B-189782, JUNE 18, 1980, 59 COMP.GEN. 527

B-189782, JUNE 18, 1980, 59 COMP.GEN. 527

COMPENSATION - PREVAILING RATE EMPLOYEES - NEGOTIATED AGREEMENTS - BOULDER CANYON PROJECT ADJUSTMENT ACT - SAVINGS' CLAUSES IN LATER LEGISLATION SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT, 43 U.S.C. 618N, WHICH IS SPECIFIC LEGISLATION DEALING WITH HOW THE WAGES AND COMPENSATION OF BOULDER CANYON PROJECT EMPLOYEES MAY BE SET, HAS NOT BEEN SUPERSEDED BY SECTION 9(B) OF PUB. L. NO. 92-392. THE TWO LAWS ARE COMPLEMENTARY, THE FORMER DESCRIBING HOW EMPLOYEE COMPENSATION IS TO BE SET AND THE LATTER GUARANTEEING CONTINUANCE OF CERTAIN NEGOTIATED LABOR-MANAGEMENT CONTRACT PROVISIONS, REGARDLESS OF RESTRICTIONS IN THE COMPENSATION LAWS OTHERWISE APPLICABLE TO PREVAILING RATE EMPLOYEES. COMPENSATION - PREVAILING RATE EMPLOYEES - NEGOTIATED AGREEMENTS - BOULDER CANYON PROJECT EMPLOYEES' ENTITLEMENTS - FRINGE BENEFITS, ETC. STATUS THE TERM "WAGES OR COMPENSATION" UNDER SECTION 15 OF THE BOULDER CANYON ADJUSTMENT ACT, 43 U.S.C. 618N, DOES NOT INCLUDE COMMUTING TRAVEL EXPENSES, HOUSING ALLOWANCES, OR SIMILAR FRINGE BENEFITS. SUCH BENEFITS NEITHER COME WITHIN THE DEFINITION OF WAGES OR COMPENSATION NOR ARE SPECIFICALLY PROVIDED FOR BY CONGRESS, AS OTHER EXPENSES ARE, AND THEREFORE THERE IS NO LEGAL BASIS FOR BOULDER CANYON PROJECT EMPLOYEES TO BE PAID THEM. COMPENSATION - PREVAILING RATE EMPLOYEES - NEGOTIATED AGREEMENTS - BOULDER CANYON PROJECT ADJUSTMENT ACT - APPLICABILITY TO EMPLOYEES OF DEFUNCT PARKER-DAVIS PROJECT UNLESS EMPLOYEES OF THE NOW DEFUNCT PARKER-DAVIS PROJECT ARE ENGAGED IN ACTIVITIES ASSOCIATED WITH THE HOOVER DAM, THEY ARE NOT COVERED BY SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT, 43 U.S.C. 618N.

MATTER OF: BOULDER CANYON PROJECT EMPLOYEES - WAGES AND COMPENSATION, JUNE 18, 1980:

MR. LARRY E. MEIEROTTO, ASSISTANT SECRETARY-- POLICY, BUDGET AND ADMINISTRATION, DEPARTMENT OF THE INTERIOR, HAS REQUESTED OUR DECISION ON A SERIES OF QUESTIONS RELATING TO EMPLOYEES ENTITLED TO BE PAID WAGES AND COMPENSATION UNDER SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT, 43 U.S.C. 618N(1976). MR. MEIEROTTO REFERS TO OUR DECISION B-189782, MARCH 1, 1978, WHICH WAS ISSUED IN RESPONSE TO A REQUEST FROM THE SECRETARY OF THE INTERIOR. THE SECRETARY HAD ASKED WHETHER CERTAIN OVERTIME PAY, PENALTY PAY AND VARIOUS OTHER PAY PROVISIONS NEGOTIATED ON BEHALF OF EMPLOYEES COVERED BY BOTH SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT AND SECTION 9(B) OF PUB. L. NO. 92-392, AUGUST 19, 1972, 5 U.S.C. 5343 NOTE, WERE LEGAL, IN VIEW OF OUR DECISIONS 57 COMP.GEN. 259(1978) AND 57 ID. 575(1978), WHICH HAD RENDERED SIMILAR PAYMENTS ILLEGAL.

