B-177495, FEB 9, 1973

B-177495: Feb 9, 1973

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SINCE THESE EMPLOYEES ARE PAID THE SAME RATES AS UNION NEGOTIATED WAGES BECAUSE THE ARCHITECT USES THE WAGE DETERMINATION OF THE SECRETARY OF LABOR UNDER THE DAVIS-BACON ACT AND SINCE THE NEW UNION RATES WOULD HAVE GONE INTO EFFECT DURING THE PRESIDENT'S WAGE-PRICE FREEZE. WHITE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15. REQUESTING OUR DECISION AS TO WHETHER YOU HAVE AUTHORITY TO RETROACTIVELY ADJUST THE WAGES OF TEMPORARY PLUMBERS ON YOUR OFFICE'S ROLLS FOR ANY PERIOD PRIOR TO JULY 2. THE EMPLOYEES INVOLVED ARE COMPENSATED UNDER THE AUTHORITY OF SECTION 6 OF PUBLIC LAW 200. SECTION 3 OF THE LEGISLATIVE PAY ACT OF 1929 IS HEREBY AMENDED EFFECTIVE ON THE DATE OF THE ENACTMENT OF THIS ACT BY ADDING AT THE END OF THE FIRST PARAGRAPH THEREOF.

B-177495, FEB 9, 1973

CIVILIAN PERSONNEL - OFFICE OF THE ARCHITECT OF THE CAPITOL - RETROACTIVE WAGE ADJUSTMENTS CONCERNING THE AUTHORITY OF THE ARCHITECT OF THE CAPITOL TO RETROACTIVELY ADJUST THE WAGES OF TEMPORARY PLUMBERS ON HIS OFFICE'S ROLLS PRIOR TO JULY 2, 1972. SINCE THESE EMPLOYEES ARE PAID THE SAME RATES AS UNION NEGOTIATED WAGES BECAUSE THE ARCHITECT USES THE WAGE DETERMINATION OF THE SECRETARY OF LABOR UNDER THE DAVIS-BACON ACT AND SINCE THE NEW UNION RATES WOULD HAVE GONE INTO EFFECT DURING THE PRESIDENT'S WAGE-PRICE FREEZE, THESE EMPLOYEES MAY BE TREATED THE SAME AS WAGE BOARD EMPLOYEES IN THAT THEIR WAGES MAY BE RETROACTIVELY INCREASED UNDER SECTION 203(C) OF PUB. L. 92-210 PURSUANT TO THE ARCHITECT'S AUTHORITY UNDER SECTION 6 OF PUB. L. 77-200. SEE 51 COMP. GEN. 525 (1972).

TO MR. GEORGE M. WHITE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1972, REQUESTING OUR DECISION AS TO WHETHER YOU HAVE AUTHORITY TO RETROACTIVELY ADJUST THE WAGES OF TEMPORARY PLUMBERS ON YOUR OFFICE'S ROLLS FOR ANY PERIOD PRIOR TO JULY 2, 1972.

THE EMPLOYEES INVOLVED ARE COMPENSATED UNDER THE AUTHORITY OF SECTION 6 OF PUBLIC LAW 200, 77TH CONGRESS, 55 STAT. 615, WHICH PROVIDES AS FOLLOWS:

"SEC. 6. SECTION 3 OF THE LEGISLATIVE PAY ACT OF 1929 IS HEREBY AMENDED EFFECTIVE ON THE DATE OF THE ENACTMENT OF THIS ACT BY ADDING AT THE END OF THE FIRST PARAGRAPH THEREOF, BEFORE THE PERIOD, THE FOLLOWING: 'PROVIDED FURTHER, THAT THE COMPENSATION OF ANY EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHOSE TENURE OF EMPLOYMENT IS TEMPORARY OR OF UNCERTAIN DURATION MAY BE FIXED BY THE ARCHITECT OF THE CAPITOL WITHOUT REFERENCE TO THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED'."

YOU STATE THAT IT HAS LONG BEEN YOUR POLICY TO PAY TEMPORARY TRADESMEN THE SAME RATES AS THOSE DETERMINED BY THE SECRETARY OF LABOR, UNDER AUTHORITY OF THE DAVIS-BACON ACT OF 1931, AS AMENDED, 40 U.S.C. 276A, TO BE PREVAILING RATES PAYABLE TO LABORERS AND MECHANICS ENGAGED ON CONTRACT WORK ON FEDERAL CONSTRUCTION PROJECTS IN THE WASHINGTON, D. C., AREA. RATE DETERMINATIONS, AND MODIFICATIONS THERETO, BY THE SECRETARY OF LABOR ARE EFFECTED BY YOUR OFFICE AT THE BEGINNING OF THE FIRST PAY PERIOD WHICH OCCURS ON OR AFTER THE EFFECTIVE DATE INDICATED IN THE SECRETARY'S DETERMINATIONS.

