B-116946, FEBRUARY 15, 1954, 33 COMP. GEN. 354

B-116946: Feb 15, 1954

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WAS THE SAME OR SUBSTANTIALLY THE SAME ONE OCCUPIED BY THE EMPLOYEE AT THE TIME THE CLASSIFICATION ACT OF 1949 BECAME EFFECTIVE. TO CONTINUE TO RECEIVE THE SALARY RATE HE WAS RECEIVING ON THE DATE THE POSITION WAS REDUCED. WAS ADMINISTRATIVELY REALLOCATED UPWARD ONE GRADE MAY. HAVE SAVED THE SALARY RATE HE WOULD HAVE RECEIVED ON THE DATE OF THE ACTION BY THE COMMISSION HAD NO ADMINISTRATIVE REALLOCATION UPWARD INTERVENED. IS APPLICABLE ONLY SO LONG AS SUCH EMPLOYEES REMAIN IN THE SAME POSITIONS WHICH THEY OCCUPIED ON THE EFFECTIVE DATE OF TITLE VI OF THE ACT. THEREFORE AN EMPLOYEE WHO IS REASSIGNED TO POSITION IN THE SAME GRADE IN ANOTHER LINE OF WORK. IS REASSIGNED BACK TO ORIGINAL POSITION.

B-116946, FEBRUARY 15, 1954, 33 COMP. GEN. 354

COMPENSATION - POSITION REALLOCATION - INITIAL SALARY RATES - SAVED COMPENSATION AN EMPLOYEE OCCUPYING A POSITION INITIALLY ALLOCATED BY THE CIVIL SERVICE COMMISSION AND SUBSEQUENTLY ADMINISTRATIVELY REALLOCATED TO A HIGHER GRADE BUT UPON REVIEW BY THE COMMISSION CERTIFIED BACK TO THE LOWER GRADE--- NO REVISION OF THE COMMISSION'S STANDARDS AND PROCEDURES BEING INVOLVED--- MAY NOT, UNDER ADMINISTRATIVE RATE FIXING PROVISIONS OF SECTION 25.103 (B) (2) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, BE PERMITTED TO RETAIN A SALARY STEP IN THE LOWER GRADE BASED UPON THE "HIGHEST PREVIOUS RATE" RECEIVED IN THE HIGHER GRADE. AN EMPLOYEE OCCUPYING A POSITION INITIALLY ALLOCATED BY THE CIVIL SERVICE COMMISSION AND SUBSEQUENTLY ADMINISTRATIVELY REALLOCATED TO A HIGHER GRADE BUT UPON REVIEW BY THE COMMISSION REALLOCATED TO A GRADE ONE LOWER THAN INITIALLY ALLOCATED, MAY, UNDER THE ADMINISTRATIVE RATE FIXING AUTHORITY OF SECTION 25.103 (B) (1) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, RECEIVE THE BENEFIT OF THE "HIGHEST PREVIOUS RATE" RECEIVED WHILE OCCUPYING THE POSITION AS INITIALLY ALLOCATED BY THE COMMISSION. AN EMPLOYEE OCCUPYING A POSITION INITIALLY ALLOCATED BY THE CIVIL SERVICE COMMISSION WHICH, AT THE TIME OF REALLOCATION DOWNWARD BY THE COMMISSION, WAS THE SAME OR SUBSTANTIALLY THE SAME ONE OCCUPIED BY THE EMPLOYEE AT THE TIME THE CLASSIFICATION ACT OF 1949 BECAME EFFECTIVE--- A FACT TO BE ASCERTAINED RATHER THAN ASSUMED--- MAY BE PERMITTED, UNDER THE SAVED SALARY PROVISIONS OF SECTION 25.103 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, TO CONTINUE TO RECEIVE THE SALARY RATE HE WAS RECEIVING ON THE DATE THE POSITION WAS REDUCED. UNDER THE SAVED SALARY PROVISIONS OF SECTION 25.103 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS AN EMPLOYEE WHOSE POSITION, AFTER THE EFFECTIVE DATE OF THE CLASSIFICATION ACT OF 1949, WAS ADMINISTRATIVELY REALLOCATED UPWARD ONE GRADE MAY, UPON A SUBSEQUENT TWO-GRADE DOWNWARD REALLOCATION OF THE POSITION BY THE CIVIL SERVICE COMMISSION, HAVE SAVED THE SALARY RATE HE WOULD HAVE RECEIVED ON THE DATE OF THE ACTION BY THE COMMISSION HAD NO ADMINISTRATIVE REALLOCATION UPWARD INTERVENED. SECTION 25.103 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS--- PROMULGATED PURSUANT TO THE CLASSIFICATION ACT OF 1949--- SAVING TO EMPLOYEES SALARIES ATTACHED TO POSITIONS REALLOCATED DOWNWARD, IS APPLICABLE ONLY SO LONG AS SUCH EMPLOYEES REMAIN IN THE SAME POSITIONS WHICH THEY OCCUPIED ON THE EFFECTIVE DATE OF TITLE VI OF THE ACT, AND THEREFORE AN EMPLOYEE WHO IS REASSIGNED TO POSITION IN THE SAME GRADE IN ANOTHER LINE OF WORK, AFTER THE EFFECTIVE DATE OF THE ACT, AND WHO, TWO WEEKS LATER, IS REASSIGNED BACK TO ORIGINAL POSITION, IS NOT ENTITLED UPON A SUBSEQUENT DOWNWARD POSITION REALLOCATION TO SAVED COMPENSATION BENEFITS OF SUCH SECTION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, FEBRUARY 15, 1954:

REFERENCE IS MADE TO THE UNDER SECRETARY FOR ADMINISTRATION'S LETTER OF SEPTEMBER 5, 1953, WITH ENCLOSURES, REQUESTING CONSIDERATION OF, AND DECISION UPON, SEVERAL QUESTIONS RELATIVE TO THE PROPER APPLICATION OF THE PROVISIONS OF SECTIONS 25.103 (B) (1) AND (B) (2), 25.103 (E), AND 25.103 (F) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, TO THE CASES OF CERTAIN EMPLOYEES OF THE DEPARTMENT OF STATE.

THE PERTINENT FACTS ARE SET FORTH IN THE LETTER, AS FOLLOWS:

1. THE DEPARTMENT FORMERLY HAD FOUR POSITIONS IN THE PAYROLL SECTION OF THE DIVISION OF FINANCE ALLOCATED BY THE CIVIL SERVICE COMMISSION AS FOLLOWS, * * *

CHART A. PAYROLL CLERK--- GS-543-4-5203 ALLOCATED NOVEMBER 20, 1947 B. PAYROLL CLERK--- GS-543-4-5201 ALLOCATED NOVEMBER 20, 1947 C. PAYROLL CLERK--- ( CONTROL CLERK/--- GS-543-5-5198 ALLOCATED

AUGUST 25, 1947 D. PAYROLL CLERK--- ( CONTROL CLERK/--- GS-543-5 5197 ALLOCATED

NOVEMBER 20, 1947

2. THESE POSITIONS WERE REALLOCATED BY THE DEPARTMENT ON MARCH 27, 1952, RESPECTIVELY AS FOLLOWS: A. PAYROLL CLERK--- GS-543-5'S 5755 B. PAYROLL CLERK--- GS-543-5'S 5758 C. PAYROLL SUPERVISOR--- GS-543-6'S 5756 D. PAYROLL SUPERVISOR--- GS-543-6'S 5757

3. AS A RESULT OF THE POST-AUDIT OF THE CIVIL SERVICE COMMISSION THESE FOUR POSITIONS WERE CERTIFIED TO THE DEPARTMENT AS PAYROLL CLERK, GS-543-4 ON JUNE 11, 1953.

THE QUESTIONS PROPOUNDED IN CONNECTION WITH THE DEMOTION OF THE INCUMBENTS TO THE GS-4 POSITIONS WILL BE STATED AND ANSWERED IN THE ORDER IN WHICH THEY ARE PRESENTED.

QUESTION (1) MAY THE EMPLOYEES WHO OCCUPY THESE POSITIONS BE PERMITTED TO RETAIN A SALARY STEP IN GS-4 UNDER 25.103 (B) (2) BASED UPON "HIGHEST PREVIOUS RATE" ON THE BASIS THAT THE PUBLISHED AMENDMENT TO THE STANDARDS AND THE INTERNAL CIVIL SERVICE COMMISSION MEMORANDUM CONSTITUTED A FUNDAMENTAL CHANGE IN THE STANDARDS?

EXAMPLE: EMPLOYEE JONES (WHO WAS NOT IN THE DEPARTMENT ON OCTOBER 30, 1949)

7-22-51 PROMOTED PAYROLL CLERK GS-4 NO.--- $2,875 (GS-543-4-5203)

4-27-53 PROMOTED PAYROLL CLERK GS-5 NO.--- $3,410 (GS-543-5'S 5755)

THE GS-5 IS AN AGENCY ALLOCATED POSITION. IF AN AFFIRMATIVE ANSWER TO QUESTION 1 IS IN ORDER, ARE WE CORRECT IN ASSUMING THAT HE COULD RECEIVE UPON DEMOTION TO THE GS-4 POSITION, A SALARY RATE OF $3,415?

IT IS UNDERSTOOD TO BE CONTENDED THAT THE CIVIL SERVICE COMMISSION ACTION REDUCING THE POSITIONS WAS THE RESULT OF ITS REVISED STANDARDS AND PROCEDURES, WHICH WERE PROMULGATED AFTER THE REALLOCATION OF THE POSITIONS BY THE DEPARTMENT OF STATE. HOWEVER, IT APPEARS THAT, IN FACT, SAID STANDARDS AND PROCEDURES WERE REVISED TO PROVIDE FOR A SINGLE GRADE GS-4 LEVEL WHEREAS, PREVIOUSLY, THEY PROVIDED FOR A GRADE GS-3 AND A GS-4 LEVEL, AND THAT, IN ESSENCE, THE REVISION RAISED THE GS 3 LEVEL TO GS-4. BY LETTER DATED DECEMBER 31, 1953, IN REPLY TO A REQUEST BY THIS OFFICE FOR A REPORT IN THE MATTER, THE COMMISSION REPORTED THAT THE "REVISION IN NO WAY AFFECTED THE THEN CURRENT GS-4 AND GS-5 LEVELS WHICH LEVELS WERE USED IN CLASSIFYING THE STATE DEPARTMENT'S ITIONS.' HENCE, SO FAR AS DISCLOSED BY INFORMATION AVAILABLE HERE, THE REVISION OF STANDARDS AND PROCEDURES HAD NO EFFECT WHATEVER UPON THE ALLOCATION OF THE POSITIONS. IN LIGHT OF THE STATED FACTS AND CIRCUMSTANCES, QUESTION (1) IS ANSWERED IN THE NEGATIVE. CF. 30 COMP. GEN. 319; B-110864, NOVEMBER 6, 1952.

QUESTION (2): IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, ARE WE CORRECT IN ASSUMING THAT THE LAST SENTENCE OF SECTION 25.103 (B) (2) OF THE REGULATIONS AND DECISION B-113.131 OF MAY 14, 1953, ARE APPLICABLE, AND THAT THESE EMPLOYEES MAY RECEIVE A SALARY RATE IN GS-4 WHICH THEY WOULD HAVE ATTAINED IN GS-4 HAD THEY BEEN IN THIS GRADE CONTINUOUSLY AND HAD NO AGENCY ALLOCATION OCCURRED? OR MAY THEY RECEIVE THE BENEFIT OF "HIGHEST PREVIOUS RATE" RECEIVED WHILE OCCUPYING A GS-5, CIVIL SERVICE COMMISSION ALLOCATED POSITION?

CHART

EXAMPLE: EMPLOYEE SMITH:

5-29-49 PROMOTED PAYROLL CLERK GS-4 NO.--- $2,724

4-2-50 PROMOTED PAYROLL CLERK GS-5

NO. 5197--------------------------- 3,100 ( CSC

ALLOCATION)

3-30-52 PSI--------------------------------- 3,660

4-27-52 PROMOTED PAYROLL SUPERVISOR. GS-6

S-5797----------------------------- 3,795 ( AGENCY

ALLOCATION)

6-11-53 CIVIL SERVICE COMMISSION CERTIFIED POSITION TO GS-4.

MAY HER SALARY BE DETERMINED IN THE GS-4 TO WHICH SHE IS NOW BEING DEMOTED BY COMPUTING THE PERIODIC STEP INCREASES FROM MAY 29, 1949, WHEN SHE FIRST WAS PROMOTED TO GS-4, WHICH WOULD HAVE ALLOWED HER TO ATTAIN THE RATE OF $3,495 IN MAY 1953 HAD SHE REMAINED IN THE GS-4 POSITION? OR MAY THE DEPARTMENT USE $3,660 AS THE "HIGHEST PREVIOUS RATE" AND ESTABLISH HER SALARY IN THE GS-4 TO WHICH SHE IS BEING DEMOTED AT $3,655?

SECTIONS 25.103 (B) (1) AND (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS PROVIDE, AS FOLLOWS:

(B) (1) SUBJECT TO THE MANDATORY REQUIREMENTS OF PARAGRAPH (D) OF THIS SECTION AND SECTION 25.104, AN EMPLOYEE WHO IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, REPROMOTED, OR DEMOTED MAY BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED THE EMPLOYEE'S HIGHEST PREVIOUS RATE. IF THE EMPLOYEE'S HIGHEST PREVIOUS RATE FALLS BETWEEN TWO SCHEDULED RATES OF THE NEW GRADE, HE MAY BE GIVEN THE HIGHER RATE.

IF THE EMPLOYEES EXISTING RATE OF BASIC COMPENSATION IS LESS THAN THE MINIMUM SCHEDULED RATE OF THE NEW GRADE, HIS COMPENSATION SHALL BE INCREASED TO THE MINIMUM RATE.

(E) 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. ( ITALICS SUPPLIED.)

