B-107070, JANUARY 22, 1952, 31 COMP. GEN. 320

B-107070, JANUARY 22, 1952, 31 COMP. GEN. 320

COMPENSATION - RETROACTIVE SALARY INCREASES - EMPLOYEES ASSIGNED FROM CLASSIFIED TO WAGE BOARD POSITIONS EMPLOYEES WHO WERE ASSIGNED FROM CLASSIFIED POSITIONS TO WAGE BOARD POSITIONS DURING THE PERIOD COVERED BY THE RETROACTIVE COMPENSATION PROVISION OF THE INCREASED COMPENSATION AMENDMENT TO THE CLASSIFICATION ACT OF 1949, ARE NOT ENTITLED, UNDER ADMINISTRATIVE REGULATIONS DESIGNED TO SAVE THEIR COMPENSATION UPON SUCH ASSIGNMENT, TO AN ADJUSTMENT OF COMPENSATION IN THE WAGE BOARD POSITIONS WHERE THE EFFECT WOULD BE TO INCREASE RETROACTIVELY THE RATES OF SUCH POSITIONS. AN EMPLOYEE WHO WAS REASSIGNED FROM A WAGE BOARD POSITION TO A CLASSIFIED POSITION DURING THE PERIOD COVERED BY THE RETROACTIVE COMPENSATION PROVISION OF THE INCREASED COMPENSATION AMENDMENT TO THE CLASSIFICATION ACT OF 1949 AND PLACED IN THE SECOND STEP IN HIS GRADE IN ORDER TO BE COMPENSATED AT NOT LESS THAN HIS PREVIOUS SALARY RATE, PURSUANT TO ADMINISTRATIVE REGULATIONS, SHOULD HAVE HIS SALARY ADJUSTED TO THE NEW RATE FOR THE FIRST STEP OF HIS GRADE RETROACTIVE TO THE DATE OF REASSIGNMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE AIR FORCE, JANUARY 22, 1952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1951, REQUESTING A DECISION AS TO WHETHER THE RETROACTIVE INCREASES GRANTED BY SECTION 6, PUBLIC LAW 201, APPROVED OCTOBER 24, 1951, 65 STAT. 615, TO EMPLOYEES OCCUPYING POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, MAY BE SAVED TO THEM BY ADJUSTMENT PURSUANT TO ADMINISTRATIVE REGULATIONS, WHEN SUCH EMPLOYEES WERE ASSIGNED, DURING THE PERIOD COVERED BY THE RETROACTIVE PROVISION, TO POSITIONS THE COMPENSATION OF WHICH IS FIXED BY WAGE BOARDS.

YOUR LETTER, IN PART, IS AS FOLLOWS:

AS YOU ARE AWARE, WAGE BOARD SALARY RATES FOR THIS DEPARTMENT ARE BASED UPON LOCALITY WAGE SURVEYS UNDER THE DIRECTION AND ADMINISTRATIVE AUTHORITY OF THIS DEPARTMENT AND OF THE ARMY-AIR FORCE WAGE BOARD. OUR ADMINISTRATIVE REGULATIONS IN EFFECT NOW, AND DURING THE PERIOD IN QUESTION, PROVIDE THAT WHEN AN EMPLOYEE IS CHANGED FROM A CLASSIFICATION ACT POSITION TO A WAGE BOARD POSITION HIS SALARY WILL BE RETAINED IF NOT IN EXCESS OF THE MAXIMUM OF THE RATE RANGE FOR THE WAGE BOARD GRADE. HIS EXISTING SALARY RATE FALLS BETWEEN TWO WAGE BOARD POSITION STEP RATES, HIS NEW SALARY WILL BE ESTABLISHED AT THE HIGHER OF THE TWO STEPS. DISCRETIONARY AUTHORITY TO SAVE OR REDUCE SALARY HAS THEREFORE BEEN EXERCISED BY THE DEPARTMENT AND IS NOT VESTED IN APPOINTING OFFICERS. FOR EXAMPLE, AN EMPLOYEE IN THE MINIMUM STEP OF GRADE GS-5, $3100 PER ANNUM ($1.49 PER HOUR), WAS CHANGED ON AUGUST 5, 1951 TO A WAGE BOARD JOB WITH AN HOURLY RATE RANGE OF $1.46, $1.52, $1.58 AND $1.64. UNDER THE CITED REGULATION HIS SALARY WAS SET IN THE WAGE BOARD POSITION AT $1.52. OCTOBER 24, 1951 THE EMPLOYEE BECAME ELIGIBLE FOR RETROACTIVE PAYMENT FOR SERVICES RENDERED IN THE CLASSIFICATION ACT POSITION FROM JULY 8 TO AUGUST 5, 1951.