MR. MEIEROTTO STATES IN HIS SUBMISSION THAT CERTAIN ISSUES LEFT UNRESOLVED IN OUR DECISION TO THE SECRETARY OF THE INTERIOR STILL NEED TO BE ADDRESSED.

* * * YOUR DECISION NO. B-189782, DATED MARCH 1, 1979, RULED THAT IT WAS UNNECESSARY TO RULE ON THE QUESTIONS POSED OTHER THAN OUR ABILITY TO AGREE TO OVERTIME RATES IN EXCESS OF ONE AND ONE-HALF TIME. SINCE SUCH AUTHORITY EMANATED FROM OTHER SOURCES, YOU FOUND IT WAS NOT RELEVANT WHETHER SECTION 15 INDEPENDENTLY AUTHORIZED SUCH PAYMENTS.

BECAUSE THE OVERTIME ISSUE IS ONLY ONE OF AN INFINITE NUMBER OF VARIATIONS OF THE QUESTION "WHAT CONSTITUTES COMPENSATION WITHIN THE MEANING OF SECTION 15?" WHICH CONTINUALLY ARISE IN COLLECTIVE BARGAINING, YOUR MARCH 1, 1979, DECISION DOES NOT ASSIST US IN DETERMINING OUR LEGAL AUTHORITY TO MEET SUCH REQUESTS. ALTHOUGH SECTION 704 OF THE CIVIL SERVICE REFORM ACT WAS PASSED AND BECAME EFFECTIVE SINCE OUR QUESTION WAS FIRST POSED, IT DOES NOT CLARIFY THE NATURE OF OUR OBLIGATIONS. SECTION 704 PRESERVES RIGHTS THAT EXISTED ON AUGUST 19, 1972. OUR QUESTION IS WHAT RIGHTS EXISTED PRIOR TO THAT TIME. IN EFFECT, THE REAL QUESTION IS WHETHER EMPLOYEES COVERED BY SECTION 15 HAVE ANY GREATER RIGHTS THAN OTHER HOURLY EMPLOYEES COVERED BY SECTION 9(B) OF P.L. 92-392 AND WHETHER THERE IS A DIFFERENT PROCEDURE FOR DETERMINING SUCH RIGHTS. THEREFORE, WE ARE RESUBMITTING OUR QUESTIONS, HOPEFULLY CLARIFIED, BUT NEVERTHELESS BROADLY STATED. OUR HOPE IS TO KNOW OUR BASIC RIGHTS AND OBLIGATIONS SO THAT THERE DOES NOT HAVE TO BE A DISPUTE EVERY TIME A VARIATION OF THE SAME QUESTION ARISES. ADMITTEDLY, A FULL RESPONSE WILL NOT DISPOSE OF EVERY QUESTION THAT COULD EXIST. HOWEVER, A FULL RESPONSE CAN GREATLY DIMINISH THE NUMBER OF QUESTIONS AND REMOVE THEIR FAR REACHING IMPLICATIONS. CONSEQUENTLY, SUCH LIMITED QUESTIONS MAY BE ABLE TO BE RESOLVED THROUGH THE NORMAL LABOR RELATIONS PROCESSES OR THROUGH THE MECHANISM OF SECTION 15 ITSELF, IF THAT IS STILL VALID.

THE DEPARTMENT OF THE INTERIOR HAS SERVED A COPY OF ITS REQUEST ON EACH OF THE LABOR UNIONS INVOLVED, BUT THEY CHOSE NOT TO FURNISH COMMENTS ON THE MATTER.

