B-190097, JUN 12, 1978

B-190097: Jun 12, 1978

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THE INCREASES WERE SET BY THE PUBLIC PRINTER UNDER 44 U.S.C. SUCH INCREASES ARE SUBJECT TO THE GENERAL RULE PRECLUDING RETROACTIVE WAGE ADJUSTMENTS. 2. ALTHOUGH ALL EMPLOYEES OF GPO ARE GOVERNED BY 44 U.S.C. ONLY CRAFT EMPLOYEES ARE COVERED BY FORMAL WAGE CONFERENCE AND APPEAL PROVISIONS. WE HELD THAT CERTAIN JOURNEYMAN CRAFTSMEN OF THE GOVERNMENT PRINTING OFFICE WERE ENTITLED TO A RETROACTIVE WAGE ADJUSTMENT AS OF JUNE 18. THE FACTS RELATING TO THE REQUEST OF THESE TWO GROUPS ARE SET FORTH BELOW. UPON WHICH THE PROPOSED INCREASE WAS DEPENDENT. NO RESOLUTION OF THE CRAFT WAGE APPEAL WAS FORTHCOMING DURING THE DELAY PERIOD. THE QUESTION PRESENTED IS WHETHER THE PUBLIC PRINTER HAS THE REQUISITE AUTHORITY TO MAKE THE INCREASE IN THE PRINTING PLANT WORKERS' WAGES RETROACTIVE FROM JUNE 26 TO JUNE 19.

B-190097, JUN 12, 1978

DIGEST: 1. EMPLOYEE REPRESENTATIVES REQUEST A RETROACTIVE WAGE ADJUSTMENT FOR TWO NON-CRAFT GROUPS OF EMPLOYEES BASED ON A DELAY IN THE PUBLIC PRINTER'S GRANTING OF WAGE INCREASES. THE WAGE INCREASES NEITHER RESULTED FROM COLLECTIVE BARGAINING, NOR INVOLVED ANY PRELIMINARY AGREEMENT, OR FUNCTIONAL EQUIVALENT THEREOF, SETTING AN EFFECTIVE DATE OF WAGE INCREASE. INSTEAD, THE INCREASES WERE SET BY THE PUBLIC PRINTER UNDER 44 U.S.C. SEC. 305(A), WHICH AUTHORIZES HIM TO SET WAGE RATES FOR NON-CRAFT EMPLOYEES. SUCH INCREASES ARE SUBJECT TO THE GENERAL RULE PRECLUDING RETROACTIVE WAGE ADJUSTMENTS. 2. RETROACTIVE INCREASE ALLOWED TO CRAFT EMPLOYEES OF GOVERNMENT PRINTING OFFICE IN B-190097, NOVEMBER 11, 1977, DOES NOT APPLY TO NON CRAFT EMPLOYEES. ALTHOUGH ALL EMPLOYEES OF GPO ARE GOVERNED BY 44 U.S.C. SEC. 305(A), ONLY CRAFT EMPLOYEES ARE COVERED BY FORMAL WAGE CONFERENCE AND APPEAL PROVISIONS. INFORMAL CONSULTATION PROCEDURE ESTABLISHED BY THE PUBLIC PRINTER FOR NON-CRAFT EMPLOYEES DOES NOT RESTRICT THE PUBLIC PRINTER'S AUTHORITY TO SET WAGES, NOR DOES IT AUTHORIZE RETROACTIVE INCREASES.

