B-174800, JAN 6, 1972, 51 COMP GEN 395

B-174800: Jan 6, 1972

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THE COMMISSION IS. THE COMMISSION AND NOT THE UNITED STATES GENERAL ACCOUNTING OFFICE IS VESTED WITH AUTHORITY TO MAKE THE FINAL DETERMINATION AS TO THE APPLICABILITY OF CHAPTER 10 OF TITLE 39 TO THE COMMISSION. THE COMMISSION EMPLOYEES WERE PAID IN ACCORDANCE WITH THE POSTAL SERVICE PAY SCHEDULE IN EFFECT FEBRUARY 4. IT IS THE DESIRE OF THE COMMISSION TO ESTABLISH A PERMANENT PAY SCHEDULE FOR ITS EMPLOYEES. AN OFFICER OF THE UNITED STATES POSTAL SERVICE OR OF THE POSTAL RATE COMMISSION IS DEEMED NOT AN OFFICER FOR PURPOSES OF THIS TITLE. AN EMPLOYEE OF THE UNITED STATES POSTAL SERVICE OR OF THE POSTAL RATE COMMISSION IS DEEMED NOT AN EMPLOYEE FOR PURPOSES OF THIS TITLE. OFFICERS AND EMPLOYEES OF THE POSTAL RATE COMMISSION ARE OUTSIDE THE PURVIEW OF TITLE 5.

B-174800, JAN 6, 1972, 51 COMP GEN 395

POSTAL SERVICE, UNITED STATES - EMPLOYEES - COMPENSATION - POSTAL RATE COMMISSION EMPLOYEES IN ESTABLISHING A PERMANENT PAY SCHEDULE FOR POSTAL RATE COMMISSION EMPLOYEES EXEMPTED FROM THE GENERAL SCHEDULE PAY RATES OF TITLE 5 BY 5 U.S.C. 2104(B) AND 2105(E), THE COMMISSION IS, PURSUANT TO 39 U.S.C. 3604(B), REQUIRED TO FOLLOW THE APPROPRIATE COMPENSATION RATES ESTABLISHED BY THE POSTAL SERVICE UNDER CHAPTER 10 OF TITLE 39, NOTWITHSTANDING SECTION 3604(D) APPEARS TO GIVE THE COMMISSION INDEPENDENT AUTHORITY AS SECTION 3604(D) DOES NOT SUPERSEDE SECTION 3604(B). HOWEVER, SECTION 3604(D) MAKES 39 U.S.C. 410(A) APPLICABLE TO THE COMMISSION TO THE EFFECT "NO FEDERAL LAW DEALING WITH PUBLIC OR FEDERAL CONTRACTS, PROPERTY, WORK, OFFICERS, EMPLOYEES, BUDGETS, OR FUNDS *** SHALL APPLY TO THE EXERCISE OF THE POWERS OF THE POSTAL SERVICE" AND, THEREFORE, THE COMMISSION AND NOT THE UNITED STATES GENERAL ACCOUNTING OFFICE IS VESTED WITH AUTHORITY TO MAKE THE FINAL DETERMINATION AS TO THE APPLICABILITY OF CHAPTER 10 OF TITLE 39 TO THE COMMISSION.

TO THE CHAIRMAN, POSTAL RATE COMMISSION, JANUARY 6, 1972:

YOUR LETTER OF DECEMBER 21, 1971, REQUESTS ADVICE AS TO WHETHER THE POSTAL RATE COMMISSION HAS AUTHORITY TO ESTABLISH A PAY SCHEDULE FOR ITS EMPLOYEES INDEPENDENT OF EITHER THE POSTAL SERVICE PAY SCHEDULE UNDER SECTION 1003 OF TITLE 39, U.S.C. OR THE GENERAL SCHEDULE RATES OF PAY UNDER SECTION 5104 OF TITLE 5.

