B-138063, FEBRUARY 11, 1959, 38 COMP. GEN. 538

B-138063, FEBRUARY 11, 1959, 38 COMP. GEN. 538

CIVILIAN PERSONNEL - WAGE BOARD EMPLOYEES - WAGE ADJUSTMENTS - COLLECTIVE BARGAINING PROCEDURES - EFFECTIVE DATE WAGE ADJUSTMENTS FOR FEDERAL WAGE BOARD EMPLOYEES WHICH ARE DETERMINED THROUGH COLLECTIVE BARGAINING UNDER LABOR-MANAGEMENT AGREEMENT, AS DISTINGUISHED FROM THOSE DETERMINED BY WAGE SURVEYS CONDUCTED BY THE ADMINISTRATIVE DEPARTMENT OR AGENCY, ARE NOT SUBJECT TO THE PROVISIONS OF THE ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-872, 5 U.S.C. 1181, WHICH WAS DESIGNED TO ELIMINATE UNDUE DELAY IN EFFECTING WAGE ADJUSTMENTS WHEN THE ADMINISTRATIVE DEPARTMENT OR AGENCY ALONE WAS RESPONSIBLE FOR THE WAGE DETERMINATION. SINCE THE WAGES OF MECHANICS AND LABORERS OF THE ALASKA RAILROAD ARE FIXED UNDER AUTHORITY IN SECTION 202 (14) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1082 (14), RATHER THAN UNDER SECTION 202 (7), 5 U.S.C. 1082 (7), THE ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-872, 5 U.S.C. 1181, WHICH PRESCRIBES THE EFFECTIVE DATE FOR WAGE ADJUSTMENTS FOR EMPLOYEES WHOSE SALARIES ARE FIXED UNDER SECTION 202 (7), 5 U.S.C. 1082 (7), IS NOT FOR APPLICATION TO WAGE ADJUSTMENTS FOR THOSE EMPLOYEES. THE DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT LABORERS AND MECHANICS OF THE BONNEVILLE POWER ADMINISTRATION ARE EXEMPT FROM THE CLASSIFICATION ACT OF 1949 BY REASON OF PARAGRAPH 7 OF SECTION 202 OF THE CLASSIFICATION ACT, 5 U.S.C. 1082 (7), RATHER THAN BY SECTION 10 OF THE ACT OF AUGUST 20, 1937, 16 U.S.C. 832I (B), WOULD BRING WAGE ADJUSTMENTS FOR SUCH EMPLOYEES WITHIN THE PURVIEW OF SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, WHICH PERMITS THE APPORTIONMENT OF APPROPRIATIONS FOR RETROACTIVE WAGE ADJUSTMENTS FOR WAGE BOARD EMPLOYEES WITHOUT VIOLATION OF THE ANTIDEFICIENCY ACT, 31 U.S.C. 665A. B-137123, NOVEMBER 18, 1958, MODIFIED.

TO THE SECRETARY OF THE INTERIOR, FEBRUARY 11, 1959:

ON DECEMBER 1, 1958, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION CONCERNING THE SCOPE AND APPLICATION OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1696, PUBLIC LAW 85-872, 5 U.S.C. 1181. THE SPECIFIC QUESTION PRESENTED IS WHETHER THE PROVISIONS OF THAT LAW APPLY TO INCREASES IN COMPENSATION WHICH ARE GRANTED AS A RESULT OF COLLECTIVE BARGAINING UNDER LABOR-MANAGEMENT AGREEMENTS ENTERED INTO BETWEEN THE SEVERAL AGENCIES UNDER YOUR DEPARTMENT AND UNIONS REPRESENTING EMPLOYEES. WE UNDERSTAND THAT SUCH AGREEMENTS HAVE BEEN CONCLUDED BY THE ALASKA RAILROAD, THE BONNEVILLE POWER ADMINISTRATION, THE SOUTHWESTERN POWER ADMINISTRATION, THE BUREAU OF MINES, AND THE BUREAU OF RECLAMATION. COPIES OF FOUR SUCH AGREEMENTS WERE FORWARDED FOR OUR INFORMATION.

THE PROVISIONS OF PUBLIC LAW 85-872 RELATING TO THE EFFECTIVE DATES OF ADMINISTRATIVE PAY INCREASES APPLY TO "EACH INCREASE IN RATES OF BASIC COMPENSATION GRANTED, PURSUANT TO A WAGE SURVEY, TO EMPLOYEES OF THE FEDERAL GOVERNMENT OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES UNDER AUTHORITY OF SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949 (5 U.S.C. 1082 (7) ( OR SECTION 7474 OF TITLE 10 OF THE UNITED STATES CODE * * *.' ( ITALICS SUPPLIED.)

