B-168090, NOV. 25, 1969

B-168090, NOV. 25, 1969

VESSELS--CREWS--COMPENSATION--PREVAILING MARITIME RATES AND PRACTICES WHILE WAGES FOR VARIOUS CLASSES OF VESSEL CREW MEMBERS ARE ESTABLISHED THROUGH COLLECTIVE BARGAINING WITH BUREAU OF COMMERCIAL FISHERIES, INTERIOR DEPARTMENT, WHERE IMPASSE IN NEGOTIATIONS OCCURRED, UNTIL COMPROMISE OF SEPT. 12, 1969, BETWEEN 40-HOUR WEEK WITH EARNED OVERTIME AS AGAINST PROJECTED OVERTIME ADDITION TO BASIC RATE FOR ANNUAL FIGURE, RETROACTIVE INCREASED COMPENSATION PAYMENTS BASED ON MILITARY SEA TRANSPORTATION SERVICE SURVEY USED FOR ESTABLISHING PROPOSALS MAY NOT BE ALLOWED SINCE, PRIOR TO COMPROMISE, SUPPLEMENTAL AGREEMENT NEGOTIATED IN ACCORDANCE WITH PREVAILING PRACTICES OF MARITIME INDUSTRY WAS IN EFFECT UNTIL SEPT. 12. SEE 30 COMP. GEN. 356 (1951).

TO MR. JOHN W. MULHOLLAND:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 8, 1969, REFERENCE 12M/L 1756, REQUESTING BACK PAY FOR CERTAIN CREW MEMBERS OF THE VESSELS "ALBATROSS IV" AND "DELAWARE" ON THE GROUND THAT THE BUREAU OF COMMERCIAL FISHERIES, FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, DELAYED GRANTING A PAY INCREASE TO WHICH THE MEMBERS WERE ENTITLED.

A REPORT FROM THE DEPARTMENT OF THE INTERIOR INDICATES THAT THE WAGES FOR VARIOUS CLASSES OF CREW MEMBERS SUCH AS FISHERMEN ARE ESTABLISHED THROUGH COLLECTIVE BARGAINING BETWEEN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LODGE NO. 1756 AND THE DIRECTOR, NORTH ATLANTIC REGION 3 OF THE BUREAU OF COMMERCIAL FISHERIES. PURSUANT TO SUCH BARGAINING A BASIC AGREEMENT WAS ENTERED INTO ON MARCH 9, 1967, AND APPROVED BY THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION, DEPARTMENT OF THE INTERIOR, ON APRIL 3, 1967, WHICH PROVIDES IN PART AS FOLLOWS: "2.03 SUPPLEMENTARY AGREEMENTS TO THIS BASIC AGREEMENT, SHALL BE SIGNED BY THE MEMBERS OF BOTH NEGOTIATING COMMITTEES AND, UNLESS OTHERWISE SPECIFIED THEREIN, SHALL BECOME EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD FOLLOWING APPROVAL BY THE REGIONAL DIRECTOR. SUCH SUPPLEMENTARY AGREEMENTS SHALL AUTOMATICALLY BE RENEWED FROM YEAR TO YEAR UNLESS MODIFIED OR REVOKED IN ACCORDANCE WITH PARAGRAPH 2.05.

* * * * * * * "2.05 EITHER PARTY MAY, AFTER GIVING THE OTHER PARTY 60 DAYS WRITTEN NOTICE, TERMINATE THIS ENTIRE AGREEMENT OR ANY SUPPLEMENTARY AGREEMENT ON ANY ANNIVERSARY DATE THEREOF OR AFTER FAILURE TO REACH AGREEMENT ON MODIFICATION AT ANY CONFERENCE HELD AS PROVIDED IN PARAGRAPHS 1.02 OR 2.04; PROVIDED, THAT THE REGIONAL DIRECTOR MAY TERMINATE THIS BASIC AGREEMENT ONLY WITH THE APPROVAL OF THE OFFICE OF THE SECRETARY OF THE INTERIOR.

