B-114651, MAY 5, 1953, 32 COMP. GEN. 488

B-114651, MAY 5, 1953, 32 COMP. GEN. 488

COMPENSATION - RATES - TEMPORARY PROMOTIONS - DEMOTION TO PERMANENT GRADE EMPLOYEE WHO RECEIVES A TEMPORARY PROMOTION LIMITED TO THE DURATION OF THE ABSENCE OF THE EMPLOYEE PERMANENTLY ASSIGNED TO THE POSITION IS ENTITLED UPON RESTORATION TO HIS PERMANENT GRADE, TO THE RATE HE WOULD HAVE RECEIVED IF HE HAD REMAINED IN HIS PERMANENT GRADE.

COMPTROLLER GENERAL WARREN TO L. H. PERKINS, DEPARTMENT OF LABOR, MAY 5, 1953:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1953, SUBMITTING PAY ROLL VOUCHER IN FAVOR OF JAMES F. O-HARE, FOR $407.69, COVERING THE PERIOD MARCH 29 - APRIL 11, 1953, AND REQUESTING DECISION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, YOU MAY CERTIFY SAID VOUCHER FOR PAYMENT.

THE NOTIFICATION OF PERSONNEL ACTION ISSUED ON DECEMBER 12, 1952, PROMOTING THE EMPLOYEE INVOLVED, EFFECTIVE DECEMBER 14, 1952, FROM GRADE GS-14 AT $9,600 PER ANNUM (MINIMUM) TO GRADE GS-15 AT $10,800 PER ANNUM (MINIMUM) SHOWS THE DURATION OF EMPLOYMENT AS "UNLIMITED.' THE POSITION IN GRADE GS-15 TO WHICH MR. O-HARE WAS PROMOTED HAD BEEN HELD BY ONE WHO HAD BEEN APPOINTED TO A POSITION WITH THE WAGE STABILIZATION BOARD, WITH REEMPLOYMENT RIGHTS IN THE DEPARTMENT OF LABOR. THE PERSONNEL ACTION EFFECTIVE MARCH 29, 1953, CHANGING SAID EMPLOYEE TO LOWER GRADE, GS-14 AT $10,600 PER ANNUM (MAXIMUM/--- THE OFFICER TO WHOSE POSITION MR. O-HARE HAD BEEN PROMOTED, HAVING RETURNED UNDER HIS REEMPLOYMENT RIGHTS--- ALSO SHOWS THE DURATION OF EMPLOYMENT AS "UNLIMITED" WITH THE FURTHER STATEMENT THEREON THAT SAID CHANGE IS FROM A TEMPORARY PROMOTION "PENDING RETURN TO DUTY" OF AN EMPLOYEE WHO "WAS ON A REIMBURSABLE DETAIL TO WAGE STABILIZATION BOARD FROM 1/19/53 TO 3/16/53.' FURTHER, IT IS STATED THAT THE OFFICE OF PERSONNEL ADMINISTRATION HAS ADVISED THAT IT IS NOT CUSTOMARY TO PLACE LIMITATIONS UPON PROMOTIONS OR OTHER PERSONNEL ACTIONS BY WHICH PERSONS SUCCEED TO POSITIONS OF EMPLOYEES TRANSFERRED TO DEFENSE AGENCIES WITH REEMPLOYMENT RIGHTS BUT THAT ORDINARILY THE RETENTION PREFERENCE REGULATIONS ARE APPLIED AT THE TIME THE EMPLOYEE EXERCISES HIS REEMPLOYMENT RIGHTS IN ORDER TO DETERMINE WHICH POSITION SHALL BE MADE AVAILABLE TO HIM. HOWEVER, IT IS FURTHER STATED THAT THE LIMITATION HERE INVOLVED WAS APPLIED IN THIS PARTICULAR CASE IN ORDER TO PLACE SAID PROMOTION IN A CATEGORY DIFFERENT FROM THE OTHERS SINCE THE DEPARTMENT PROPOSED TO DEMOTE THE EMPLOYEE ADMINISTRATIVELY RATHER THAN TO APPLY THE RETENTION PREFERENCE REGULATIONS UPON THE RETURN OF THE EMPLOYEE WITH THE REEMPLOYMENT RIGHTS--- FURTHER STATING THAT SAID PROCEDURE WAS CONSIDERED DESIRABLE AND APPROPRIATE ONLY BECAUSE AT THE TIME THIS ACTION WAS APPROVED THE LEGAL LIFE OF THE WAGE STABILIZATION BOARD WAS LIMITED BY LAW TO APRIL 30, 1953, LESS THAN FIVE MONTHS LATER. A COPY OF THE MEMORANDUM DATED DECEMBER 12, 1952, THE DATE THE PROMOTION WAS PROCESSED, SIGNED BY THE EMPLOYEE RECEIVING SAID PROMOTION, SHOWS THAT SAME WAS LIMITED TO THE DURATION OF THE ABSENCE OF THE EMPLOYEE WHO TRANSFERRED TO SAID BOARD WITH REEMPLOYMENT RIGHTS.

YOU STATE THAT YOUR DOUBT IN THE MATTER HERE ARISES FROM DECISIONS OF THIS OFFICE HOLDING, IN EFFECT, THAT EMPLOYEES WHO RECEIVE PROMOTIONS FOR A DEFINITE OR APPROXIMATE PERIOD OF SHORT DURATION--- KNOWN IN ADVANCE TO BE TEMPORARY--- SHALL, UPON RETURN TO THEIR PERMANENT GRADES, BE PAID AT THE RATE TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY REMAINED IN THE PERMANENT GRADES, CITING 30 COMP. GEN. 82, AND UNPUBLISHED DECISION, B- 102059, DATED MAY 21, 1951.

UPON THE BASIS OF THE REPORTED FACTS AND CIRCUMSTANCES THE PROMOTION OF MR. O-HARE FROM GS-14 (SALARY RATE $9,600) TO GS-15 (SALARY RATE $10,800) PROPERLY IS FOR REGARDING AS A TEMPORARY PROMOTION WITHIN THE PRINCIPLE ENUNCIATED IN THE DECISIONS CITED BY YOU, AND IN LINE WITH SAID DECISIONS HIS SALARY RATE WHEN RESTORED TO HIS OLD GRADE GS-14 MAY NOT BE FIXED AT THE MAXIMUM STEP OF THAT GRADE AS WAS ADMINISTRATIVELY PROCESSED BUT RATHER, SHOULD HAVE BEEN FIXED AT THE STEP THEREIN HE WOULD HAVE ATTAINED HAD HE NOT BEEN TEMPORARILY PROMOTED.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT AT THE RATE OF $10,000 PER ANNUM AS PROPOSED.

IN ARRIVING AT THE ABOVE CONCLUSION CONSIDERATION WAS GIVEN THE STATEMENT FURNISHED BY MR. O-HARE WHICH WAS TRANSMITTED HERE BY YOUR LETTER OF APRIL 23, 1953.