UNDER SECTION 203 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1083, THE CIVIL SERVICE COMMISSION IS AUTHORIZED AND DIRECTED TO DETERMINE FINALLY THE APPLICABILITY OF SECTION 202 OF THAT ACT, 5 U.S.C. 1082, TO SPECIFIC POSITIONS, OFFICERS, AND EMPLOYEES. THEREFORE, WE REQUESTED THE CIVIL SERVICE COMMISSION'S VIEWS WHETHER PARAGRAPH (7) OF SECTION 202, 5 U.S.C. 1082 (7), CONSTITUTES THE AUTHORITY FOR FIXING BY ADMINISTRATIVE ACTION THE COMPENSATION OF EMPLOYEES OF THE ALASKA RAILROAD, THE BONNEVILLE POWER ADMINISTRATION, THE SOUTHWESTERN POWER ADMINISTRATION, THE BUREAU OF MINES, AND THE BUREAU OF RECLAMATION. IN RESPONSE TO OUR REQUEST THE CIVIL SERVICE COMMISSION REPLIED IN PART AS FOLLOWS:

THUS ALL EXCEPTIONS FROM THE CLASSIFICATION ACT OF 1923 WERE SUPERSEDED BY THE 1949 ACT, AND NO EXCEPTIONS FROM THE 1949 ACT WERE MADE UNLESS THEY WERE SPECIFIED IN SECTION 202. AS EXPLAINED IN S. REPT. NO. 847 ON S. 2379, 81ST CONGRESS, P. 30:

"THE GENERAL PRINCIPLE OF TITLE II IS TO EXPRESS A COMPREHENSIVE GENERAL COVERAGE IN SECTION 201, SUBJECT TO SPECIFIC EXEMPTIONS IN SECTION 202. THUS IN ORDER FOR A DEPARTMENT, OR A GROUP OF POSITIONS OR EMPLOYEES IN OR UNDER A DEPARTMENT, TO BE EXEMPTED FROM THE BILL, AN EXPRESS EXEMPTION MUST BE FOUND, EITHER IN SECTION 202 OR IN SOME OTHER PROVISION OF FUTURE LAW. ( ITALICS SUPPLIED.)

ACCORDINGLY, IT IS OUR VIEW THAT LABORERS AND MECHANICS OF THE BONNEVILLE POWER ADMINISTRATION ARE EXCEPTED FROM THE CLASSIFICATION ACT OF 1949 BY REASON OF SECTION 202 (7) OF THAT ACT. IN THE ABSENCE OF ANY OTHER STATUTORY EXCEPTION, LABORERS AND MECHANICS EMPLOYED BY THE SOUTHWESTERN POWER ADMINISTRATION, THE BUREAU OF RECLAMATION, AND THE BUREAU OF MINES FALL WITHIN THE EXCEPTION TO THE CLASSIFICATION ACT OF 1949 CONTAINED IN PARAGRAPH (7) OF SECTION 202 OF THAT ACT.

WE BELIEVE THAT CONGRESS INTENDED PUBLIC LAW 85-872 TO APPLY TO ALL WAGE BOARD EMPLOYEES. HOWEVER, IN VIEW OF THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE IN BOYD V. THE PANAMA CANAL COMPANY, DECIDED JANUARY 10, 1958, WE AGREE WITH YOUR VIEW THAT LABORERS AND MECHANICS EMPLOYED BY THE ALASKA RAILROAD ARE EXCLUDED FROM THE CLASSIFICATION ACT OF 1949 UNDER SECTION 202 (14) RATHER THAN UNDER SECTION 202 (7).

