B-137123, SEP 15, 1958

B-137123: Sep 15, 1958

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THAT SECTION IS AS FOLLOWS: "HEREAFTER. MAY BE APPORTIONED ON A BASIS INDICATING THE NEED FOR A SUPPLEMENTAL OR DEFICIENCY ESTIMATE OF APPROPRIATION TO THE EXTENT NECESSARY TO PERMIT PAYMENT OF SUCH PAY INCREASES AS MAY BE GRANTED THOSE EMPLOYEES (COMMONLY KNOWN AS WAGE BOARD EMPLOYEES) WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES (5 U.S.C. 1082 (7)).". THE DEPARTMENT OF THE INTERIOR IS OF THE OPINION THAT SECTION 210 APPLIES TO THE ENTIRE CLASS OF EMPLOYEES WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH PREVAILING RATES RATHER THAN ONLY TO THOSE CLASSES OF EMPLOYEES WHOSE RATES ARE FIXED IN ACCORDANCE WITH WAGE BOARD PROCEDURES. IT IS POSSIBLE TO CONCLUDE THAT THAT SECTION HAS APPLICATION ONLY TO THOSE EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES UNDER THE AUTHORITY OF PARAGRAPH 7 OF SECTION 202 OF THE CLASSIFICATION ACT OF 1949 AS AMENDED.

B-137123, SEP 15, 1958

PRECIS-UNAVAILABLE

MAURICE H. STANS:

THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR HAS REQUESTED OUR ADVICE CONCERNING THE CONSTRUCTION OF SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, 71 STAT. 49, 55. THAT SECTION IS AS FOLLOWS:

"HEREAFTER, ANY APPROPRIATION REQUIRED TO BE APPORTIONED PURSUANT TO SECTION 3679 OF THE REVISED STATUTES, AS AMENDED, MAY BE APPORTIONED ON A BASIS INDICATING THE NEED FOR A SUPPLEMENTAL OR DEFICIENCY ESTIMATE OF APPROPRIATION TO THE EXTENT NECESSARY TO PERMIT PAYMENT OF SUCH PAY INCREASES AS MAY BE GRANTED THOSE EMPLOYEES (COMMONLY KNOWN AS WAGE BOARD EMPLOYEES) WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES (5 U.S.C. 1082 (7))."

THE DEPARTMENT OF THE INTERIOR IS OF THE OPINION THAT SECTION 210 APPLIES TO THE ENTIRE CLASS OF EMPLOYEES WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH PREVAILING RATES RATHER THAN ONLY TO THOSE CLASSES OF EMPLOYEES WHOSE RATES ARE FIXED IN ACCORDANCE WITH WAGE BOARD PROCEDURES. SEE THE ENCLOSED COPY OF LETTER OF AUGUST 13, 1958, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR. SINCE QUESTIONS INVOLVING THE APPLICATION OF SECTION 210 APPEAR TO BE MATTERS PRIMARILY FOR DETERMINATION BY YOUR BUREAU, WE SHOULD APPRECIATE YOUR FURNISHING US YOUR VIEWS ON THE QUESTIONS RAISED BY THE DEPARTMENT OF THE INTERIOR PRIOR TO OUR REPLY TO THE LETTER OF THE ADMINISTRATIVE ASSISTANT SECRETARY.

UNDER A LITERAL CONSTRUCTION OF SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, IT IS POSSIBLE TO CONCLUDE THAT THAT SECTION HAS APPLICATION ONLY TO THOSE EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES UNDER THE AUTHORITY OF PARAGRAPH 7 OF SECTION 202 OF THE CLASSIFICATION ACT OF 1949 AS AMENDED. HOWEVER, IT STRONGLY COULD BE ARGUED THAT SECTION 210 IS NOT SO LIMITED BUT APPLIES TO ANY CASE WHERE THE WAGES OF THE EMPLOYEES ARE REQUIRED BY LAW TO BE FIXED AND ADJUSTED IN ACCORDANCE WITH PREVAILING RATES. UNDER THIS VIEW THE SECTION WOULD APPLY TO OFFICERS AND MEMBERS OF CREWS OF VESSELS WHOSE COMPENSATION IS FIXED ADMINISTRATIVELY FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY AS AUTHORIZED UNDER PARAGRAPH 8 OF SECTION 202 OF THE CLASSIFICATION ACT OF 1949. BELIEVE THERE IS CONSIDERABLE MERIT TO SUCH VIEW.

WE DO HAVE SOME QUESTION, HOWEVER, CONCERNING THE PROPRIETY OF APPLYING SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, IN CASES INVOLVING THE COMPENSATION OF EMPLOYEES IN THE TRADES, CRAFTS, AND MANUAL OCCUPATIONS OF THE BONNEVILLE POWER ADMINISTRATION. IN THAT CONNECTION WE NOTE THAT SECTION 10 OF THE BONNEVILLE PROJECT ACT OF AUGUST 20, 1937, AS AMENDED BY SECTION 5 OF THE ACT OF OCTOBER 23, 1945, 59 STAT. 547, AUTHORIZES THE ADMINISTRATOR TO EMPLOY LABORERS, MECHANICS, AND WORKMEN IN CONNECTION WITH CONSTRUCTION WORK, OR THE OPERATION AND MAINTENANCE OF ELECTRICAL FACILITIES, AND FIX THEIR COMPENSATION WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923 AS AMENDED AND ANY OTHER LAWS, RULES, OR REGULATIONS PERTAINING TO THE PAYMENT OF EMPLOYEES OF THE UNITED STATES. ALSO, WE NOTE FROM THE LEGISLATIVE HISTORY THAT THIS PROVISION APPARENTLY WAS INTENDED TO CONFER AUTHORITY UPON THE ADMINISTRATOR TO PAY SUCH EMPLOYEES IN ACCORDANCE WITH THE LABOR PRACTICES CUSTOMARY IN THE AREA IN WHICH EMPLOYED IN THE SAME MANNER AS PRIVATE UTILITIES AND CONTRACTORS ENGAGED IN SIMILAR WORK. SEE PERTINENT INFORMATION AND COMMENTS APPEARING ON PAGES 6, 7, 14, 15, AND 25 OF HOUSE REPORT NO. 469, JULY 18, 1945, ON H. R. 2690. THE LAW ITSELF, HOWEVER, DOES NOT REQUIRE THAT THE WAGES OF SUCH EMPLOYEES BE FIXED IN ACCORDANCE WITH PREVAILING RATES.

WE SHOULD APPRECIATE THE RECEIPT OF YOUR ADVICE ON THIS MATTER AS SOON AS PRACTICABLE.