A DAVIS-BACON ACT DETERMINATION BY THE SECRETARY OF LABOR, WHICH WAS PUBLISHED IN THE FEDERAL REGISTER ON JUNE 30, 1972, INCREASED THE PLUMBERS' WASHINGTON AREA HOURLY RATE EFFECTIVE FROM THE DATE OF PUBLICATION. ACCORDINGLY, YOU ADMINISTRATIVELY ADJUSTED THE RATE OF PAY FOR PLUMBERS EMPLOYED ON A TEMPORARY HOURLY BASIS, EFFECTIVE JULY 3, 1972, THE BEGINNING OF THE FIRST PAY PERIOD AFTER JUNE 30, FROM $8.16 PER HOUR TO $9.16 PER HOUR. SUBSEQUENTLY YOU WERE REQUESTED TO GRANT RETROACTIVE PAY INCREASES TO THE PLUMBERS EMPLOYED BY YOU SINCE PLUMBERS IN THE WASHINGTON AREA HAD BEEN GRANTED A RETROACTIVE PAY INCREASE FROM $8.16 AN HOUR TO $9.16 AN HOUR EFFECTIVE SEPTEMBER 1, 1971, BY THE CONSTRUCTION INDUSTRY STABILIZATION COMMITTEE UNDER THE PROVISIONS OF SECTION 203(C) OF THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971, PUBLIC LAW 92-210, APPROVED DECEMBER 22, 1971. THAT SECTION PROVIDES AS FOLLOWS:

"(3) IN ADDITION TO THE PAYMENT OF WAGE AND SALARY INCREASES PROVIDED FOR UNDER PARAGRAPHS (1) AND (2), BEGINNING ON THE DATE ON WHICH THIS SUBSECTION TAKES EFFECT, THE PRESIDENT SHALL PROMPTLY TAKE SUCH ACTION AS MAY BE NECESSARY TO REQUIRE THE PAYMENT OF ANY WAGE OR SALARY INCREASES (INCLUDING ANY INSURANCE OR OTHER FRINGE BENEFITS OFFERED IN CONNECTION WITH EMPLOYMENT) WHICH HAVE BEEN, OR IN THE ABSENCE OF THIS SUBSECTION WOULD BE, WITHHELD UNDER THE AUTHORITY OF THIS TITLE, IF THE PRESIDENT DETERMINES THAT -

"(A) SUCH INCREASES WERE PROVIDED FOR BY LAW OR CONTRACT PRIOR TO AUGUST 15, 1971; AND

"(B) PRICES HAVE BEEN ADVANCED, PRODUCTIVITY INCREASED, TAXES HAVE BEEN RAISED, APPROPRIATIONS HAVE BEEN MADE, OR FUNDS HAVE OTHERWISE BEEN RAISED OR PROVIDED FOR IN ORDER TO COVER SUCH INCREASES."

YOU NOTE THAT BY DECISION 51 COMP. GEN. 525 (B-173976, FEBRUARY 23, 1972) WE HELD THAT FEDERAL EMPLOYEES ARE NOT EXCLUDED FROM THE CITED ACT AND WAGE BOARD EMPLOYEES WERE AUTHORIZED RETROACTIVE WAGE ADJUSTMENTS IF THEY WERE IN A WAGE AREA WHERE SURVEYS COMMENCED PRIOR TO AUGUST 15, 1971. YOU POINT OUT THAT, WHILE THE EMPLOYEES INVOLVED ARE NOT WAGE BOARD EMPLOYEES AS THAT TERM IS GENERALLY USED IN THE GOVERNMENT, THEY ARE HIRED WITH THE UNDERSTANDING THAT THEY WILL BE PAID RATES DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING RATES UNDER THE DAVIS-BACON ACT. ACCORDINGLY, YOU REQUEST OUR DECISION AS TO WHETHER YOU MAY RETROACTIVELY INCREASE THE PAY RATE OF TEMPORARY PLUMBERS WHO WERE ON THE ROLLS OF YOUR AGENCY DURING THE PERIOD SEPTEMBER 1, 1971, TO JULY 2, 1972.

THE DEPARTMENT OF LABOR HAS REPORTED THAT IN MAKING ITS DETERMINATIONS UNDER THE DAVIS-BACON ACT ITS FINDINGS HAVE BEEN THAT THE PREVAILING WAGE RATES ON NONRESIDENTIAL CONSTRUCTION IN THE DISTRICT OF COLUMBIA ARE THE SAME AS UNION NEGOTIATED WAGE RATES. HOWEVER, AS A MATTER OF POLICY IT DOES NOT SHOW A UNION NEGOTIATED RATE AS PREVAILING UNTIL THE RATE HAS BEEN APPROVED BY THE CONSTRUCTION INDUSTRY STABILIZATION COMMITTEE. ACCORDANCE WITH ITS STATED POLICY THE INCREASE FOR PLUMBERS NEGOTIATED TO BE EFFECTIVE SEPTEMBER 1, 1971, WAS NOT INCLUDED IN THE DEPARTMENT OF LABOR'S DAVIS-BACON ACT DETERMINATION UNTIL JUNE 30, 1972.