UNDER A LITERAL INTERPRETATION, PUBLIC LAW 85-872 WOULD APPLY TO EVERY EMPLOYEE WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES UNDER THE AUTHORITY OF SUBSECTION (7) OF SECTION 202 OF THE CLASSIFICATION ACT. HOWEVER, WE DOUBT THAT THE APPLICATION OF PUBLIC LAW 85-872 IS INTENDED TO BE AS BROAD AS ITS LITERAL LANGUAGE SUGGESTS. WE AGREE WITH THE VIEW EXPRESSED IN YOUR DEPARTMENT'S LETTER THAT PUBLIC LAW 85-872 IS DESIGNED PRIMARILY TO ELIMINATE UNDUE DELAYS IN EFFECTING WAGE ADJUSTMENTS IN THOSE CASES WHEN THE AGENCY ALONE IS RESPONSIBLE FOR EFFECTING THE ADJUSTMENT AND WHEN THE AGENCY ALONE DETERMINES THE AMOUNT OF ANY SUCH ADJUSTMENT. A DIFFERENT SITUATION EXISTS WHEN WAGE ADJUSTMENTS ARE DETERMINED THROUGH COLLECTIVE BARGAINING UNDER LABOR MANAGEMENT AGREEMENTS. WE UNDERSTAND THAT SUCH AGREEMENTS FREQUENTLY PROVIDE FOR THE CREATION OF JOINT FACT-FINDING COMMITTEES, REPRESENTING BOTH THE AGENCY AND THE UNION, TO ASCERTAIN RELEVANT FACTS BEARING UPON DETERMINATIONS OF RATES OF PAY. WE ALSO UNDERSTAND THAT WHEN THE CONFEREES OF THE AGENCY AND THE UNION FAIL TO AGREE UPON APPROPRIATE RATES OF PAY, LABOR-MANAGEMENT AGREEMENTS FREQUENTLY PROVIDE FOR THE APPOINTMENT OF A MEDIATOR AND, IF THE MEDIATOR IS UNABLE TO EFFECT A CONCILIATION, FOR SUBMISSION OF THE DISPUTED MATTER TO ARBITRATION. IT IS CLEAR, THEREFORE, THAT WHEN WAGES ARE DETERMINED THROUGH COLLECTIVE BARGAINING THERE IS A JOINT RESPONSIBILITY FOR EXPEDITING WAGE ADJUSTMENTS AND DELAYS IN EFFECTING SUCH ADJUSTMENTS RESULTING FROM ADHERENCE TO THE PROCEDURES PRESCRIBED IN LABOR-MANAGEMENT AGREEMENTS CANNOT REASONABLY BE HELD TO BE ATTRIBUTABLE TO THE ADMINISTRATIVE AGENCY ALONE. IT IS OTHERWISE WHEN WAGES ARE FIXED SOLELY BY ADMINISTRATIVE ACTION.

WHILE THE FOREGOING PRACTICAL CONSIDERATIONS MAY BE INSUFFICIENT IN THEMSELVES TO WARRANT A CONCLUSION THAT PUBLIC LAW 85-872 DOES NOT APPLY TO EMPLOYEES WHOSE WAGES ARE FIXED THROUGH COLLECTIVE BARGAINING, WE FIND THAT THE LEGISLATIVE HISTORY OF THE ACT STRONGLY SUPPORTS SUCH A CONCLUSION. AT THE TIME S. 25, ENACTED AS PUBLIC LAW 85-872, WAS BEING CONSIDERED BY THE HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, THE WHITE HOUSE ADDRESSED A MEMORANDUM TO THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES SETTING FORTH THE POLICY TO BE OBSERVED IN ESTABLISHING THE EFFECTIVE DATES OF ADJUSTMENTS IN RATES OF BASIC COMPENSATION OF EMPLOYEES WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES UNDER THE AUTHORITY OF PARAGRAPH (7) OF SECTION 202 OF THE CLASSIFICATION ACT OF 1949. THAT MEMORANDUM, WHICH IS QUOTED IN HOUSE REPORT NO. 2207, DATED JULY 17, 1958, ENUMERATED FIVE POINTS OF POLICY OR PRINCIPLE TO BE OBSERVED BY THE VARIOUS EXECUTIVE AGENCIES. THE FOURTH POINT SO ENUMERATED IS AS FOLLOWS:

4. THIS POLICY WILL NOT AFFECT ARRANGEMENTS FOR WAGE DETERMINATIONS AND ADJUSTMENTS AGREED TO IN WRITTEN LABOR-MANAGEMENT AGREEMENTS (E.G., LABOR- MANAGEMENT AGREEMENTS CURRENTLY IN EFFECT IN THE DEPARTMENT OF INTERIOR).

THE COMMITTEE REPORT IN COMMENTING UPON THE MEMORANDUM REMARKS AS FOLLOWS:

THE PROVISIONS OF BILL S. 25, AS REPORTED, WITH ONE EXCEPTION FOLLOWS THE PRINCIPLE SET FORTH IN THE MEMORANDUM. THE COMMITTEE BELIEVES THAT A PERIOD OF 45 WORKDAYS, 9 CALENDAR WEEKS, IS SUFFICIENT IN WHICH TO CONDUCT A WAGE SURVEY AND ARRIVE AT A NEW WAGE SCHEDULE WHEN THE SURVEY IS ENTIRELY UNDER THE CONTROL OF THE DEPARTMENT OR AGENCY CONCERNED. THE BILL, THEREFORE, PROVIDES FOR 45 DAYS INSTEAD OF 60 DAYS AS PROPOSED BY THE MEMORANDUM.

THE ONE EXCEPTION RELATED SOLELY TO THE EFFECTIVE DATE OF WAGE INCREASES, THAT IS, WHETHER IT SHOULD BE 45 OR 60 DAYS AFTER THE DATE OF THE BEGINNING OF THE SURVEY. THEREFORE, THE COMMITTEE REPORT RECOGNIZES THAT THE BILL APPLIES ONLY TO CASES IN WHICH THE SURVEY IS ENTIRELY UNDER THE CONTROL OF THE DEPARTMENT OR AGENCY CONCERNED AND NOT TO THOSE SITUATIONS IN WHICH WAGE ADJUSTMENTS ARE EFFECTED THROUGH COLLECTIVE BARGAINING PURSUANT TO WRITTEN LABOR-MANAGEMENT AGREEMENTS SUCH AS THOSE EXEMPLIFIED BY THE LABOR-MANAGEMENT AGREEMENTS THEN IN EFFECT IN THE DEPARTMENT OF THE INTERIOR.

