B-137402, SEPTEMBER 24, 1958, 38 COMP. GEN. 240

B-137402: Sep 24, 1958

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CIVILIAN PERSONNEL - WAGE BOARD EMPLOYEES - COMPENSATION INCREASES - EFFECTIVE DATE THE DATE ON WHICH WAGE SURVEYS ARE MADE PURSUANT TO SECTION 1 OF THE ACT OF SEPTEMBER 2. IS THE DATE THE ADMINISTRATIVE AGENCY ORDERS THE COLLECTION OF DATA FOR THE SURVEY TO BEGIN. TO EMPLOYEES OF THE FEDERAL GOVERNMENT OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES UNDER AUTHORITY OF SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949 (5 U.S.C. 1082) (7) ( OR SECTION 7474 OF TITLE 10 OF THE UNITED STATES CODE SHALL BECOME EFFECTIVE. AS FOLLOWS: (1) IF THE WAGE SURVEY IS CONDUCTED BY A DEPARTMENT OR AGENCY (EITHER ALONE OR WITH ONE OR MORE OTHER DEPARTMENTS OR AGENCIES) WITH RESPECT TO ITS OWN EMPLOYEES.

B-137402, SEPTEMBER 24, 1958, 38 COMP. GEN. 240

CIVILIAN PERSONNEL - WAGE BOARD EMPLOYEES - COMPENSATION INCREASES - EFFECTIVE DATE THE DATE ON WHICH WAGE SURVEYS ARE MADE PURSUANT TO SECTION 1 OF THE ACT OF SEPTEMBER 2, 1958, 5 U.S.C. 1181, FOR THE PURPOSE OF DETERMINING THE BEGINNING OF THE 45-DAY PERIOD FOR EFFECTING THE WAGE INCREASES, IS THE DATE THE ADMINISTRATIVE AGENCY ORDERS THE COLLECTION OF DATA FOR THE SURVEY TO BEGIN. NEITHER PROSPECTIVE DATES SPECIFIED IN ORDERS FOR WAGE SURVEYS NOR TENTATIVE SCHEDULES FOR PLANNING WAGE SURVEYS, PURSUANT TO THE ACT OF SEPTEMBER 2, 1958, GOVERN THE COMMENCEMENT OF THE 45-DAY PERIOD FOR DETERMINATION OF THE EFFECTIVE DATE OF THE WAGE INCREASES.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 24, 1958:

ON SEPTEMBER 17, 1958, YOUR ASSISTANT SECRETARY REQUESTED OUR DECISION CONSTRUING SECTION 1, PARAGRAPH 1 OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1696, 5 U.S.C. 1181. THAT SECTION READS AS FOLLOWS:

THAT EACH INCREASE IN RATES OF BASIC COMPENSATION GRANTED, PURSUANT TO A WAGE SURVEY, TO EMPLOYEES OF THE FEDERAL GOVERNMENT OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES UNDER AUTHORITY OF SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949 (5 U.S.C. 1082) (7) ( OR SECTION 7474 OF TITLE 10 OF THE UNITED STATES CODE SHALL BECOME EFFECTIVE, AS FOLLOWS:

(1) IF THE WAGE SURVEY IS CONDUCTED BY A DEPARTMENT OR AGENCY (EITHER ALONE OR WITH ONE OR MORE OTHER DEPARTMENTS OR AGENCIES) WITH RESPECT TO ITS OWN EMPLOYEES, SUCH INCREASE SHALL BECOME EFFECTIVE FOR SUCH EMPLOYEES NOT LATER THAN THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE FORTY-FIFTH DAY, EXCLUDING SATURDAYS AND SUNDAYS, FOLLOWING THE DATE ON WHICH SUCH WAGE SURVEY WAS ORDERED TO BE MADE; * * * ( ITALICS SUPPLIED.)

