B-108638, APRIL 23, 1952, 31 COMP. GEN. 537

B-108638: Apr 23, 1952

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EMPLOYEES WHO OCCUPIED POSITIONS WHICH WERE REALLOCATED DOWNWARD SUBSEQUENT TO THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949. ARE ENTITLED TO THE SAVED PAY BENEFITS OF THE REGULATION ONLY IF THEY CONTINUE TO OCCUPY THE SAME POSITIONS. 1952: REFERENCE IS MADE TO LETTER OF MARCH 18. WHO ARE DOWNGRADED IN THREE CASES ILLUSTRATED IN YOUR SUBMISSION. THE THREE CASES WHICH ARE SAID TO HAVE ARISEN SINCE AUGUST 18. ARE STATED AS FOLLOWS: 1. THE POSITION WAS ALLOCATED TO CAF-6 PRIOR TO OCTOBER 1949. IT WAS CONVERTED TO GS-6 IN ACCORDANCE WITH PROVISIONS OF THE CLASSIFICATION ACT OF 1949. THE CIVIL SERVICE COMMISSION CONDUCTED A POST-AUDIT IN NOVEMBER OF 1951 AND DETERMINED THAT THE PROPER GRADE OF THE POSITION AS IT WAS OPERATING WAS GS-4.

B-108638, APRIL 23, 1952, 31 COMP. GEN. 537

CLASSIFICATION - POSITION REALLOCATIONS - SALARY RATES - SAVED COMPENSATION UNDER THE SAVED COMPENSATION PROVISION OF THE FEDERAL EMPLOYEES PAY REGULATIONS SAVING TO EMPLOYEES SALARIES ATTACHED TO POSITIONS REALLOCATED DOWNWARD, EMPLOYEES WHO OCCUPIED POSITIONS WHICH WERE REALLOCATED DOWNWARD SUBSEQUENT TO THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949, ARE ENTITLED TO THE SAVED PAY BENEFITS OF THE REGULATION ONLY IF THEY CONTINUE TO OCCUPY THE SAME POSITIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, APRIL 23, 1952:

REFERENCE IS MADE TO LETTER OF MARCH 18, 1952, FROM THE ASSISTANT SECRETARY, REQUESTING DECISION WHETHER THE SAVING CLAUSE AS PROMULGATED BY THE CIVIL SERVICE COMMISSION IN SECTION 25.103E OF THE FEDERAL EMPLOYEE'S PAY REGULATIONS EFFECTIVE AUGUST 18, 1951, WOULD ENABLE EMPLOYEES, WHO ARE DOWNGRADED IN THREE CASES ILLUSTRATED IN YOUR SUBMISSION, TO RETAIN THE COMPENSATION RECEIVED AS OF THE EFFECTIVE DATE OF THE ACTION TAKEN TO REDUCE THE GRADE OF THE POSITION. THE THREE CASES WHICH ARE SAID TO HAVE ARISEN SINCE AUGUST 18, 1951, ARE STATED AS FOLLOWS:

1. THE POSITION WAS ALLOCATED TO CAF-6 PRIOR TO OCTOBER 1949. IT WAS CONVERTED TO GS-6 IN ACCORDANCE WITH PROVISIONS OF THE CLASSIFICATION ACT OF 1949. THE CIVIL SERVICE COMMISSION CONDUCTED A POST-AUDIT IN NOVEMBER OF 1951 AND DETERMINED THAT THE PROPER GRADE OF THE POSITION AS IT WAS OPERATING WAS GS-4. DURING THE PERIOD OCTOBER 1949, TO NOVEMBER 1951, THE ACTUAL WORK OF THE INCUMBENT OF THE POSITION HAD NOT CHANGED.

2. PRIOR TO OCTOBER 1949, THE POSITION WAS ALLOCATED TO ENGINEER, P-3, AND WAS CONVERTED TO GS-9 IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT IN OCTOBER 1949. IN JULY 1951, THE DEPARTMENT ON POST- AUDIT DETERMINED THAT THE POSITION WAS PROPERLY THAT OF FOREMAN OF CONSTRUCTION AND MAINTENANCE, CPC-9. THE ACTUAL DUTIES OF THE INCUMBENT DID NOT CHANGE DURING THE PERIOD PRIOR TO OCTOBER 1949, TO THE TIME OF THE POST-AUDIT IN JULY 1951.

