B-199054.OM, DEC 16, 1980

B-199054.OM: Dec 16, 1980

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S. ARMED FORCES TO ADOPT REPUBLIC OF KOREA LABOR LAW PROVISIONS AND THAT 22 U.S.C. 889(A)(1) (1976) IS COMPATIBLE WITH THAT RESULT. YOU ALSO INQUIRE AS TO WHETHER YOU "ARE IN A GOOD POSITION *** TO PRESS FOR IMPLEMENTATION OF OUR RECOMMENDATION" THAT DOD COMPUTE PREMIUM PAY ONLY ON BASE PAY. IT MAY BE ADOPTED ONLY "TO THE EXTENT IT IS CONSISTENT WITH THE PUBLIC INTEREST.". ALTHOUGH WE HAVE NEVER RULED ON THE SPECIFIC QUESTION. WE DO NOT BELIEVE THAT THE ABOVE-QUOTED PHRASE GRANTS AUTHORITY FOR AN AGENCY TO ADOPT A PRACTICE THAT IS NOT A PREVAILING WAGE RATE OR COMPENSATION PRACTICE FOR CORRESPONDING TYPES OF POSITIONS IN THE LOCALITY. GIVEN THE FACTS THAT YOU HAVE PROVIDED US. WE BELIEVE THAT DOD IS REQUIRED BY THE SOFA TO COMPUTE OVERTIME AS A PERCENTAGE OF BASE PAY PLUS THE CONSOLIDATED ALLOWANCE PAYMENT.

B-199054.OM, DEC 16, 1980

SUBJECT: REQUEST FOR INFORMAL OPINION ON DOD FOREIGN NATIONAL EMPLOYEE COMPENSATION PRACTICES IN KOREA - B-199054-O.M.

ROBERT SHELTON, DEPUTY ASSOCIATE DIRECTOR, FPCD:

YOUR MEMORANDUM REQUESTS OUR INFORMAL OPINION ON A DEPARTMENT OF DEFENSE (DOD) MEMORANDUM PREPARED BY THE ASSISTANT GENERAL COUNSEL, MANPOWER HEALTH & PUBLIC AFFAIRS, OFFICE OF THE GENERAL COUNSEL, DOD. THAT MEMORANDUM CONCLUDED THAT PARAGRAPH 3 OF ARTICLE XVII OF THE STATUS OF FORCES AGREEMENT (SOFA) FN1 CLEARLY REQUIRES THE U. S. ARMED FORCES TO ADOPT REPUBLIC OF KOREA LABOR LAW PROVISIONS AND THAT 22 U.S.C. 889(A)(1) (1976) IS COMPATIBLE WITH THAT RESULT. YOU ALSO INQUIRE AS TO WHETHER YOU "ARE IN A GOOD POSITION *** TO PRESS FOR IMPLEMENTATION OF OUR RECOMMENDATION" THAT DOD COMPUTE PREMIUM PAY ONLY ON BASE PAY. FN2

SECTION 889(A) GRANTS AUTHORITY TO THE SECRETARY OF STATE, AND SEC. 889(B) TO OTHER GOVERNMENT AGENCIES AND DEPARTMENTS, TO ESTABLISH COMPENSATION PLANS FOR ALIEN EMPLOYEES OF THE UNITED STATES EMPLOYED ABROAD. IT REQUIRES THE COMPENSATION PLANS TO BE BASED UPON "PREVAILING WAGE RATES AND COMPENSATION PRACTICES FOR CORRESPONDING TYPES OF POSITIONS IN THE LOCALITY." IF THE PROPOSED PRACTICE MEETS THIS REQUIREMENT, IT MAY BE ADOPTED ONLY "TO THE EXTENT IT IS CONSISTENT WITH THE PUBLIC INTEREST." SEE 40 COMP.GEN. 650 (1961). ALTHOUGH WE HAVE NEVER RULED ON THE SPECIFIC QUESTION, WE DO NOT BELIEVE THAT THE ABOVE-QUOTED PHRASE GRANTS AUTHORITY FOR AN AGENCY TO ADOPT A PRACTICE THAT IS NOT A PREVAILING WAGE RATE OR COMPENSATION PRACTICE FOR CORRESPONDING TYPES OF POSITIONS IN THE LOCALITY. THUS, WE DISAGREE WITH DOD'S POSITION THAT SECTION 889(A)(1) AUTHORIZES THE ADOPTION OF THE COMPENSATION PRACTICE THAT THEY USE TO COMPUTE OVERTIME IN KOREA, DESPITE THE FACT THAT IT MAY NOT BE THE PREVAILING PRACTICE IN THE LOCALITY.

HOWEVER, GIVEN THE FACTS THAT YOU HAVE PROVIDED US, WE BELIEVE THAT DOD IS REQUIRED BY THE SOFA TO COMPUTE OVERTIME AS A PERCENTAGE OF BASE PAY PLUS THE CONSOLIDATED ALLOWANCE PAYMENT, REGARDLESS OF THE PROVISIONS OF 22 U.S.C. 889(A)(1).

