Petition for Writ of Certiorari — Bradshaw v. Laird

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- Daniels v. United States, 407, F.2d 1345 (Ct, Cl. +1969). 12, 14

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OPINIONS 3 ON

JURISDICTION -ice 22 cneecececeenoeeee eee ee

"QUESTION PRESENTED .......... Cea we ae

: . < erate ~ ;

sai aint ara INVOLVED - es So eae

: NO see

STATEMENT OF THE CASE . ‘. 3 x

A. The Proceedings | i a CI , Se. er

} B. Facts aie rere : oy ne : B : \y/

" REASONS FOR GRANTING THE WRIT. ee

' .¢ -Z...Statutory Guidelines and Policy Considerations... 9 a ee

. Conflict with Gourt of Claiyns pak ie ae

“CONCLUSION .... . | = 3 ra

TAPPENDIX (oo. eccceeeetece te eS

Cases 4

‘Amell v. United States, 384 U.S. 158 (1966). ..10

Tallman’ v. Udall, 380 US. 1 : 12

: United States v. Shimer, 367 U.S. 374... Bie ee f ;

ET PE Rae .

age ens 2° _ Statutes = 79

‘Title 5, U.S.C. $5301... i aeaeerenien 10

Title 5, U.S.C. §5841.00 2. 2,3,9

Title 5, U.S.C. §5842.0 13

* Title 5, U.S.C. §5843........... Bet oe

Title 10, US.C. §7474, repealed, Pub. L. 89-718 “4

le ie UN NI oc 2,3,9 -

Ege ete f+ IN Tar | naa

ToS Supreme Court of the Bnited Sites

_ OcToBER TERM, 1971 9° |

ne PERRY BRADSHAW,.

WARREN: D. TUCKER,

See | ae :

BERNARD C. KELLY,

ver: Sus

MELVIN LAIRD, ee

_ Secretary: of Défense, es ae

WILLIAM.CHAFFEE, © +

Secretary of the’ Navy, ee

ROBERT 'E. HAMPTON.

Commissibner, Civil Service. Commission,

‘JAMES B. JOHNSON,

. Commissioner, Civil Service Commission, ae

NICKOLAS J. OGANOVIC, ee eel ae

< Comeamicalonss Civil Service Commission. “

v

"PETITION FOR A WRIT OF meal:

To THE UNITED STATES COURT OF APPEALS

. FOR THE FOURTH CIRCUIT :

. —_—

ee °

; : Petitioners pray that a writ of certiorari issue to *’

-. review the final judgment of thé United: ‘States Court of

Appeals for the \Fourth Circuit entered in these pro-

- p= September 13, 1971. ates Be *

ys as

2

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—

we Art ail

. “OPINIONS ‘BELOW

at dicclien of the iited: States Court of: Pe :

for the Fourth Gircuit affirming a judgment entered in

‘favor of the > respondents in the United States District pet

Court for‘the Eastern District of Virginia; at. Ni orfolk,

is embodied if a per curiam opinion. which. has not y t

been reported.. The opinion’ appears in the Appendix, .

infra, along with the written opinion entered by the Dis-

trict Court which i is oT at 319 F: mur: (390 (1979).

2

~ JURISDICTION

| The judgment o} a the United States Court of hoses

‘ was éntered on September 13, 1971. The time for filing

the petition will expire on'December 12,1971. =

| \

QUESTION PRESENTED “ a ‘

| Whether respondents . have acted motionctls and.

, beyond the scope of their authority under the provisions

of 5 U.S.C. 85341, effective Septembeg 6, 1966, and 10

U.S.C. 87474, prior to that date, in the establishing for

_. the petitioners of wage rates substantially lower than re-

ceived: by employees with comparable . jobs ‘and_ skills

‘who work in private industry in the geographical area’

of petitioners’ employment and substaatially lower than —

deemed warranted ‘by the respondents’ own wage audits.

. for’ petitioners’ employment as ‘blie-collar ‘Aircraft ©

. ° Examiners at the are Rework k Facility, N snes Vir-

ginia. he 7 his

‘STATUTES. peas

Title 5, United States Code Section 5341 in relevant :

part: ee = d. ,

“(a). The pay of euplinieis dae skid chap-*.

ter Sk of this title by: section 5102(c) (7) of this

2

: “titiSena be fixed and Sajuated from time to time |

as nearly as is'consistent. with the public can

_ in accordance with prevailing rates. Subject to . |

secti6n 213 (f) of title e 29, the rates may not-be less

. ‘thanthe appropriate rates provided for by section

ONS) (1). of title ite ef £4 +5, lignes Siem

Title 10, United. Sites Code Section 7474 (cfs

ae by 5 U:S.C. 85341) :

5, “The Secretary of de N avy shall establish rates

_ | of wages for employees of each’ naval activity é

«where the rates are riot-established by.other provi- —

'-sions of law-to conform, as nearly as is consistent _

» with the public’ intetest, with those. of private ’

3 establishments i in the immediate vicinity.”

~4

STATEMENT OF THE CASE roe

; 4 Proceedings,

The petitioners are blue collar Aircraft Examines,

tints: of- the National Association 6f Aeronautical

Examiners, and are employed\at the Naval Air Rework: '

‘ Facitity, Norfolk, Virginia, and at -other locations

throughout the United States. The respondents, Melvin’

Laird, Secretary of Defense, William Chaffee, .Secre-

"gary of the Navy, Robert E. Hampton, Commissioner,

Civil Service Commission, James B. Johnson, ‘Commis-

sioner, Civil'Service’'Commission, and Nickolas J. Ogah-

- ovic, Commissioner Civil Service Commission, are all

‘charged with the responsibility of j plementing: rules |

and regulations. for ,the setting of civilian em Dyecs?

a Wages at naval facilities, including thd. members f peti- .

10 Ujs.€.A. Ska

", . tioners’ class pursuant to 5 U.S.C.A. § 5341 (a) and 5343.

Prior, o Septemer 6,’ 1966, the cont boxoa statute was

e

'

Petitioners brought this class action. on. their own

behalf and on. behalf of ‘all- other aircraft. Examiners -

employed by the United States Department of Defense .- -,

at ‘various naval installations throughout the United

States, to challenge the method by which their wages

were established. Th petitioners’ wages are.required by

‘law to conform_as ngarly as is consistent with the public

interest, with ; paid in‘ private industries in the

immediate vicinity, and their wages must be periodically -

adjusted to assure that they so conform. The- Department

of Nayy in an effort to. comply with the law, initiates

. Wage Surveys in the vicinity of the Naval Air Rework

Facility at Norfolk, Virginia. These surveys are made

pursuant fo regulation and procedures formulated by | the

Department of the Navy for this purpose.

Petitioners contended in the District Court that since

1963 each of the surveys taken by the Navy was im-

proper in thas they did not review. or ‘compile the wages

of persons doing substantially the same work as petition-

ers do, gor did the Navy survey industries similar to that

of the Naval Air Rework Facility. Further, petitioners

contended that the Navy’s regulations established an ar-

bitrary percentage rate higher than the wage of the .

tradesmen they supervise. ,

Since 1967 all audits or examinations of the position

. of Aircraft Examimer made by and on behalf of the

‘respondents have established that petitioners’ duties and

responsibilities require and justify higher wages.. Peti-

tioners contended that the réspondents arbitrarily, with-

out regard to the statutory poandate, refused to increase

Aircraft Examiners’ percentage differential when <all -

“relevant - available to them. warranted an increase.

After a ‘trial on July 6, 1970; at which time evi-

dence’ Was taken, the District Court in an Opinion en- ©

4

tered on Ni ovember 19, 1970, dismissed plaintiffs action.

The District Caurt’s Opinion appears in St et

snfra.- \-\-*

‘On appeal, the United States. Court of Appeals ios

the Fourth Circuit affirmed the decision of the District

Court in an opinion entered on September 13, 1971.

Appendix, a

"B. Facts

‘ Plaintiffs are a class of Aircraft Examiners who are. .

employed by the United States at seven Naval Air Re-

work Facilities throughout the United States, Aircraft

Examiners are @sponsible for the physical running of

the aircraft to determine if any malfunctions exist in

the various components and systergs, in order. to decide

the depth of rework necessary during periodic overhauls

performed by the Navy on its aircraft. Tr. 29.

The wages of N avy Aircraft Examiners are estab-- ©

lished by the use of a percentage differential over the

amount paid to 4 mechanic in the trade which they-exam-

ine. Tr. 133: The percentage differential at the time of

this suit was 19.2 per cent. This wa’ put into effect in

1969. Tr. 37. From4963 to 1969, the paseeainge differ- ,

_ ential was 16per cent. Tr. 36.

- ‘In 1963, the commanding officer. of the Naval Air.

Station at Norfolk, S. M. Mullholand, wrote to the

Chief of the Bureau of Naval Weapons recommending

that the Examiners’ pay differential be raised to 25 per

ctnt because: of their responsibilities and because .their

current pay was inadequate. Plaintiff's Exhibit 2. The

National Association of Aeronautical Examiners sought

_’ to have their pay differential raised numerous times. An

: audit was granted at their request and performed by the

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Office of Civilian Manpower in Washington i in 1967, ‘Tr. a

41, but the rate was not raised.

In 1967, Mr. Edward Webb, of the N avy , Depart-

ment, performed an on-site audit of the Aircraft Exam-

iner position at the Naval Air Rework | Facility at Nor-

folk. Tr. 68. During the course of the audit he was

given a “thorough briefing of the kinds of duties and

responsibilities they were assigned,” ” by. the Aircraft

Examiners themselves. Tr. 69. Although the ultimate

decision was against-implementing an increase in the

differential for Examiners, the reason was not because an

increase. was unw arranted. In fact, the “Memorandum to

- File,” Plaintiffs’ Exhibit 3, listing the findings of the

on-site adit, gives every indication that the job responsi-

bilities . and “the independence with which these em-

‘ployees [Aircraft Examiners] operate” were-such as to

warrant a pay increase, In addition, some of the previous

functions of Planners and. Estimators had been assumed _

by Examiners. Plaintiffs’ Exhibit 3, p..2.

Further, during the time period in question, Plan-

ners and Estimators.had received pay. increases relative

to Examiners, and it is in the record. that, although the

details of their work differed, Planners and Estimators

were “in a sense—doing the same type of work.” Tr. 96.

Captain Farnsworth, as Commanding Officer of the

_ Naval Air Rework Facility at Norfolk in‘a letter dated

June 9, 1969, to the Naval Air Systems Command, Wash-

ington, D. C., Plaintiffs’ Exhibit 11, strongly recom-

mended that the differential of Examiners be increased

* prior to the implementation of the Coordinated Federal —

Wage System. Captain Farnsworth ‘in paragraph 4 of

“his letter as an additional reason way the Examiners’

-diff@rential should be increased said :.

“4. The problem jis further aggravated by the °

Lesteaes interim es as per OCM M -

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NOTE 12531 OCMM 0333.1 :sjs of 4 April

1969 which will result in further misalign-

ment betaveen Aircraft Examiners and the

closely related positions of Planner and.

Estimators. _

This recommendation: was not implemented. Tr. 9.

Captain Farnsworth’s letter is Supported by sub-

- Stantial basis in fact.. Mrs, Vida Meacham, a position’

classifier at the Naval Air Rework Facility, testified ©

that her duties involved studying job: responsibilities at

the Naval Air Rework Facility in order to ‘arrive at

suitable pay levels” applying evaluation Criteria issued

_by higher level authorities. Tr. 108. She prepared Plain- |

tiffs’ Exhibit-7, which is a “Recapitulation of Certain

Data Relative to Aircraft Examiners. ” In addition, she

performed an audit with members of the Aircraft Exam- .

iners’ national association, Tr. 111, and. prepared an

analysis of the job. She recommended that a pay in-

crease be given due ‘to the “sophistication of aircrdft,

increased complexity of weapons systems,” Tyr. 113. Plain-

tiffs’ Exhibit 7 at page 3 indicates the opinion she ex-

_- pressed’ in writing for use of ‘the Executive Officer of

- the Naval Air Rework Facility. Mrs. Meacham’s testi-

mony indicates that the commanding officer. was well

aware of the complexity and responsibility invalved in

the Aircraft Examiners’ work when he made his June 9,

1969, recommendation for an increased differential for

Airctaft: Examiners... :

Mr. William N. ae Dirccwne: of the Manpower

Planning Division of the Office of Civilian Manpowet

Management, Department of the Navy, testified that he

directed the audit in 1967 to establish whether ar not.the

Aircraft Examiners should ‘receive an increase. Tr.. 147-

118. After evaluating their findings; Mr. Price ¢ame

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to a tentative decision that the Aircraft Examiners'should -

: réceive an increase, however, after conferring with the

Civil Service Commission this decision was ‘modified

- and no increase was recommended. Tr. 125. The reason

wag, that the Coordinated Federal Wage System estab-

lished by Executive Order in 1968 was scheduled to go

into effect in a few months which would mean that all

ungraded pay would be set by a single system under the

contro] of the. Civil Service Commission. Bu ———

dinated Wage Syotenr Gis HOt at that t time aid to ) Ais

crate Examiners. |

Mr. Gordon Kellet, a personnel’ management spe-

_ cialist employed by the Civil Service Commission, testi-

- fied that he told Mr. Price that the Civil Service Com-

mission would object to the proposed change in the pay

differential for Aircraft Examiners because they did not

want to change anything until the new Coordinated Wage .

_ System went into effect. Tr. 198. The Civil Service Com-.

* mission made no audit/1t merely did not want to disturb

the status quo. Tr. 199. The Aircraft Examiners were

_put in a special “set aside”: category pending further

“study, but no increase was implemented, other than an

across the board interim increase for all of the super- —

visory employees in the “set aside” category. Tr. 143,

196, 200: This resulted in further, disparity between

Planners and Estimators’ wages on the one hand and Air-

craft Examiners’ wages on the. other.

REASONS FOR GRANTING THE WRIT

- The decision below upholds a method of establishing .

wages of government employed Aircraft’ Examiners

which petitioners contend conflicts with the legislative

. intent of Congress and with the express language of the

statute requiring wages of civiliad employees to be estab-

lished as nearly comparable as is consistent with public

see 8

policy =“, prevailing wages in the area where the em-

ployees work. ae

Petitioners, on behalf of a large class’ of government

employees, challenge as arbitrary and iHegal the use of

the percentage differential method -of sétting Aircraft

——— Examiners’ wages geared to the wages of the supervised

"mechanics without a direct relationship to wages received ‘

“by persons with comparable jobs and skills who work in

private industry in the relevant wage areas, or without

- an independent basis for. determining. a fair and competi-

tive wage. :

I. Statutory Guidelifes and Policy Considerations

* Petitioners below challenged both the failure of the -

_N avy to grant wages when its own wage audits indicated

increases were warranted ds well as the method the Navy

chose to determine w ages of Aircraft Examiners, the per--

. centage differential. The authority to establish petition-

ers’ wages is found in 5 U.S.C, 85341 ,, effective since

September, 1966, which provides that wages are to be |

> set “as nearly as is consistent with the public interest in -

accordance with prevailing rates.” The predecessor stat-

: ‘nr 10 U.S. C. 7474, had the same” F roquinqnhent.

In establishing wages for supervisory evel sitipleny:

| ees the N avy conducts wage surveys of private jobs com- —

Ea parable to the government employees w ho are supervised

but no surveys of privately employed supervisory em-—

- Pployees. The government supervisory ‘ ‘level employ ees

have their wages determined by a percentage differential .

above the rate of the mechanic they supervise. This is:

the methiod the respondents applied in determining the

_ wages of Aircraft Examiners.

The N avy’ s pay mites in sddbion: to being expressly

regulated by $5341, are governed by-a-clear statement of

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the ing ‘congressional intent which should be con- * ~

—Sidered in construing the statutes and in determining

whether respondents have violated thei? duty under the

law. This is set forth in 5 U.S.C, $5301 as follows:

“Tt is the policy of Congress that Federal pay

fixing be based on the principles that— . &

ie (1) There be equal pay for substantially equal

-. . work, and pay distinctions ‘be maintained in

keeping with work and performance distinc:

tions; and

(2). Federal pay rates be compatable with pike: |

ate enterprise pay rates for the samé levels

of work.” (Emphasis supplied), =

_ This legislation is consistent with prior legislation °

establishing ‘a federal policy. of maintaining competitive

salaries, The Supreme Court in Amell v, United States,.

384 U.S. 158, 161, n.7 (1966), a case involving the juris-

‘ diction-of the Court of Claims-to- hear actions for wages

brought by certain government employees, recognized

- the trend in government-employment to pay salaries

comparable to private industry:

“In 1962, Congress enacted the Federal hidists

“Reform Aét, making an explicit declaration of —

policy that federal’ salary fixing should be com- °

parable to private enterprise salary rates for the

same levels of work, Act of October 11, 1962, Pub.

' L, 87-793, 76 Stat 814,.5 U.S.C. $81171- 1174 (1964

ed.) Pursuant to congressional direction the Presi- .

dent issued an Executive Order, Exec. Order No. ©

11173, Aug. 20, 1964, 29 Fed. Reg: 11999, taking -

full cognizance of the congressionai p licy enunci- ,

ated in the Federal Salary Reform Act of 1962”

-... Thus, the whole trend in government, compen-

sation is to draw individuals into public service by

10

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providing salaries at least comparable to those

aeey woule earn on entering private industry. a

There can be na. enmtita that: the congressional interest -

in providing for comparable wages was ‘to enable. the /

Federal Government to be competitive in the job markets

_ surrounding relevant wage areas.

Although the governihent contended heifie that pe-

titioners had no counterparts in\private industry and that

petitioners are not supervisory level employees, but pro- .

duction facilitating employees, the government utilized

_ the same method of establishing their wages as used by -

-supervisqry level employees, the percentage differential. ,

Petitioners desire to raise the issue of the arbitrariness |

of this method. Cf. Rogers v. Laird, 319 °F. Supp. J

(E.D. Va. 1970), affirmed’ 4th Cir, (May 19, 1971), in

which a petition for writ-of certiorari has beeavdocketed

in thi Court. No. 71 242, 40.L.W. 3126 (filed itch

17, Ay

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- Conflict with Court of ‘Chiesa ond other :

‘Decisions of this Court. a

The respdndents, on the ‘one hand, contended® below

that it was reasonable and proper to “set aside” considera-

tion of Aircraft Examiness’ wages until the Civil Service ‘

. Commission could study those positions which were dif- *

ferent from most others in the Federal. pay system. On

_ the other hand, the respondents.attempted to justify the

use of a percentage differential as a method of establish-

ing wages of employees such as thel Aircraft Examiners

because of their inability to make direct comparisons with

other jobs in the private sector of the economy and ‘Be-

cause the use’ofsa percentage differential resulted in \

fair and uniform wage. The two positions are untenable

~ in this case because when plaintiffs sought an adjustment ~-

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in their/differential ‘and ‘when all the indications and

evidenée warranted an in¢rease, the Department of the

Navy declined to make an“ increase on the grounds that

_ the method of establishing wages of Aircraft Examiners

/

was.unique and the Civil Service Commission.wanted to

' preserve the status quo until-it could determine how -to

establish plaintiffs’ wages as. part of the Coordinated

~ Federal Wage System.

Whether a position is, unique should not estes a

decision to pay wages that are warranted. The defendants

have a statutory duty to adjust wages. They have a stat-

utory duty to pay competitive salaries: Yet when their

own findings indicated that a Particular: group of ‘em-

ployees, the Aircraft Examiners, were inadequately com-

pensated, the respondents declined to act. a

-

Crncatedil, the besilin is On petitioners*to show .

that respondents acted in an arbitrary and illegal manner.

United States v) Shimer, 367 U.S. 374, Udall v. Tallman,

380 U.S. 1, and Daniels v. United States, 407 F.2d 1345 -

‘fo & 1969). However, petitioners contend that the

burden has been met becatise the’ respondents have 1 not

determined their wages’ according to law.

The principal case vioteising government wa

setting under statutory direction is Daniels v. ited .

States, 407 F.2d 1345 (Ct. Cl. 1969). Although the Dis-

trict Court below relied heavily on Daniels, petitioners:

believe that the principles set forth in that case are in- ~

consistent. with the Court of ‘Appeals’ ‘decision elow. .

The rupee 2a was an action brought by Navy em- .

ployees allegi g that the Navy had acted arbitrarily. in :

. fixing their salary rates as ships’ pilots by applying a

“perc age ee of seventy percent to the base

pay fox,a 40-hour Week of a Class A Ships Master in the

Military Sea Transportation, Service rather than basing

.

12

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their wages on the rates of. pay of non- government pilots

_in the samé area. There, the statutes in question govern-

ing the establishment of Navy pilots’ pay the applicable —

Statutes provided - for pay comparable not with local

wage rates, but -with “nationally prevailing rates and oe.

'. practices in the maritime peta A [Emphasis supplied].

ee US.C. $5342, *

In the Desiels case, the factent situation materially

differed from the case at bar,-There, the Navy had per-

- formed a detailed investigation of ship pilots’ salaries in

the private sector. That investigation yielded an duthori-

tative report which was introduced into evidence, The

Court of Claims placed heavy réliance on the recommen-

dations in the Navy’s report which concluded that a uni-

form national salary rate should be established for pilots...

‘Further, in support of:the N avy’s determination to set

the pilots’ wages by a umiform percentage differential

_ method the Court of Claims — out. that i in ithe re-

port, supra, at 11347, | ¥

“It was found that no adequate: salacy formula

cbuld be established upon a classification jof ‘the

_relative- functions, experience, and qualifications

of. the pilots; since most pilots performed or wete -

' qualified to perform the same duties to a greater

or. less degree. In addition, the report determined "

_ that Navy pilots had no exact counterparts in the

maritime in@usty.” (Citations omitted; emphasis

supplied) = | at

.

The terms of the anpliceble statute require Aircraft

> -

Examiners’ wages to be-set competitively in each wage’

Aircraft Examiners, but sets their pay. at a percentage

“rate over the men they examine. There is no necessary

‘relationship sanninons the pay of Ae mechani )

13°

. area. The Navy does not conduct wage surveys of private -

—iels, where it wes contended that the pilots’ pay was ar-

‘ Adieu there may be no exact counterpart to the Air-.

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aircratt examiner, although the District Colirt isin this |

to be reasonable~A similar question was raised in Dan-

itrary because ‘it: was geared to the pay of a Ship’s

“Master. The Court of Claims said, at 407 F.2d 13: hel

. ' “Plaintiffs furtlier contend, however, that the use

of the pay of a Css A Ship's Master, MSTS, as

. - . a Salary base for Navy pilots is arbitrary because

of the noncomparability, of the duties of masters

*.. and: pilots; The report tacitly admits. that the two

jobs aré.not comparable, but further states ‘that—

-in the absence of any comparable base—it was. °

necessary to select some position within the marine

industry: upon: which ‘to found the Salary rate.

This eonclusion was ‘reached, however, only after .

acar eful consideration and rejection of the-various

pilot salaries. that. could’ be used ‘as a base. (Proj-

uts“paid to non-Navy ‘pilots in ‘accord-

th prevailing industry rates were calcu- —

: without reference to, the position of Ship’s ~

Master. It was only after the pilots’. salary

range was determined in- light of industry prac- .

tice that the’ seatch for a base settled upon the

‘pay: of Navy pilots was related directly, to the

- salaries paid other pilots, and the use of the mas:

ter’s position as a, base was. merely a matter of

administrative.and mathematical convenience.’ ;

_ (Emphasis suppliéd).. e eae

. e :

2 _

craft Examiners in the: private sector of the economy, this

does not relieve the respondents of an obligation to estab-.

‘lish competitive and fair wages. The Court of: ‘Chai

in the Daniels case was careful to point out that the phy

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‘master’s position. “It is therefore seen that the .~

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3 Aveaosneaad percentage differential. .

of. Navy pilots as a result of applying a ‘geccohiens dif- -

J ferential was directly related to salaries paid other Pilots,

even though there was no exact counterpart.

The respondbinis confronted by complaints from. the -

National Association of Aeronautical Examiners that the

petitioners’ percentage | differential was inadequate to

“compensate them for the type of*work they were en- . °

. gaged in, did ‘conduct an audit. The Navy Department, |

at every level from position classifier to commanding

officer at the Naval Air ework Facility to Director of

the Manpower Planhifig Division of the Office of Civil-

ian Manpower Management found that the wages. of

Aircraft Examiners were too low and that the percentage

differential should be increased. However,,the increase.

was denied, not because it. was unwarranted, but because

of the impending shift in responsibility over petitioners’ cals

wages fromthe N avy Department to. the Civil. Service:

“Commission, the Civil Service Commission had requested.

that the Aircraft Examine®s be put into a “set aside” cate- '

gory. Thus; while the: evidence established that the per- *

. Centage differential: applicable *to Aircraft Examiners

was inadequate by the’N! avy’ s\own standards, no, inctease’

was implemented. — : x a en Bae

Petitioners seek review by this Court in order to:

construe the Statutes in question: and in order to chal- _

lenge the percentage differential method of establishing”

wages, generally, and. the ‘failure of the Navy to gfant

| what petitioners contend.was a warranted and statutorily.

2 compelled raise, specifically. The Navy still had authy-

ity over Aircraft Examiners’ wages at the time it con-

sulted with the Civil Service Commission’ and at .that

time, and for several years prior, the Navy could have, .

and petitioners.contend should have, made an incerase in

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-~-

The ‘Court of Claims | in Danich, supra, however,

_ required that the percentage ‘differential be directly re- ,

lated to the “prevailifeg rate” for: private employees in

the same fi¢ld; that there be some independent basis for

determining the salary Tevel rather than arbitrary per-

centage differential over thé lower level employees. The

respondents failed to meet this requirement in the case at

bar. .

Respondents under the catch-all of the administra-

tive discretion have declined to ‘comply with the man-

date of Congress to pay competitive and fair wages in

keeping with prevailing rates. Under the statutes, they

must pay prevailing rates. The statutory language is

rendered meaningless by the respondents’ actions unless

th¢y can show some compélling reason in the public in-

terest why an adequate wage Should not be paid: Mere

administrative convenience is not so compelling ‘as to

* justify sttting aside the legitimate demands of govern-

-thent employees, particularly where the law is plain in its _

requirements. Petitioners wish to bring before this Court.

the issue df whether, in fact, there was an abuse of dis-

cretion of: the respondents’ decision to allow administra-

tive convenience to prevent implementation of a wage in-

“crease me by law. wer

For the foregoing reasons, petition for a writ of |

'* “certiorari should be granted.

Respectfully submitted, ‘ |

PERRY BRADSHAW, ct Ry “44

.. By/s/STANLEY E. SACKS -— -

Stantey E. Sacks— . .

. SACKS, SACKS & TAVSS ©

: - 405 First-& Merchants National Bank Bldg.

Norfolk, Virginia 23510

Counsel for Petitioners

2 2 a... oe

16

3 ae | . |

APPENDIX —

- Pa

- or,

-

-

,

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.

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+

~

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.

-

- 5

-

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INDEX ~

Opinion and Order of the District Court...

Opinion of the Court Oe oe teen ocean WARE:

Plaintiff's Exhibit No, 22... aes aoe

Plaintiff's Exhibit No. 3....... aN Ais ani Saeed a

Plaintiff's Exhibit No. 4 : eaaree! eee ba ‘

Plaintiff's Exhibit. No. c: iia “16a

Plaintiff's/Exhibit No. 6..cscccnneenpeegennneineee ta

"Plaintiff's Exhibit No. 7%... ‘cobain

Lettér from Captain W. .D. Farnsworth to Naval, Air i Loe

Systems Command from Plaintiff's Exhibit No. 11..25a ~ .