GOVERNMENT PRINTING OFFICE - EFFECTIVE DATE OF WAGE INCREASE FOR NON CRAFT EMPLOYEES:

BY OUR DECISION IN B-190097, NOVEMBER 11, 1977, WE HELD THAT CERTAIN JOURNEYMAN CRAFTSMEN OF THE GOVERNMENT PRINTING OFFICE WERE ENTITLED TO A RETROACTIVE WAGE ADJUSTMENT AS OF JUNE 18, 1977. AS A RESULT OF THIS DECISION, TWO OTHER EMPLOYEE GROUPS WITHIN THE GOVERNMENT PRINTING OFFICE SEEK SIMILAR RETROACTIVE WAGE ADJUSTMENTS. CONSEQUENTLY, JOHN J. BOYLE, THE PUBLIC PRINTER, BY LETTER OF APRIL 4, 1978, HAS REQUESTED OUR DECISION CONCERNING HIS AUTHORITY TO ADJUST THEIR WAGES RETROACTIVELY. THE FACTS RELATING TO THE REQUEST OF THESE TWO GROUPS ARE SET FORTH BELOW.

ON JUNE 17, 1977, REPRESENTATIVES OF THE PRINTING PLANT WORKERS CONSULTED WITH THE PUBLIC PRINTER, AT WHICH TIME THE PUBLIC PRINTER PROPOSED A WAGE INCREASE EFFECTIVE JUNE 19, 1977. THE WAGE COMMITTEE CHAIRMAN, REPRESENTING THE PRINTING PLANT WORKERS, REQUESTED A DELAY FOR ONE PAY PERIOD PENDING THE RESOLUTION OF THE CRAFT WAGE APPEAL TO THE JOINT COMMITTEE ON PRINTING, UPON WHICH THE PROPOSED INCREASE WAS DEPENDENT. HOWEVER, NO RESOLUTION OF THE CRAFT WAGE APPEAL WAS FORTHCOMING DURING THE DELAY PERIOD, AND THE PUBLIC PRINTER PROMULGATED THE WAGE INCREASE EFFECTIVE JUNE 26, 1977. THE QUESTION PRESENTED IS WHETHER THE PUBLIC PRINTER HAS THE REQUISITE AUTHORITY TO MAKE THE INCREASE IN THE PRINTING PLANT WORKERS' WAGES RETROACTIVE FROM JUNE 26 TO JUNE 19, 1977.

SIMILARLY, PURSUANT TO THE SAME CONSULTATIVE PROCEDURE, THE PUBLIC PRINTER, ON JUNE 9, 1977, PROPOSED A WAGE INCREASE FOR THE JOURNEYMEN BINDERY WORKERS ALSO TO BE EFFECTIVE JUNE 19, 1977. THE EMPLOYEES' REPRESENTATIVE REQUESTED A 2-WEEK PERIOD FOR THE EMPLOYEES TO ACCEPT OR REJECT THE OFFER. ACCEPTANCE OCCURRED, ALTHOUGH SUBSEQUENT TO THE 2 WEEKS REQUESTED, AND THE PUBLIC PRINTER IN TURN PROMULGATED THE WAGE INCREASE ON JUNE 28, 1977, TO BE EFFECTIVE JULY 3, 1977. THE QUESTION PRESENTED IS WHETHER THE PUBLIC PRINTER HAS THE REQUISITE AUTHORITY TO MAKE THE INCREASE IN THE JOURNEYMEN BINDERY WORKERS' WAGES RETROACTIVE FROM JULY 3 TO JUNE 19, 1977.

THE WAGE RATES OF ALL EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE ARE ESTABLISHED PURSUANT TO 44 U.S.C. SEC. 305(A). HOWEVER, ONLY OCCUPATIONAL CRAFTSMEN, I.E., THOSE EMPLOYEES WHO HAVE SERVED A FULL APPRENTICESHIP IN A CRAFT, ARE ENTITLED TO THE WAGE CONFERENCE AND APPEAL PROVISIONS OF 44 U.S.C. SEC. 305(A). THE JOURNEYMEN BOOKBINDERS, WHOSE WAGES WERE ADJUSTED RETROACTIVELY PURSUANT TO OUR DECISION OF NOVEMBER 11, 1977, ARE AN EXAMPLE OF CRAFT EMPLOYEES. THE TWO GROUPS OF EMPLOYEES INVOLVED IN THE PRESENT CASE, THE PRINTING PLANT WORKERS AND THE JOURNEYMEN BINDERY WORKERS, ARE NOT CRAFT EMPLOYEES AND ARE NOT ENTITLED TO THE WAGE CONFERENCE AND APPEAL PROVISION OF 44 U.S.C. SEC. 305(A). THE WAGES OF THE LATTER TWO GROUPS ARE ESTABLISHED BY THE PUBLIC PRINTER ALSO UNDER 44 U.S.C. SEC. 305(A), AT RATES "HE CONSIDERS FOR THE INTEREST OF THE GOVERNMENT AND JUST TO THE PERSONS EMPLOYED."