* * * * * * * "6.01 THE PUBLIC INTEREST IN THE ACCOMPLISHMENT OF THE PURPOSES OF THE VESSEL OPERATION ALWAYS BEING PARAMOUNT, THE REGIONAL DIRECTOR AND THE UNION FURTHER AGREE THAT, PENDING THE SETTLEMENT OR ADJUSTMENT OF ANY ISSUE ARISING BETWEEN THEM BY MEANS OF THE CONFERENCE MACHINERY AND PROCEDURES HEREINAFTER PROVIDED, THERE WILL BE NO CHANGE IN CONDITIONS OR RECORDED UNDERSTANDINGS APPLICABLE TO SUCH ISSUE.' SUPPLEMENTAL AGREEMENT NO. 1, WHICH ESTABLISHED WAGES AND WORKING CONDITIONS FOR THE EMPLOYEES IN QUESTION, WAS ENTERED INTO ON AUGUST 30, 1967. PAGE 3 OF THE SUPPLEMENTAL AGREEMENT PROVIDES IN PART AS FOLLOWS: "THIS SUPPLEMENTAL AGREEMENT WILL REMAIN IN FORCE UNTIL MODIFIED OR REVOKED IN ACCORDANCE WITH PARAGRAPH 2.05 OF THE BASIC AGREEMENT.'

IN NOVEMBER 1968 NEGOTIATIONS ON WAGES AND WORKING CONDITIONS WERE REOPENED IN ACCORDANCE WITH SECTION 2.05 OF THE BASIC AGREEMENT. THE UNION WANTED TO CONTINUE THE PRACTICE OF PROJECTING OVERTIME TO BE PAID AT SEA AND ADD IT TO THE BASIC RATE FOR AN ANNUAL FIGURE WHEREAS THE AGENCY WANTED TO ESTABLISH A 40-HOUR WEEK IN PORT AND AT SEA AND PAY FOR OVERTIME AS EARNED. THE UNION REJECTED THE AGENCY'S PROPOSAL SINCE IT WOULD HAVE RESULTED IN PAYCHECKS WHICH WOULD VARY CONSIDERABLY FROM PAYDAY TO PAYDAY INSTEAD OF 26 EQUAL PAYCHECKS PER YEAR. PROTRACTED NEGOTIATIONS ENSUED AND IT WAS NOT UNTIL SEPTEMBER 12, 1969, THAT PAY INCREASES UNDER A COMPROMISE AGREEMENT BECAME EFFECTIVE. YOU STATE THAT THE MILITARY SEA TRANSPORTATION SERVICE (MSTS) CONDUCTS A SURVEY OF THE MARITIME INDUSTRY AND IT IS USED BY BOTH PARTIES IN ESTABLISHING THEIR PROPOSALS. YOU BELIEVE THE AGENCY WAS PRIMARILY RESPONSIBLE FOR LOST WAGES AND REQUEST PAYMENT TO THE EMPLOYEES INVOLVED AT APPROPRIATE INCREASED MSTS RATES WHICH WERE IN EFFECT DURING THE TIME THE IMPASSE IN NEGOTIATIONS EXISTED.

SECTION 5342 (A) (FORMERLY 1082 (8) ( OF TITLE 5, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) EXCEPT AS PROVIDED BY SUBSECTION (B) OF THIS SECTION, THE PAY OF OFFICERS AND MEMBERS OF CREWS OF VESSELS EXCEPTED FROM CHAPTER 51 OF THIS TITLE BY SECTION 5102 (C) (8) OF THIS TITLE 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.'

IN OUR DECISION 30 COMP. GEN. 356 (1951) WE HELD THAT RETROACTIVE PAYMENTS OF COMPENSATION MIGHT BE MADE UNDER THE AUTHORITY OF THE STATUTE CITED IF SUCH PAYMENTS WERE IN ACCORD WITH A MARITIME INDUSTRY PRACTICE AND IT WAS ADMINISTRATIVELY DETERMINED TO FOLLOW THE PRACTICE. WE WERE ADVISED BY THE ADMINISTRATIVE OFFICE THAT THE AGREEMENTS WERE NEGOTIATED IN ACCORDANCE WITH THE PREVAILING PRACTICES OF THE MARITIME INDUSTRY AND THAT SINCE SUPPLEMENTAL AGREEMENT NO. 1 WAS IN EFFECT UNTIL SEPTEMBER 12, 1969, THERE WAS NO AUTHORITY FOR RETROACTIVE PAYMENTS.

UNDER THE CIRCUMSTANCES RELATED, WE AGREE WITH THE DEPARTMENT OF THE INTERIOR THAT NO BASIS EXISTS TO MAKE ANY RETROACTIVE PAYMENTS.