1. IN THE ILLUSTRATION MADE IN PARAGRAPH 2, ABOVE, MAY THE EMPLOYEE'S SALARY BE ESTABLISHED AT THE FOURTH STEP IN THE WAGE BOARD SCHEDULE ($1.64 PER HOUR WHICH CORRESPONDS TO THE CURRENT CLASSIFICATION ACT SALARY SCHEDULES FOR A GS-5) RETROACTIVELY TO AUGUST 5, 1951?

2. WOULD YOUR HOLDING ON THE ABOVE QUESTION APPLY EQUALLY TO CHANGES FROM WAGE BOARD TO CLASSIFICATION ACT POSITIONS? FOR EXAMPLE, A WAGE BOARD EMPLOYEE EARNING $1.52 PER HOUR WAS REASSIGNED TO A GRADE GS-5 POSITION ON AUGUST 19, 1951. IN ORDER TO COMPENSATE THE EMPLOYEE AT NOT LESS THAN HIS PREVIOUS RATE HE WAS PLACED AT THE SECOND STEP OF GRADE GS-5, $3,225 PER ANNUM ($1.55 PER HOUR). IT IS NOW REQUIRED THAT THE EMPLOYEE'S SALARY BE CHANGED RETROACTIVELY TO THE MINIMUM STEP OF GRADE GS-5, $3,410 PER ANNUM ($1.64 PER HOUR/?

IN OFFICE DECISION OF NOVEMBER 6, 1951, B-106332, 31 COMP. GEN. 163, TO THE SECRETARY OF COMMERCE, REFERRED TO IN YOUR LETTER, IT WAS HELD THE RETROACTIVE PROVISION OF PUBLIC LAW 201 APPLIED, SO FAR AS HERE CONCERNED, ONLY TO EMPLOYEES WHOSE POSITIONS WERE SUBJECT TO THE CLASSIFICATION ACT OF 1949, 63 STAT. 954. WHILE THERE IS RECOGNIZED A DISTINCTION BETWEEN AN ADMINISTRATIVE REGULATION DESIGNED TO SAVE AN EMPLOYEE'S COMPENSATION WHEN HE IS ASSIGNED FROM A CLASSIFICATION ACT TO A WAGE BOARD POSITION, OR VICE VERSA, AND ONE WHICH DIRECTLY PURPORTS TO INCREASE SALARIES RETROACTIVELY, NEVERTHELESS, THE EFFECT OF SUCH A REGULATION OPERATING UPON THE RETROACTIVELY INCREASED RATES OF CLASSIFICATION ACT EMPLOYEES, WOULD BE TO INCREASE RETROACTIVELY CONTRARY TO THE INTENT OF THE STATUTE THE RATES TO WHICH SUCH EMPLOYEES WOULD BE ENTITLED WHEN ASSIGNED TO WAGE BOARD POSITIONS. SEE DECISION OF NOVEMBER 6, 1951, B-106332, 31 COMP. GEN. 163. ACCORDINGLY, THE QUESTION IN YOUR LETTER RELATIVE TO CASE 1 MUST BE ANSWERED IN THE NEGATIVE.

IN CASE 2 THE EMPLOYEE WAS RESTORED TO A CLASSIFICATION ACT POSITION IN THE SECOND STEP OF GRADE GS-5 AT $3,225 PER ANNUM ON AUGUST 19, 1951. UPON THE DATE OF ENACTMENT OF PUBLIC LAW 201, SUPRA, THE EMPLOYEE'S SALARY SHOULD HAVE BEEN ADJUSTED TO THE NEW RATE FOR THE FIRST STEP OF GRADE GS- 5, THAT IS, $3,410 PER ANNUM, EFFECTIVE ^AUGUST 19, 1951. SEE GENERALLY, ANSWERS TO QUESTIONS 4 AND 5, OFFICE DECISION OF NOVEMBER 6, 1951, B- 106337, 31 COMP. GEN. 166, TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION.