B-150847, MAR 18, 1975
Highlights
THE ACTING CHAIRMAN OF THE NATIONAL LABOR RELATIONS BOARD (NLRB) IS ENTITLED ONLY TO THE SALARY OF THE PERMANENT POSITION TO WHICH HE WAS APPOINTED. AN ADVANCE DECISION WAS REQUESTED AS TO WHETHER JOHN H. ACTING CHAIRMAN OF THE NATIONAL LABOR RELATIONS (NLRB) IS ENTITLED TO THE SALARY OF THE CHAIRMAN OF THAT BOARD DURING HIS SERVICE IN THAT CAPACITY. FANNING AS ACTING CHAIRMAN OF THE NLRB TO SERVE UNTIL A CHAIRMAN IS APPOINTED TO REPLACE FORMER CHAIRMAN EDWARD B. IT IS A WELL ESTABLISHED PRINCIPLE THAT AN OFFICER OR EMPLOYEE APPOINTED TO ONE CLASSIFICATION WHO PERFORMS DUTIES OF A HIGHER CLASSIFICATION IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED. WE HAVE HELD THAT.
B-150847, MAR 18, 1975
THE ACTING CHAIRMAN OF THE NATIONAL LABOR RELATIONS BOARD (NLRB) IS ENTITLED ONLY TO THE SALARY OF THE PERMANENT POSITION TO WHICH HE WAS APPOINTED, THAT OF A MEMBER OF THE NLRB, AND NOT TO THAT OF THE CHAIRMAN THEREOF, A POSITION HE HELD ONLY IN AN ACTING CAPACITY, IN THE ABSENCE OF A STATUTE ENTITLING HIM TO THE SALARY OF THE CHAIRMAN OF THE NLRB.
JOHN H. FANNING - SALARY OF ACTING CHAIRMAN, NATIONAL LABOR RELATIONS BOARD:
BY LETTER OF DECEMBER 23, 1974, AN ADVANCE DECISION WAS REQUESTED AS TO WHETHER JOHN H. FANNING, ACTING CHAIRMAN OF THE NATIONAL LABOR RELATIONS (NLRB) IS ENTITLED TO THE SALARY OF THE CHAIRMAN OF THAT BOARD DURING HIS SERVICE IN THAT CAPACITY.
ON DECEMBER 19, 1974, PRESIDENT FORD APPOINTED MEMBER JOHN H. FANNING AS ACTING CHAIRMAN OF THE NLRB TO SERVE UNTIL A CHAIRMAN IS APPOINTED TO REPLACE FORMER CHAIRMAN EDWARD B. MILLER, WHOSE TERM EXPIRED ON DECEMBER 16, 1974. SECTION 153 OF TITLE 29, U.S.C. (1970), PROVIDES THAT THE PRESIDENT SHALL DESIGNATE ONE MEMBER OF THE FIVE-MEMBER BOARD TO SERVE AS CHAIRMAN OF THE BOARD. SECTION 5314(25) OF TITLE 5, U.S.C. PROVIDES THAT THE CHAIRMAN OF THE BOARD SHALL BE PAID AT LEVEL III OF THE EXECUTIVE SCHEDULE ($40,000 PER ANNUM) AND 5 U.S.C. 5315(63) PROVIDES THAT MEMBERS OF THE BOARD SHALL BE PAID AT LEVEL IV OF THE EXECUTIVE SCHEDULE ($38,000 PER ANNUM).
IT IS A WELL ESTABLISHED PRINCIPLE THAT AN OFFICER OR EMPLOYEE APPOINTED TO ONE CLASSIFICATION WHO PERFORMS DUTIES OF A HIGHER CLASSIFICATION IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS APPOINTED. COLEMAN V. UNITED STATES, 100 CT. CL. 41 (1943). THEREFORE, WE HAVE HELD THAT, IN THE ABSENCE OF A STATUTE TO THE CONTRARY, A PERSON SERVING UNDER AN ACTING APPOINTMENT IS ENTITLED ONLY TO THE ALLOWANCES ATTACHED TO HIS PERMANENT OFFICE, WHICH IS NOT CHANGED BY REASON OF AN ACTING APPOINTMENT. 14 COMP. GEN. 726 (1935); B-150847, AUGUST 26, 1971. THIS CASE WE HAVE BEEN UNABLE TO FIND ANY STATUTE STATING THAT THE ACTING CHAIRMAN OF THE NLRB IS ENTITLED TO THE SALARY OF ANY POSITION OTHER THAN THAT TO WHICH HE IS PERMANENTLY APPOINTED.
ACCORDINGLY, OUR VIEW IS THAT MR. FANNING IS ENTITLED TO THE SALARY OF THE PERMANENT POSITION TO WHICH HE WAS APPOINTED, THAT OF A MEMBER OF THE NLRB, AND NOT THAT OF THE CHAIRMAN THEREOF.