B-140583, OCT 29, 1974, 54 COMP GEN 305

B-140583, OCT 29, 1974, 54 COMP GEN 305

COMPENSATION - WAGE BOARD EMPLOYEES - PREVAILING RATE EMPLOYEES - TRANSFER TO CLASSIFICATION ACT POSITIONS - PERIODIC STEP INCREASES HOLDING IN 39 COMP. GEN. 270 THAT WAGE ADJUSTMENTS FOR PREVAILING RATE EMPLOYEES UNDER 5 U.S.C. 1082(7) (1958 ED.) WERE ADMINISTRATIVELY GRANTED AND THUS EQUIVALENT INCREASES FOR PERIODIC STEP INCREASES FOR PREVAILING RATE EMPLOYEES TRANSFERRING INTO CLASSIFIED POSITIONS WILL NO LONGER BE FOLLOWED SINCE THE PREVAILING RATE SYSTEM ENACTED BY PUBLIC LAW 92-392 MAY BE CONSIDERED A STATUTORY WAGE SYSTEM.

IN THE MATTER OF THE REVIEW OF 39 COMP. GEN. 270 (1959), OCTOBER 29, 1974:

THE UNITED STATES CIVIL SERVICE COMMISSION (CSC) HAS REQUESTED OUR OFFICE TO REVIEW 39 COMP. GEN. 270 (1959) AND DETERMINE WHETHER THE HOLDING IN THAT DECISION REMAINS OPERATIVE AFTER THE ENACTMENT OF PUBLIC LAW NO. 92- 392, APPROVED AUGUST 19, 1972, 86 STAT. 564, SUBCHAPTER IV, CHAPTER 53, TITLE 5, U.S. CODE, PERTAINING TO WAGE ADJUSTMENTS FOR PREVAILING RATE EMPLOYEES.

OUR DECISION 39 COMP. GEN. 270, SUPRA, INVOLVED THE QUESTION OF WHETHER A PRIOR INCREASE IN COMPENSATION UNDER THE PREVAILING RATE SYSTEMS WOULD BE CONSIDERED AN EQUIVALENT INCREASE FOR PURPOSES OF A PERIODIC STEP INCREASE UNDER 5 U.S.C. 5335 (1970), WHICH STATES THAT AN INCREASE IN PAY GRANTED BY STATUTE IS NOT AN EQUIVALENT INCREASE IN PAY WITHIN THE MEANING OF THE LAW AND THIS WOULD APPLY WHEN A PREVAILING RATE EMPLOYEE TRANSFERS INTO A CLASSIFIED POSITION. WE HELD THAT WAGE ADJUSTMENTS FOR PREVAILING RATE EMPLOYEES GRANTED UNDER THE PROVISIONS OF 5 U.S.C. 1082(7) (1958 ED.) WERE ADMINISTRATIVELY GRANTED AND COULD NOT BE SAID TO HAVE BEEN GRANTED BY STATUTE SO AS TO EXCLUDE THEM FROM CONSIDERATION AS EQUIVALENT INCREASES FOR PERIODIC STEP INCREASES. THE CIVIL SERVICE COMMISSION HAS REQUESTED REVIEW SINCE IT BELIEVES THAT WITH THE ENACTMENT OF PUBLIC LAW 92-392, 5 U.S.C. 5341 ET SEQ. (1970), CITED ABOVE, PERIODIC WAGE ADJUSTMENTS OF PREVAILING RATE EMPLOYEES SHOULD BE CONSIDERED AS INCREASES IN PAY GRANTED BY STATUTE.

SUPPORT FOR THE COMMISSION'S POSITION CAN BE FOUND IN THE LEGISLATIVE HISTORY OF THE ACT. IN THIS REGARD, SENATE REPORT NO. 92-791, 92D CONG., 2D SESS. 1-3 (1972) CONTAINS THE FOLLOWING STATEMENTS INDICATING THAT IT WAS THE INTENT OF CONGRESS TO CONVERT THE THEN EXISTING ADMINISTRATIVE PAY ADJUSTMENT SYSTEM INTO A SYSTEM ESTABLISHED BY LAW:

PURPOSE

THE PURPOSE OF THIS LEGISLATION IS TO ESTABLISH BY LAW A SYSTEM FOR ADJUSTING RATES FOR PREVAILING RATE EMPLOYEES OF THE FEDERAL GOVERNMENT, AND TO INCLUDE PREVAILING RATE EMPLOYEES OF NONAPPROPRIATED FUND ACTIVITIES OF THE ARMED FORCES WITHIN THE PREVAILING RATE PAY SYSTEM.