Excerpts from the testimony of William N. Price..27a

Excerpts from tlie testimony, of Gordon N. Kellett...:......28a

. ., &

_ OPINION AND ORDER OF THE DISTRICT. COURT ©

IN. THE UNITED STATES DISTRICT COURT

. FOR Lien EASTERN DISTRICT OF VIRGINIA...

Norfolk Division —

"PERRY BRADSHAW, WARREN D.)

_ TUCKER, and BERNARD CG. KELLY,)

alee ) Civil Action * -

7 aa ) -No.

; MELVIN LAIRD, Secretary. of ) _ 399-69-N

‘ Defense, et al, ’ , |

Defendants )

FILED NOV. 19, 1970 5

Ww. FARLEY POWERS, mR, Clerk

By a Jean I. Basiight ; ?

, Riot Clerk .

OPINION AND ORDER

This i is 4 class action on behalf of all ere of

the National Association. of Aeronautical Examiners,

employed at seven Naval Air Rework Facilities through-

out‘the United States. Plaintiffs are civilian blue collar .

workers employed by the Department of the. N&vy as

Aircraft Examiners at the Naval Air Rework facility in

Norfolk, Virginia. This action challenges the defendants’: *

implementation of the statute under which plaintiffs’

wage rates are established. Plaintiffs contend that the °

. defendants have failed to comply-with the Congressional cl

mandate expressed in 5 USC $5341, applicable since

September, 1966, which provides: -

-The,pay of employees excepted from Chapter 51

of this Title by Section 5102 (c) (7)-of this Title

- shall be fixed and adjusted from time to.time as

, = la . at

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-

~

nearly as is consistéht with the public interests in

accordance with prevailing rates.

Before September 1966, 10 U. S. C.. 87474 applied to

the establishment of wage rates for civilian employees in

- the Department of the N avy.

The Secretary of the Navy shall establish: rates of

wages for employees of each Naval activity where .

the rates are-not established by. other ‘provisions of

Aaw to conform as nearly as is consistent with the

public. interest. with. those of: private establish.

= -ments in the immediate vicinity.

bs dacs ‘ 5. fas” 7 M aa Ss ell 4 < ¥ »

Fallston edlg steteotn: Seah i NE MR a lik i MWe lane de hi alge:

i MED hint he

{ Plaintiffs’ attack is two. shinai: generally, they

_ +. challenge the defendants’ use of the percentage differen-

re tial for establishing the wage scale for Aircraft Exam-

~ ..°. iners. Primarily, however, plaintiffs’ claim is directed

against the actual amount of the differential which, they ~

contend is too low. Defendants argue that use of the

- percentage. differential is appropriate. for determining

plaintiffs’ wages, that wage determination is 4 matter of,

executive discretion,.and that the actual establishment

of the percentage differential was ‘based on permissible

considerations and resulted in fixing lawful and appro-

priate wages for the plaintiffs. ==

ie Mia ns

This Court recently initia the propriety of the

percentage differential in establishing wage ‘scales for

: non-graded positions under the same statute, In Rogers

s00°Cti«‘“#SWi «Laird, F. Supp. ° (E.D. Va: No. 6440-N, |

i > Paes 14,.1970); we held'that use of the percentage >

ferential was reasonable and proper for setting wage .

ba where it ifivolved numerous trade classifications

“and wage markets, covering large areas of the county, and.

the evidence otherwise established its use feasible, Basic-

ally, the considerations existing | in | Rogers v. Laird exigt

-here.

Ps we

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2a

'. The wages of Aircraft Examiners.are based upona .

percentage differential over the specific mechanics which. -

they supervise, ‘that is, over the machinist, electrician,

electronics mechanics, etc. The wages for the mechanics

_ are set in individual labor market areas based upo what .

is generally paid for the same kinds of. work’ in private

establishments in the labor market area. A labor market.

area is considered to be that area wherein an individual

can change his place of employment without having to ES

change his place of Hiving.

In ascertaining the pay of the mechanics, the Navy

surveyed those firms in the ‘labor market atea!. which

employed mechanics who used essentially the same skills

required of mechanics employed by the Navy. In its

“surveys of private industry, the Navy was unable to

- find a: position to duplicate the Navy’s position of Air-

craft Examiner, nor have plaintiffs shown that a dupli-

cate position exists in private industry. Here, no com--

“Aircraft Examiners. They complain othe use of the per-

- centage differential pver the pay of the:mechanics they

supervise in fixing their pay, and the percentage dif-_

plaint is made of the pay. of the in but only of the

ferential wsed for them is too low. The issue here ig not.

tated the plaintiffs a

whether the Court would have gr

higher percentage of dif. erential

other: means to fix the wage: ‘the

r. have used some

_.If the matter is one within the discretion of the Navy,

the Court has no jurisdiction. Aircraft Examiners’ are’

‘responsible for deciding exactly what. work must be

_ done to the-various systems.and components of af-.airplane-

when it is brought to the facility for overhaul. Since the

Examiners’ position bears an obvious relationship to that

1—There are about 150 labor market areas in the United’ States, and 7 major —

* areas where Aircraf t Exaininers are,concerned.

. ° ¢ sae > a

3a ©

iésue is, whether the —

Navy has complied with the statute\or acted arbitrarily.

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of the mechanics, comparing the two wage, scales seems

redeive @ proportional, wage: increase whenever the me-

= appropriate. Naturally the Aircraft Examiners _

_ chanics receive an increase. This occurs almost annually. cs

Neate plaintiffs’ attack is ‘directed principally at

the actual amount of the differential rather than its use,

a closer examination of that claim is necessary. Specific -

differential detérminations are based on judgments of

the skills Tequired and: responsibilities inherent in -the

work, This is also true of all positions for which the

percentage differential is used. Before 1963, the . per-

‘ centage differential fer Aircraft Examiners ‘and. three

other positions was 12%: In 1963, the differential for

the Examiners and two ether positions was increased to. °

16%, while the differentia! for the other position was in-

creased to 20%. Since 1963,-all the other positions have

received higher differentials than the Aircraft Exam-

iners, In 1969, th® differential for Aircraft Examiners

was increased to 19.2%, but plaintiffs contend that as

far back as 1963, their neal should have Oren

25%: oe

wage specialists and auditors. None of these, recommen-

dations was approved after consideratton by the proper

authorities. Plaintiffs’ contention is that their differentia] .

should be the same as the related Position of Planner and

Estimator, which is 25%. However, plaintiffs do not dis-

pute that the Planner and Estimator position requires a

highet “degree of skill and responsibility. Pointing to ~

the increased complexity and sophistication of aircraft

in recent years, plaintiffs claim that these developments

_have increased their duties and responsibilities. Certainly

this is true, but plaifitiffs overlook the obvious fact that

the duties and responsibilities of the aircraft mechartics,

= ae = ae Pa.

aN

There is no factual basis for plaintiffs’: contention a

other- than. the :recommendations. of so some. subordinate |

\

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ath

pe

on whose. wage scale. thei differential is “based, have ~

“increased to the same extent. Since the wage: scale of the. °

~ mechanics has increased-annually to reflect these tech-

nological advances, and the Examiners’ differential i

other positions have increased more than that of

Aircraft Examiners can have no bearing on.the- ‘merits of

_ plaintiffs’ case since there is little correlation ‘between — =

positions and. the others may require ‘greafer degrees of.

skill and responsibility.

As has been indicated, plaintiffs base their claim

for increased pay on various. reconimendations that the~

differential be increased to.25%. These recommenda-

‘tions were made by subordinates whose repre mio

were rather limited and, in some cases, based, solely on -

briefings by the, Resniness: themselves. Plaintiffs ignore.

the testiraony of Phillip Meyerson, Director of the Per-*

sonnel Management Divisién of the Office of Civilian

_ Manpower Management; that the recommendations for ~

and-against increasing the Examiners’ differential was.

_ tgo high. Mr. Meyerson testified that he ‘and his staff -

” reviewed all the information available to them in 1969...

ie cre unanimous judgment,” they: concluded that

the duties and responsibilities of Aircraft Examiners did

not call for an increase in,their percentage differential.

e >

Part of chis controversy. concerns the: improvement

of the Civil Service Commission, which in 1967, was as-

‘suming responsibility: for setting the wages of civiliins ©

within the Department of the Navy. Because of this'sit- ,

- uation, the Navy consulted with the Commission before

~ making’ any changes in its compensation arrangements,

The Commission ‘was preparing to implement its new *

\ cwordinted ‘Federal: Wage System which would bring

-mpre-than a dozen different wage systems from various”

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federal agencies into a single system under the Commis-

sion’s ene Many positions to be included in the new

system, including that of Aircraft Examiner, were not

graded ‘for pay. purpose and were substantially different -

from the pay systems used for most.federal blue ¢ollar

| workers, The Commission had these ee Positions

that tho Sitions could not receive pay increades: This.

