B-173976, MAR 8, 1972

B-173976, MAR 8, 1972

CIVILIAN EMPLOYEES - WAGE SURVEYS - ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971 - RETROACTIVE WAGE INCREASES CONCERNING WHETHER WAGE SURVEYS FOR FEDERAL WAGE BOARD EMPLOYEES LISTED ON AN ANNUAL SCHEDULE BY THE CIVIL SERVICE COMMISSION ARE WITHIN THE PURVIEW OF SECTION 203(C) OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971, PUB. L. 92-210, WHICH AUTHORIZED RETROACTIVE WAGE INCREASES UNDER CERTAIN CIRCUMSTANCES. ALTHOUGH IT HAS PREVIOUSLY BEEN HELD THAT EMPLOYEES FOR WHOM WAGE SURVEYS WERE BEGUN PRIOR TO AUGUST 15, 1971, MIGHT BE GRANTED RETROACTIVE INCREASES, IMPLICIT IN THAT DECISION WAS THE UNDERSTANDING THAT SUCH SURVEYS WERE THE SAME AS THOSE WHICH WOULD BECOME EFFECTIVE WITHIN THE 45- DAY RULE PURSUANT TO 5 U.S.C. 5343(1). IN THE INSTANT CASE, IT IS THE OPINION OF THE COMP. GEN. THAT AN ANNUAL SCHEDULE SHOWING THE MONTH A SURVEY IS TO BEGIN DOES NOT CONSTITUTE AN INCREASE SCHEDULED TO BE PAID AS THE RESULT OF AN AGREEMENT OR ESTABLISHED PRACTICE. ACCORDINGLY, ANY RELIEF THAT MAY BE AFFORDED TO THE INDIVIDUALS CONCERNED SHOULD BE OBTAINED BY APPROPRIATE LEGISLATION.

TO MR. JOHN F. GRINER:

REFERENCE IS MADE TO YOUR LETTERS DATED FEBRUARY 3 AND FEBRUARY 29, 1972, WITH ENCLOSURES, REQUESTING OUR VIEW AS TO WHETHER WAGE SURVEYS FOR WAGE BOARD EMPLOYEES OF THE FEDERAL GOVERNMENT WHICH WERE LISTED ON AN ANNUAL SCHEDULE ISSUED BY THE CIVIL SERVICE COMMISSION ON APRIL 23, 1971, MAY BE REGARDED AS WITHIN THE PURVIEW OF SECTION 203(C) OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971, PUBLIC LAW 92-210, APPROVED DECEMBER 22, 1971, WHICH AUTHORIZED RETROACTIVE WAGE INCREASES UNDER CERTAIN CIRCUMSTANCES.

IN YOUR LETTERS YOU POINT OUT THAT THE CIVIL SERVICE COMMISSION PUBLISHES A NATIONWIDE SCHEDULE OF WAGE SURVEYS, ON A FISCAL YEAR BASIS, SHOWING THE MONTHS THE SURVEYS ARE TO BEGIN IN PARTICULAR AREAS THROUGHOUT THE UNITED STATES. APPARENTLY, THE SCHEDULE DATED APRIL 23, 1971, A COPY OF WHICH YOU HAVE FURNISHED, WAS ISSUED FOR THE FISCAL YEAR BEGINNING JULY 1, 1971. YOU SUGGEST THAT BY VIRTUE OF SUCH SCHEDULE BEING PROMULGATED PRIOR TO AUGUST 15, 1971, IT SHOULD BE REGARDED AS MEETING THE CONDITIONS OF SECTION 203(C) OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971.

SECTION 203(C) OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971, PUBLIC LAW 92-210, APPROVED DECEMBER 22, 1971, PROVIDES AS FOLLOWS:

"(C)(1) THE AUTHORITY CONFERRED ON THE PRESIDENT BY THIS SECTION SHALL NOT BE EXERCISED TO LIMIT THE LEVEL OF ANY WAGE OR SALARY (INCLUDING ANY INSURANCE OR OTHER FRINGE BENEFIT OFFERED IN CONNECTION WITH AN EMPLOYMENT CONTRACT) SCHEDULED TO TAKE EFFECT AFTER NOVEMBER 13, 1971, TO A LEVEL BELOW THAT WHICH HAS BEEN AGREED TO IN A CONTRACT WHICH (A) RELATED TO SUCH WAGE OR SALARY, AND (B) WAS EXECUTED PRIOR TO AUGUST 15, 1971, UNLESS THE PRESIDENT DETERMINES THAT THE INCREASE PROVIDED IN SUCH CONTRACT IS UNREASONABLY INCONSISTENT WITH THE STANDARDS FOR WAGE AND SALARY INCREASES PUBLISHED UNDER SUBSECTION (B).

"(2) THE PRESIDENT SHALL PROMPTLY TAKE SUCH ACTION AS MAY BE NECESSARY TO PERMIT THE PAYMENT OF ANY WAGE OR SALARY INCREASE (INCLUDING ANY INSURANCE OR OTHER FRINGE BENEFIT OFFERED IN CONNECTION WITH AN EMPLOYMENT CONTRACT) WHICH (A) WAS AGREED TO IN AN EMPLOYMENT CONTRACT EXECUTED PRIOR TO AUGUST 15, 1971, (B) WAS SCHEDULED TO TAKE EFFECT PRIOR TO NOVEMBER 14, 1971, AND (C) WAS NOT PAID AS A RESULT OF ORDERS ISSUED UNDER THIS TITLE, UNLESS THE PRESIDENT DETERMINES THAT THE INCREASE PROVIDED IN SUCH CONTRACT IS UNREASONABLY INCONSISTENT WITH THE STANDARDS FOR WAGE AND SALARY INCREASES PUBLISHED UNDER SUBSECTION (B).