3. THE POSITION WAS ALLOCATED TO CAF-11 PRIOR TO 1941, AT A TIME WHEN THE PARTICULAR PROGRAM WAS GOING AT FULL SPEED. BY 1948, THE PROGRAM HAD BEEN REDUCED IN VOLUME AND INTENSITY. THE PRESENT INCUMBENT WAS PLACED IN THE GRADE 11 POSITION IN 1947. IT WAS CONVERTED TO GS-11 IN ACCORDANCE WITH PROVISIONS OF THE CLASSIFICATION ACT OF 1949. THE INCUMBENT HAS PERFORMED PRECISELY THE SAME DUTIES SINCE 1947. THE BASIC FUNCTIONS REMAIN THE SAME, BUT THE INTENSITY AND RELATIVE IMPORTANCE OF THE WORK HAS DECREASED TO WHERE THE POSITION IS NOW PROPERLY ALLOCABLE TO GS-9.

SECTION 25.103E OF THE FEDERAL EMPLOYEE'S PAY REGULATIONS Z 1-317, FEDERAL PERSONNEL MANUAL PROVIDES AS FOLLOWS:

EMPLOYEES WHO ON THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949 OCCUPIED POSITIONS (1) WHICH IMMEDIATELY PRIOR TO SUCH DATE WERE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, (2) WHICH WERE INITIALLY ALLOCATED TO ANY OF THE GRADES OF THE CLASSIFICATION ACT OF 1949 IN THE MANNER PRESCRIBED THEREIN, AND (3) WHICH THEREAFTER ARE REDUCED BELOW SUCH GRADE, MAY CONTINUE TO RECEIVE THE SAME RATES OF BASIC COMPENSATION WHICH THEY RECEIVED ON THE EFFECTIVE DATE OF THE ACTION TAKEN TO REDUCE THE GRADE OF SUCH POSITION, SO LONG AS THEY REMAIN IN THE SAME POSITIONS WHICH THEY OCCUPIED ON THE EFFECTIVE DATE OF TITLE VI.

THERE APPEARS NO DOUBT BUT THAT EMPLOYEES OF THE CLASSES COVERED BY EXAMPLES 1 AND 2 ARE ENTITLED TO THE BENEFITS OF THE ABOVE CIVIL SERVICE REGULATION SO LONG AS THEY CONTINUE TO OCCUPY THE SAME POSITION.

THE SITUATION OF THE EMPLOYEE COVERED BY THE THIRD EXAMPLE IS NOT SO CLEAR. WHILE IT IS STATED THAT THE EMPLOYEE HAS PERFORMED "PRECISELY THE SAME DUTIES SINCE 1947," IT ALSO IS STATED THAT THE INTENSITY AND RELATIVE IMPORTANCE OF THE WORK HAS DECREASED TO A POINT WHERE THE POSITION NOW IS PROPERLY ALLOCABLE TO GS-9. THE SECRETARY'S LETTER FAILS TO STATE WHEN THIS DECREASE IN INTENSITY AND RELATIVE IMPORTANCE TOOK PLACE, AND WHETHER THE CHANGE WAS SUCH AS TO CREATE A NEW OR DIFFERENT POSITION--- A MATTER FOR DETERMINATION SOLELY BY THE DEPARTMENT OR BY THE CIVIL SERVICE COMMISSION. UNDER THE CIRCUMSTANCES THIS OFFICE IS UNABLE TO RULE UPON THE QUESTION BUT IT MAY BE SAID THAT ONLY IF THE EMPLOYEE CONTINUES TO OCCUPY THE SAME POSITION WHICH HE OCCUPIED UPON THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 959, WOULD HE BE ENTITLED TO THE BENEFITS OF THE CITED REGULATION.