THE MATTER OF PRIMARY CONCERN IS THE MEANING OF THE TERM "THE DATE ON WHICH SUCH WAGE SURVEY WAS ORDERED TO BE MADE" APPEARING IN THE ITALICIZED PORTION OF THE ABOVE-QUOTED SECTION. THE ACT ITSELF DOES NOT DEFINE THAT TERM AND WE ARE UNAWARE OF ANY GENERALLY ACCEPTED MEANING THAT IS ASCRIBED OR ASSIGNED TO IT. AS YOUR ASSISTANT SECRETARY SAYS, THERE ARE SEVERAL PRELIMINARY MATTERS WHICH MUST BE CONCLUDED PRIOR TO COMMENCING THE WAGE SURVEY ITSELF. AMONG OTHER THINGS, THE FIRMS TO BE SURVEYED MUST BE SELECTED AND MUST BE OBTAINED. A LIST OF JOBS UPON WHICH WAGE DATA IS TO BE PROCURED MUST BE PREPARED AND DATA COLLECTORS MUST BE TRAINED. NOTICES OF INTENT TO CONDUCT A SURVEY MUST BE POSTED AND EMPLOYEE COMMENT SHOULD BE INVITED CONCERNING THE FIRMS TO BE CONTACTED AND THE JOBS TO BE SURVEYED. THE NECESSITY FOR FIXING A CONTROLLING DATE WHICH CAN BE APPLIED UNIFORMLY IN ALL CASES AS "THE DATE ON WHICH THE SURVEY WAS ORDERED TO BE MADE" IS APPARENT. AS A PRACTICAL MATTER HOWEVER, WE DOUBT THAT THE DATE OF ORDERING OR COMMENCING ANY OF THE VARIOUS TYPES OF PRELIMINARY WORK WOULD SERVE UNIFORMLY AND SATISFACTORILY AS THE BASIS FOR DETERMINING IN EVERY CASE THE COMMENCEMENT OF THE 45-DAY STATUTORY PERIOD.

THE LEGISLATIVE HISTORY OF THE ACT IS SIGNIFICANT. S.25 AS ORIGINALLY PASSED BY THE SENATE CONTAINED THE LANGUAGE--- AS THE ACT ITSELF DOES--- "THE DATE ON WHICH SUCH WAGE SURVEY WAS ORDERED TO BE MADE.' TH HOUSE OF REPRESENTATIVES IN REWRITING THE BILL (S.25) MODIFIED THAT LANGUAGE TO READ "THE DATE ON WHICH FORMAL COLLECTION OF DATA FOR SUCH WAGE SURVEY IS BEGUN.' AS A RESULT OF A SENATE-HOUSE CONFERENCE THE LANGUAGE IN QUESTION WAS AGAIN MODIFIED TO CONFORM WITH THAT APPEARING IN S.25 AT THE TIME THE BILL WAS PASSED BY THE SENATE AND WAS ULTIMATELY ENACTED IN THAT FORM.

HOWEVER, IT APPEARS FROM THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE WHICH IS PRINTED WITH THE CONFERENCE REPORT NO. 2691 ACCOMPANYING S.25 THAT THE COMMITTEE OF CONFERENCE AGREED THAT THE LANGUAGE "THE DATE ON WHICH SUCH WAGE SURVEY WAS ORDERED TO BE MADE" REFERS TO THE DATE ON WHICH AN APPROPRIATE AUTHORITY SPECIFICALLY ORDERS THE COMMENCEMENT OF DATA COLLECTION. THE STATEMENT IS IN PERTINENT PART AS FOLLOWS:

