B-174278, DEC 29, 1971

B-174278: Dec 29, 1971

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CIVILIAN EMPLOYEES - WAGE SURVEY - EFFECTIVE DATE OF WAGE INCREASE DECISION REGARDING QUESTIONS AS TO WHETHER AN AGENCY MAY PROSPECTIVELY FIX AN EFFECTIVE DATE FOR A WAGE SCHEDULE THAT IS PRIOR TO THE APPROVAL OF THE SCHEDULE BY RESPONSIBLE AGENCY AUTHORITY BUT WITHIN THE 45-DAY PERIOD PRESCRIBED BY 5 U.S.C. 5343. WHOSE PAY IS FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES. THE GENERAL RULE IS THEREFORE FOR APPLICATION WITH REGARD TO ANY INCREASES APPROVED WITHIN THE 45-DAY PERIOD SPECIFIED BY STATUTE. HAMPTON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5. REQUESTING OUR DECISION AS TO WHETHER AN AGENCY MAY PROSPECTIVELY FIX AN EFFECTIVE DATE FOR A WAGE SCHEDULE THAT IS PRIOR TO THE APPROVAL OF THE SCHEDULE BY RESPONSIBLE AGENCY AUTHORITY BUT WITHIN THE 45-DAY PERIOD PRESCRIBED BY 5 U.S.C. 5343.

B-174278, DEC 29, 1971

CIVILIAN EMPLOYEES - WAGE SURVEY - EFFECTIVE DATE OF WAGE INCREASE DECISION REGARDING QUESTIONS AS TO WHETHER AN AGENCY MAY PROSPECTIVELY FIX AN EFFECTIVE DATE FOR A WAGE SCHEDULE THAT IS PRIOR TO THE APPROVAL OF THE SCHEDULE BY RESPONSIBLE AGENCY AUTHORITY BUT WITHIN THE 45-DAY PERIOD PRESCRIBED BY 5 U.S.C. 5343. IT HAS LONG BEEN THE RULE THAT IN THE ABSENCE OF A CONTROLLING STATUTE AN INCREASE IN BASIC COMPENSATION AUTHORIZED BY A WAGE BOARD OR OTHER WAGE FIXING AUTHORITY FOR EMPLOYEES, WHOSE PAY IS FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES, MAY NOT BE MADE EFFECTIVE PRIOR TO THE DATE OF FINAL ACTION BY THE WAGE FIXING AUTHORITY. GAO VIEWS THE PROVISIONS OF 5 U.S.C. 5343 AS AUTHORIZING AN EXCEPTION TO THE ABOVE-STATED RULE ONLY IN SITUATIONS WHERE THE FINAL APPROVAL HAS NOT BEEN GIVEN BEFORE EXPIRATION OF THE 45-DAY PERIOD. THE GENERAL RULE IS THEREFORE FOR APPLICATION WITH REGARD TO ANY INCREASES APPROVED WITHIN THE 45-DAY PERIOD SPECIFIED BY STATUTE, AND DEVIATIONS SUCH AS SUGGESTED IN THE QUESTIONS PRESENTED IN THE SUBMISSION MAY NOT BE AUTHORIZED.

TO MR. ROBERT E. HAMPTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1971, REQUESTING OUR DECISION AS TO WHETHER AN AGENCY MAY PROSPECTIVELY FIX AN EFFECTIVE DATE FOR A WAGE SCHEDULE THAT IS PRIOR TO THE APPROVAL OF THE SCHEDULE BY RESPONSIBLE AGENCY AUTHORITY BUT WITHIN THE 45-DAY PERIOD PRESCRIBED BY 5 U.S.C. 5343. SECTION 5343 PROVIDES IN PERTINENT PART AS FOLLOWS:

"SEC 5343. EFFECTIVE DATE OF PAY INCREASE

"EACH INCREASE IN RATES OF BASIC PAY GRANTED, PURSUANT TO A WAGE SURVEY, TO EMPLOYEES WHOSE PAY IS FIXED AND ADJUSTED UNDER SECTION 5341 OF THIS TITLE IS EFFECTIVE, 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."

