE EMPLOYMENT OF ALL CIVILIAN PERSONNEL REQUIRED FOR SUCH ACTIVITIES WILL BE UNDER HIS DIRECTION.'

UNDER THE ABOVE AUTHORITY MANNING SCALES WERE PROMULGATED BY THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, SETTING FORTH THE POSITION DESIGNATIONS AND THE RATES OF PAY FOR EACH TRANSPORTATION CORPS VESSEL. IN PRESCRIBING THE RATES OF PAY SPECIFIED IN MANNING SCALES, CONSIDERATION IS GIVEN TO ARMY-AIR FORCE WAGE RATE SCHEDULES. HOWEVER, SUCH SCHEDULES ARE USED AS GUIDES ONLY, AND APPROPRIATE DEVIATIONS ARE MADE FROM SCHEDULED RATES WHENEVER SUCH DEVIATIONS ARE DETERMINED TO BE IN THE PUBLIC INTEREST--- AFTER TAKING INTO CONSIDERATION THE SIZE, MISSION, COMPLEMENT, AND OTHER CHARACTERISTICS OF THE PARTICULAR TRANSPORTATION CORPS VESSEL FOR WHICH THE MANNING SCALE IS BEING PROMULGATED. HENCE, WHERE THE RATE SPECIFIED FOR A PARTICULAR POSITION IN THE MANNING SCALE APPLICABLE TO THE VESSEL CONCERNED DIFFERS FROM THE RATE SPECIFIED IN THE ARMY-AIR FORCE WAGE BOARD SCHEDULE, THE MANNING SCALE RATE IS THE ONE THAT IS CONTROLLING.

THE MANNING SCALES FOR A PARTICULAR VESSEL ESTABLISHED UNDER THE AUTHORITY OF THE CHIEF OF TRANSPORTATION SET FORTH THE NUMBER OF POSITIONS, THE DESIGNATION OR RANK OF APPOINTMENT OF THE INCUMBENT, THE DESIGNATION OF THE POSITION ON THE MANNING SCALE, AND THE CORRESPONDING RATE OF PAY. MPR 1.1-2 REVISED JANUARY 15, 1948, AND MPR 1.1-5, MARCH 5, 1954. THESE SCALES SERVE AS THE MEDIUM THROUGH WHICH POSITIONS ARE AUTHORIZED FOR UTILIZATION ABOARD ARMY VESSELS. IBID. IN SELECTING INDIVIDUALS TO FILL MARINE POSITIONS THE FOLLOWING PROCEDURE IS PRESCRIBED IN MARINE PERSONNEL REGULATIONS, MARCH 5, 1954:

"1.1-3 POSITION DESIGNATION--- DESIGNATIONS OF CIVILIAN MARINE POSITIONS ARE PREDICATED UPON DUTIES AND RESPONSIBILITIES COMPRISING A GIVEN JOB. IN GENERAL, THE DESIGNATIONS OF MARINE POSITIONS ARE SIMILAR TO COMPARABLE POSITIONS IN THE MARITIME INDUSTRY. OFFICIAL POSITION DESIGNATIONS ARE UTILIZED IN EFFECTING APPOINTMENTS, AND ARE SHOWN ON THE SF 50 (NOTIFICATION OF PERSONNEL ACTION). THE APPOINTIVE DESIGNATIONS UTILIZED, HOWEVER, HAVE NO NECESSARY RELATIONSHIP TO THE ASSIGNMENT OF THE EMPLOYEE ABOARD A GIVEN BOAT OR VESSEL. FOR PAY PURPOSES, APPOINTIVE DESIGNATIONS, RATHER THAN THE ASSIGNMENT ABOARD THE BOAT OR VESSEL CONSTITUTES THE GOVERNING FACTOR.'

RECORDS INDICATE THAT EFFECTIVE FEBRUARY 15, 1954, UNDER AUTHORITY OF CHIEF OF TRANSPORTATION LETTER TC CPD-FW 248.3 DATED DECEMBER 7, 1953, THE VESSEL TO WHICH YOU WERE ATTACHED WAS ASSIGNED THE INTER ISLAND MANNING SCALE AND YOUR DESIGNATION OF APPOINTMENT AS FIRST OFFICER, AT $6,592 PER ANNUM WAS EFFECTED THROUGH A STANDARD FORM 50 "NOTIFICATION OF PERSONNEL ACTION.' SINCE FIRST OFFICER WAS THE HIGHEST DECK OFFICER RANK PROVIDED FOR THE VESSEL UNDER THE MANNING SCALES YOU ALSO SERVED AS MASTER. PURSUANT TO THE GOVERNING REGULATIONS SET FORTH ABOVE, HOWEVER, YOU WERE ONLY ENTITLED TO BE PAID AT THE ANNUAL RATE SPECIFIED ON THE MANNING SCALES FOR THE POSITION ASSIGNED, $6,592.