* * * IT IS THE INTENT OF THE COMMITTEE OF CONFERENCE THAT THE WORDS "THE DATE ON WHICH SUCH WAGE SURVEY WAS ORDERED TO BE MADE" MEAN THAT DATE ON WHICH THE APPROPRIATE AUTHORITY SPECIFICALLY AUTHORIZES OR ORDERS THAT THE COLLECTION OF DATA FOR WAGE DETERMINATION PURPOSES BE COMMENCED. IT IS NOT THE INTENT OF THE COMMITTEE THAT THE ABOVE-QUOTED WORDS BE CONSTRUED TO MEAN, OR TO INCLUDE IN ANY WAY, ANY DATA ON WHICH THOSE ADMINISTRATIVE FUNCTIONS, ACTIVITIES, PRELIMINARY WORK, OR OTHER PREPARATORY STEPS, WHICH ARE PRELIMINARY OR NECESSARY TO THE ISSUANCE OF SUCH AUTHORIZATION OR ORDER, ARE BEING CARRIED ON OR ARE AUTHORIZED OR ORDERED TO BE CARRIED ON. FURTHER, IT IS NOT THE INTENT OF THE COMMITTEE THAT THE ABOVE-QUOTED WORDS SHALL BE CONSTRUED TO MEAN, OR TO INCLUDE IN ANY WAY, ANY DATE ON WHICH IT IS AUTHORIZED OR ORDERED THAT A WAGE SURVEY OR SURVEYS IS OR ARE GENERALLY NECESSARY.

ON AUGUST 22, 1958, THE STATEMENT OF MANAGERS ON THE PART OF THE HOUSE WAS READ BEFORE THE WHOLE HOUSE IN CONNECTION WITH ITS CONSIDERATION OF THE CONFERENCE AGREEMENT ON S.25 AND LATER ON THE SAME DAY THE HOUSE AGREED TO THE CONFERENCE REPORT. THEREAFTER, BUT STILL ON AUGUST 22, 1958, THE MATTER OF AGREEING TO THE CONFERENCE REPORT WAS TAKEN UP BY THE SENATE AND THE CONFERENCE REPORT WAS READ. FOLLOWING SENATOR JOHNSTON'S EXPLANATION OF ITS PROVISIONS THE SENATE AGREED TO THE CONFERENCE REPORT. IN HIS EXPLANATION SENATOR JOHNSTON SAID "THE CONFERENCE AGREEMENT ACCEPTED THE 45 DAYS CONTAINED IN THE HOUSE VERSION, BUT PROVIDES THAT IT SHALL BE FROM THE DATE THE COLLECTION OF DATA IS OFFICIALLY ORDERED.' ITALICS SUPPLIED.)

IT IS CLEAR THAT THE INTENT OF THE CONFERENCE COMMITTEE WAS MADE KNOWN TO THE HOUSE PRIOR TO ITS AGREEING TO THE CONFERENCE REPORT SINCE THE STATEMENT ON THE PART OF THE MANAGERS OF THE HOUSE WAS READ BEFORE THE HOUSE IN LIEU OF READING THE CONFERENCE REPORT. WHILE THE CONFERENCE REPORT WAS READ IN THE SENATE, THE RECORD DOES NOT DISCLOSE WHETHER THE STATEMENT OF MANAGERS ON THE PART OF THE HOUSE ALSO WAS READ BEFORE THAT BODY PRIOR TO ITS ACTION IN AGREEING TO THE CONFERENCE REPORT. ON THE OTHER HAND, SENATOR JOHNSTON'S EXPLANATION ON THE FLOOR OF THE SENATE TO THE EFFECT THAT THE 45 DAYS SHALL RUN "FROM THE DATE THE COLLECTION OF DATA IS OFFICIALLY ORDERED" CERTAINLY APPEARS CONSISTENT WITH THE EXPLANATION OF INTENT CONTAINED IN THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE. THEREFORE, AND IN VIEW OF THE FACT SUCH CONSTRUCTION OF THE TERM APPEARS REASONABLE AND PRACTICABLE, WE CONCLUDE THAT THE TERM "THE DATE ON WHICH SUCH WAGE SURVEY WAS ORDERED TO BE MADE" MUST BE CONSTRUED TO GIVE EFFECT TO THE INTENT OF THE CONFERENCE COMMITTEE AS EXPRESSED IN THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE.

WE HAVE REVIEWED THE MEMORANDUM ENTITLED IMPLEMENTATION OF PUBLIC LAW 85- 872, FORWARDED WITH THE LETTER OF YOUR ASSISTANT SECRETARY AND WE SEE NO LEGAL OBJECTION TO ITS PROVISIONS.