JURISDICTION

IN DECISION B-189782, JANUARY 5, 1979, 58 COMP.GEN. 198, WE STATED:

THE COMPTROLLER GENERAL'S AUTHORITY TO RENDER ADVANCE DECISIONS TO HEADS OF AGENCIES AND TO CERTIFYING AND DISBURSING OFFICERS ON MATTERS INVOLVING APPROPRIATED FUNDS IS FOUND IN 31 U.S.C. 74 AND 82D. IT IS CLEAR THAT UNDER TITLE VII OF THE CIVIL SERVICE REFORM ACT, THE COMPTROLLER GENERAL MAY NOT OVERRULE A SPECIFIC ARBITRATION AWARD OR A DECISION OF THE FEDERAL LABOR RELATIONS AUTHORITY MADE THEREON. HOWEVER, WITH THOSE EXCEPTIONS, THE COMPTROLLER GENERAL RETAINS THE AUTHORITY TO RENDER DECISIONS ON THE LEGALITY OF EXPENDITURES OF APPROPRIATED FUNDS.

FROM THE RECORD BEFORE US, WE FIND NOTHING TO INDICATE THAT OUR DECISION ON THIS CASE WOULD VIOLATE THE RESTRICTIONS ON OUR JURISDICTION STATED ABOVE.

OPINION

SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT, 43 U.S.C. 618N, STATES:

ALL LABORERS AND MECHANICS EMPLOYED IN THE CONSTRUCTION OF ANY PART OF THE PROJECT, OR IN THE OPERATION, MAINTENANCE, OR REPLACEMENT OF ANY PART OF THE HOOVER DAM, SHALL BE PAID NOT LESS THAN THE PREVAILING RATE OF WAGES OR COMPENSATION FOR WORK OF A SIMILAR NATURE PREVAILING IN THE LOCALITY OF THE PROJECT. IN THE EVENT ANY DISPUTE ARISES AS TO WHAT ARE THE PREVAILING RATES, THE DETERMINATION THEREOF SHALL BE MADE BY THE SECRETARY OF THE INTERIOR, AND HIS DECISION, SUBJECT TO THE CONCURRENCE OF THE SECRETARY OF LABOR, SHALL BE FINAL.

IN OUR DECISION B-189782, MARCH 1, 1979, TO THE SECRETARY OF THE INTERIOR, WE STATED THAT SECTION 704 OF THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, OCTOBER 13, 1978, 92 STAT. 1218, OVERRULED DECISIONS 57 COMP.GEN. 259 AND 57 ID. 575 INSOFAR AS THOSE DECISIONS INVALIDATED LABOR-MANAGEMENT CONTRACT PROVISIONS CONCERNING VARIOUS OVERTIME PAY PROVISIONS (DOUBLE TIME, PENALTY PAY) FOR EMPLOYEES WHOSE CONTRACT ARE COVERED BY SECTION 9(B) OF PUB. L. NO. 92-392. ACCORDINGLY, WE HELD IT WAS NOT NECESSARY THAT WE DEAL WITH WHETHER THERE WAS INDEPENDENT STATUTORY AUTHORITY IN SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT FOR SUCH PAYMENTS. THE BOULDER CANYON PROJECT EMPLOYEES COULD NEGOTIATE SUCH OVERTIME CONTRACT PROVISIONS BY VIRTUE OF SECTION 704 OF THE CIVIL SERVICE REFORM ACT.

FOR REASONS GIVEN ABOVE, HOWEVER, MR. MEIEROTTO ASKS THE FOLLOWING QUESTIONS (OUR ANSWERS ARE SET OUT AFTER EACH QUESTION):

1. HAS SECTION 43 U.S.C. 618N BEEN SUPERSEDED BY ANY OTHER LAW? IF SO, WHAT LAW AND WITH WHAT RESULT?

EXAMPLES:

A. THIS PROVISION WAS ENACTED IN 1940 BEFORE COLLECTIVE BARGAINING OF WAGES BECAME A COMMON PHENOMENON IN THE DEPARTMENT OF THE INTERIOR OR THE FEDERAL GOVERNMENT. THE FIRST LEGISLATION, OF WHICH WE ARE AWARE, WHICH SPECIFICALLY ADDRESSED NEGOTIATION OF WAGES WAS SECTION 9(B) OF P.L. 92-392 IN 1972. SINCE THAT LATER ENACTMENT PURPORTED TO BE GOVERNMENT- WIDE, DID IT SUPPLANT 43 U.S.C. 618N?