UNDER HIS AUTHORITY TO FIX WAGES FOR NON-CRAFT EMPLOYEES, THE PUBLIC PRINTER ISSUED GPO INSTRUCTION 640.1 FEBRUARY 2, 1972, WHICH WAS IN EFFECT AT THE TIMES IN QUESTION HERE. THE INSTRUCTION STATES THAT THE PUBLIC PRINTER WILL CONSULT WITH REPRESENTATIVES OF NON-SUPERVISORY PRINTING PLANT WORKERS AND JOURNEYMEN BINDERY WORKERS IN DETERMINING THEIR WAGES, BUT THAT THERE IS NO APPEAL FROM THE PUBLIC PRINTER'S DECISION AND THAT THE CONSULTATION PROCEDURE DOES NOT REQUIRE ANY AGREEMENT, "NOR DOES IT RESTRICT THE PUBLIC PRINTER'S AUTHORITY TO SET WAGES."

HENCE, THE CONSULTATIVE PROCEDURE INVOLVED IN THE PRESENT CASE, IN WHICH THE PUBLIC PRINTER IS NOT AT ALL RESTRICTED IN HIS AUTHORITY TO SET WAGES, MUST BE DISTINGUISHED FROM THE PROCESS OF NEGOTIATION, AGREEMENT AND APPROVAL AFFORDED OCCUPATIONAL CRAFTSMEN SUCH AS THE JOURNEYMEN BOOKBINDERS.

SOME OF OUR PAST DECISIONS HAVE TURNED UPON THIS DISTINCTION. IN 38 COMP.GEN. 538 (1959) WE HELD THAT WAGE ADJUSTMENTS DETERMINED THROUGH COLLECTIVE BARGAINING UNDER LABOR-MANAGEMENT AGREEMENTS WERE DISTINGUISHABLE, FOR RETROACTIVITY PURPOSES, FROM THOSE DETERMINED BY WAGE SURVEYS CONDUCTED UNILATERALLY BY THE ADMINISTRATIVE DEPARTMENT OR AGENCY. RETROACTIVE EFFECTIVE DATES FOR WAGE RATES NEGOTIATED UNDER COLLECTIVE BARGAINING SITUATIONS HAVE BEEN PERMITTED WHERE THERE WAS A PRELIMINARY AGREEMENT TO THAT EFFECT BETWEEN A COMPETENT WAGE-FIXING AUTHORITY AND A UNION, EVEN THOUGH THE AMOUNT OF INCREASE IS NOT AGREED UPON OR OTHERWISE DETERMINED UNTIL A LATER DATE. 55 COMP.GEN. 162 (1975); 55 ID. 1428 (1976); B-183083, NOVEMBER 28, 1975; B-126868, APRIL 8, 1963. THIS PRINCIPLE HAS BEEN EXTENDED TO THOSE SITUATIONS IN WHICH NEGOTIATIONS BETWEEN THE AGENCY AND UNION REACHED AN IMPASSE, WHEREUPON ARBITRATION OR APPEAL PROCEDURES WERE INVOKED. 55 COMP.GEN. 1006 (1976); B-190097, NOVEMBER 11, 1977. IN 55 COMP.GEN. 1006, 1009 (1976) WE STATED THAT "THE AGREEMENT TO ARBITRATE WAGE RATE ISSUES IS THE FUNCTIONAL EQUIVALENT TO THE PRELIMINARY AGREEMENT SETTING THE EFFECTIVE DATE ***."

