B-173210, AUG 24, 1971, 51 COMP GEN 123

B-173210: Aug 24, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHICH WILL ENCOMPASS LEAVE ACCUMULATIONS. HAS BEEN INTERPRETED TO REQUIRE THAT SUCH AN EMPLOYEE WILL RETAIN HIS SENIORITY UPON TRANSFER AMONG NONAPPROPRIATED AND APPROPRIATED FUND POSITIONS. THE AGREEMENT WAS ENTERED INTO BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES IN RECOGNITION OF THE NEED TO PROMOTE AND MAINTAIN SOUND EMPLOYMENT PRACTICES AT THE UNITED STATES MILITARY BASES ESTABLISHED IN THAT COUNTRY. IT IS NOT CLEAR WHETHER THE LANGUAGE "REGARDLESS OF *** SOURCES OF FUNDS USED" WAS INTENDED TO REFER TO EMPLOYMENT IN ACTIVITIES FINANCED FROM NONAPPROPRIATED FUNDS AS WELL AS THOSE FINANCED BY APPROPRIATED FUNDS. WE NOTE THAT AUTHORITY FOR COMPENSATION PLANS FOR ALIEN EMPLOYEES IS CONTAINED IN 22 U.S.C. 889 AS FOLLOWS: (A) THE SECRETARY SHALL.

B-173210, AUG 24, 1971, 51 COMP GEN 123

ALIENS - EMPLOYMENT - TRANSFERS - BETWEEN NONAPPROPRIATED AND APPROPRIATED FUND POSITIONS TO GIVE EFFECT TO THE AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE REPUBLIC OF THE PHILIPPINES RELATING TO THE EMPLOYMENT OF PHILIPPINE NATIONALS IN THE UNITED STATES MILITARY BASES IN THE PHILIPPINES, FILIPINO EMPLOYEES TRANSFERRED AMONG NONAPPROPRIATED AND APPROPRIATED FUND POSITIONS MAY RETAIN THEIR SENIORITY, WHICH WILL ENCOMPASS LEAVE ACCUMULATIONS, LENGTH OF SERVICE FOR END OF YEAR BONUSES, SEVERANCE PAY, AND LUMP-SUM PAYMENT IN LIEU OF RETIREMENT ANNUITY, SINCE THE AGREEMENT PROVIDES THAT UNIFORM PERSONNEL POLICIES AND ADMINISTRATION APPLY EQUALLY TO ALL EMPLOYEES "REGARDLESS OF NATIONALITY AND SOURCES OF FUNDS USED," AND 22 U.S.C. 889 DOES NOT REQUIRE COMPENSATION PLANS FOR ALIENS TO BE LIMITED BY THE LAWS AND REGULATIONS APPLICABLE TO CIVIL SERVICE EMPLOYEES. THEREFORE, TO IMPLEMENT THE AGREEMENT, THE UNITED STATES MAY BE CONSIDERED AS ONE EMPLOYER WITH NO DISTINCTION BETWEEN SERVICE UNDER NONAPPROPRIATED OR APPROPRIATED FUND ACTIVITIES.

TO THE SECRETARY OF THE NAVY, AUGUST 24, 1971:

BY LETTER OF JUNE 8, 1971, REFERENCE OCMM 01AH):JEM, THE ACTING DIRECTOR, OFFICE OF CIVILIAN MANPOWER MANAGEMENT, REQUESTED OUR DECISION AS TO THE LEGALITY OF THE ASSUMPTION (1) BY APPROPRIATED FUND ACTIVITIES OF FINANCIAL OBLIGATIONS, FOR CERTAIN EMPLOYEES' BENEFITS FOR FILIPINO EMPLOYEES FORMERLY PAID FROM NONAPPROPRIATED FUNDS, AND (2) BY NONAPPROPRIATED FUND ACTIVITIES OF THESE BENEFITS FOR FILIPINO EMPLOYEES FORMERLY PAID FROM APPROPRIATED FUNDS.

THE ACTING DIRECTOR'S LETTER INDICATES THAT AN AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE REPUBLIC OF THE PHILIPPINES, DATED MAY 27, 1968, 19 UST 5892, TIAS 6542, RELATING TO EMPLOYMENT OF PHILIPPINE NATIONALS IN THE UNITED STATES MILITARY BASES IN THE PHILIPPINES, HAS BEEN INTERPRETED TO REQUIRE THAT SUCH AN EMPLOYEE WILL RETAIN HIS SENIORITY UPON TRANSFER AMONG NONAPPROPRIATED AND APPROPRIATED FUND POSITIONS. SUBSEQUENTLY IT HAS BEEN RECOMMENDED THAT THIS SENIORITY WOULD ENCOMPASS LEAVE ACCUMULATIONS AND LENGTH OF SERVICE FOR END OF YEAR BONUSES, SEVERANCE PAY, AND LUMP-SUM PAYMENT IN LIEU OF RETIREMENT ANNUITY.