_is Obvious, because in 1969, plaintiffs percentage differ-—

" ential was increased from. 16% to 19. 2%. Plaintiffs at-

tempt: to put. the Commission’s request, that the Navy

not make changes ini its pay system while the new wage |

system was being implemented,*-in a ‘nefarious light,

claiming that the request was the sole reason’ the dif-

‘ferential for Aircraft Examiners was not increased. The

evidence, as ‘already related, ‘simply: does not! support

’ ‘this. contention. Moreover, Mr. Meyerson testified that

¢

re et

od

the decision | was. independent of the Commission’ s request: “pha a

hot. to change: the pay system. /

Plaintiffs have jabeled the defunia to authorize the

increase in differential an “arbitrary, unjustified and

-discriminatory denial of pay increases... that is required —

by law.” .The determination not to. suihorise an increase —

y

was an: executive ‘decision, reasonable on its face and

within. the bounds of the discretion, prescribed by’ the

statute. Plaintiffs have not shown that the decision was

arbitrary, Capricious, or unfair in any way. Under these

circumstances, this Court should not interfere with the

determinatiéns made by the ‘Executive’ Branch of the’

Government. Ge fives Fae

The statutory provisions ‘governing wage. setting for

non-gradéd civilian employees specifically réquire phat.

these pay scales be “consistent wie the public interest.”

Spee - Ga

7 .

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“16 PAG .

| This has seas interpreted as.a delegation to the Execu-

tive of a wide discretion’ in fixing the wages of its.em-

ployees. See Rogers v. Laird, ‘supra. Ay ordingly, judi-.

_ cial review of an Executiye decisions” properly limited .:

to those circumstances. where: the é Bxecutive. has" exceeded -

its authority or its action is cleatly wrong. Udall v..Tall-.

man, 380 U:S. 1, 16 (1965); @nited States v..Shimer, °

367 U.S. 374, 381. A1961). Probably, most relevant in:

describing the Court’s function under these cifcumstarices”

ig the Court of” ‘Claims. ‘recent statement ‘in Daniels Vv.

“s ‘United States, 407 F.2d 1345, 1347 (Ct. Cl. 1969) :

lt should be dicaeres the ne authorities nt

‘this court will not, purport to tell the Secretary

of the Navy what. salary formula and. base, ba

should adopt. Our concern is’simply to deter

. whether plaintiffs have met their heavy burden *

- proving that the Secretary’s action in this instance |

"was so pete as to be clearly wrong. :

Plaintiffs have not shown that the decision’ not-to author-"

ize an increase in differential was so’ arbitrary ‘as to be

_ Clearly wrong. To the contrary, defendants have offered,

affirmative evidence that the determifation was within .

its discretion. ‘Congress vested authority for these deci-* . «

sions in}the Executive, apparently because of its Expertise -

and ° familiarity with - the particular. ‘consideration in-

‘ volved. That Bratich of Government: is much better.

qualified, to pass on the question: of wages than the Court.

Since plaintiffs haye not shown that this authority :was

apres oe their action is. DISMISSED:

. s/ RICHARD B. Kétiam |

_ United States District Judge’ @

e e. ”

ff

: Norfoli, Virginia

obama 18th, 1970.

y

:

.

“*

.

Civil. Service. Vemeniesion,

xX

“OPINION OF THE COURT OF APPEALS we

UNITED STATES COURT OF APPEALS”

“— THE FOURTH CIRCUIT -

——

No. “A- | ieee

3

Perry Bradshaw, Warren D. T ucker,

_and Borage? c. Wally, te

Appellants,

vtries a .

“Melvin Laird, Secesiacy ef Defenge,

William Chaffee, Secretary of the Navy,

‘Robert E. Hampton; Commissioner, ighntat J

Civil Service Comfhigsion, —~— .s ir

James B. Johnson, Commissioner of v

Civil Service Commission, and

Nickolas J. -Oganovic, Commissioner,-

ar ppelleds.

_ Appeal from the Uniteg States District Court iopthe

, Eastern District of Virginia, at Norfolk. acre

" Richard- B- Kellam, District Judge. | ae

. (Argeed August 26, 1971 : i

Decided September 13, 1971. )

Before HAYNSWORTH, “Chief Judge, and WINTER,

. and RU aso orereas ir a te. ‘

Stanley E. Sagks rsicks, Sacks ss Taves on Brief) for,

Appellaiits, and William D. Appicr, Attorney, Depart~

ment of Justice; (L. Patrick Gray, LI, Assistant Attor- |

ney General, Alani S. Rosenthal, vAttorncy, Department’ -

of Justice, and Brian P. Getfings, United — OR, «

on brief) for Appellees. ; ay

ll < Ba nd

' 3 s * .-

i)

be PER CURIAM: ;

We affirm i on the Opinion of re district court. Brad-—

shaw V. Laird, 319 F.S. 390-{E.D.Va._1970).» See also,

curiam, 4 Cit, No. pe, May'l9, 197}.

~.

AFFIRMED.

“PLAINTIFF'S EXHIBIT NO. 2° ;

"ss MADSEN

Code 15

12531 Crace

22 January 1963 | 20-63

ce Commanding Officer, U. S. Naval Air saamerias

Norfolk, Virginia :

To: -Chief; Bureau of Naval Weapons (DCP-

-

Subj: Pay level for Aicraft Examiners; recommendation

cqncerning

Ref: (2) BUWEPS itr DCP-23:DAE of 9 May 1962

* (b) CO, ——ave Itr Code 15. 12531 of. 23

Aug 1962 ln oS .

: (1) Responsibilities of an "Aieceats Examiner

“ag gk receipt of reference (a) by this activity, refer-

ence (b) -was prepared and submitted to thé Chief,

" Bureau of Naval Weapons (DCP-2) . recommending a

12% pay differential based on the General Wage Serv-

‘ice pay level W:11 for Aircraft Examiner. by 7

2. At this time, further consideratind of the increased

- scope and responsibility of Aircraft Examiner functions

necessitate re-evaluation and/or reconsideration of the

~ original fesommendation contained in reference {b).

2 “er

‘ Rogers y y.: Laird, 319 F.S. 1 (E.D.Va. 31970), aff'd. per

3. In view ms the increased -seipousibility of Aitcraft

. Examiners, as. depicted in enclosure (1), the pay level

differential ‘of 12% (WF-30) recommended in reference

(b) for Aircraft Examiner is considered. inadéquate. The

overall scope of. functions related to duties performed

and/or work relationships with other Groups in’ the Over-

- haul and Repair Department of this station, prectude-

wage allocation of these responsibilities. by existing ‘cri-

seriq It is the Aircraft Exarininer’s numerous, contacts

- with other personnel, and the purpdse af these’ contacts,

_- that-create responsibilities that justifiably should be rec-

. ognized. After discussing enclosure (1) with Aircraft,

Examiner representatives and realizing the Station’s. de-

Fp: ee placed upon the Aircraft Examiner in the per-

. farmance of his duties; a change in recémmendation of -

pay. level differential is considered mandatory. There-

. = fore, this Station recommends a 25% differential above

s the, 2ud step of ‘pay: level W-1l4>in liew of the previous.

2% i 5 orca forwarded by reference (eee

, ye tt is ‘also suggested ‘that in adlition to the existent

_ pay. Nermilla- WF-10, which is based on GWS pay level

W. il plus differential F, that a new wage formula, be

established ta ‘keep the proposed formula in: line with -

the présent grouping. of Inspection Service ratings. For’ .

example, “WF-44” might be idded to Table-3.2 of NCPI

531, Enclosure'l. -This formula number (WF-44) might

then stipulate 7 “Base Level” is W-11, 2nd step rate equals

‘2nd step rate for W-11 plus area rate for GWS differen-

tial “F”: ; Bet Ist and 3rd step rates from Table 3. 5s

Ss." B. MU LLHOLAND -

By direction

THIS ISA TRUE COPY. °

10a

> _-PLAINTIFF'S EXHIBIT NO. 3-

MEMORANDUM TO FILE .-°> °° s* -

Subj: Wor k-site audit of Aircraft Examiners at NARF a

Norfolk Z .

BACKGROUND: -

The National Association of Aeronautical Examiners re-

quested an audit of their job-because they believe their.

duties increased ‘in scope. and have added responsibilities |

since last upward change in differential was authorized |

in February 1963. The visit was made by Ed Webb oon

(0532.2) on 13-14 of ‘December. Charles - Gard, |

BROCMM LB also visited North Island on these dates -

for the same purpose. : 3

CONTACTS: °°. 7 Sar nn SC

NAS personnel: Mr. Gossett, Senior Classifier, and Mr.

Brown IRO.. - . oo ts

NARF personnel: Mr. Cahill, Su pt. Production Control-

ler; GS-14, Mr. Percy, Supt. I, Mr. Spiers, Gen. Fore-

man (I), Mr. Eike, Foreman (Ldgma) var j

Union Officials: Mr. Bradshaw, National President, and.

Mr. Kelly, President of Local ; :

Airctaft Examiners: .Messrs. Perry, Ashley, Robinson, oe.

Tugker, Hampton, Crawfor, Culp, Lancaster, Stakbach iia 4

Ales SS ss ms SC, ae

DISCUSSION: : ' oe

(1) Mr. Gossett ‘and’ Mr. “Brown believe that a higher

pay rate is warranted: Reiterate their position of January -

_ 1963 that because of the dependency ‘on Examiners, 25% : ’

' defferentials appropriate proper. S setae ae

e

. (2) Mr-Cahill: as Head of the Production Planning &

- Control Group, he believes Examiners deserve more

money. They have the authority to deterrhine depth of

rework. He agreed that the job description attached adé-

* quately describes Examiner duties and-is accurate. Em- :

ployees are not involved in estimating work as o~— in

the Planner & Estimator rating which concerns

capacities, manpower schedules, work programs and

availability of material. , Saba

(3) Shop Supervisors: They recognize that the’ responsi-

bility. for depth of overhaul ts vested in the Examiner.

