B-148337, MAR. 29, 1963

B-148337, MAR. 29, 1963

TO THE SECRETARY OF THE NAVY:

THIS REFERS TO LETTER OF JANUARY 8, 1963, FROM THE UNDER SECRETARY OF THE NAVY, CONCERNING THE SALARY RETENTION BENEFITS OF A NUMBER OF EMPLOYEES OF THE DEPARTMENT OF THE NAVY WHOSE UNGRADED (WAGE BOARD) POSITIONS WERE BROUGHT UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED.

A SPECIFIC CASE IS CITED WHICH APPARENTLY IS ILLUSTRATIVE OF OTHERS AND INVOLVES MR. THOMAS R. GIBSON AN EMPLOYEE OF THE U.S. NAVAL STATION, KEY WEST, FLORIDA. IT APPEARS THAT MR. GIBSON AND HIS UNGRADED POSITION--- SENIOR SHOP PERSONNEL SUPERVISOR, $6,572.80 PER ANNUM--- WERE BROUGHT UNDER THE CLASSIFICATION ACT--- PERSONNEL ASSISTANT, GRADE GS-8--- EFFECTIVE DECEMBER 1, 1956. AT THAT TIME MR. GIBSON WAS PERMITTED TO RETAIN HIS UNGRADED RATE OF COMPENSATION ($6,572.80) BECAUSE IT WAS HIGHER THAN THE MAXIMUM SCHEDULED RATE IN THE GRADE GS-8 POSITION UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED.

IN OUR DECISION IN 35 COMP. GEN. 251, WE HELD THAT IT WAS BEYOND THE SCOPE OF THE AUTHORITY OF THE CIVIL SERVICE COMMISSION TO PROVIDE BY REGULATION FOR THE SAVING OF A SALARY ABOVE THE MAXIMUM SCHEDULED RATE OF THE GRADE TO WHICH A POSITION HAD BEEN REDUCED UPON RECLASSIFICATION FROM A HIGHER GRADE. SIMILARLY, IN OUR DECISION OF AUGUST 2, 1957, B-104080, WE HELD THAT THE COMMISSION'S REGULATION COULD NOT SAVE COMPENSATION GREATER THAN THE MAXIMUM SCHEDULED RATE OF THE CLASSIFICATION ACT GRADE IN WHICH AN EMPLOYEE IS PLACED FOLLOWING THE CONVERSION OF HIS UNGRADED POSITION TO A POSITION UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED. THUS, AFTER THE DATE OF THAT DECISION THERE WAS NO AUTHORITY TO CONTINUE THE PAYMENT OF SAVED COMPENSATION UNDER THE CIRCUMSTANCES HERE INVOLVED SOLELY ON THE BASIS OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION. OF COURSE, THE DECISION OF AUGUST 2, 1957, WAS NOT APPLICABLE TO POSITIONS WHICH WERE CONVERTED UNDER THE PROVISIONS OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, SINCE SECTION 114 OF SUCH ACT SPECIFICALLY AUTHORIZED SALARY SAVINGS IN SUCH CASES.

WE INFORMALLY HAVE ASCERTAINED FROM REPRESENTATIVES OF THE OFFICE OF INDUSTRIAL RELATIONS OF YOUR DEPARTMENT THAT THE POSITION HELD BY MR. GIBSON WAS ONE OF A GROUP OF POSITIONS AUTHORIZED TO BE CONVERTED TO A CLASSIFICATION ACT POSITION BY THE PROVISIONS OF PUBLIC LAW 763 OF SEPTEMBER 1, 1954, 68 STAT. 1105, BUT FOR SOME UNKNOWN REASON WERE NOT SO CONVERTED UNTIL DECEMBER 1, 1956. THE CONVERSIONS OCCURRED SUBSEQUENT TO THE DATE SPECIFIED IN SUCH STATUTE AS THE LATEST DAY FOR SUCH CONVERSIONS, THAT IS, NOT LATER THAN THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN MORE THAN TWELVE MONTHS AFTER SEPTEMBER 1, 1954. WE ALSO ASCERTAINED THAT THE OTHER EMPLOYEES REFERRED TO IN THE LETTER OF JANUARY 8, 1963, LIKEWISE WERE CONVERTED TO POSITIONS UNDER THE CLASSIFICATION ACT IN ACCORDANCE WITH PUBLIC LAW 763.

WHILE PUBLIC LAW 763 PLACED A TIME LIMITATION WITHIN WHICH THE CONVERSION SHOULD HAVE TAKEN PLACE WE HELD IN 37 COMP. GEN. 364 THAT EMPLOYEES WHO OCCUPY WAGE BOARD POSITIONS WHICH SHOULD HAVE BEEN CONVERTED TO CLASSIFICATION ACT POSITIONS PRIOR TO SEPTEMBER 1955, THE EXPIRATION DATE FOR CONVERSION ACTIONS PURSUANT TO SECTION 110 (A) OF THAT ACT (5 U.S.C. 1082 (7) (, ARE ENTITLED TO THE SAVED SALARY BENEFITS OF SECTION 114 OF THE ACT (5 U.S.C. 1114 NOTE) PROVIDED THAT THE SAVED SALARIES DO NOT EXCEED THE SALARY RATES IN EFFECT FOR SUCH EMPLOYEES AS OF THE DATE OF THE FIRST DAY OF THE PAY PERIOD WHICH BEGAN MORE THAN TWELVE MONTHS AFTER SEPTEMBER 1, 1954.

IN VIEW OF THAT DECISION AND SINCE IT DEFINITELY APPEARS THAT THE EMPLOYEES AND POSITIONS HERE IN QUESTION SHOULD HAVE BEEN CONVERTED TO CLASSIFICATION ACT POSITIONS PRIOR TO EXPIRATION OF THE DATE SPECIFIED IN SECTION 110 (A) OF PUBLIC LAW 763, WE HELD THAT IT WAS PROPER TO PERMIT SUCH EMPLOYEES TO RETAIN THE HIGHER SALARIES OF THEIR WAGE BOARD POSITIONS --- SUBJECT TO THE SALARY RATE LIMITATION IN 37 COMP. GEN. 364--- IN ACCORDANCE WITH THE SAVINGS PROVISION OF SECTION 114 OF PUBLIC LAW 763.