THE RECORD INDICATES THAT THE PLUMBERS' RATE ADJUSTMENT IN PRIVATE INDUSTRY WAS BASED ON A COLLECTIVE BARGAINING AGREEMENT FOR PLUMBERS LOCAL UNION 5, DATED SEPTEMBER 1, 1969. THE INCREASE WAS APPARENTLY NOT PUT INTO EFFECT AT THE TIME IT NORMALLY WOULD HAVE BEEN BECAUSE OF THE WAGE AND PRICE FREEZE IMPOSED BY EXECUTIVE ORDER 11615, AUGUST 15, 1971. SUBSEQUENTLY SECTION 203(C) OF PUBLIC LAW 92-210 PROVIDED FOR RETROACTIVE WAGE INCREASES THAT WOULD HAVE BEEN PREVIOUSLY EFFECTIVE UNDER EMPLOYMENT CONTRACTS EXECUTED PRIOR TO AUGUST 15, 1971, EXCEPT FOR THE WAGE AND PRICE FREEZE. WE HAVE BEEN ADVISED BY AN OFFICIAL OF THE CONSTRUCTION INDUSTRY STABILIZATION COMMITTEE THAT FINAL ACTION TO APPROVE THE PLUMBERS' RETROACTIVE RATE INCREASE HERE INVOLVED IN ACCORDANCE WITH THE CITED LEGISLATION WAS TAKEN BY THE COMMITTEE ON MAY 16, 1972.

AS YOU POINT OUT, THE EMPLOYEES INVOLVED IN THIS CASE ARE NOT WAGE BOARD EMPLOYEES AS THAT TERM IS GENERALLY USED IN THE GOVERNMENT. HOWEVER, SINCE IT IS YOUR POLICY TO PAY SUCH EMPLOYEES THE PREVAILING RATES AS DETERMINED BY THE SECRETARY OF LABOR UNDER THE DAVIS-BACON ACT, THEY ARE IN EFFECT ACCORDED BENEFITS SIMILAR TO THOSE GRANTED TO WAGE BOARD EMPLOYEES. ORDINARILY WHEN WAGE RATES ARE DETERMINED ADMINISTRATIVELY, AS IN THE INSTANT CASE, WAGE INCREASES ARE EFFECTIVE ONLY FROM THE DATE OF ADMINISTRATIVE APPROVAL. HOWEVER, IT SEEMS CLEAR THAT THE INCREASE HERE INVOLVED WAS ONE WHICH WOULD HAVE GONE INTO EFFECT BETWEEN AUGUST 15, 1971, AND NOVEMBER 14, 1971, THE PERIOD COVERED BY THE WAGE-PRICE FREEZE. MOREOVER, SINCE THE INCREASE FOR THE PLUMBERS IN PRIVATE INDUSTRY QUALIFIED FOR A RETROACTIVE INCREASE UNDER SECTION 203(C) OF PUBLIC LAW 92 -210, SUPRA, WE SEE NO REASON WHY THE TEMPORARY PLUMBERS EMPLOYED BY YOUR AGENCY ARE NOT LIKEWISE QUALIFIED THEREUNDER. WE ALSO NOTE THAT PUBLIC LAW 92-398, APPROVED MAY 17, 1972, 86 STAT. 146, PROVIDES FOR EQUITABLE WAGE ADJUSTMENTS FOR FEDERAL PREVAILING RATE EMPLOYEES ON THE DATES THEIR WAGE ADJUSTMENTS WOULD HAVE BEEN EFFECTIVE EXCEPT FOR DELAYS IN IMPLEMENTING OR CONDUCTING WAGE SURVEYS AS A RESULT OF THE PRESIDENT'S WAGE AND PRICE FREEZE.

UNDER SUCH CIRCUMSTANCES OUR VIEW IS THAT YOU HAVE AUTHORITY TO ADJUST THE WAGE RATE OF THE EMPLOYEES INVOLVED TO SUCH DATE AS THE INCREASE WOULD HAVE BEEN EFFECTIVE EXCEPT FOR THE WAGE AND PRICE FREEZE. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.

YOUR SUBMISSION NOTES THAT SEVEN TEMPORARY PLUMBERS WERE EMPLOYED DURING THE PERIOD IN QUESTION AND THAT ONLY TWO WERE ON THE ROLLS AS OF JULY 2, 1972. SINCE ALL EMPLOYEES ON THE ROLLS DURING THE RETROACTIVE PERIOD SHOULD BE TREATED EQUALLY, IT IS OUR OPINION THAT THE WAGES OF ALL EMPLOYEES ON THE ROLLS DURING THAT PERIOD SHOULD BE ADJUSTED. REGARDING CLAIM PROCEDURE AND NOTIFICATION OF SEPARATED EMPLOYEES SEE 38 COMP. GEN. 56 (1958); 36 ID. 459 (1956); AND 31 ID. 166, 173 (1951).