AS STATED IN ITS PREAMBLE, THE AGREEMENT WAS ENTERED INTO BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES IN RECOGNITION OF THE NEED TO PROMOTE AND MAINTAIN SOUND EMPLOYMENT PRACTICES AT THE UNITED STATES MILITARY BASES ESTABLISHED IN THAT COUNTRY; ALSO, TO ASSURE EQUALITY OF TREATMENT OF ALL EMPLOYEES AND THEIR RIGHT TO SELF-ORGANIZATION AND COLLECTIVE BARGAINING, THE ORDERLY ADMINISTRATION AND EFFECTIVE OPERATION OF THE BASES, AND CONTINUING FAVORABLE EMPLOYER-EMPLOYEE RELATIONS THEREON. ARTICLE I, PARAGRAPH 2, PROVIDES:

UNIFORM STANDARDS.

TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF THIS AGREEMENT AND THE NATIONAL LAWS OF EITHER COUNTRY AND REGULATIONS PURSUANT THERETO AND IN CONFORMITY THEREWITH, TERMS AND STANDARDS OF EMPLOYMENT, INCLUDING WAGES, WORKING CONDITIONS AND BENEFITS, SHALL BE SUBJECT TO COLLECTIVE BARGAINING AND, UNDER UNIFORM PERSONNEL POLICIES AND ADMINISTRATION, SHALL APPLY EQUALLY TO ALL EMPLOYEES, REGARDLESS OF NATIONALITY AND SOURCES OF FUNDS USED.

IT IS NOT CLEAR WHETHER THE LANGUAGE "REGARDLESS OF *** SOURCES OF FUNDS USED" WAS INTENDED TO REFER TO EMPLOYMENT IN ACTIVITIES FINANCED FROM NONAPPROPRIATED FUNDS AS WELL AS THOSE FINANCED BY APPROPRIATED FUNDS, THERE BEING NO MENTION ELSEWHERE IN THE AGREEMENT REGARDING THE MATTER. THEREFORE, THE QUESTION ARISES WHETHER, FOR THE PURPOSES PREVIOUSLY INDICATED, IN IMPLEMENTING THE AGREEMENT THE UNITED STATES ARMED FORCES COULD PROPERLY BE CONSIDERED AS "ONE EMPLOYER," WITH NO DISTINCTION BETWEEN SERVICE UNDER NONAPPROPRIATED FUND ACTIVITIES AND SERVICE UNDER APPROPRIATED FUND ACTIVITIES.

ASIDE FROM THE ABOVE-MENTIONED AGREEMENT, WHICH SUPPLEMENTS THE MILITARY BASES AGREEMENT OF 1947, ENTERED INTO UNDER AUTHORITY OF SECTION 2 OF SENATE JOINT RESOLUTION 93, APPROVED JUNE 29, 1944, 58 STAT. 626, WE NOTE THAT AUTHORITY FOR COMPENSATION PLANS FOR ALIEN EMPLOYEES IS CONTAINED IN 22 U.S.C. 889 AS FOLLOWS:

(A) THE SECRETARY SHALL, IN ACCORDANCE WITH SUCH REGULATIONS AS HE MAY PRESCRIBE, ESTABLISH COMPENSATION PLANS FOR ALIEN EMPLOYEES OF THE SERVICE: PROVIDED, THAT SUCH COMPENSATION PLANS SHALL BE BASED UPON PREVAILING WAGE RATES AND COMPENSATION PRACTICES FOR CORRESPONDING TYPES OF POSITIONS IN THE LOCALITY, TO THE EXTENT CONSISTENT WITH THE PUBLIC INTEREST.

(B) FOR THE PURPOSE OF PERFORMING FUNCTIONS ABROAD, OTHER GOVERNMENT AGENCIES ARE AUTHORIZED TO ADMINISTER ALIEN EMPLOYEE PROGRAMS IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THIS CHAPTER.

IT IS APPARENT FROM THE FOREGOING THAT COMPENSATION PLANS FOR ALIENS NEED NOT BE LIMITED BY LAWS AND REGULATIONS APPLICABLE TO EMPLOYEES SUBJECT TO THE CIVIL SERVICE LAWS AND REGULATIONS GENERALLY, AND THAT WHERE SUCH PLANS ARE CONSISTENT WITH THE LOCAL PRACTICE AND IN THE PUBLIC INTEREST, NO QUESTION WOULD ARISE AS TO THE AVAILABILITY OF APPROPRIATIONS TO MEET THE COST OF SUCH PLANS.

THEREFORE, WE SEE NO LEGAL OBJECTION TO REGARDING THE UNITED STATES ARMED FORCES IN THE REPUBLIC OF THE PHILIPPINES AS ONE EMPLOYER IN ORDER TO PERMIT THE BENEFITS IN QUESTION AND TO GIVE FULL EFFECT TO THE TERMS OF THE AGREEMENT.