B. WHEN THERE IS A DISPUTE AS TO WHAT ARE PREVAILING RATES, 43 U.S.C. 618N REQUIRES THE RESOLUTION TO BE MADE BY THE SECRETARY OF THE INTERIOR, SUBJECT TO THE CONCURRENCE OF THE SECRETARY OF LABOR. TO WHAT EXTENT ARE OTHERS, NOT SPECIFIED IN THE STATUTE (SUCH AS ARBITRATORS, THE FEDERAL LABOR RELATIONS AUTHORITY, ETC.), WITHOUT JURISDICTION TO RENDER FINAL DECISIONS ON SUCH DISPUTES?

ANSWER TO QUESTION NO. 1

SECTION 9(B) OF PUB. L. NO. 92-392 IS A SAVINGS PROVISION WHICH PROTECTS CERTAIN LABOR-MANAGEMENT CONTRACT PROVISIONS FROM BEING AFFECTED BY THE PROVISIONS OF PUB. L. NO. 92-392 WHICH GENERALLY GOVERN THE WAGES OF PREVAILING RATE EMPLOYEES.

SECTION 704 OF PUB. L. NO. 95-454 IS ALSO A SAVINGS PROVISION WHICH FURTHER EXPANDS ON THE PROTECTION AFFORDED THE CONTRACT PROVISIONS OF EMPLOYEES WHO NEGOTIATE THEIR WAGES UNDER SECTION 9(B) OF PUB. L. NO. 92-392. SECTION 704 PROVIDES THAT EMPLOYEES WHOSE CONTRACT PROVISIONS ARE NEGOTIATED UNDER SECTION 9(B) MAY NEGOTIATE THEIR PAY AND PAY PRACTICES IN ACCORDANCE WITH PREVAILING RATES AND PAY PRACTICES WITHOUT REGARD TO CERTAIN PROVISIONS IN TITLE 5, UNITED STATES CODE, INCLUDING MORE SPECIFICALLY 5 U.S.C. 5544, OR ANY RULE, REGULATION, DECISION OR ORDER RELATING TO RATES OF PAY OR PAY PRACTICES UNDER 5 U.S.C. 5544.

WITH RESPECT TO MR. MEIEROTTO'S FIRST QUESTION, 43 U.S.C. 618N, WHICH IS SPECIFIC LEGISLATION DEALING WITH HOW THE WAGES AND COMPENSATION OF BOULDER CANYON PROJECT EMPLOYEES MAY BE SET, HAS NOT BEEN SUPERSEDED BY SECTION 9(B) OF PUB. L. NO. 92-392. SECTION 15 OF THE BOULDER CANYON PROJECT ACT REQUIRES THAT EMPLOYEES COVERED BY SECTION 15 SHALL BE PAID NOT LESS THAN THE PREVAILING RATE OF WAGES OR COMPENSATION FOR WORK OF A SIMILAR NATURE PREVAILING IN THE LOCALITY OF THE PROJECT. SECTION 15, THEREFORE, IS THE LEGAL BASIS FOR SETTING THE PAY OF BOULDER CANYON PROJECT EMPLOYEES.

THE SUBSEQUENTLY ENACTED SECTION 9(B) OF PUB. L. NO. 92-392 AND SECTION 704 OF THE CIVIL SERVICE REFORM ACT ARE OF DIFFERENT EFFECT IN THAT THEY DO NOT PRESCRIBE THE BASIC PAY ENTITLEMENTS OF THE COVERED EMPLOYEES. RATHER, THE LATTER TWO SECTIONS ARE MERELY SAVINGS CLAUSES WHICH GUARANTEE THAT THE LABOR-MANAGEMENT CONTRACT PROVISIONS OF THE COVERED EMPLOYEES MAY BE CONTINUED REGARDLESS OF CERTAIN STATED RESTRICTIONS IN VARIOUS COMPENSATION LAWS FOUND IN TITLE 5, U.S.C. WHICH ARE OTHERWISE APPLICABLE TO PREVAILING RATE EMPLOYEES. SECTION 15 OF THE BOULDER CANYON ADJUSTMENT ACT AND SECTION 9(B) OF PUB. L. NO. 92-392 ARE IN FACT COMPLEMENTARY AND ARE NOT INCONSISTENT WITH EACH OTHER. QUESTION 1A IS ANSWERED ACCORDINGLY.

