Skip to main content

B-168090, NOV. 16, 1970

B-168090 Nov 16, 1970
Jump To:
Skip to Highlights

Highlights

OBJECTION THAT THE GAO DOES NOT HAVE JURISDICTION TO INTERPRET AGREEMENT WITH BUREAU OF COMMERCIAL FISHERIES IS NOT JUSTIFIED SINCE THE GAO ARRIVED AT ITS CONCLUSION BASED UPON THE PUBLIC INTEREST DETERMINATION MADE BY THAT ADMINISTRATIVE AGENCY. IN THAT DECISION WE HELD THAT SINCE THE RETROACTIVE PAYMENT OF COMPENSATION HAS BECOME A "PRACTICE" IN THE MARITIME INDUSTRY SUCH PRACTICE MAY BE FOLLOWED BY GOVERNMENT AGENCIES UNDER 5 U.S.C. 5342(A) PROVIDED IT IS CONSISTENT WITH THE PUBLIC INTEREST TO DO SO. WE THEN NOTED THAT THE AGREEMENT BETWEEN YOUR UNION AND THE BUREAU OF COMMERCIAL FISHERIES SPECIFICALLY PROVIDES THAT WAGE ADJUSTMENTS WILL BE PUT INTO EFFECT WITHIN 30 DAYS OF ANNOUNCEMENT BY MSTS OF CHANGES IN THE MSTS PACIFIC SCHEDULE.

View Decision

B-168090, NOV. 16, 1970

VESSEL CREW MEMBERS - RETROACTIVE INCREASE REAFFIRMING DECISION THAT RETROACTIVE WAGE INCREASE FOR VESSEL EMPLOYEES WOULD BE IMPROPER. OBJECTION THAT THE GAO DOES NOT HAVE JURISDICTION TO INTERPRET AGREEMENT WITH BUREAU OF COMMERCIAL FISHERIES IS NOT JUSTIFIED SINCE THE GAO ARRIVED AT ITS CONCLUSION BASED UPON THE PUBLIC INTEREST DETERMINATION MADE BY THAT ADMINISTRATIVE AGENCY.

TO MR. RICK MILLER:

WE REFER TO YOUR LETTER OF SEPTEMBER 4, 1970, REQUESTING RECONSIDERATION OF OUR DECISION B-168090, DATED AUGUST 18, 1970, CONCERNING THE MATTER OF GRANTING RETROACTIVELY EFFECTIVE WAGE INCREASES UNDER 5 U.S.C. 5342(A).

IN THAT DECISION WE HELD THAT SINCE THE RETROACTIVE PAYMENT OF COMPENSATION HAS BECOME A "PRACTICE" IN THE MARITIME INDUSTRY SUCH PRACTICE MAY BE FOLLOWED BY GOVERNMENT AGENCIES UNDER 5 U.S.C. 5342(A) PROVIDED IT IS CONSISTENT WITH THE PUBLIC INTEREST TO DO SO. WE THEN NOTED THAT THE AGREEMENT BETWEEN YOUR UNION AND THE BUREAU OF COMMERCIAL FISHERIES SPECIFICALLY PROVIDES THAT WAGE ADJUSTMENTS WILL BE PUT INTO EFFECT WITHIN 30 DAYS OF ANNOUNCEMENT BY MSTS OF CHANGES IN THE MSTS PACIFIC SCHEDULE. WITH RESPECT TO SUCH PROVISION WE SAID:

" *** WE PRESUME SUCH PROVISION IS BASED UPON AN ADMINISTRATIVE DETERMINATION THAT, IN LIGHT OF THE MANNER IN WHICH WAGES AND ADJUSTMENTS ARE CALCULATED, IT IS NOT CONSISTENT WITH THE PUBLIC INTEREST TO GIVE RETROACTIVE EFFECT TO WAGE INCREASES. *** "

YOU OBJECT TO THE ABOVE STATEMENT, CONTENDING THAT THE INTERPRETATION OF THE PROVISIONS OF YOUR AGREEMENT WITH THE BUREAU OF COMMERCIAL FISHERIES IS NOT A MATTER WITHIN THE JURISDICTION OF OUR OFFICE. ADDITIONALLY, YOU STATE:

"MOREOVER, THE PROVISION TO WHICH YOU REFER WAS IN NO WAY BASED UPON A DETERMINATION THAT RETROACTIVE WAGE INCREASES WERE CONTRARY TO THE PUBLIC INTEREST. RATHER, THIS PROVISION WAS PUT INTO THE AGREEMENT IN ORDER TO ALLOW THE BUREAU A PERIOD OF THIRTY (30) DAYS AFTER CHANGES IN THE MSTS PACIFIC SCHEDULE IN ORDER TO ADJUST ITS PAYROLL RECORDS AND PAY THE INCREASED WAGES. IT IS IN NO WAY RELATED TO THE QUESTION OF RETROACTIVITY OF WAGE ADJUSTMENTS AND ANY RELIANCE ON THIS LANGUAGE AS INDICATING THAT THE BUREAU OF COMMERCIAL FISHERIES WAS WITHOUT AUTHORITY TO GRANT RETROACTIVE WAGE INCREASES IS CONTRARY TO THE INTENT AND UNDERSTANDING OF THE PARTIES AT THE TIME THE AGREEMENT WAS NEGOTIATED."

OUR DECISION OF AUGUST 18, 1970, WAS IN RESPONSE TO YOUR REQUEST OF MARCH 4, 1970, FOR A DETERMINATION AS TO THE AUTHORITY OF THE BUREAU OF COMMERCIAL FISHERIES TO GRANT RETROACTIVELY EFFECTIVE WAGE INCREASES UNDER 5 U.S.C. 5342(A). SINCE THE STATUTORY PROVISION IN QUESTION AUTHORIZES THE ADJUSTMENT OF PAY BY ADMINISTRATIVE ACTION IT IS NOT ONLY LOGICAL BUT NECESSARY THAT WE CONSIDER ALL RELEVANT ACTIONS TAKEN BY THE ADMINISTRATIVE OFFICE IN THE EXERCISE OF ITS AUTHORITY UNDER 5342(A), INCLUDING PERTINENT LABOR AGREEMENTS SUCH AS THE ONE ENTERED INTO BY YOUR UNION AND THE BUREAU OF COMMERCIAL FISHERIES.

IN VIEW OF THE FACT THAT THE AGREEMENT UNDER CONSIDERATION PROVIDES THAT WAGE ADJUSTMENTS WILL BE PUT INTO EFFECT WITHIN 30 DAYS OF CHANGES IN THE MSTS PACIFIC SCHEDULE WITH NO MENTION OF RETROACTIVE EFFECTIVE DATES, WE BELIEVED IT WAS REASONABLE TO CONCLUDE THAT NO SUCH RETROACTIVE EFFECT WAS INTENDED. AT BEST THE AGREEMENT WAS AMBIGUOUS. THE BUREAU OF COMMERCIAL FISHERIES HAD ADVISED US THAT THE AGREEMENT SPECIFICALLY PROVIDED THROUGH THE PROVISION IN QUESTION FOR WAGE INCREASES NOT TO BE RETROACTIVE. INHERENT IN THE BUREAU'S INTERPRETATION THAT NO RETROACTIVE EFFECT WAS INTENDED IS AN ADMINISTRATIVE DETERMINATION THAT IT WAS NOT CONSISTENT WITH THE PUBLIC INTEREST TO GRANT RETROACTIVE INCREASES. THUS, WE CONCLUDED, AS STATED IN THE LAST SENTENCE OF OUR LETTER TO YOU OF AUGUST 18, THAT "SO LONG AS THE PROVISION REMAINS IN FORCE, THERE IS NO BASIS FOR MAKING WAGE INCREASES RETROACTIVELY EFFECTIVE." THAT WAS NOT TO SAY, HOWEVER, THAT THE BUREAU OF COMMERCIAL FISHERIES WAS PRECLUDED FROM AMENDING THE AGREEMENT AT SUCH TIME AS ITS VIEWS MIGHT CHANGE AS TO THE PUBLIC INTEREST RESPECTING RETROACTIVE WAGE INCREASES.

ACCORDINGLY, WHILE WE APPRECIATE YOUR VIEWS CONCERNING THE LACK OF OUR JURISDICTION TO INTERPRET THE AGREEMENT IN QUESTION, WE DO NOT CONSIDER IT NECESSARY TO MODIFY OUR CONCLUSION IN THE MATTER, SINCE, IN THE FINAL ANALYSIS, SUCH CONCLUSION RESTS ESSENTIALLY UPON THE PUBLIC INTEREST DETERMINATION MADE BY THE ADMINISTRATIVE AGENCY.

GAO Contacts

Office of Public Affairs