Indications are that very few differences occur and then

it usually-ends in favor of the Examiner. ‘ eee

-"WORK FUNCTIONS:

The attached job description describes the overall duties

of employees rated as Examiner. It is further substan-

tiated by station directives and ‘functional statements—Of

particular note is the independence with which these em-

ployces es. did a shop supervisor appear on _

_ the scene. - Theré are’ 47’ Examiners and‘ 3 Supervisory

Examiriers. Quité-often they function as a team with each —

man responsible for his specialty. ‘The Leader rating

is not used. In-a sense, these.men’ are tfouble-shooters.

They minutely examine aircraft to find out. what is

wrong; what should be, reptaced; what can be repaired

and check and test equipment on plane to hold item re-

movals to a minimum. Although they determine depth of

rework, it was noted that the shop supervisor estimated -

+the manhours for rework. Two duties previously found

in P & E seem to hate beén assumed -by the |

(1) he orders material needed and (2) on occasion he

_may report to crash scene to assist in determining extent

of damage-and disposition of aircraft.

op - 4

a he s oe

\ ‘

© TYPES OF REPORTS:

;

- 1. Pre-induction.. Reflects — operational environment,

~ custodian, age; flight hours, deployed area, technical di-

rectives incorporated.

2. Analytical History: date on aircraft. from which item

removed, flight hours, landings, etc. *

3. Missing Replacement Items List: Parts no., nomencia-

a. material availability. |

~

4. Discrepancies: log shop, check-off, explanation of dis-

crepancies not corrected.

5. Request for Engineering Information: Part no., _back- ea

ground information, recommendations, etc.

«6. Accessory and coniponent s service record; Directives

status, description, compliasice, —

MEMORANDUM TO FILE

F —Subj:.. Visit t) Robins Air Force Basé, Ga.

_>~ the following conta

*

mR Work similar to that of ‘Aireraft Examiners xiee at

i rce Base. While visiting on February. 7-8,

re made:

Mr.-R. Owens, Senior Classifier .

Mr. W. Polk, wry) bogs

Mr. A. Crews, d A/C Quality Branch

Mr. W. Poland, adh E & I Unit

Mr. J. Hill, Supérviséry Aircraft Inspector

Mr. M: McCauley, Aircraft Inspector Electrician

|. Mr. J. Daniels, Aircraft Inspector (Airframes)

2. The PAR type functions have not been ideand at

the base. to the same degree as in Navy. No’ pointed in~

structions mave been a to give depth- of- work

‘ie

¢e

————eE~w

% .

authority to ma Cramthition Unit. Quality Assurance |

conducts a sampling review of the examiners findings and

Production Planning’ makes the. decisions concerning

depth of rework. There is a-separate A/F rating ‘for

“employees engaged in crash’ damage examination. Sig-

nificant observations were:

a. Employees are concerned with visual examining for

. obvious defects in n accordance with work guides and in- .

structions.

b. Discrepanicics found dire noted more. for protection of

examiner and are not necessarily | corrected,

c. Not concerned, with any examination when external °

power is being applied fo craft, ie: landing gear, instru-

cam, ot.

ze

d. Not feepeasiite fortompliahce with changes in tech-

nical directives or modifications. "EPacaee

“ Geachuian: The examining function exists -but 1s

not organized as in Navy. Ours is a better job with au-

horities and responsibilities being spelled out. See A/C

xaminer job description which reflects major differ-

es ele PVP BAD ORD

-

PLAINTIFF'S EXHIBIT NO. 4.

2 FS Gide UARF:100/JB5.

sae SO te a ee

>. : _ LL March 1969

From: Commanding Officer, Naval Air Rework ~~

Facility iar Pe eo

Naval Air Station, N orfolk, Virginia 23511 |

To: Navai Air Systems Comimand Representative,

‘Atlantic, , si in aa

' Nayal Air Station, Norfolk, Virginia 23511

— Subj:. Pay Category review of positions of Aircraft

.- «. Exarhiners; comments concerning ~

Ref: (2) OCMM Itr OCMM 053:ebs of 22 Nov 1968

ae Reference (a) requested an audit of a sample of three

positions, each representative..of a group’ of positions in

the Examination and Evaluation ‘organization. vi;

- 2. . Three representative samples of position déstriptians — -

» for Aircraft, Examiner are in thd-process of being evalu- |

ated by the local classification office: Position audits.will _

begin the week of 17 March 1969. ee )

“3. Preliminary evaluation of the position descriptions

indicate that the positions should remain in the ungraded ‘

_ category. Upon completion of the audits’ résuits will be

_ forwarded. eee yt ec

J.T. HAYES.

- By direction

8

Je

_PLAINTIFE’S EXHIBIT NO. ‘5.

PR ape, 3 Sa 25/12500/109

wey vols ess < . - MAR 1969 -

From: Naval‘Air Systems Command Representative,

Atlantic L,

es Command, i Air- “Systems Command

: a (Attn: NAIR-04) -

*s Subj: Pay Category Ri Review of Positions of Aircraft’

Examiners. .

Encl: -(1) Copy: -of Office of Civilian Manpower

‘Management's letter ©

OCMM 053:ebs of 22 “Nov. 1968

lL. By. enclosure Gl) the ‘Commanding Officers of the

Re ae Naval Air Rework Facilities were requested to submit.

& three audited position ‘descriptions, each representative

. " - of a group of -positions -in the rating of Aircraft Exam- _

ee . iners, for appropriate review to determine whether the :

+. _ +. positions should now fall into the graded ‘instead of the

ac /ungraded category, ~ | ey

2. While some ‘of the audits requested from East ‘Coast

, Rework Facilities by enclosure (1) are still in " process,

the Commanding Officers of the Cherry Point, Jackson-

ville, Norfolk, and Quonset Point rework commands hie

_ submitted their review, and it is their unanimous rectim-

ates mendation that these positions should remain ungraded.

-t. 3. The consensus of/ these opinions, developed indejen-

_.words of one Position Classification Specialist whose -

audit stated “the fact that employees-in these -positions

must possess and use technical knowledge, which can only

be acquired 1 tn the practice of the trade concerned, estsab-

.

.

fa ee ne

? : ; i 2 t

- l6a

~

, - . dently-at. each Rework Facility, is best expressed in the -

“_. lishes trade knowledges as the paramount requirement to

effectively carry out their assignments. In view ‘of the

above, thé positions are ‘clearly. ungraded Positions and

should be rated in accordance with the Navy’s-guideline _

_ descriptions for ungraded. on NAV-

~ EXOS P-1005-382 Aircraft Examiners”, eared. <3 -y

4. In-view of the unanimity of opinidns expressed ‘to

this ‘Command, and, upon fyrther review concurred in.

by this Command; it i§ felt that further revi w would be

both time consuming and. unproductive, and if is there- ©

fore recommended that the Naval Air Systems Command

explore the necessity of further correspondence concern-

ing this subject with the Director of Civilian Manpower

Management.. PC Aer ae ne Ging oP Woe

=

\

5.. Audited data as received, will be retained by this:

Command, and will be available for back-up information

‘upon request. | Se a é

2%

|. BK. WHITEFIELD ”

CG en en Na a

NAVAIRSYSCOMREPAC) evs

_NAVAIRSYSCOMREP PNCLA. See ee

“e | | _ Received by NA.ALE.

21 MAR 1969 -

“PLAINTIFF'S EXHIBIT NO. 6 eae

is Codé NARF-500/KF ~~

25. June 1969 a

On this date, all of the Naval Air Rework Facilities were

called and asked their feelings on Aircraft Examiners -

getting an increase ig pay differential and on theif going

graded. er : rR ge

/* , . . ; aa 174° :

a

Mr. Prentice, Pensacola, said they ey get an increase

“in pay differential,-in fact, he felt they should be equal

. going graded.-

to a Planner and: Estimator:' He was cael to their

/ - ah

‘Mr. Larkowich, Quonset Point, said they should get an -

increase in’ pay: differential, even the 31% they have re-

quested. Inspectors at his’ Station -have gone graded so, *

he’ feels that the Aircraft Examiners should also.

1

"Mr. Haas, Jacksonville, thinks. Airckaft Examiners 3

should get an increase in pay differential but has no feel.

for. exact figures. He is oppor to scsssd Boing graded,

Mr. Vellines, Cherry Point, would like to see them get an

‘increass which would at least raise’ them above their co- - ”

workers im Quality Assurance but had no. exact figure in-)

* mind. He feels that they will: -probably go graded al-? .

“he said it made no difference at: Cherry: Point. tae

égardless he thinks’ trade background is important,

“Mr. Milne, North Island, feels very ‘strongly that the ‘Air-

craft Examiners should get-an increase and is: presently .

' rewriting their job. descriptions, after which he plans to”

ask for an audit. Their'inctease should be based on the

_ results of the audit. He ‘is opposed to their-goifig graded ~_

because of the trade background ‘factor. He Also-stated ©

that-a,series of meetings with all. 500’s attending such as -

those ‘held during’ the Production, Control conversion

“would be beneficial: In addition, he would like to see

some type | of formal: training for Aircraft Examiners.