IN REGARD TO QUESTION 1B, HOWEVER, WE SHALL NOT VENTURE TO DELINEATE THE LIMITS OF THE FEDERAL LABOR RELATIONS AUTHORITY'S JURISDICTION OVER EMPLOYEES COVERED BY BOTH SECTION 9(B) OF PUB. L. NO. 92-392, AUGUST 19, 1972, 5 U.S.C. 5343 NOTE, AND SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT. WE FEEL THAT QUESTION MAY MORE PROPERLY BE DIRECTED TO THE FEDERAL LABOR RELATIONS AUTHORITY.

2. ASSUMING 43 U.S.C. 618N HAS AN INDEPENDENT EXISTENCE UNLIMITED BY LAWS NOT PURPORTING TO REPEAL IT OR PORTIONS THEREOF, DOES THE TERM "PREVAILING RATE OF WAGES OR COMPENSATION" ALLOW NEGOTIATION OF PAYMENTS NOT OTHERWISE PERMITTED TO EMPLOYEES UNDER 9(B) OF P.L. 92-392?

EXAMPLES:

A. IN AMELL V. U.S. 390F.2D 880(1968), THE COURT OF CLAIMS HELD THAT FRINGE BENEFITS ARE NOT ENCOMPASSED WITHIN THE TERMS "WAGES" OR "COMPENSATION."

B. ON MARCH 28, 1975, THE ASSISTANT SECRETARY OF THE DEPARTMENT OF THE INTERIOR, AS CONCURRED IN BY THE ASSISTANT SECRETARY OF THE DEPARTMENT OF LABOR ON APRIL 8, 1975, (PURSUANT TO THE SECTION 15 PROCEDURE), REJECTED THE CONTENTION OF WILLIAM S. DAVIS, AN EMPLOYEE OF THE BOULDER CANYON PROJECT, THAT THE PREVAILING RATE PROCESS MUST TAKE INTO ACCOUNT THE VALUE OF FREE HOUSING AND UTILITIES PROVIDED TO EMPLOYEES OF THE LOS ANGELES DEPARTMENT OF WATER AND POWER WHO WORK AT THE PROJECT SITE AND WHOSE BASE WAGES ARE THE PREDICATE FOR THE WAGES OF THE EMPLOYEES OF THE PROJECT. SIMILARLY, REJECTED WERE FURTHER CONTENTIONS THAT THE GOVERNMENT, ALTERNATIVELY, SHOULD PROVIDE FREE HOUSING OR A COMPARABLE ALLOWANCE.

C. IN MCCOY AND LOCAL 1978, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES V. LARSGAARD, PROJECT MANAGER, BOULDER CANYON PROJECT, AFGE CONTENDED THAT THE PROJECT IMPROPERLY TERMINATED THE BUSING OF EMPLOYEES BETWEEN THEIR HOMES AND THEIR WORK SITES, ESPECIALLY SINCE LOS ANGELES DWP AND SOUTHERN CALIFORNIA EDISON TRANSPORT THEIR EMPLOYEES FROM BOULDER CITY DOWN TO THE DAM. THE GOVERNMENT DEFENDED PRIMARILY ON THE BASIS OF COMPTROLLER GENERAL RULINGS ON 31 U.S.C. 638A WHICH PRECLUDE RESIDENCE-TO-WORK TRANSPORTATION. ON DECEMBER 15, 1976, JUDGE ROGER D. FOLEY, OF THE U.S. DISTRICT COURT FOR THE DISTRICT OF NEVADA, DISMISSED THE ACTION HAVING BEEN ADVISED BY COUNSEL FOR PLAINTIFFS "THAT PLAINTIFFS HAVE WITHDRAWN THEIR OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS." SINCE THAT TIME, AFGE HAS ADVOCATED THAT WE GRANT SOME FORM OF MONETARY COMPENSATION IN LIEU OF THE TRANSPORTATION. WE HAVE TAKEN THE POSITION THAT TO ALLOW SOME PAYMENT AS A SUBSTITUTE FOR AN ILLEGAL PRACTICE WOULD SUBVERT THE STATUTORY PROSCRIPTION.