IN THE PRESENT CASE, THE CONSULTATIVE PROCEDURE AFFORDED THE TWO NON CRAFT EMPLOYEE GROUPS PURSUANT TO GPO INSTRUCTION 640.1 SHOULD NOT BE EQUATED WITH THE PROCESS OF NEGOTIATION, AGREEMENT AND APPROVAL MANIFEST IN THE FOREGOING CASES. FURTHERMORE, EVEN IF SUCH AN EQUATION COULD BE MADE, NO PRELIMINARY AGREEMENT BETWEEN THE PARTIES WAS EFFECTED, AS IN B-183083, NOVEMBER 28, 1975, NOR WAS AN IMPASSE REACHED AS IN 55 COMP.GEN. 1006 (1976) OR B-190097, NOVEMBER 11, 1977. HERE, THE EMPLOYEE REPRESENTATIVES MERELY REQUESTED A DELAY IN ANY FINAL ACTION.

HENCE, THE PRESENT CASE IS GOVERNED BY THE GENERAL RULE THAT BASIC COMPENSATION AUTHORIZED BY A WAGE BOARD OR OTHER WAGE-FIXING AUTHORITY MAY NOT BE MADE EFFECTIVE PRIOR TO THE DATE OF FINAL ACTION BY THE WAGE FIXING AUTHORITY, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY TO THE CONTRARY. 40 COMP.GEN. 212 (1960); 27 COMP.GEN. 649 (1948); 24 COMP.GEN. 676 (1945); B-106475, NOVEMBER 15, 1951. IN B-106475, NOVEMBER 15, 1951, WE STATED THAT:

"STATUTES AUTHORIZING HEADS OF DEPARTMENTS AND AGENCIES OF THE GOVERNMENT TO ADMINISTRATIVELY FIX THE COMPENSATION OF UNCLASSIFIED EMPLOYEES IN THEIR EMPLOY, DO NOT INCLUDE AUTHORITY TO GRANT RETROACTIVELY EFFECTIVE INCREASES OF COMPENSATION IN THE ABSENCE OF SPECIFIC LANGUAGE IN A STATUTE SO PROVIDING."

MOREOVER, GOVERNMENT PRINTING OFFICE EMPLOYEES ARE NOT SUBJECT TO 5 U.S.C. SEC. 5344, AS ADDED BY PUBLIC LAW 92-392, AUGUST 19, 1972, WHICH PROVIDES THAT INCREASES GRANTED TO PREVAILING RATE EMPLOYEES PURSUANT TO WAGE SURVEYS ARE EFFECTIVE BEGINNING WITH THE FIRST PAY PERIOD ON OR AFTER THE FORTY-FIFTH DAY FOLLOWING THE DATE THE SURVEY IS ORDERED. SEE 5 U.S.C. SEC. 5342(A)(1), (B)(2); 5 U.S.C. SEC. 5349(B).

ACCORDINGLY, WE CAN SEE NO REASON TO EXCLUDE THIS CASE FROM THE GENERAL RULE PRECLUDING RETROACTIVE WAGE ADJUSTMENTS. WE THUS HOLD THAT THE PUBLIC PRINTER DOES NOT HAVE THE AUTHORITY TO RETROACTIVELY ADJUST EITHER THE PRINTING PLANT WORKERS' WAGES OR THE JOURNEYMEN BINDERY WORKERS' WAGES AS REQUESTED.

Nov 14, 2018

Nov 9, 2018

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Nov 7, 2018

  • CDO Technologies, Inc.
    We dismiss the protest because it is untimely where it was filed more than 10 days after CDO knew or reasonably should have known the bases for its protest.
    B-416989
  • Protection Strategies, Inc.
    We deny the protest.
    B-416635

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