THE PRACTICAL CONSIDERATIONS DISCUSSED ABOVE, THE GENERAL PURPOSE OF PUBLIC LAW 85-872--- ELIMINATION OF UNDUE ADMINISTRATIVE DELAYS IN EFFECTING WAGE ADJUSTMENTS--- AND THE CLEAR EVIDENCE OF CONGRESSIONAL INTENT EXPRESSED IN THE REFERRED-TO COMMITTEE REPORT CONVINCE US THAT AN INTERPRETATION OF PUBLIC LAW 85-872 WHICH WOULD EXTEND ITS BENEFITS TO EMPLOYEES OF AGENCIES UNDER THE DEPARTMENT OF INTERIOR THAT EFFECT WAGE ADJUSTMENTS THROUGH COLLECTIVE BARGAINING UNDER LABOR-MANAGEMENT AGREEMENTS WOULD NOT BE WARRANTED. WE THEREFORE HOLD THAT PUBLIC LAW 85- 872 DOES NOT APPLY TO EMPLOYEES WHOSE WAGES ARE FIXED THROUGH COLLECTIVE BARGAINING PURSUANT TO WRITTEN LABOR-MANAGEMENT AGREEMENTS SUCH AS THOSE REFERRED TO IN YOUR LETTER.

SO FAR AS EMPLOYEES OF THE ALASKA RAILROAD ARE CONCERNED, IT SUFFICES TO SAY THAT SINCE THEIR WAGES ARE NOT FIXED AND ADJUSTED UNDER PARAGRAPH (7) OF SECTION 202 OF THE CLASSIFICATION ACT BUT RATHER, UNDER PARAGRAPH (14) OF THAT SECTION, 5 U.S.C. 1082 (14), THEY WOULD NOT BE ENTITLED TO THE BENEFITS OF PUBLIC LAW 85-872.

IN OUR LETTER OF NOVEMBER 18, 1958, B-137123, TO YOU, WE AGREED WITH THE VIEWS OF THE DIRECTOR OF THE BUREAU OF THE BUDGET QUOTED THEREIN, AS FOLLOWS:

WITH RESPECT TO THE SECOND QUESTION RAISED BY THE INTERIOR DEPARTMENT, WE DO NOT BELIEVE THAT EMPLOYEES OF THE BONNEVILLE POWER ADMINISTRATION WHOSE COMPENSATION IS REPORTED TO BE FIXED PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE BONNEVILLE PROJECT ACT, AS AMENDED (16 U.S.C. 832I (B) (, ARE COVERED BY SECTION 210 EVEN THOUGH PREVAILING RATES ARE "RECOGNIZED AS AN IMPORTANT COMPONENT OF THE COLLECTIVE BARGAINING PROCESS" USED BY THE BONNEVILLE POWER ADMINISTRATION. WE WOULD NOT APPLY SECTION 210 IN MAKING APPORTIONMENTS OF APPROPRIATIONS AVAILABLE FOR THE PAY OF THESE EMPLOYEES.

SUMMARIZING THE FOREGOING, IT IS OUR VIEW THAT SECTION 210 APPLIES TO ALL OF THAT CLASS OF EMPLOYEES WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES PURSUANT TO SECTION 1082 (SEC. 202) (7) OF THE CLASSIFICATION ACT, AND TO NO OTHER CLASS. THE FINAL DETERMINATION OF THE SPECIFIC CLASSES OF EMPLOYEES WHO MAY FALL WITHIN THAT CATEGORY APPEARS TO REST WITH THE CIVIL SERVICE COMMISSION UNDER SECTION 203 OF THE ACT.

SINCE THE CIVIL SERVICE COMMISSION NOW HAS DETERMINED THAT LABORERS AND MECHANICS OF THE BONNEVILLE POWER ADMINISTRATION ARE EXCEPTED FROM THE CLASSIFICATION ACT OF 1949 BY REASON OF PARAGRAPH (7) OF SECTION 202 OF THAT ACT AND NOT BY THE PROVISIONS OF SECTION 10 OF THE ACT OF AUGUST 20, 1937, AS AMENDED, 16 U.S.C. 832I (B), IT NOW WOULD APPEAR THAT SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT OF 1958, 31 U.S.C. 665A, WOULD BE APPLICABLE TO APPORTIONMENTS OF APPROPRIATIONS FOR THE PAY OF THAT CLASS OF EMPLOYEES.