D. IT SHOULD BE EVIDENT WHY WE ARE RELUCTANT TO POSE OTHER VARIATIONS OF THE SAME THEME AND TO SET FORTH UNION PROPOSALS THAT HAVE NEVER REACHED A FORMAL STAGE. IT SHOULD BE EQUALLY EVIDENT HOW A RULING ON WHAT SECTION 15 MEANS WHEN IT USES THE TERM "COMPENSATION" CAN PUT TO AN END A GREAT MANY PRESENT AND FUTURE DISPUTES.

ANSWER TO QUESTION NO. 2

THE LEGISLATIVE HISTORY OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT DOES NOT EXPLAIN THE TERM "PREVAILING RATE OF WAGES OR COMPENSATION." MOREOVER, THERE IS A DEARTH OF JUDICIAL PRECEDENT AS TO THE MEANING OF "WAGES OR COMPENSATION" UNDER 43 U.S.C. 618N.

THE COURT OF CLAIMS' DECISION IN AMELL V. UNITED STATES, 390 F.2D 880(1968), HOWEVER, WHILE NOT DEALING WITH 43 U.S.C. 618N, IS INSTRUCTIVE. IN AMELL THE COURT WAS CALLED UPON TO CONSTRUE SECTION 606 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945, 59 STAT. 304, AS AMENDED, 5 U.S.C. 946(1964), AND SECTION 202(8) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, AS AMENDED, 5 U.S.C. 1082(1964).

THE CLASSIFICATION ACT OF 1949 STATES IN SECTION 202(8):

* * * COMPENSATION SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY * * * .

THE FEDERAL EMPLOYEES' PAY ACT OF 1945 STATES IN SECTION 606:

EMPLOYEES * * * MAY BE COMPENSATED IN ACCORDANCE WITH THE WAGE PRACTICES OF THE MARITIME INDUSTRY.

THE QUESTION BEFORE THE COURT IN AMELL WAS WHETHER THE MARITIME EMPLOYEES COVERED BY THE ABOVE-CITED LAWS WERE ENTITLED TO AN INCREASE IN THEIR BASE WAGE RATES IN AN AMOUNT EQUIVALENT TO THE INCREASED CONTRIBUTIONS MADE BY PRIVATE SHIPPING COMPANIES TO THE PENSION FUND OF THE PRIVATE SECTOR MARITIME EMPLOYEES. THE COURT OF CLAIMS FOUND: MUCH OF THE DIFFICULTY PRESENTED BY THIS CASE IS OCCASIONED BY THE USE OF THE WORD "COMPENSATION" IN THE COMPARABILITY PROVISION OF THE CLASSIFICATION ACT OF 1949, IN THE REGULATIONS, AND IN ARTICLE XII OF THE NEGOTIATED CONTRACT. SINCE NEITHER PARTY HAS CITED ANY DECISIONAL LAW WHICH IS DISPOSITIVE OF THE QUESTION, WE THINK THE CONGRESSIONAL INTENT IS TO BE DETERMINED BY VIEWING THE TERM "COMPENSATION" IN ITS BROAD STATUTORY CONTEXT AND IN CONNECTION WITH VARIOUS BENEFITS WHICH CONGRESS HAS PROVIDED FOR MSTS EMPLOYEES IN OTHER LAWS. FROM SUCH AN ANALYSIS IT BECOMES APPARENT THAT CONGRESS DID NOT INTEND "COMPENSATION" TO COVER EITHER THE WHOLE AMBIT OF EMPLOYMENT COSTS OR THOSE IN ISSUE HERE. 390 F.2DAT 884. THUS, THE INFERENCE TO BE DRAWN FROM THE FACT THAT BENEFITS FOR MSTS EMPLOYEES ARE PROVIDED IN VARIOUS STATUTES, TOTALLY DISTINCT FROM THE CLASSIFICATION ACT OF 1949, IS THAT THE WORD "COMPENSATION," AS USED IN THAT STATUTE, IS NOT BROAD ENOUGH TO ENCOMPASS BENEFITS PROVIDED IN OTHER LAWS. 390 F.2DAT 885.