AS AN EXECUTIVE AGREEMENT, THE SOFA DOES NOT REQUIRE THE ADVICE AND CONSENT OF THE SENATE BEFORE BECOMING EFFECTIVE, AND IS NOT A "TREATY" IN THE CONSTITUTIONAL SENSE. HOWEVER, UNDER INTERNATIONAL LAW EXECUTIVE ARGUMENTS SUCH AS THE SOFA ARE CONSIDERED TREATIES, AND AS SUCH, BECOME THE LAW OF THE LAND AND SUPERSEDE PRIOR INCONSISTENT DOMESTIC LAW. ROSSI V. BROWN, 467 F. SUPP. 960 (D.C. 1979) AND CASES CITED THEREIN.

IN THIS REGARD, WE NOTE THAT THE PROVISION IN SECTION 889 PROVIDING FOR THE SETTING OF COMPENSATION PLANS BASED ON LOCALITY PREVAILING WAGE RATES WAS ADDED BY A 1960 AMENDMENT, SECTION 6 OF PUBLIC LAW NO. 86 723, SEPTEMBER 8, 1960 (74 STAT. 831). THE SOFA ENTERED INTO FORCE ON FEBRUARY 9, 1967. THUS, AT THAT TIME THE SOFA TOOK PRECEDENCE OVER THE PROVISIONS OF SECTION 889 THAT WERE INCONSISTENT WITH THE SOFA FOR THE PURPOSE OF DETERMINING COMPENSATION SCHEDULES FOR ALIEN EMPLOYEES IN KOREA.

MOREOVER, WE DO NOT BELIEVE THAT ANY OF THE SUBSEQUENT AMENDMENTS TO SECTION 889(A)(1) WOULD CHANGE THIS RESULT. ALTHOUGH SECTION 889(A) HAS UNDERGONE MINOR AMENDMENTS SINCE THE 1960 AMENDMENT REFERRED TO ABOVE, THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE SUBSEQUENT AMENDMENTS TO SUGGEST CONGRESS INTENDED TO REMEDY OR WAS EVEN AWARE OF POSSIBLE CONFLICTS WITH INTERNATIONAL AGREEMENTS SUCH AS THIS SOFA. THE RULE FOR APPLICATION IS THAT A SUBSEQUENT ACT OF CONGRESS SUPERSEDES AN INCONSISTENT INTERNATIONAL AGREEMENT ONLY IF THE PURPOSE OF CONGRESS TO SUPERSEDE THE AGREEMENT IS CLEARLY EXPRESSED. SEE ROSSI V. BROWN, SUPRA, AND COOK V. UNITED STATES 288 U.S. 102 (1932). SUCH INTENT IS CLEARLY LACKING HERE.

THUS, UPON REVIEW OF THE ABOVE, WE BELIEVE THAT IF A QUESTION OF PRECEDENCE AROSE BETWEEN ARTICLE XVII, PARAGRAPH 3 OF THE SOFA AND 22 U.S.C. 889(A)(1), IT IS LIKELY THAT THE PROVISIONS OF THE SOFA WOULD PREVAIL. FOR THIS REASON, WE DO NOT BELIEVE THAT FURTHER ACTION PRESSING DOD FOR IMPLEMENTATION OF YOUR RECOMMENDATION WOULD BE WARRANTED.

FN1 ARTICLE XVII, PARAGRAPH 3 OF THE STATUS OF UNITED STATES ARMED FORCES IN KOREA, 17 U.S.T. 1677, 1692 (T.I.A.S. 6127), PROVIDES:

"TO THE EXTENT NOT INCONSISTENT WITH THE PROVISIONS OF THIS ARTICLE OR THE MILITARY REQUIREMENTS OF THE UNITED STATES ARMED FORCES, THE CONDITIONS OF EMPLOYMENT, COMPENSATION, AND LABOR-MANAGEMENT RELATIONS ESTABLISHED BY THE UNITED STATES ARMED FORCES FOR THEIR EMPLOYEES SHALL CONFORM WITH PROVISIONS OF LABOR LEGISLATION OF THE REPUBLIC OF KOREA."

FN2 APPARENTLY, IN KOREA DOD COMPUTES OVERTIME AS 150 PERCENT OF BASE PAY PLUS AN ALLOWANCE CALLED THE CONSOLIDATED ALLOWANCE PAYMENT (CAP), WHICH REPRESENTS CASH PAYMENTS FOR SUCH THINGS AS A SPECIAL SKILL OR RESPONSIBILITY. THE DEPARTMENT OF STATE DOES NOT INCLUDE CAP IN COMPUTING OVERTIME. SEE DEPARTMENT OF DEFENSE SHOULD CHANGE PAY SETTING FOR KOREAN NATIONALS, SEPTEMBER 30, 1977 (FPCD 77-69) APPENDIX I.