"(3) IN ADDITION TO THE PAYMENT OF WAGE AND SALARY INCREASES PROVIDED FOR UNDER PARAGRAPHS (1) AND (2), BEGINNING ON THE DATE ON WHICH THIS SUBSECTION TAKES EFFECT, THE PRESIDENT SHALL PROMPTLY TAKE SUCH ACTION AS MAY BE NECESSARY TO REQUIRE THE PAYMENT OF ANY WAGE OR SALARY INCREASES (INCLUDING ANY INSURANCE OR OTHER FRINGE BENEFITS OFFERED IN CONNECTION WITH EMPLOYMENT) WHICH HAVE BEEN, OR IN THE ABSENCE OF THIS SUBSECTION WOULD BE, WITHHELD UNDER THE AUTHORITY OF THIS TITLE, IF THE PRESIDENT DETERMINES THAT -

"(A) SUCH INCREASES WERE PROVIDED FOR BY LAW OR CONTRACT PRIOR TO AUGUST 15, 1971; AND

"(B) PRICES HAVE BEEN ADVANCED, PRODUCTIVITY INCREASED, TAXES HAVE BEEN RAISED, APPROPRIATIONS HAVE BEEN MADE, OR FUNDS HAVE OTHERWISE BEEN RAISED OR PROVIDED FOR IN ORDER TO COVER SUCH INCREASES."

WE ENCLOSE A COPY OF OUR DECISION OF FEBRUARY 23, 1972, TO THE CHAIRMAN, CIVIL SERVICE COMMISSION, WHEREIN WE HELD, INTER ALIA THAT THOSE WAGE BOARD EMPLOYEES FOR WHOM WAGE SURVEYS WERE BEGUN PRIOR TO AUGUST 15, 1971, ARE SUBJECT TO SECTION 203(C)(2) AND MAY BE GRANTED RETROACTIVE INCREASES IN WAGES TO THE DATE SUCH INCREASES WOULD HAVE OTHERWISE BEEN EFFECTIVE DURING THE PERIOD AUGUST 15, 1971, TO NOVEMBER 14, 1971. HOWEVER, IN THAT DECISION WE DID NOT SPECIFICALLY CONSIDER THE QUESTION OF WHETHER THE SCHEDULE OF WAGE SURVEYS TO WHICH YOU REFER WOULD BE REGARDED AS WAGE INCREASES SCHEDULED TO BE PAID AS A RESULT OF AN AGREEMENT OR ESTABLISHED PRACTICE IN EFFECT PRIOR TO AUGUST 15, 1971.

WE DIRECT YOUR ATTENTION TO THE PROVISIONS OF 5 U.S.C. 5343(1) RELATING TO THE EFFECTIVE DATE OF WAGE INCREASES RESULTING FROM WAGE SURVEYS IN PERTINENT PART AS FOLLOWS:

"(1) IF THE WAGE SURVEY IS MADE BY AN AGENCY, EITHER ALONE OR WITH ANOTHER AGENCY, WITH RESPECT TO ITS OWN EMPLOYEES, THE INCREASE IS EFFECTIVE FOR ITS EMPLOYEES NOT LATER THAN THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE 44TH DAY, EXCLUDING SATURDAYS AND SUNDAYS, FOLLOWING THE DATE ON WHICH THE WAGE SURVEY WAS ORDERED TO BE MADE."

WE UNDERSTAND THAT IN COMPUTING THE PERIOD PRESCRIBED BY THE ABOVE STATUTE THERE IS ISSUED AN ORDER FOR THE SURVEY OFFICIALLY TO BEGIN. THIS IS SEPARATE AND APART FROM THE ANNUAL SCHEDULE OF THE CIVIL SERVICE COMMISSION SHOWING THE MONTH A SURVEY IS TO BEGIN IN A PARTICULAR AREA. WHILE IT WAS NOT SO STATED IN THE DECISION OF FEBRUARY 23, 1972, WE HAD IN MIND IN REFERRING TO A WAGE SURVEY WHICH BEGAN PRIOR TO AUGUST 15, 1971, AS BEING THE SAME AS ONE ORDERED FOR THE PURPOSE OF THE 45-DAY STATUTE ABOVE. IT WAS THUS OUR POSITION IN THE DECISION OF FEBRUARY 23, 1972, THAT BY VIRTUE OF A SURVEY HAVING COMMENCED PRIOR TO AUGUST 15, 1971, AND THEREFORE THE SIMULTANEOUS APPLICATION OF THE 45-DAY LAW, THAT A SCHEDULED DATE FOR THE INCREASE RESULTING FROM SUCH SURVEY EXISTED PRIOR TO AUGUST 15, 1971, AND WOULD THEREFORE SATISFY THE LANGUAGE OF SECTION 203(C) OF THE ACT QUOTED ABOVE.

IN OUR VIEW THE ANNUAL SCHEDULING OF THE MONTHS IN WHICH WAGE SURVEYS ARE TO BEGIN IN VARIOUS AREAS, AND WHICH IS SUBJECT TO NECESSARY REVISIONS, IS NOT A SUFFICIENT BASIS FOR HOLDING THAT SUCH SURVEYS WILL RESULT IN WAGE INCREASES SO AS TO BE REGARDED AS INCREASES SCHEDULED TO BE PAID AS A RESULT OF AN AGREEMENT OR ESTABLISHED PRACTICE.

ACCORDINGLY, OUR OPINION IS THAT ANY RELIEF THAT MAY BE AFFORDED TO THE INDIVIDUALS CONCERNED SHOULD BE OBTAINED BY APPROPRIATE LEGISLATION.