THUS, THE COURT OF CLAIMS HAS INTERPRETED LAWS WITH WORDING SIMILAR TO THAT IN SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT, TO MEAN THAT "COMPENSATION" IS NOT SO BROAD AS TO INCLUDE ALL OF THE MONETARY BENEFITS WHICH EMPLOYEES MAY BE GRANTED. WE THINK THE COURT'S REASONING IS APPLICABLE TO OUR INTERPRETATION OF THE MEANING OF "WAGES OR COMPENSATION" AS USED IN SECTION 15. CONSEQUENTLY, WE DO NOT THINK WAGES OR COMPENSATION INCLUDES EVERY ITEM OF REIMBURSEMENT WHICH COULD BE PAID TO AN EMPLOYEE.

SPECIFICALLY, WE CONCLUDE THAT THE MEANING OF COMPENSATION UNDER SECTION 15 DOES NOT INCLUDE TRAVEL EXPENSES FOR COMMUTING, HOUSING ALLOWANCES, OR SIMILAR FRINGE BENEFITS. WE NOTE THAT SIMILAR EXPENSES OF FEDERAL EMPLOYEES, SUCH AS TRAVEL EXPENSES FOR TEMPORARY DUTY OR THE FURNISHING OF GOVERNMENT-OWNED QUARTERS, ARE SPECIFICALLY PROVIDED FOR BY LAW, E.G., CHAPTERS 57 AND 59 OF TITLE 5, UNITED STATES CODE. IT IS SIGNIFICANT THAT THESE EXPENSES OR ALLOWANCES ARE NOT AUTHORIZED IN CHAPTER 55, TITLE 5, U.S.C. CONCERNING PAY ADMINISTRATION, BUT ARE AUTHORIZED UNDER SEPARATE CHAPTERS OF TITLE 5 SPECIFICALLY DESIGNATED FOR FRINGE BENEFITS AND NONPAY ALLOWANCES. SINCE CONGRESS HAS IN THIS MANNER SPECIFICALLY PROVIDED FOR PAYMENT OF SUCH NONPAY BENEFITS AND ALLOWANCES TO FEDERAL EMPLOYEES, INCLUDING EMPLOYEES OF THE BOULDER CANYON PROJECT, WE FIND IT NECESSARY TO CONCLUDE THAT THESE VARIOUS BENEFITS AND ALLOWANCES ARE NOT INTENDED ALSO TO BE COVERED UNDER THE GENERAL TERM OF "WAGES OR COMPENSATION" UNDER THE COMPENSATION LAWS. ACCORDINGLY, THE PAYMENT OF THE ABOVE-DESCRIBED FRINGE BENEFITS TO BOULDER CANYON PROJECT EMPLOYEES WOULD NOT BE APPROPRIATE UNDER LAW BECAUSE THESE BENEFITS NEITHER COME WITHIN THE TERM "WAGES OR COMPENSATION" IN SECTION 15 NOR ARE THEY SPECIFICALLY PROVIDED FOR IN OTHER LAWS WHICH HAVE BEEN ENACTED TO ALLOW FOR PAYMENT OF THE VARIOUS NONCOMPENSATION BENEFITS AND ALLOWANCES.

WE BELIEVE, HOWEVER, THAT IT WOULD BE INAPPROPRIATE FOR US TO ATTEMPT TO SET GUIDELINES AS TO WHETHER OTHER POSSIBLE ENTITLEMENTS DO OR DO NOT FIT WITHIN THE TERM "WAGES OR COMPENSATION" UNDER SECTION 15. WE DO NOT THINK IT WISE OR POSSIBLE TO SO DELINEATE THE TERM "WAGES OR COMPENSATION," AND OUR DECISION IS LIMITED TO THE SPECIFIC BENEFITS AND ALLOWANCES DEALT WITH HEREIN.