ON MAY 11, 1954, THE CHIEF OF TRANSPORTATION ISSUED A NEW REVISED WAGE SCHEDULE EFFECTIVE RETROACTIVELY TO OCTOBER 1, 1953, FOR INTER ISLAND VESSELS ASSIGNING THEM CLASSIFICATIONS AS C, D, AND E. THIS SCHEDULE PROVIDED FOR AN ANNUAL WAGE RATE OF $9,300 FOR A CHIEF OFFICER, $6,988 FOR A FIRST OFFICER ON A CLASS E VESSEL AND $7,126 FOR A FIRST OFFICER ON A CLASS D VESSEL.

SINCE YOUR DESIGNATION OF APPOINTMENT FROM OCTOBER 1, 1953, TO FEBRUARY 15, 1954, WAS CHIEF OFFICER YOUR ANNUAL RATE WHICH HAD BEEN $8,744 UNDER AUTHORITY OF CHIEF OF TRANSPORTATION LETTER OF DECEMBER 7, 1953, WAS CHANGED TO $9,300 FOR THAT PERIOD ON THE BASIS OF THE LETTER OF MAY 11, 1954. HOWEVER, SINCE YOUR DESIGNATION OF APPOINTMENT HAD BEEN CHANGED ON FEBRUARY 15, 1954, TO FIRST OFFICER THE REVISED SCHEDULE OF WAGES WAS APPLIED RETROACTIVELY TO THAT DATE TO INCREASE YOUR ANNUAL RATE AS A FIRST OFFICER FROM $6,592 TO $6,988. THIS WAS THE ANNUAL RATE OF PAY WHICH WAS AUTHORIZED FOR THE POSITION TO WHICH YOU HAD BEEN APPOINTED.

PARAGRAPH 4 OF THE CHIEF OF TRANSPORTATION LETTER OF JANUARY 8, 1951, TO WHICH YOU REFER RELATING TO PRESERVING THE PAY RATE OF AN INCUMBENT WHEN THE RATE IS REDUCED UNDER A NEW REVISED SCHEDULE WAS NOT APPLICABLE TO YOU SINCE YOU WERE NOT OCCUPYING THE POSITION OF CHIEF OFFICER FACING A REDUCTION IN PAY IN THE SAME POSITION UNDER A NEW MANNING SCALE AS CONTEMPLATED IN THE LETTER. YOU HAD BEEN APPOINTED TO ANOTHER POSITION, FIRST OFFICER, AND THE SAVED PAY FEATURE DID NOT APPLY TO YOU.

CPR P2.5-7, C 3 OF OCTOBER 27, 1953, TO WHICH YOU REFER, RELATING TO THE APPLICATION OF REVISED WAGE SCHEDULES IS NOT PERTINENT SINCE THESE REGULATIONS DO NOT APPLY TO MARINE PERSONNEL. SEE CPR P2.1-1C (4), AUGUST 31, 1951, AND P2.5-1, C 3, OCTOBER 27, 1953. IN THIS REGARD, THE PROVISIONS RELATING TO MARINE PERSONNEL ARE SET FORTH IN CPR P2.5 16, C 3, SUBPARAGRAPH D, AND INDICATE THAT REVISED WAGE SCHEDULES ARE IMPLEMENTED BY THE CHIEF OF TRANSPORTATION IN THE FORM OF MANNING SCALES.

THE PROVISIONS OF CPR R1.3A AND SECTION 4, CPPM NO. 1, CONCERNING THE PROCEDURES TO BE FOLLOWED IN EFFECTING PAY CHANGES FOR GENERAL WAGE BOARD EMPLOYEES ARE LIKEWISE NOT APPLICABLE TO MARINE PERSONNEL WHOSE PERSONNEL PROCEDURES ARE PRESCRIBED BY THE CHIEF OF TRANSPORTATION. SEE AR 55-305, OCTOBER 10, 1942. ADDITIONALLY, THE SAVED PAY PROVISIONS PRESCRIBED BY REGULATION FOR GENERAL WAGE BOARD EMPLOYEES WERE NOT FOR APPLICATION TO MARINE CATEGORIES SINCE THEIR PAY WAS BY LAW FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY.

FOR THE FOREGOING REASONS OUR PRIOR SETTLEMENT DENYING YOUR CLAIM MUST BE SUSTAINED.