The opinion of the court was delivered by: GREEN
At issue in this case, as it likewise is in the related case of American Federation of Government Employees v. Brown, 481 F. Supp. 711 (D.D.C. 1979), a case that is also before the Court and in which a memorandum opinion and order is also filed this day, is the question whether the 5.5 percent cap on salary increases imposed upon federal employees for the fiscal year 1979 should have been applied to the workers represented by plaintiff union.
Procedurally, this matter comes before the Court on the parties' cross-motions for summary judgment. Each party contends that there exists no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Clearly, disposition by summary judgment is appropriate in this case. After a thorough review of the pleadings and consideration of the oral argument of counsel, plaintiff's motion must be denied and summary judgment granted in favor of defendants.
Plaintiff union represents on an exclusive basis certain nonappropriated fund prevailing rate workers
employed by the Department of Defense in the wage area consisting of the counties of Alexandria, Arlington, and Fairfax, Virginia. The wage rates and job grading applicable to its members are determined in accordance with the statutory scheme set forth in 5 U.S.C. §§ 5341-5349. More particularly, wage increases are established by the procedures set out at 5 U.S.C.A. § 5343(a) (West Cum.Supp.1979), which provides in pertinent part:
The pay of prevailing rate employees shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates. . . . To carry out this subsection
(1) the Office of Personnel Management shall define, as appropriate (the individual local wage areas for prevailing rate employees); . . .
(2) the Office of Personnel Management shall designate a lead agency for each wage area;
(3) . . . a lead agency shall conduct wage surveys, analyze wage survey data, and develop and establish appropriate wage schedules and rates for prevailing rate employees;
(4) The head of each agency having prevailing rate employees in a wage area shall apply to the prevailing rate employees of that agency in that area, the wage schedules and rates established by the lead agency, . . . for prevailing rate employees in that area . . . .
On October 24, 1978, President Carter requested in a nationally televised address on inflation that wage increases for all but the nation's lowest paid workers be limited to a maximum of seven percent. He further announced that a pay cap of 5.5 percent had already been placed on wage increases for federal employees for fiscal 1979.
By letter dated October 30, 1978, DoD requested advice from the Civil Service Commission concerning the impact of the President's anti-inflation program on its proposed wage schedules for nonappropriated fund prevailing rate workers, and it withheld issuance of the schedules pending a reply to its request. On January 4, 1979, President Carter issued a memorandum to the heads of all executive departments and agencies in which he made a policy determination that the public interest required that no category of federal employees receive a pay increase exceeding 5.5 percent for fiscal 1979. He further issued a directive that nonappropriated fund workers were to be included under the 5.5 percent cap,
and ordered the Chairman of the Civil Service Commission and his successor, the Director of OPM, to assist agency heads in complying with that policy.
On February 28, 1979, OPM issued a personnel bulletin applying to lead agencies responsible for establishing wage schedules pursuant to section 5343(a). Federal Personnel Manual Bulletin 532-31 (Feb. 28, 1978). According to the bulletin, wage schedules for nonappropriated fund workers having effective dates of October 1, 1978, through September 30, 1979, were directed to be paid unless they exceeded the previously scheduled wage rate by more than 5.5 percent. Id. In such an event, lead agencies were instructed to establish a 5.5 percent maximum increase. Id. On the same day, DoD issued the wage schedules for the Arlington-Alexandria-Fairfax wage area, none of which provided for a pay rate increase exceeding 5.5 percent. These increases were made retroactive to October 22, 1978, the effective date of the schedules. See note 3 Supra.
In April 1979 President Carter authorized an exception to the 5.5 percent pay increase limitation for all nonappropriated fund employees earning less than $ 4.00 per hour. In an official bulletin issued April 20, 1979, OPM advised lead agencies that only the portion of a wage increase raising a worker's pay above $ 4.00 per hour was to be measured against the 5.5 percent limit. Federal Personnel Manual Bulletin 532-32 (Apr. 20, 1979). Employees exempted under this policy from the 5.5 percent limitation were to receive back pay from ...