3. ASSUMING BOTH THAT SECTION 15 HAS AN INDEPENDENT EXISTENCE AND FURTHER THAT SECTION 15 ALLOWS OR REQUIRES SOME THINGS TO WHICH EMPLOYEES OPERATING UNDER SECTION 9(B) OF P.L. 92-392 ARE NOT ENTITLED, CAN SECTION 15 BE APPLIED TO EMPLOYEES OF OTHER BUREAU OF RECLAMATION DAMS WHO HAVE BEEN MERGED OR INTERMINGLED FOR PURPOSES OF ADMINISTRATION AND EFFICIENCY, WITH EMPLOYEES OF THE BOULDER CANYON DAM?

EXPLANATION-- AS POINTED OUT IN OUR JUNE 9, 1978, SUBMISSION, THE ESTABLISHMENT OF THE DEPARTMENT OF ENERGY RESULTED IN TRANSFERRING TO THAT DEPARTMENT EMPLOYEES OF THE BUREAU OF RECLAMATION WHOSE WORK WAS ASSOCIATED WITH THE TRANSMISSION OF ELECTRICITY. THIS LEFT A GREATLY REDUCED WORK FORCE ENGAGED IN POWER GENERATION AT THE PARKER AND DAVIS DAMS IN THE NOW DEFUNCT PARKER-DAVIS PROJECT, WHICH WAS ADMINISTRATIVELY ADJACENT TO THE BOULDER CANYON PROJECT. THE EMPLOYEES AT THE PARKER AND DAVIS DAMS HAVE BEEN PLACED FOR ADMINISTRATIVE PURPOSES IN A NEW PROJECT ENTITLED THE LOWER COLORADO DAMS PROJECT WHICH ENCOMPASS ALSO THE BOULDER CANYON PROJECT. THE UNION, WHICH REPRESENTS PARKER-DAVIS EMPLOYEES AND NEGOTIATES WAGES FOR THEM PURSUANT TO 9(B) OF P.L. 92-392, HAS PRESENTLY AGREED TO COORDINATED WAGE BARGAINING WITH THE UNION WHICH REPRESENTS THE BOULDER CANYON PROJECT EMPLOYEES WHOSE WAGES ARE NEGOTIATED. THE OBVIOUS QUESTION IS WHETHER THE PARKER-DAVIS EMPLOYEES CAN OBTAIN "COMPENSATION" TO WHICH THEY ARE NOT ENTITLED UNDER 9(B) BY VIRTUE OF THE EXTENSION OF SECTION 15 TO THEM?

ANSWER TO QUESTION NO. 3

WHETHER EMPLOYEES OF THE NOW DEFUNCT PARKER-DAVIS PROJECT ARE ENTITLED TO "COMPENSATION" UNDER SECTION 15 OF THE BOULDER CANYON PROJECT ADJUSTMENT ACT DEPENDS ON WHETHER THESE EMPLOYEES ARE NOW ENGAGED IN THE " * * * CONSTRUCTION * * * OPERATION, MAINTENANCE, OR REPLACEMENT OF ANY PART OF THE HOOVER DAM * * * ." IT DOES NOT APPEAR THAT PARKER-DAVIS EMPLOYEES ARE ACTUALLY ENGAGED IN ANY OF THE ACTIVITIES ASSOCIATED WITH THE HOOVER DAM. HOWEVER, WE PASS NO JUDGMENT UPON WHETHER PARKER-DAVIS EMPLOYEES MAY BARGAIN TO HAVE THEIR WAGES AND COMPENSATION DETERMINED IN THE SAME MANNER AS BOULDER CANYON PROJECT EMPLOYEES. AN ANSWER TO THIS QUESTION CONCERNING THE EXTENT OF THE PARKER-DAVIS EMPLOYEES' RIGHT TO BARGAIN THEIR COMPENSATION AS IF THEY WERE COVERED BY SECTION 15, IF IT STILL NEEDS TO BE ANSWERED, SHOULD BE DIRECTED TO THE FEDERAL LABOR RELATIONS AUTHORITY.