YOU STATE THAT PRIOR TO ITS FIRST BUDGETARY YEAR THE POSTAL RATE COMMISSION USED THE PAYROLL AND SUPPORT MACHINERY OF THE POST OFFICE DEPARTMENT (NOW THE POSTAL SERVICE), AND, THEREFORE, THE COMMISSION EMPLOYEES WERE PAID IN ACCORDANCE WITH THE POSTAL SERVICE PAY SCHEDULE IN EFFECT FEBRUARY 4, 1971. YOU POINT OUT, HOWEVER, THAT ALTHOUGH THE POSTAL SERVICE HAS INCREASED THE COMPENSATION UNDER ITS SCHEDULE, THE COMMISSION CONTINUES TO USE THE RATES APPLICABLE AT FEBRUARY 4. IT IS THE DESIRE OF THE COMMISSION TO ESTABLISH A PERMANENT PAY SCHEDULE FOR ITS EMPLOYEES.

SECTION 6(C)(3) OF PUBLIC LAW 91-375 AMENDS SECTION 2104, TITLE 5, U.S.C. BY ADDING THE FOLLOWING NEW SUBSECTION:

(B) EXCEPT AS OTHERWISE PROVIDED BY LAW, AN OFFICER OF THE UNITED STATES POSTAL SERVICE OR OF THE POSTAL RATE COMMISSION IS DEEMED NOT AN OFFICER FOR PURPOSES OF THIS TITLE.

LIKEWISE, SECTION 6(C)(4) OF THE ACT ADDED TO SECTION 2105, TITLE 5, U.S.C. THE FOLLOWING NEW SUBSECTION:

(E) EXCEPT AS OTHERWISE PROVIDED BY LAW, AN EMPLOYEE OF THE UNITED STATES POSTAL SERVICE OR OF THE POSTAL RATE COMMISSION IS DEEMED NOT AN EMPLOYEE FOR PURPOSES OF THIS TITLE.

THUS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY LAW, OFFICERS AND EMPLOYEES OF THE POSTAL RATE COMMISSION ARE OUTSIDE THE PURVIEW OF TITLE 5, WHICH TITLE CONTAINS THE GENERAL SCHEDULE PAY RATES. FURTHERMORE, WE FIND NO PROVISION OF LAW WHICH WOULD REQUIRE THE GENERAL SCHEDULE PAY RATES TO APPLY TO THE OFFICERS OR EMPLOYEES OF THE POSTAL RATE COMMISSION.

WITH REGARD TO APPLICABILITY OF THE POSTAL SERVICE COMPENSATION SCHEDULE TO EMPLOYEES OF THE COMMISSION, WE FIND THE UNDERLYING STATUTE SOMEWHAT LESS THAN A MODEL OF CLARITY BUT NEVERTHELESS INDICATIVE OF AN INTENT TO REQUIRE THAT COMMISSION EMPLOYEES BE PAID AT RATES ESTABLISHED BY THE POSTAL SERVICE. WE HAVE CAREFULLY EXAMINED THE LEGISLATIVE HISTORY OF THE POSTAL REORGANIZATION ACT, PUBLIC LAW 91 375, BUT HAVE FOUND NOTHING THEREIN WHICH MATERIALLY ASSISTS IN ASCERTAINING THE LEGISLATIVE INTENT REGARDING THE QUESTION PRESENTED. WE, THEREFORE, MUST REACH OUR CONCLUSIONS THROUGH INTERPRETATION OF THE STATUTORY LANGUAGE ALONE.

SECTION 3604 OF TITLE 39, U.S.C. AS ADDED BY PUBLIC LAW 91-375, PROVIDES IN PERTINENT PART, AS FOLLOWS:

(B) THE COMMISSION MAY OBTAIN SUCH FACILITIES AND SUPPLIES, AND APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS AND EMPLOYEES, AS MAY BE NECESSARY TO PERMIT THE COMMISSION TO CARRY OUT ITS FUNCTIONS. THE OFFICERS AND EMPLOYEES SO APPOINTED (1) SHALL BE PAID AT RATES OF COMPENSATION, AND SHALL BE ENTITLED TO PROGRAMS OFFERING EMPLOYEE BENEFITS, ESTABLISHED UNDER CHAPTER 10 OR 12 OF THIS TITLE, AS APPROPRIATE, AND (2) SHALL BE RESPONSIBLE SOLELY TO THE COMMISSIONERS.

(D) THE PROVISIONS OF SECTION 410 AND CHAPTER 10 OF THIS TITLE SHALL APPLY TO THE COMMISSION, AS APPROPRIATE.

THE KEY WORDS AND DIRECTION IN SUBSECTION (B) ARE THAT:

*** THE OFFICERS AND EMPLOYEES SO APPOINTED (1) SHALL BE PAID AT RATES OF COMPENSATION *** ESTABLISHED UNDER CHAPTER 10 *** .

CHAPTER 10, IN SECTION 1003, PROVIDES THAT THE

*** POSTAL SERVICE SHALL CLASSIFY AND FIX THE COMPENSATION AND BENEFITS OF ALL OFFICERS AND EMPLOYEES IN THE POSTAL SERVICE. IT SHALL BE THE POLICY OF THE POSTAL SERVICE TO MAINTAIN COMPENSATION AND BENEFITS FOR ALL OFFICERS AND EMPLOYEES ON STANDARD OF COMPARABILITY TO THE COMPENSATION AND BENEFITS PAID FOR COMPARABLE LEVELS OF WORK IN THE PRIVATE SECTOR OF THE ECONOMY *** .

IN OUR OPINION, THE KEY WORDS OF SUBSECTION 3604(B) STANDING ALONE ARE MOST REASONABLY INTERPRETED AS REQUIRING THAT THE POSTAL RATE COMMISSION IN FIXING THE COMPENSATION OF ITS EMPLOYEES MUST FOLLOW THE APPROPRIATE RATES ESTABLISHED BY THE POSTAL SERVICE. WE FIND DIFFICULTY IN ANY CONSTRUCTION OF THE WORDS USED AS PROVIDING AN INDEPENDENT AUTHORITY IN THE COMMISSION TO ESTABLISH ITS OWN PAY RATE SCHEDULE.

HOWEVER, WE MUST CONCEDE THAT SUBSECTION 3604(D), IN MAKING THE PROVISIONS OF CHAPTER 10 APPLICABLE TO THE COMMISSION, PROVIDES A PERSUASIVE BASIS FOR THE PROPOSITION THAT THE AUTHORITIES PROVIDED IN CHAPTER 10 FOR THE POSTAL SERVICE WERE INTENDED TO CARRY OVER AS INDEPENDENT AUTHORITIES TO THE POSTAL RATE COMMISSION. WHILE RECOGNIZING THE MERIT OF THIS POSITION, HOWEVER, THERE IS THE CONTRARY ARGUMENT THAT RATES OF COMPENSATION, BEING SPECIFICALLY COVERED BY SUBSECTION 3604(B), SHOULD BE CONSTRUED AS BEING OUTSIDE THE SCOPE OF SUBSECTION 3604(D). ARE INCLINED TO THE VIEW THAT SUBSECTION 3604(D) WAS NOT INTENDED TO SUPERSEDE THE SPECIFIC PROVISIONS OF SUBSECTION 3604(B). WE BELIEVE THAT HAD CONGRESS INTENDED TO AUTHORIZE THE COMMISSION TO ESTABLISH ITS OWN PAY SCHEDULES, IT WOULD HAVE SO PROVIDED IN SPECIFIC TERMS.

WE POINT OUT, HOWEVER, THAT WHILE THE ABOVE CONCLUSIONS EXPRESS OUR VIEWS IN THE MATTER, SUBSECTION 410(A) OF TITLE 39, U.S.C. STATES THAT UNLESS OTHERWISE PROVIDED " *** NO FEDERAL LAW DEALING WITH PUBLIC OR FEDERAL CONTRACTS, PROPERTY, WORK, OFFICERS, EMPLOYEES, BUDGETS, OR FUNDS *** SHALL APPLY TO THE EXERCISE OF THE POWERS OF THE POSTAL SERVICE." PURSUANT TO SUBSECTION 3604(D), QUOTED ABOVE, SECTION 410(A) IS IN OUR OPINION ALSO APPLICABLE TO THE POSTAL RATE COMMISSION. THUS, IT WOULD SEEM TO US THAT THE POSTAL RATE COMMISSION, RATHER THAN OUR OFFICE, IS VESTED WITH AUTHORITY TO MAKE THE FINAL DETERMINATION AS TO THE EXTENT TO WHICH CHAPTER 10 OF TITLE 39 IS APPLICABLE TO THE COMMISSION.