Mr Maquire, Alameda, “thinks ‘Kiroratt Examiiiers |

should get an increase if it is reasonable. He feels that an

increase would create alignment proBtems ‘unless the in- ~’

"crease is-given across ‘the board. He does not want the

Aircraft Examiners to be above the Pianoer and Estima:

eo. Ss : 18a )

_ relationships ‘i

_ iner’s numer

' purpose of these contacts, that create Tesponsibilities that

tor level. “Mr. “Maquite is opposed to their going graded me

- because of'the trade background factor, th rion

+, PLAINTIFF'S EXHIBIT.NO. 7.

| RECAPITULATION OF CERTAIN DATA-

- RELATIVE TQ ‘AIRCRAFT EXAMINERS

. 2nd step of pay level W-11 “in view of the inereased. re- _

sponsibility of Aircraft Examiners,” “the overall scope .

of functions -

Repair Depa

justifiably. should: be recognized,” “and in-“realizing’ the © gh

re a6

_- predicated on the Aircraft Examiner's great-impact on —

and the Se aaa the standard overhaul method |

of rewor

‘fember 19§5 when the existing P-1005 rating definition

‘for acany Examiner. was issued]. was decidedly less

sophisticated, complex or costly.” : °

1

19a

Station's dependency. placed upon the Aircraft Examiner - - °

in the performance of his [the Commanding/ Officer's]

| EY eS ees | ;

~- 4/13/67 \. yee Se: Ree. Go eee ss.

' — Letfer fromLocal #4, Association. of Aircraft Exam-

, - diners, NorVa, to. OCMM via (1). CO NARF NORVA -

"and (2) COMNAVAIRSYSCOM, “Washington, te- =

. questing “consideration be giyen.to an increase in the pay a

differential for Aircraft. Examiners to rate plus 31%: -

‘ * ’ a » ‘ oy e ;

ike : Pag < . é "

w *, ‘ . ee as

s ¥ oa e ie oe es

Py a = 4 - . 5 a .

4 ; . 5: ; ", na

is 2 Ne : , \ . = ee e

kh SE 7/25/ ete Hah ial rae

P: co NARF -NORVA. FIRST EN RSEMENT .

: { _ [Code IRC 12531] on Local #4’s Itr of\4/13/67. En-

|

.. Qdrsement ‘addressed to OCMM, via COMNAVAIR-

*SYSCOM, ‘Washington, forwarded the basit lettet and -

“recommended that no‘ increase in differentia}. for Ae.

craft Examiner be considered at this time pedding im-

_-* plementation of the occupational structure” for, produc-

-- tion-control ratings sigce it was “fully anticipated\ghat the

4 ~ . results of the. stugy will have a direct impact on other

; ae ungraded, staff ratings within the production planning -

= -~ dnd control system, @ch as- Progressman, deamsa! and’

a: . Eatinator, ,and Auceraft Examhiner.” a

ee 25/67 a :

—Captbe OCMb tltr OCMM 0532.2: ses to.Local Nov 4, Asio. of

: Acrongutical Examiners, . NoxVa, vie CO’ NARF NOR-

| VA referred. to the Association's ltr of 4/13/67 and -

stated: “... . it has béen determined: that a. change in pay?

eo ft ee definition. is nat warranttd.... Rating definitions are *

7 -"intended. fer ust as guides. in’ ‘determiping ‘appropriate.

rating and they do not include the specificity found im

_ individual job destriptiahs.- It’is believed the definition

dae provides adequate coverage of the Wark included under,

? > the Aircraft Examiner rating. When the pay formula for °

4 Se Examiner was changed upward on | February 1963, the

* changt refiected this Office's consideration of the impact —,

“ie. Aircraft Rework Program had on the Work. This .

: consideration was an important Webi the pay .

differential at its Present level [WF 16% +: ‘rating

* -concetned’] « >

; 12/13&14/6 %.:- . @ Sey ‘

On-site job aifit. by Mr Ed Webb of ocMM of wotk

of Aircraft miners. Audit initiated at Yequest of thé * .

. ior tation -of Aircraft eExaminers: At local

< ; ,20a ml °

ve

. .

. .

. *

o~-. - *

: . Pa

levels im Norfotk there is no documentary evitience of ~~

Mr. Webb's’ audit findings and/or any. subsequent rec- iS

_

al

ommendations.

11/22/8-: - ger edt i es

° ee

= COMM ltr COMM 053:ebs to all NARF’s requesting

“Pay -Category review of positioris of Aircraft Exam-.

iners” and a “classification evaluation.” ¢ -

yi 69

CO NARF NORWA Itr Code IRC 12510 to NAVAIR.

. SYSCOMREPLA WI tfansmitting 3 position ‘descrip-

“tions and-an evaluation teport in* compliance with

OCMM’s ltr of 11/22 _refetred.to above. ‘The ,eval-

uation seport “recommégded the ‘position in question.

remain in the ungradwd pay category”. and “recognized

that the pay gap between gratied and uhgraded employees « *

, Continues to widen and it is algo recommiciided that seri-

ous cohsideration be" given to, study of these inequities

with a view toward achicving ‘more comparability.”

Paragraph 8 of the evaluation report forwarded as en- -

. Closure (4) of CO NARF NORVA ltr of 4/18/69 js re--

peated below for ready reference:

“8. CLASSIFICATION: As indicated im paragrph 7

above; it is.considered that the positions undergojng eval- -

uation are properly placed inthe ungraded pay.category.

Therefore in*approaching -the classification evaluation

of the positions, their duties afd responsibilities, will be |

compared with the Navy Department's ungraded defini-

“tion for the rating of Aircraft Examiner (designate. by

trade}, NAVEXQS P- 1005-382 (9/55).

- a. A®indicated in the foregoing anatysis contained

in paragraph 6, “the paramount purpose of the positions’

involves the examination, analysis, and evaluation of air-

craft and their related’equipments in order to controt

*2la

.

work required to achieve material readiness of the air-

craft.” In order to perform those functions the incum-

bents analyze. and evaluate equipment service records,

_ collect: and anatyzésdata obtained during the preinduc-

tion functional operation of the aircraft and: its interre-

the extent ot disassembly’ and the depth and scope of re-~

lated systems, canduct an overall visual examinatio of -

the entire aircraft (hangar check), and prepare pnd

- . issue detailed work instructions to the production -sHops

* by appropriate entries jn the workbook. Those functfons

are-considered to equate. substantially to ‘the coverage of

‘the “Rating Sunimary” contained im the definition for

_ -Aircraft Examiner, which states: “Examines and ¢v

ates the condition of aircrafts aircraft engings, ‘and

components and accessories to determine. the depts

overhaul required for. the@farticular, aircraft and engpres.

* Detérmines general condition, prescribes extent off dis-

assembly, and.specifies any departures ta be made from

for emphasis. ) Special signific ance is attached to thd un-

.derlined wérds inasmuch as the “ov erhaul” coneeptt has

been replaced by the progressive atreraft rework: (PAR)

' Cocept. Consequently, the “standard overhaul process”

.

.

is no. longer followed, and as-a result fragy “departures”

from established procedures become necessary in order to

rework, primarily, only those required items to provide

* material réadgness and insure’ safety-of-flight potential.

>. standard overhaul pracess |” (U ndeMining has been a ded

*

To determine what work will/or wil] not be accom: .

plished, as pointed out in paragraph 8.¢. above, the posi-

tion incumbents must exercise discernment and judgment

“in making such appraisais which wilk directly affect the:

material readiness of the aircraft and ‘their systtms and

components. In addition, changes in ¢he complexities , of

aircraft, engines, components, systems are .taking place

at a rapid’ rate, atid ‘the “position incumbents. are re-°

\

* ay . 1 - > 7

2

a oe

> " . ?

quired to be knowledgeable, in those respects. The knowl-.

ede extends dcross trade Bnes-to a — degree

_in various instances. In addition, incumben “must. have

_ a thorough knowledge ‘of ‘Principles used and- vast prac- .

_ tical experience in the overhaul, maintenance, modifica-

tion and-repair of” aircraft and their systengs ‘and com-

ponents, as indicated in the pésition descfiptions and also

in the foregoing analysis. Thus it- is believed that the ©

Aircraft Examiners’ fevel of complexity and. gesponsibil,

“ity have both increased im. recent years, In -that respect

oe

attention is invited to paragraph 6.c. above which’ indj-

. ihe, , ‘

"cates that the “positibn incumbents’ knowledge of aitcraft

" and.of the systems and components peculiar to each ‘con-

figuration worked at Norfolk extends beyond the three

basic models regularly inducted for progressive aircraft

- rework.” As a result the fOSition inctimbents serve as a

focal point within the Naval Air Rework Facility for

collecting, analyzing, interpreting, and developing spe-

cialized information about the aircraft and’ their .com-

ponents and systems, In addition, they provide recommen-

dations to. program planning managers, to engineering _

Petsorinel, to operations analysts, to. production Supervis-

ors, to the PAR Liaison Officer, and to Squadron Cam: |

- manding Officers relative to a variety of considerations

, contributing to the ultrmate material readiness of air-

craft.” It.thus becomes. apparent that the Aircraft Exam-

- iners’ efforts Have cansiderable~ impact on’ the overall

- effectiveness of the Naval Air Reivork F acility to accom-

plish its. primary. mission,. which is “to maintdin and

“operate facilities for and‘ perform*a complete range of

depot level report ‘operations on designated “ weapons

systems, accessories, and equipment: Manufacture parts

“and assemblies as required ;provide éngineering séFVices

-in the development of changes of hardware design; fuir-

'* nish technical services on aircraft maintenance and logis-.

tic problems; and .perform,: upon specific request or as--

signment, other levels of aircraft maintenance.” © ~’

ar ; ~~ ae

ea ie ee ee -~ ids ea - me % — -as

” *

. e .

