B-164515, MAR 19, 1971, 50 COMP GEN 635

B-164515, MAR 19, 1971, 50 COMP GEN 635

COMPENSATION - WAGE BOARD EMPLOYEES - COORDINATED FEDERAL WAGE SYSTEM - COMPENSATION ADJUSTMENTS EMPLOYEES IN A WAGE AREA CONVERTED TO THE COORDINATED FEDERAL WAGE SYSTEM IN JULY 1969 WHO SUBSEQUENT TO CONSOLIDATION IN NOVEMBER 1969 WITH ANOTHER WAGE AREA BECAME ENTITLED TO THE HIGHER WAGE RATES RETROACTIVELY PRESCRIBED BY THE "MONRONEY AMENDMENT," 5 U.S.C. 5341(C), MAY BE PAID THE HIGHER RATES FROM THE RETROACTIVE EFFECTIVE DATE OF THE AMENDMENT TO THE DATE THEIR WAGE AREA WAS CONSOLIDATED BUT NOT BEYOND THAT DATE, FOR TO DO SO WOULD REQUIRE GIVING RETROACTIVE EFFECT, CONTRARY TO THE GENERAL RULE, TO THE OCTOBER 2, 1970, SALARY RETENTION PROVISION ADDED TO THE COORDINATED WAGE SYSTEM TO PROVIDE FOR INDEFINITE SALARY RETENTION FOR EMPLOYEES ADVERSELY AFFECTED BY CHANGES IN WAGE AREA BOUNDARIES.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 19, 1971:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER DATED JANUARY 20, 1971, IN WHICH YOU STATE THAT YOU HAVE BEEN ASKED FOR ADVICE ON THE EFFECT OF THE RETROACTIVE APPLICATION OF THE "MONRONEY AMENDMENT," 5 U.S.C. 5341(C), ON CURRENT RATES OF EMPLOYEES IN A WAGE AREA WHICH HAS SINCE BEEN CONSOLIDATED WITH ANOTHER WAGE AREA, THE FORMER RATES AS INCREASED UNDER THE AMENDMENT BEING HIGHER THAN THE REGULAR RATES IN THE CONSOLIDATED AREA. OUR DECISION IS REQUESTED, UNDER THE CIRCUMSTANCES HEREINAFTER RELATED, WHETHER THE HIGHER RATES TO WHICH THE EMPLOYEES HAVE NOW BECOME RETROACTIVELY ENTITLED TO THE DATE OF THE CONSOLIDATION MAY BE CONTINUED BEYOND THAT DATE.

IT IS STATED IN YOUR LETTER THAT IN JULY 1969 THE WICHITA FALLS, TEXAS, WAGE AREA WAS CONVERTED TO THE COORDINATED FEDERAL WAGE SYSTEM. NOVEMBER 1969 IT WAS CONSOLIDATED WITH THE SOUTHWESTERN OKLAHOMA WAGE AREA. YOU SAY THAT A DETERMINATION HAS BEEN MADE THAT THE FORMER WICHITA FALLS AREA QUALIFIED FOR APPLICATION OF THE "MONRONEY AMENDMENT" TO THAT AREA FOR A PERIOD BEFORE THE NOVEMBER 1969 CONSOLIDATION. THIS, IT IS SAID, WILL RESULT IN ESTABLISHING RATES OF PAY FOR THE AFFECTED EMPLOYEES WHICH ARE HIGHER THAN THE SCHEDULED RATES OF THE CONSOLIDATED WAGE AREA.

YOU POINT OUT THAT AT THE TIME OF THE CONSOLIDATION THERE WAS NO INSTRUCTION UNDER THE COORDINATED FEDERAL WAGE SYSTEM PROVIDING SPECIFICALLY FOR PAY RETENTION UPON CONSOLIDATION OF AREAS. HOWEVER, EFFECTIVE OCTOBER 2, 1970, A PROVISION WAS ADOPTED FOR THE SYSTEM WHICH PROVIDES INDEFINITE SALARY RETENTION FOR EMPLOYEES ADVERSELY AFFECTED BY CHANGES IN WAGE AREA BOUNDARIES. IMPLEMENTING INSTRUCTIONS WERE SET FORTH IN A LETTER OF OCTOBER 2, 1970, TO ALL LEAD AGENCIES, AND WE NOTE SUCH INSTRUCTIONS ARE INCORPORATED IN SECTION S8-8 OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1. IN ADDITION TO THE FOREGOING PROVISION FOR RETENTION, YOU STATE THAT SECTION S10-10AC) (S10-10A(3)) OF FPM SUPP. 532-1 PROVIDES, AND HAS PROVIDED SINCE SEPTEMBER 1968, FOR A 2-YEAR PAY RETENTION IN INSTANCES WHERE AN EMPLOYEE "MOVES BETWEEN CONVERTED WAGE AREAS."

YOU SAY THAT IF APPLICATION OF THE "MONRONEY AMENDMENT" HAD NOT BEEN DELAYED THE COMMISSION BELIEVES THAT THE NEED FOR A PAY-RETENTION PROVISION UPON CONSOLIDATION OF AREAS WOULD HAVE BECOME APPARENT EARLIER. THE CONSOLIDATION OF THE WICHITA FALLS - SOUTHWESTERN OKLAHOMA AREAS IS THE FIRST UNDER THE COORDINATED FEDERAL WAGE SYSTEM IN WHICH THE PROBLEM HAS DEVELOPED.

IN VIEW OF THE FOREGOING, YOU REQUEST A DECISION ON THE FOLLOWING:

MAY THE HIGHER RATES TO WHICH THE EMPLOYEES HAVE NOW BECOME RETROACTIVELY ENTITLED TO THE DATE OF THE CONSOLIDATION BE CONTINUED BEYOND THAT DATE? IF THEY MAY NOT BE CONTINUED INDEFINITIVELY TO THE EXTENT PROVIDED BY THE LETTER OF OCTOBER 2, 1970, MAY THE CONSOLIDATION BE TREATED AS A MOVE OF THE EMPLOYEES BETWEEN WAGE AREAS UNDER SECTION S-10-10AC) (S10-10A(3)) OF FPM SUPPLEMENT 532-1?

WE HAVE HELD THAT THE GRANTING OF SALARY RETENTION BENEFITS TO WAGE BOARD EMPLOYEES WHO ARE DEMOTED OR CHANGED THROUGH NO FAULT OF THEIR OWN MAY BE GRANTED PROSPECTIVELY BY REGULATION IF DETERMINED TO BE IN THE PUBLIC INTEREST, 44 COMP. GEN. 476 (1965). HOWEVER, THE REGULATIONS ISSUED IN SEPTEMBER 1968 GRANTING SALARY RETENTION BENEFITS FOR WAGE BOARD EMPLOYEES RELATE TO MOVEMENT OF EMPLOYEES BETWEEN WAGE AREAS, AND MUST BE VIEWED AS NOT APPLICABLE TO SITUATIONS SUCH AS HERE INVOLVED. THUS, IF EMPLOYEES WHOSE SALARIES WERE DECREASED BECAUSE OF CONSOLIDATION OF AREAS PRIOR TO OCTOBER 2, 1970, ARE TO BE GRANTED WAGE RETENTION BENEFITS, IT WOULD HAVE TO BE PREDICATED ON THE GIVING OF RETROACTIVE EFFECT TO THE REGULATIONS EFFECTIVE OCTOBER 2, 1970. WE DO NOT VIEW THE "MONRONEY AMENDMENT" AS COVERED IN OUR DECISION OF OCTOBER 9, 1970, 50 COMP. GEN. 266, WHICH HELD THAT RETROACTIVE INCREASES THEREUNDER WERE CORRECTIONS REQUIRED BY LAW, AS A SUFFICIENT BASIS FOR GIVING RETROACTIVE EFFECT TO THE REGULATIONS OF OCTOBER 2, 1970, CONTRARY TO THE GENERAL RULE IN THAT RESPECT, 46 COMP. GEN. 214 (1966); B-160843, MARCH 13, 1967.

WE FAIL TO SEE ANY REAL CONNECTION BETWEEN THE GRANTING OF RETROACTIVE INCREASES IN SALARY UNDER THE "MONRONEY AMENDMENT" AND THE GRANTING OR RETROACTIVE RETAINED PAY RIGHTS UPON CONSOLIDATION OF WAGE AREAS. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE, AND BY REASON THEREOF THE SECOND QUESTION DOES NOT REQUIRE CONSIDERATION.