B-198300,(MRV),L/M, APR 15, 1980

B-198300,(MRV),L/M, APR 15, 1980

OFFICE OF GENERAL COUNSEL SUBJECT: MILITARY SEA TRANSPORT UNION, AFL-CIO V. UNITED STATES, CT.CL. NO. 122- 80C (YOUR REFERENCE: KAFLYNN:PAW, 154-122-80C)

ALICE DANIEL, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE:

WE REFER TO YOUR LETTER OF MARCH 21, 1980, REQUESTING OUR REPORT ON THE ABOVE-CAPTIONED MATTER IN WHICH THE PLAINTIFF, A UNION, SEEKS AN ADDITIONAL TWO PERCENT PAY INCREASE FOR THE PERIOD FROM JUNE 16 TO SEPTEMBER 30, 1979.

OUR RECORDS REVEAL NO CLAIMS BY OR AGAINST THE PLAINTIFF UNION. HOWEVER, WITHOUT A LISTING OF THE UNION MEMBERS REPRESENTED BY THIS PETITION, WE CANNOT DETERMINE WHETHER THERE ARE ANY CLAIMS FOR OR AGAINST INDIVIDUAL EMPLOYEES.

WE HAVE NO FACTUAL INFORMATION REGARDING THE ALLEGATIONS IN THE PETITION, BUT WE HAVE ISSUED TWO DECISIONS WHICH MAY BE OF INTEREST TO YOU, ONE INVOLVING CREWS OF VESSELS AND THE OTHER INVOLVING THE LIMITATION ON WAGE INCREASES FOR FISCAL YEAR 1979.

OUR DECISION INVOLVING THE PAY PRACTICES OF CREWS OF VESSELS CONCERNED THE APPLICATION OF THE GRADE GS-18 PAY CEILING CONTAINED IN 5 U.S.C. SEC. 5363 (1976) TO THE PAY OF CREWS OF VESSELS WHICH IS SET UNDER 5 U.S.C. SEC. 5348 (1976). IN THAT DECISION, 56 COMP.GEN. 870, B-184947, AUGUST 9, 1977, WE HELD THAT THE PAY OF CREWS OF VESSELS IS FIXED BY ADMINISTRATIVE ACTION FOR THE PURPOSES OF THE PAY CEILING IN SECTION 5363. THIS DETERMINATION THAT THE PAY OF CREWS OF VESSELS IS "FIXED BY ADMINISTRATIVE ACTION" APPEARS CRUCIAL TO ANY DETERMINATION THAT THEIR PAY IS SUBJECT TO A WAGE INCREASE LIMITATION, AS DISCUSSED BELOW.

WE NOTE, HOWEVER, THAT OUR DECISION IN 56 COMP.GEN. 870, SUPRA, HAS BEEN CHALLENGED IN COURT. SEE INTERNATIONAL ORGANIZATION OF MASTERS, MATES, AND PILOTS V. HAROLD BROWN, ET AL., D.D.C. CIVIL ACTION NO. 79-1074. HAVE BEEN ADVISED THAT THE COURT IN THIS CASE IS CURRENTLY CONSIDERING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT. FOR FURTHER INFORMATION ON THIS COURT CASE, CONTACT MR. LELAND WARE AT JUSTICE ON 633-2809.

THE ALLEGATIONS MADE BY THE MILITARY SEA TRANSPORT UNION IN THE CASE BEFORE US ARE ANALOGOUS TO THE ARGUMENTS RAISED IN A RECENT DECISION OF OUR OFFICE INVOLVING CERTAIN BUREAU OF ENGRAVING AND PRINTING TRADE AND CRAFT EMPLOYEES. SEE B-195785, FEBRUARY 6, 1980 (59 COMP.GEN. ). THAT DECISION WE FOUND THAT THIS GROUP OF EMPLOYEES WHOSE PAY IS SET ADMINISTRATIVELY UNDER 5 U.S.C. SEC. 5349(A) (1976) WERE SUBJECT TO A PRESIDENTIAL MEMORANDUM LIMITING WAGE INCREASES TO 5.5 PERCENT FOR FISCAL YEAR 1979. THIS PRESIDENTIAL MEMORANDUM LIMITING WAGE INCREASES TO EMPLOYEES WHOSE PAY IS SET ADMINISTRATIVELY AND "IN THE PUBLIC INTEREST" WOULD APPEAR TO APPLY ALSO TO THE PAY OF CREWS OF VESSEL SET UNDER 5 U.S.C. SEC. 5348.

IN OUR DECISION IN B-195785, SUPRA, WE CITED TWO RECENT COURT CASES HOLDING THAT THIS PAY INCREASE LIMITATION WAS A REASONABLE EXERCISE OF AGENCY DISCRETION. SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES V. BROWN, CIVIL ACTION NO. 78-2252 (D.D.C. NOV. 20, 1979), AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES V. BROWN, CIVIL ACTION NO. 78-2301 (D.D.C. NOV 20, 1979). HOWEVER, WE HAVE BEEN INFORMALLY ADVISED THAT CROSS-APPEALS HAVE BEEN FILED IN THESE TWO CASES.

ENCLOSED ARE COPIES OF OUR TWO DECISIONS CITED ABOVE. IF I MAY BE OF FURTHER ASSISTANCE IN THIS MATTER, PLEASE CONTACT ME ON 275-6410.