6/fht/69

Writer's Comments: ‘Comparison of the’ -immediatély

alfove- Aerie ee consideratioris of a 1969

arate

sly Pesala beabsenen of aie aircfaft, their

omponeats, and of their-vartous imterrelated s\$

dding to the Aircraft Examiners’ fevél of difficu

that the reliance placed upen them by anagement ds a

‘doordinating and focal point for insurifg aircraft mate- -

. Feat readiness and safety-of-flight capability is consist-

ya, cg¥ adding: to the. Aircraft met as of jc. -

pe a eetare f ; : :

‘\ eo ae 7

E tigla / . Bey ae ver by and {i

: Tespéctfully. submived/

A pe - .. on R4+-June 1969— © ore

Sn Oe: 8/( Mis) Vida H. Ncaclecin

ce ia * Position Classifier

- = -

—— Pa Ep at > - & a

“LETTER” FROM CAPTAIN w. D. “FARNSWORTH

io NAVAL Aik SYSTEMS COMMAND Fae

"PLAINTIFF'S EXHIBIT. NO. 1} i."

Code IRC* si,

* 12550 7

.From: “Commanding Officer, Naval Air Rework

Facility, _Naval Air Station, Norfalk, ‘Virginia

_ 23511 ; : “fs COS

To: Naval Air Systems Command Cote O4A4; Me

: Washington, D. C. 20360, - ii iar

Via: Naval Air Sits Command Rchrdscatative,

_ Atlantic, Neval Air Station, Norfolk, Virginia

23511

“tt “

-

Subj: Pay adjustment for Aircraft Examiners;

information concerning - -|

Encl: (1) Position description typical of Aircraft

* * Examiners

(2) Evaluation report of Aircraft Examiner

positions - .

This Facility has aie receivéd an’ addittosal re-

yt from the National association of Aircraft Exam-

iners, Local Na. 4, seeking to update NAVEXOS P-~

1005- 382 ¢ purpose béhind the request is for an in-

crease in the pay differential for Aircraft Examjner. A

-. similar. request was denied by the Director of Civilian

: Manpow er Management i in September 1967.

2. Sictheies (1) ae" (2) were isihisiined in reSponse_

toa letter dated 22 November. 1968 = the Office of

~ ix? Se 25a

oo ae Tn. ee

= . 2 ‘ .

.

lnc Special my

wey ;

oer ‘ ve ve. ‘

: Civilian Manpower Management regarding a Pay cate-

gory review for Aircraft Examiner positions, The m-

thendation ‘cogtained in enclosure’ (2) was that thd posi-

tions should remain in the ungraded pay c ategory. Haw-

ever, the Aircraft Examiners are not receiving pay com- °

_ mensurate with their. responsibilities as defi ined in .en-

closures ( (1) and (2). he ; a

3. It has been in ‘excess of two: years since: the initial

request for an increase, and information on record irdi- -

cates that no action will be takes anti! the- #plenrenta: - -

- tion of the Coordinated Federal Wage System Whidh - is

- Scheduled for this area in iver of 1970.-- ,

4. The prébisn is iiieics dgerav ated by the spank

_ interim adjustment a8 per OCMMNOTE.12531 OCMM

‘

0333 I:ejs of 4 April 1969 whith will result in further

misalignment between Aircraft Examiners.and the vlosely

related Positions of Planner’ and Estimaters.

5. It is strongly recommended, that the differential be

increased prior to implementation of the Coordinated .

Federal Wage System,‘even prior to the final decision on

whether or not the enclosute (1) pasitions should remaia

in the ungraded category, = -

eae W. D. FARNSWORTH

+ oan O

Blind. copy oe

'N ational peer ie of encrencas .

Examiners, Local No. 4 (w/o encl)

.

__~ talking about?

” EXCERPTS FROM THE TESTIMONY OF

‘WILLIAM N. PRICE

- MES... Ceteenani “? .*

(Tr. p. 118)

Q.- Now, when -that audit was completed, did you:

have further duties and responsibilities concerning the

Pt

request for an-increase in the differential?

_ A. Yes. I¢ was then my. responsibility to éxamine

Mr. Webb's findings and those of our other auditor on

_ the West Coast and comé‘up with a final recommenda-

" | »tion as to whetheg the differential should be.changed or “

‘ not. ot : ; = “a fe 3

E : * neuen 2

~~ "Did your office; represénting the- Navy: Department,

come to a°’Cconclusion+as.to whether or not, bearing in -~ -

mind. ‘the appropriate criteria, the differential. dt that

- time should be increased? : .

, .

. _.. A. There was considerable discussion. The. tenta-

. ’ tive conclusions that I came to personally related to rela-

tions within the Navy -Department. Nothing was put in |

writing about these, and following a discussion with the” .

Office of the Secretary of Defense and the Civil

« <(Te p40) - ren |

.-_ Service. Commission I had a letter prepared for Mr..

Robert. Willey’s signature, which left things the way it

was. * ae Set | ote Noe

> ‘ . =

ee ue mae

| Pee ee ee ie

_ » Q. What was his position at that tirtie or did he.

., have duties with reference to the subject matter we are

‘

PO wee”

.

<

“rr. p: 193) > a

"EFS — + ae

¢ oO

EXCERPTS FROM TH THE TESTIMONY OF

a ‘GORDON N. KELLETT -

Q And what did you tell ini?

fe And I réstated the original position of the. Civil’

Service ‘Commission, that the Airgraft . Examiners,

amongst 2*numbér of other occupations that the Navy

had paid-a pay differential, were set aside for further

_+ study and they would not be included when wWe converted

the other General Wage Board employees ta the Coordi- -

nated Federal Wage System beginning in July of 1968.

_* . . = c *

(Tr. p: 198) . ree at ee

-Q. Well, jum ing from the complaint- for a

- «moment did Mr. William Price tell you the Navy wanted. -

“to give them an increase and ask you—cther - than- the: -

_ interimi increase, now, before You get to the interim ~

increase, did. Mr. Price tell you that they wanted to raise

the 16. percent differential and ask you—could they do ;

- ‘it and you, for Civil Service, said, “No; we-don’t want: -

you tq do it because. we don’t want ‘anybody to change

until we get this new system implemented”? Mic

~

~

_*- A. Mr: Price, if 1 recall, asked if. they would pro-

pose, make a Particular shange, would we. object.

fe, * ° * And what did you téll him? . (. a a ;

: A. Tiaid, “Yes; we wouldeobjeét,”— cm. :

oe 3 ee eae aae “

‘Q/ -All right - Tt wee | —o

—— , ss

» & i they proposed a = aS ear ee ia

oe Q, All right... 4 =

ae Now, F want to ask you thin Mr. Kellett: The i

| 28a. | oe

- eee - \

oe ee : ~ — —

oS

’- . ~ Civil Service -Commission’s position not to raise ‘any-

: . thing or if the Navy proposed it—was that based on an

audit of the duties and responsibilities of thesé men or

was that a blanket objection to changing anything until <5

_ the new system came in?

A. The later, sir;

Q. A blanket objection? As .

A. Aa ae : ee 3 3

= *

: (Try p. 199)" | . We oo

Q- All right girs * 2° 2 meee ae ot

~ You all made no audit to determine whether or =>

“not the duties and responsibilities: justified an increase;

it-was your position that you‘didn’t want to rock the boat?.

A. ae Sir. 7 ee en

. : e. 7 hi hig : . i 5

oo vie A

CEE MR SO ee Ra

Q. And in the meantime it’s the Commission’s con-- =

tinuing position that the Aircraft Examiners not be i

Taised, ifthe Navy should Propose to do that, ‘until at.

least the new. Pa eee greek =

(Tr. p. 202)

system comés into effect?

ase _ A.” No, sir, bécause-wé have alread} begun to study:

| Wwe. are studying—the Aircraft Examiners as well as _

4 Inspectors, Production Planners, those that are set aside.* -

We have a two-phase ‘study: under Way, one 8 *~

‘which will cover practices, ‘survey practices, in industry , mes

*. to find out how they. treat’ thése particular occupations ~. .

_ both from a .job evaluation and a Pay system operation, ‘

a a

ie eae SS. a is | oe

and at the same time I have occupatio

work for me,that are reviewing. she federal jobs, Aircraft, |

Examiners— Been cA

Asa mater of fact, ‘in the lace few aie one of

my occupational specialists had surveyed, ‘interviewed, .

people on the- job. at Sen. and’ they interviewed:

others,— oc x ee * (Ee eee

eh Ww el Peace oo

3 =~and. ie anticipate when we have the other:

jobs as well as the pay practices we will resglve this par--

ticular issue that will decide how th@’ll- conde under the

Coordinated Federal ‘Wage System, and our target for

that has been Se. as s January 1971,

~

>

ee a a; -

atic AS - st. te :

lat Spccialisis Ulat