SUMMARY

THE BILL ENACTS INTO LAW ESTABLISHED PRINCIPLES AND POLICIES RELATED TO BLUE COLLAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHICH HERETOFORE HAVE BEEN HANDLED ADMINISTRATIVELY. ***

BACKGROUND INFORMATION

THIS LEGISLATION IS AN ENTIRELY NEW CONCEPT OF ADMINISTERING THE PREVAILING RATE EMPLOYMENT SYSTEM. THESE EMPLOYEES ARE COMMONLY KNOWN AS WAGE BOARD OR BLUE-COLLAR WORKERS, CARPENTERS, TRUCK DRIVERS, WELDERS, AIRCRAFT MECHANICS, ELECTRICIANS, PLUMBERS, AND OTHERS PROVIDING A VALUABLE SERVICE TO THE GOVERNMENT. TODAY THERE ARE MORE THAN 650,000 PREVAILING RATE EMPLOYEES IN THE FEDERAL GOVERNMENT. THE DEPARTMENT OF DEFENSE EMPLOYS ALMOST 80 PERCENT OF THESE EMPLOYEES AND THE BALANCE ARE EMPLOYED IN OTHER DEPARTMENTS AND AGENCIES, MAINLY THE DEPARTMENT OF THE INTERIOR, THE GENERAL SERVICES ADMINISTRATION, AND THE VETERANS' ADMINISTRATION.

EXISTING LEGISLATION RELATING TO PREVAILING RATE EMPLOYEES HAS BEEN CODIFIED IN 5 U.S.C. 5341-5345 AND 5544. IN ORDER TO DETERMINE A PREVAILING RATE FOR WAGE BOARD WORKERS, A SURVEY IS TAKEN OF PRIVATE INDUSTRY IN A LOCAL LABOR MARKET AREA, GENERALLY WITHIN A 50-MILE RADIUS OF THE GOVERNMENT ACTIVITY. THE CO-ORDINATED FEDERAL WAGE SYSTEM WAS ESTABLISHED IN 1968 BY THE CIVIL SERVICE COMMISSION AS A RESULT OF AN EXECUTIVE ORDER ISSUED BY PRESIDENT JOHNSON. THIS SUCCEEDED IN REQUIRING EQUITABLE COORDINATION OF WAGE BOARD PRACTICES AMONG ALL FEDERAL AGENCIES. THE NEXT LOGICAL STEP IS ENACTMENT OF THIS LEGISLATION TO ESTABLISH THE SYSTEM IN LAW.

THE LAW PRIOR TO THE ENACTMENT OF PUBLIC LAW 92-392 GOVERNING PAY ADJUSTMENTS OF PREVAILING RATE EMPLOYEES WAS CONTAINED IN 5 U.S.C. 1082(7) (1958 ED.), SUBSEQUENTLY ENACTED INTO POSITIVE LAW AS 5 U.S.C. 5341(A) (1970) WHICH PROVIDED AS FOLLOWS:

SEC. 5341. TRADES AND CRAFTS.

(A) 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 NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES. SUBJECT TO SECTION 213(F) OF TITLE 29, THE RATES MAY NOT BE LESS THAN THE APPROPRIATE RATES PROVIDED FOR BY SECTION 206(A)(1) OF TITLE 29.

