B-242473, Jan 25, 1991

B-242473, Jan 25, 1991

CIVILIAN PERSONNEL - Compensation - Prevailing rate personnel - Wage rates - Determination DIGEST: The NFFE is advised that its prevailing rate employees' request for a change in their rate scale was never denied by the agency and filing a request with this office would be premature since the employees have not exhausted their administrative remedies. Further, the Office of Personnel Management has the responsibility for defining the boundaries of wage and survey areas. Agencies has considerable discretion in setting the salaries of prevailing rate employees and courts will not set aside such determination unless there has been an abuse of discretion, or that such a determination is so arbitrary as to be clearly wrong. Best v. United States, 14 Cl.Ct. 720 (1988).

Robbie G. Exley

Labor Relations Specialist

National Federation of

Federal Employees:

We refer to your letter of December 20, 1990, reference: 2049-RE 001618, requesting a decision under our procedures pertaining to appropriated fund expenditures which are of mutual concern to agencies and labor organizations. 4 C.F.R. Sec. part 22 (1990). Your submission pertains to prevailing rate employees who work at the White Sands Missile Range and who are paid on the basis of the El Paso wage schedule. You contend that the employees should be paid on the basis of the Albuquerque wage schedule since they work and reside in that area.

The issue you have presented appears to be a boundary dispute since the employees are assigned to White Sands, but their job site is closer to Albuquerque. The Office of Personnel Management (OPM) has the responsibility for defining the boundaries of wage and survey areas. U.S.C. Sec. 5343(a)(1) (1988); 5 C.F.R. Sec. 532.211 (1990). Therefore, the issue you have raised as to the appropriate wage area would appear to be within the jurisdiction of OPM and not this office. We also note that this issue may be appropriate for consideration by a local wage survey committee which is comprised of federal employees, one member of which is recommended by a labor organization. 5 C.F.R. Sec. 532.209 (1990).

We would also point out that agencies have considerable discretion in setting the salaries of prevailing rate employees. In Best v. United States, 14 Cl.Ct. 720, 725 (1988), which involved a request by prevailing wage employees for a change in the boundaries of a wage area, the court held that in order to "... set aside the determinations of federal agencies in prevailing rates disputes, a plaintiff must show that there has been an abuse of discretion, or that such a determination is so arbitrary as to be clearly wrong." The Comptroller General has also recognized the agency's discretionary authority to set rates of pay under similar statutes. 56 Comp.Gen. 870 (1977); 50 Comp.Gen. 93 (1970).

We also note from the record that, although a request for a change in the wage schedule was addressed to the civilian personnel officer at White Sands, a reply was never received. Therefore, the employees' claims were never denied by the agency and filing a claim with this office would appear to be premature since the employees have not yet exhausted their administrative remedies. We would decline to take jurisdiction under these circumstances. See 4 C.F.R. Sec. 22.8 (1990).

We are enclosing a copy of the Best case for your information.