YOUR ASSISTANT SECRETARY ALSO REQUESTS OUR DECISION UPON THE FOLLOWING TWO QUESTIONS:

1. IN ANY CASE IN WHICH IT IS POSSIBLE TO DETERMINE WITH REASONABLE ACCURACY THE AMOUNT OF TIME LIKELY TO BE CONSUMED IN THE ACCOMPLISHMENT OF PRELIMINARY STEPS OF THE NATURE REFERRED TO ABOVE, A LETTER COULD BE ISSUED WHICH WOULD REQUIRE THE ACCOMPLISHMENT OF THESE STEPS AND WOULD SPECIFY A DEFINITE PROSPECTIVE DATE ON WHICH ACTUAL WAGE DATA COLLECTION WOULD BEGIN. IN SUCH CASE WHOULD THE 45-DAY PERIOD BEGIN ON THE PROSPECTIVE DATE SPECIFIED IN THE LETTER FOR ACTUAL COLLECTION OF WAGE DATA RATHER THAN THE DATE OF THE LETTER?

2. THE MILITARY DEPARTMENTS, FOR PLANNING PURPOSES, PREPARE AT THE BEGINNING OF EACH FISCAL YEAR TENTATIVE SCHEDULES WHICH INDICATE THE MONTH IN WHICH WAGE SURVEYS ARE EXPECTED TO BE STARTED IN EACH LABOR MARKET AREA. BASED UPON THE LANGUAGE IN THE STATEMENT OF THE HOUSE MANAGERS, IT IS ASSUMED THAT SUCH TENTATIVE SCHEDULES WILL NOT AUTOMATICALLY START THE 45-DAY PERIOD SPECIFIED IN SECTION 1 (1), BUT THAT A SUBSEQUENT SPECIFIC ORDER WILL BE REQUIRED IN EACH CASE TO ACCOMPLISH THIS ACTION.

WHILE A LETTER SUCH AS THAT REFERRED TO IN THE FIRST QUESTION CONCEIVABLY MIGHT BE CONSTRUED AS BEING WITHIN THE SPIRIT OF THE STATUTE, IT CERTAINLY APPEARS TO BE CONTRARY TO THE STATUTORY LANGUAGE AS EXPLAINED IN THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE. THE LANGUAGE "THE DATE ON WHICH SUCH WAGE SURVEY WAS ORDERED TO BE MADE" AS INTERPRETED IN THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE REFERS TO THE DATE OF THE ORDER DIRECTING THE COLLECTION OF DATA AND NOT TO SOME FUTURE DATE THAT MAY BE SPECIFIED IN SUCH ORDER FOR COMMENCEMENT OF DATA COLLECTION AS SUGGESTED IN THE FIRST QUESTION. WE CONSIDER THE SOUNDER VIEW TO BE TO REQUIRE THE COUNTING OF THE 45 DAYS FROM THE TIME THE ORDER DIRECTING THE COLLECTION OF DATA IS ISSUED RATHER THAN SOME FUTURE DATE SPECIFIED IN SUCH ORDER AS THE DATE WHEN SUCH DATA COLLECTION SHOULD COMMENCE.

CONCERNING THE SECOND QUESTION, WE CONCUR IN THE VIEW THAT THE ISSUANCE OF TENTATIVE SCHEDULES FOR PLANNING PURPOSES WHICH INDICATE THE MONTHS THAT WAGE SURVEYS ARE EXPECTED TO BE CONDUCTED IN VARIOUS LABOR AREAS WILL NOT AUTOMATICALLY START THE RUNNING OF THE 45-DAY PERIOD. THE PUBLISHING OF THE TENTATIVE SCHEDULE IS MERELY AN INDICATION OF THE MONTH IN WHICH A SPECIFIC ORDER DIRECTING THE COLLECTING OF WAGE DATA IS EXPECTED TO BE PROMULGATED AND MAY NOT REASONABLY BE VIEWED AS AN ORDER DIRECTING THE COMMENCEMENT OF DATA COLLECTION.