B-144049, OCTOBER 12, 1960, 40 COMP. GEN. 212

B-144049: Oct 12, 1960

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BASED ON A WAGE BOARD SURVEY OF ANOTHER AGENCY WITHOUT INDEPENDENT STUDY AND SUBJECT TO ADMINISTRATIVE APPROVAL OF THE CIVIL SERVICE COMMISSION IS NOT A WAGE RATE WHICH MAY BE MADE RETROACTIVELY EFFECTIVE SO THAT THE NEW WAGE RATE MAY BE MADE EFFECTIVE ONLY FROM THE DATE OF APPROVAL. THAT RESPONSIBILITY CANNOT BE PROPERLY DISCHARGED BY THE ISSUANCE OF REGULATIONS OR ORDERS WHICH DETERMINE THAT WAGE RATES SET BY ANOTHER AGENCY WILL AUTOMATICALLY BE THE WAGE RATES FOR HIS EMPLOYEES. WE DO NOT FEEL THAT THE HEAD OF AN AGENCY CAN PROPERLY DISCHARGE THAT RESPONSIBILITY BY THE ISSUANCE OF REGULATIONS OR ORDERS WHICH DETERMINE THAT WAGE RATES SET IN THE FUTURE BY ANOTHER AGENCY WILL AUTOMATICALLY BE THE WAGE RATES OF HIS EMPLOYEES.

B-144049, OCTOBER 12, 1960, 40 COMP. GEN. 212

CIVILIAN PERSONNEL - WAGE BOARD EMPLOYEES - COMPENSATION - RETROACTIVE RATES - WAGE SURVEYS OF OTHER AGENCIES THE ESTABLISHMENT OF A NEW WAGE RATE FOR A WAGE BOARD EMPLOYEE OF THE CIVIL SERVICE COMMISSION, UNDER SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1087 (7), BASED ON A WAGE BOARD SURVEY OF ANOTHER AGENCY WITHOUT INDEPENDENT STUDY AND SUBJECT TO ADMINISTRATIVE APPROVAL OF THE CIVIL SERVICE COMMISSION IS NOT A WAGE RATE WHICH MAY BE MADE RETROACTIVELY EFFECTIVE SO THAT THE NEW WAGE RATE MAY BE MADE EFFECTIVE ONLY FROM THE DATE OF APPROVAL. ALTHOUGH THE HEAD OF A DEPARTMENT OR AGENCY, IN THE ESTABLISHMENT OF WAGE RATES, MAY RELY ON SURVEYS AND DETERMINATIONS OF OTHER AGENCIES, HE RETAINS THE PRIMARY RESPONSIBILITY FOR SETTING THE COMPENSATION RATES OF EMPLOYEES WITHIN HIS AGENCY, AND THAT RESPONSIBILITY CANNOT BE PROPERLY DISCHARGED BY THE ISSUANCE OF REGULATIONS OR ORDERS WHICH DETERMINE THAT WAGE RATES SET BY ANOTHER AGENCY WILL AUTOMATICALLY BE THE WAGE RATES FOR HIS EMPLOYEES; THEREFORE, THE ISSUANCE OF SUCH REGULATIONS WOULD NOT BE PROPER.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 12, 1960:

ON SEPTEMBER 20, 1960, YOU REQUESTED OUR DECISION REGARDING TWO QUESTIONS INVOLVED IN A PAYROLL COVERING THE RETROACTIVE PAY ADJUSTMENT OF A WAGE BOARD EMPLOYEE OF ONE OF YOUR REGIONAL OFFICES.

YOUR LETTER STATES THE FACTS AS FOLLOWS:

IF THE NECESSITY OF SOME ADMINISTRATIVE ACTION, UNDER THE PRESENT LANGUAGE OF OUR INSTRUCTIONS, DOES PREVENT THE SETTING OF A RETROACTIVE DATE, COULD OUR PURPOSE OF INCREASING RATES ON THE SAME DATE AS THE SURVEYING AGENCY BE ACCOMPLISHED BY A CHANGE IN LANGUAGE WHICH ADOPTS SUCH DATE EXCEPT WHERE THE ADMINISTRATIVE AUTHORITY ( REGIONAL DIRECTOR) SPECIFICALLY PROVIDED A DIFFERENT DATE WITHIN A CERTAIN TIME RECEIVING THE SURVEY DATA?

THE HEAD OF AN AGENCY MAY RELY, TO A GREATER OR LESSER DEGREE, UPON THE WAGE SURVEYS AND WAGE DETERMINATIONS OF ANOTHER AGENCY BUT HE RETAINS THE PRIMARY RESPONSIBILITY FOR SETTING THE WAGE RATES OF HIS OWN WAGE BOARD EMPLOYEES. WE DO NOT FEEL THAT THE HEAD OF AN AGENCY CAN PROPERLY DISCHARGE THAT RESPONSIBILITY BY THE ISSUANCE OF REGULATIONS OR ORDERS WHICH DETERMINE THAT WAGE RATES SET IN THE FUTURE BY ANOTHER AGENCY WILL AUTOMATICALLY BE THE WAGE RATES OF HIS EMPLOYEES. FURTHERMORE, THE FACT THAT THE AGENCY HAD THE RIGHT TO CHANGE RATES SET BY ANOTHER AGENCY BY SPECIFIC ACTION IN AN INDIVIDUAL CASE WOULD NOT ALTER THAT CONCLUSION. WHILE THERE IS HERE INVOLVED AN INCREASE IN THE WAGE RATE IT IS CONCEIVABLE THAT UNDER SUCH PROPOSED REGULATION A DECREASE IN COMPENSATION MIGHT BE APPROVED WHICH WOULD THEN GIVE RISE TO THE QUESTION--- ASSUMING YOUR AGENCY HAD NO NOTICE THEREOF--- WHETHER THE COMPENSATION OF AN EMPLOYEE COULD BE DECREASED RETROACTIVELY BECAUSE OF THE AUTOMATIC OPERATION OF SUCH REGULATION.

THEREFORE, WE DO NOT BELIEVE IT IS APPROPRIATE FOR THE COMMISSION TO ISSUE REGULATIONS OF THE NATURE PROPOSED.

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