YOU REQUEST OUR DECISION REGARDING THE FOLLOWING SPECIFIC QUESTIONS: (1) IF A WAGE SURVEY IS ORDERED AND AN EFFECTIVE DATE FOR THE WAGE SCHEDULE IS SET, MAY IT BE MADE EFFECTIVE ON THE SPECIFIED DATE EVEN THOUGH IT IS NOT APPROVED BY RESPONSIBLE AGENCY AUTHORITY UNTIL AFTER SUCH DATE; AND (2) IF THE ANSWER TO THE FIRST QUESTION IS AFFIRMATIVE, MAY AN AGENCY PROSPECTIVELY FIX AN EFFECTIVE DATE FOR A WAGE SCHEDULE THAT IS PRIOR TO THE COLLECTION, RECEIPT, AND ACCEPTANCE OF THE WAGE DATA BY RESPONSIBLE AGENCY AUTHORITY. YOU ALSO ASK, IF THE ANSWER TO THE SECOND QUESTION IS NEGATIVE, WHETHER THE AGENCY MAY SET AN EFFECTIVE DATE BETWEEN THE DATE THE DATA IS RECEIVED AND THE DATE ON WHICH THE WAGE SCHEDULE IS APPROVED.

A THIRD QUESTION CONCERNS THE EFFECTIVE DATE OF A WAGE SCHEDULE ADJUSTMENT. YOU STATE THAT A CERTAIN AGENCY HAS AGREED TO REFLECT PRIVATE INDUSTRY WAGE ADJUSTMENTS AS SOON AS POSSIBLE AND HAS TIMED ITS WAGE SURVEYS IN THE PAST TO FOLLOW MAJOR WAGE ADJUSTMENTS IN PRIVATE INDUSTRY. THE AGENCY REGULAR WAGE SURVEY SCHEDULE WAS EFFECTED MAY 16 BUT THE CONTRACTS CURRENT FOR THE DOMINANT INDUSTRY WERE EXTENDED BEYOND THEIR ORIGINAL SCHEDULED DATE AND NEW CONTRACTS WERE NOT RATIFIED UNTIL JULY 31. ON AUGUST 3 THE AGENCY WAGE COMMISSION MET AND ADVISED THAT WAGE INCREASES IN PRIVATE INDUSTRY WERE EFFECTIVE ON JULY 31. THE NEW WAGE DATE WAS NOT RECEIVED BY THE AGENCY UNTIL AUGUST 16. YOU ASK WHETHER THE RESPONSIBLE AGENCY AUTHORITY COULD MAKE THE WAGE SCHEDULE ADJUSTMENTS BASED ON SUCH WAGE DATA EFFECTIVE ON AUGUST 3 AND, IF OUR ANSWER IS NEGATIVE, WHETHER THE ADJUSTMENTS COULD HAVE BEEN MADE EFFECTIVE IF SUCH AUTHORITY HAD DETERMINED ON OR BEFORE AUGUST 3 TO MAKE ADJUSTMENTS EFFECTIVE ON THAT DATE.

IT HAS LONG BEEN THE RULE THAT IN THE ABSENCE OF A CONTROLLING STATUTE AN INCREASE IN BASIC COMPENSATION AUTHORIZED BY A WAGE BOARD OR OTHER WAGE FIXING AUTHORITY FOR EMPLOYEES, WHOSE PAY IS FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES, MAY NOT BE MADE EFFECTIVE PRIOR TO THE DATE OF FINAL ACTION BY THE WAGE FIXING AUTHORITY. 24 COMP. GEN. 676 (1945); 40 ID. 212 (1960); B-163365, MARCH 4, 1968. CF. 47 COMP. GEN. 774 (1968).

WE VIEW THE PROVISIONS OF 5 U.S.C. 5343 SUPRA AS AUTHORIZING AN EXCEPTION TO THE ABOVE-STATED RULE ONLY IN SITUATIONS WHERE THE FINAL APPROVAL HAS NOT BEEN GIVEN BEFORE EXPIRATION OF THE 45-DAY PERIOD. THE GENERAL RULE IS THEREFORE FOR APPLICATION WITH REGARD TO ANY INCREASES APPROVED WITHIN THE 45-DAY PERIOD SPECIFIED BY STATUTE, AND DEVIATIONS SUCH AS SUGGESTED IN THE QUESTIONS PRESENTED IN YOUR SUBMISSION MAY NOT BE AUTHORIZED.