B-128920, SEPTEMBER 25, 1956, 36 COMP. GEN. 235

B-128920, SEPTEMBER 25, 1956, 36 COMP. GEN. 235

COMPENSATION - WAGE BOARD EMPLOYEES - SAVED COMPENSATION - TEMPORARY SEASONAL EMPLOYMENT AT HIGHER RATES EMPLOYEES WHOSE POSITIONS ARE CONVERTED FROM CLASSIFIED TO PREVAILING WAGE SYSTEM AND WHO ARE TEMPORARILY ASSIGNED SEASONAL JOBS AT HIGHER RATES MAY RETAIN THE SAVED-PAY STATUS UNDER SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, SO AS TO BE ENTITLED TO THE SAVED-PAY RATES WHEN THEY ARE RETURNED TO REGULAR DUTIES.

TO THE DIRECTOR, NATIONAL GALLERY OF ART, SEPTEMBER 25, 1956:

REFERENCE IS MADE TO THE LETTER OF AUGUST 9, 1956, FROM MR. G. T. HECKERT, AN AUTHORIZED CERTIFYING OFFICER OF YOUR AGENCY, REQUESTING OUR DECISION CONCERNING THE SAVED PAY RIGHTS OF CERTAIN NATIONAL GALLERY OF ART EMPLOYEES CONVERTED FROM CLASSIFIED TO PREVAILING WAGE RATE POSITIONS PURSUANT TO SECTION 105 (A) OF THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, 68 STAT. 1106, 5 U.S.C. 1082, FOR WHOM SEASONAL ASSIGNMENT AS GLAZIERS AT TEMPORARY INCREASES IN PAY IS CONTEMPLATED.

UNDER SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, 31 U.S.C. 82D, MR. HECKERT, AS A CERTIFYING OFFICER IS NOT ENTITLED TO A DECISION ON A GENERAL QUESTION NOT INVOLVED IN A PARTICULAR VOUCHER BEFORE HIM FOR CERTIFICATION. 26 COMP. GEN. 797. HOWEVER, IN THE INTERESTS OF EXPEDIENCY HIS LETTER WILL BE CONSIDERED AS A REQUEST BY YOU FOR A DECISION ON THE MATTER.

IT APPEARS FROM THE LETTER THAT THE NATIONAL GALLERY OF ART IS CONTEMPLATING THE ASSIGNMENT OF CERTAIN EMPLOYEES QUALIFIED TO WORK IN GLAZING SKYLIGHTS TO SUCH DUTIES DURING THE SPRING AND FALL MONTHS ( APRIL THROUGH JUNE AND SEPTEMBER THROUGH NOVEMBER) WHEN MATERIALS COMPRISING THE ROOF AND SUPPORTS ARE AT A MEDIAN AS TO CONTRACTION AND EXPANSION AND WHEN WEATHER CONDITIONS MAKE FEASIBLE THE ACCOMPLISHMENT OF ROOF REPAIRS. THE TITLE OF THE WORKMEN PERFORMING THIS WORK IS "GLAZIER" AND THE PREVAILING WAGE RATE FOR SUCH WORK HAS BEEN DETERMINED TO BE HIGHER THAN THE PREVAILING WAGE RATE OF THE DUTIES NOW BEING PERFORMED BY THE EMPLOYEES WHO ARE SCHEDULED TO BE ASSIGNED GLAZIER DUTIES. HOWEVER, THE LETTER STATES THAT THESE EMPLOYEES ARE NOW BEING PAID AT "SAVED RATES" PROVIDED BY PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, AND DOUBT HAS ARISEN AS TO WHETHER THEY MAY BE PAID SALARIES COMPUTED AT THEIR PRESENT "SAVED RATES" WHEN THEY ARE RETURNED TO THEIR PRESENT DUTIES AFTER THE GLAZIER DUTIES ARE FINISHED IN DECEMBER AND JULY.

SPECIFICALLY, THE QUESTION PRESENTED IN THE LETTER IS AS FOLLOWS:

WHEN AN EMPLOYEE AT A SAVED RATE OF $1.52 PER HOUR IS ASSIGNED SEASONAL WORK AT A PREVAILING RATE OF $1.78 PER HOUR, MAY THAT EMPLOYEE LEGALLY BE PAID THE SAVED RATE OF $1.52 PER HOUR WHEN HE IS RETURNED TO HIS REGULAR DUTIES; IT HAVING BEEN DETERMINED THAT TO DO SO IS NECESSARY IN THE PUBLIC INTEREST.

SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 955, 5 U.S.C. 1082 (7), AS AMENDED BY SECTION 105 (A) OF THE ABOVE REFERRED-TO ACT OF SEPTEMBER 1, 1954, PROVIDES AS FOLLOWS:

SEC. 202. THIS ACT (EXCEPT TITLE XII SHALL NOT APPLY TO---

(7) EMPLOYEES IN RECOGNIZED TRADES OR CRAFTS, OR OTHER SKILLED MECHANICAL CRAFTS, OR IN UNSKILLED, SEMISKILLED, OR SKILLED MANUAL LABOR OCCUPATIONS * * *: PROVIDED, THAT THE COMPENSATION OF SUCH EMPLOYEES SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES * * *.

SECTION 114 OF THE SAME ACT, 5 U.S.C., SUPP. 1114, PROVIDES AS FOLLOWS:

NOTHING CONTAINED IN THIS TITLE SHALL BE CONSTRUED TO DECREASE THE EXISTING RATE OF BASIC COMPENSATION OF ANY PRESENT EMPLOYEE, BUT WHEN HIS POSITION BECOMES VACANT ANY SUBSEQUENT APPOINTEE TO SUCH POSITION SHALL BE COMPENSATED IN ACCORDANCE WITH THE SCALE OF PAY APPLICABLE TO SUCH POSITIONS.

SECTION 202 (7) DOES NOT REQUIRE THAT THE COMPENSATION OF EMPLOYEES IN THE VARIOUS TRADE CRAFTS, OR OCCUPATIONS BE ADJUSTED IN EVERY CASE TO CONFORM EXACTLY WITH PREVAILING LOCALITY WAGE RATES. THE SECTION REQUIRES THAT THE WAGES BE ADJUSTED "AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES.' THE QUESTION WHETHER, IN A PARTICULAR CASE, ANY SUCH ADJUSTMENT IS CONSISTENT WITH THE PUBLIC INTEREST IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION, AND, WHEN MADE, IT ORDINARILY WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF SOME COMPELLING REASON. 34 COMP. GEN. 563. SUCH VIEW EXTENDS TO LIBERAL ADMINISTRATIVE APPLICATION OF THE PROVISIONS OF SECTION 114 FOR PURPOSES OF THE PUBLIC INTEREST UPON THE CONVERSION OF EMPLOYEES FROM THE CLASSIFICATION ACT SCHEDULE TO PREVAILING WAGE RATE SCHEDULES. 34 COMP. GEN. 708. CONSEQUENTLY, WHERE, AS HERE, AN ADMINISTRATIVE DETERMINATION OF NECESSITY IN THE PUBLIC INTEREST HAS BEEN MADE, WE WOULD NOT BE REQUIRED TO QUESTION THE RETAINING OF THE INVOLVED EMPLOYEES IN A SAVED PAY STATUS NOTWITHSTANDING THEIR TEMPORARY, SEASONAL ASSIGNMENTS TO POSITIONS CALLING FOR INCREASED RATES OF PAY. CF. 30 COMP. GEN. 82.