B-163375, SEP 2, 1971

B-163375, SEP 2, 1971

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION - HEARING EXAMINERS - PAY ADVISING THAT SECTION 12(K) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, PUBLIC LAW 91-596, PROVIDING THAT HEARING EXAMINERS SHALL RECEIVE COMPENSATION AT A RATE NOT LESS THAN THAT PRESCRIBED FOR GS-16 MERELY PLACES A LIMITATION ON THE CLASSIFICATION ACTION OF THE CSC TO INSURE THAT SUCH POSITIONS ARE NOT CLASSIFIED IN GRADES LOWER THAN GRADE GS-16. OTHER RESPECTS THE HEARING EXAMINERS ARE UNDER THE REGULAR STATUTORY CLASSIFICATION PROVISIONS BUT WITHOUT REGARD TO 5 U.S.C. 5108.

TO MR. ROBERT E. HAMPTON:

THIS REFERS TO YOUR LETTER OF AUGUST 18, 1971, REQUESTING A DECISION FROM OUR OFFICE AS TO FIXING THE PAY OF HEARING EXAMINERS EMPLOYED BY THE NEWLY CREATED OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

THE REVIEW COMMISSION WAS ESTABLISHED BY SECTION 12 OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, PUBLIC LAW 91-596, 84 STAT. 1590. SECTION 12(E) PROVIDES IN PART THAT THE CHAIRMAN OF THE REVIEW COMMISSION SHALL:

" *** APPOINT SUCH HEARING EXAMINERS AND OTHER EMPLOYEES AS HE DEEMS NECESSARY TO ASSIST IN THE PERFORMANCE OF THE COMMISSION'S FUNCTIONS AND TO FIX THEIR COMPENSATION IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, U.S.C. RELATING TO CLASSIFICATION AND GENERAL SCHEDULE PAY RATES: PROVIDED, THAT ASSIGNMENT, REMOVAL AND COMPENSATION OF HEARING EXAMINERS SHALL BE IN ACCORDANCE WITH SECTIONS 3105, 3344, 5362, AND 7521 OF TITLE 5, UNITED STATES CODE."

SECTION 12(K) PROVIDES AS FOLLOWS:

"EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, THE HEARING EXAMINERS SHALL BE SUBJECT TO THE LAWS GOVERNING EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE, EXCEPT THAT APPOINTMENTS SHALL BE MADE WITHOUT REGARD TO SECTION 5108 OF TITLE 5, UNITED STATES CODE. EACH HEARING EXAMINER SHALL RECEIVE COMPENSATION AT A RATE NOT LESS THAN THAT PRESCRIBED FOR GS-16 UNDER SECTION 5332 OF TITLE 5, UNITED STATES CODE."

YOU SAY THAT IF, AS SECTION 12(E) PROVIDES, THE HEARING EXAMINERS ARE UNDER THE REGULAR STATUTORY CLASSIFICATION PROVISIONS (CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, UNITED STATES CODE), THE CIVIL SERVICE COMMISSION DETERMINES THEIR GENERAL SCHEDULE GRADE. IF, HOWEVER, ANY EFFECT IS TO BE GIVEN TO SECTION 12(K) OF THE ACT, THE VIEW COULD BE TAKEN THAT THE CONGRESS HAS REMOVED THE GRADE DETERMINATION AUTHORITY FROM THE CIVIL SERVICE COMMISSION FOR THE HEARING EXAMINERS EMPLOYED BY THE REVIEW COMMISSION AND HAS, ITSELF, FIXED THEIR RATE OF COMPENSATION AT NOT LESS THAN THAT PRESCRIBED FOR GS-16.

THE FOLLOWING QUESTION IS SUBMITTED FOR A DECISION:

"DO SUBSECTIONS (E) AND (K) OF PUBLIC LAW 91-596, 84 STAT. 1604, 1605, REQUIRE THAT HEARING EXAMINERS EMPLOYED BY THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION BE CLASSIFIED IN GS-16 OF THE GENERAL SCHEDULE, WITHOUT REGARD TO 5 U.S.C. SEC 5108, AND THAT OTHERWISE THE PAY OF THESE HEARING EXAMINERS IS TO BE FIXED AND DETERMINED BY AND UNDER CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, U.S.C. AND THE APPLICABLE REGULATIONS OF THE CIVIL SERVICE COMMISSION."

IN INTERPRETING STATUTES, ALL PARTS OF A STATUTE SHOULD BE RECONCILED, INCLUDING THOSE THAT APPEAR TO BE INCONSISTENT, SO THAT EFFECT MAY BE GIVEN EACH PART, AND HENCE THE SEVERAL SECTIONS SHOULD BE READ AS CONSISTENT RATHER THAN CONFLICTING. HELVERING V CREDIT ALLIANCE CO., 316 U.S. 107 (1941). WHERE THERE IS A SEEMING CONFLICT BETWEEN A GENERAL PROVISION AND A SPECIFIC PROVISION AND THE GENERAL PROVISION IS BROAD ENOUGH TO INCLUDE THE SUBJECT TO WHICH THE SPECIFIC PROVISION RELATES, THE SPECIFIC PROVISION SHOULD BE REGARDED AS AN EXCEPTION TO THE GENERAL PROVISION SO THAT BOTH MAY BE GIVEN EFFECT, THE GENERAL APPLYING ONLY WHERE THE SPECIFIC PROVISION IS INAPPLICABLE. TOWSEND V LITTLE, 109 U.S. 504, 512 (1883); UNITED STATES V CHASE, 135 U.S. 255, 260 (1890); CITY OF TULSA V SOUTHWESTERN BELL TELEPHONE CO., 75 F. 2D 343, 351 (1935); 82 C.J.S. 722, STATUTES, SECTION 347B.

THUS, IN CONSIDERING THE TWO SECTIONS, OUR VIEW IS THAT IT WAS THE LEGISLATIVE INTENT OF THE LAST THREE LINES OF SECTION 12(K) TO MERELY PLACE A LIMITATION ON THE CLASSIFICATION ACTION OF THE CIVIL SERVICE COMMISSION TO ENSURE THAT SUCH POSITIONS WERE NOT CLASSIFIED IN GRADES LOWER THAN GRADE GS-16. IN OTHER WORDS SOME OF SUCH POSITIONS CONCEIVABLY COULD BE CLASSIFIED IN GRADE GS-17 OR GS-18 BUT NONE COULD BE CLASSIFIED LOWER THAN GRADE GS-16. IN OTHER RESPECTS, THE PROVISIONS OF SECTION 12(E) ARE APPLICABLE TO THE HEARING EXAMINERS BUT WITHOUT REGARD TO 5 U.S.C. 5108.

YOUR QUESTION IS ANSWERED ACCORDINGLY.