FROM THE BROAD LANGUAGE IN THE LAW AND THE LACK OF DEFINITIVE STANDARDS, IT IS APPARENT THAT CONGRESS INTENDED TO GRANT THE EXECUTIVE BRANCH GREAT DISCRETION IN ESTABLISHING AN ADMINISTRATIVE SYSTEM GOVERNED BY REGULATION FOR ADJUSTING THE PAY OF PREVAILING RATE EMPLOYEES. THIS DISCRETIONARY SYSTEM, UNDER WHICH THE EXECUTIVE BRANCH WAS FREE TO ESTABLISH, CHANGE AND AMEND WAGE ADJUSTMENT PROCEDURES WAS AN ADMINISTRATIVE, AS DISTINGUISHED FROM A STATUTORY SYSTEM, IN THAT THE RESULTANT PAY ADJUSTMENT WHICH THE PRIOR SYSTEM PRODUCED WAS DISCRETIONARY WITH THE EXECUTIVE BRANCH AND NOT CONTROLLED BY LEGISLATIVE GUIDELINES AND STANDARDS. IN CONTRAST, THE SYSTEM ESTABLISHED UNDER PUBLIC LAW 92-392 HAS BEEN NARROWLY DEFINED BY CONGRESS SO THAT THE ACTS LEADING TO A PAY ADJUSTMENT FOR PREVAILING RATE EMPLOYEES PERFORMED BY EXECUTIVE BRANCH PERSONNEL ARE MINISTERIAL IN NATURE. FOR EXAMPLE, THE CIVIL SERVICE COMMISSION IS REQUIRED TO DEFINE THE BOUNDARIES OF INDIVIDUAL LOCAL WAGE AREAS, AND DESIGNATE A LEAD AGENCY WHICH WILL CONDUCT WAGE SURVEYS, ANALYZE WAGE SURVEY DATA, AND DEVELOP AND ESTABLISH APPROPRIATE WAGE SCHEDULES AND RATES FOR PREVAILING RATE EMPLOYEES. THE LAW FURTHER REQUIRES THE COMMISSION TO SCHEDULE FULL-SCALE WAGE SURVEYS EVERY 2 YEARS AND INTERIM SURVEYS BETWEEN EACH 2 CONSECUTIVE FULL-SCALE WAGE SURVEYS. ALSO, THE LAW ESTABLISHED THE EFFECTIVE DATE OF ANY WAGE INCREASE.

IT IS A GENERAL PRINCIPLE OF LAW THAT AN ACT IS MINISTERIAL AS DISTINGUISHED FROM DISCRETIONARY WHERE THE LAW PRESCRIBES AND DEFINES THE DUTY TO BE PERFORMED WITH SUCH PRECISION AND CERTAINTY AS TO LEAVE NOTHING TO THE EXERCISE OF DISCRETION OR JUDGMENT. KAELIN V. CITY OF INDIAN HILLS, 286 S.W. 2D 989, 902 (KY. 1956). DISCRETIONARY ACTS ARE THOSE WHEREIN THERE IS NO HARD AND FAST RULE AS TO THE COURSE OF CONDUCT THAT MUST OR MUST NOT BE TAKEN AND, IF THERE IS A CLEARLY DEFINED RULE, SUCH WOULD ELIMINATE DISCRETION. ELDER V. ANDERSON, 23 CAL. RPTR. 48, 51 (DIST. CT. OF APPEALS, 5TH DIST. 1962). WHEN THE THRUST OF A STATUTORY COMMAND ADDRESSED TO A PUBLIC OFFICIAL OR ADMINISTRATIVE AGENCY IS UNMISTAKABLE, THE DUTY TO COMPLY WITH IT IS MINISTERIAL, AND MANDAMUS WILL LIE IN SUCH A CASE. ELMO DIVISION OF DRIVE-X CO. V. DIXON, 348 F.2D 342 (D.C. CIR. 1965). ACCORDINGLY, WE ARE OF THE OPINION THAT THE DETAILED STANDARDS SET FORTH IN PUBLIC LAW 92-392, AS DISTINGUISHED FROM THE PRIOR LAW, ELIMINATE DISCRETION ON THE PART OF THE EXECUTIVE BRANCH SO THAT THE ADJUSTMENT OF WAGE RATES OF PREVAILING RATE EMPLOYEES MAY NO LONGER BE CONSIDERED AS GRANTED ADMINISTRATIVELY, BUT RATHER NOW MUST BE CONSIDERED TO BE AN INCREASE IN PAY GRANTED BY STATUTE.

THEREFORE, A PAY ADJUSTMENT UNDER 5 U.S.C. 5343 (1970) WOULD NOT BE CONSIDERED AN EQUIVALENT INCREASE FOR PURPOSES OF ESTABLISHING THE REQUISITE WAITING PERIOD FOR PERIODIC STEP INCREASES UNDER 5 U.S.C. 5335 (1970).

ACCORDINGLY, OUR DECISION IN 39 COMP. GEN. 270, SUPRA, IS NO LONGER APPROPRIATE IN VIEW OF THE STATUTORY AMENDMENT DISCUSSED ABOVE.