THE REFERRED-TO DECISION OF MAY 14, 1953, B-113131, 32 COMP. GEN. 520, HELD THAT THE GS-9 SALARIES IN THE EXAMPLES THERE CONSIDERED WERE SAVED BY SECTION 25.103 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, FOR THE REASON THE EMPLOYEES INVOLVED HAD NOT CEASED TO OCCUPY THE SAME POSITIONS HELD BY THEM ON THE DATE OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954. ACCORDINGLY, UPON THE BASIS OF THE FACTS COVERED BY THIS QUESTION THAT DECISION IS NOT APPLICABLE. HOWEVER, UNDER THE FACTS INVOLVED HERE EMPLOYEE SMITH REASONABLY MAY BE SAID TO FALL WITHIN THE LANGUAGE OF SECTION 25.103 (B) (1). HENCE, THE EMPLOYEE MAY RECEIVE THE BENEFIT OF HER "HIGHEST PREVIOUS RATE" RECEIVED WHILE OCCUPYING THE GS-5 ( CIVIL SERVICE COMMISSION ALLOCATED) POSITION ON MARCH 30, 1952, AND HER SALARY ESTABLISHED IN THE GS-4 POSITION, TO WHICH SHE NOW IS DEMOTED, AT THE RATE OF $3,655 PER ANNUM.

QUESTION (3): EMPLOYEE BROWN WAS IN ONE OF THE CIVIL SERVICE COMMISSION ALLOCATED POSITIONS, GS-5 NO. 5198 ON OCTOBER 30, 1949. FOR ADMINISTRATIVE REASONS HE HAD NOT BEEN PROMOTED OR REASSIGNED TO ONE OF THE POSITIONS ADMINISTRATIVELY ALLOCATED TO GS-5 OR GS-6 BY THE DEPARTMENT. CAN IT BE ASSUMED THAT THE GS-5, NO. 5198 CIVIL SERVICE COMMISSION ALLOCATED POSITION WHICH EMPLOYEE BROWN STILL OCCUPIED ON DATE OF CERTIFICATION BY THE COMMISSION IS THE POSITION NOW BEING REDUCED BELOW SUCH GRADE SO THAT 25.103 (E) WOULD BE APPLICABLE AND THE INCUMBENT PERMITTED TO RECEIVE SALARY OF $4,035 WHICH HE WAS RECEIVING ON DATE GRADE OF POSITION WAS REDUCED?

EXAMPLE: EMPLOYEE BROWN:

CHART

3-20-49 PROMOTED PAYROLL CLERK CAF-5 NO.

5198------------------------------- $3,100 ( CSC

ALLOCATION)

10-30-49 CLASS. ACT GS-5--------------------- 3,225

11-13-49 PSI--------------------------------- 3,350

11-12-50 PSI--------------------------------- 3,475

11-11-51 PSI--------------------------------- 4,035

IF THE POSITION OF EMPLOYEE BROWN AT THE TIME OF REALLOCATION DOWNWARD BY THE CIVIL SERVICE COMMISSION WAS THE SAME OR SUBSTANTIALLY THE SAME ONE OCCUPIED BY HIM AT THE TIME THE CLASSIFICATION ACT OF 1949 BECAME EFFECTIVE--- A FACT TO BE ASCERTAINED RATHER THAN TO BE ASSUMED- - THEN THE INCUMBENT MAY BE PERMITTED TO CONTINUE TO RECEIVE THE SALARY RATE OF $4,035 PER ANNUM, WHICH HE WAS RECEIVING ON THE DATE THE GRADE OF THE POSITION WAS REDUCED. SEE 31 COMP. GEN. 202; 32 ID. 520.

QUESTION (4): MAY AN EMPLOYEE WHO WAS IN THE DEPARTMENT ON OCTOBER 30, 1949, IN A POSITION ALLOCATED BY THE CIVIL SERVICE COMMISSION, CAF 5, NO. 5198, WHOSE POSITION SUBSEQUENTLY WAS ADMINISTRATIVELY REALLOCATED BY THE DEPARTMENT TO GS-6, AND WHOSE POSITION IS NOW BEING REALLOCATED DOWNWARD TO GS-4 BY CERTIFICATION OF THE CIVIL SERVICE COMMISSION, BE ALLOWED THE SAVED RATE BASED ON THE APPLICATION OF 25.103 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS AND B-113.131 MAY 14, 1953, BY DISREGARDING THE AGENCY REALLOCATION TO GS-6 AND COMPUTING THIS EMPLOYEE'S SAVED RATE BY CONTINUING PERIODIC STEP INCREASES IN THE GS-5 GRADE FROM APRIL 13, 1952, SO THAT HER SALARY NOW IN GS-4 COULD BE ESTABLISHED AT $3,910, WHICH IS THE STEP IN GS-5 WHICH SHE WOULD HAVE ATTAINED IN APRIL 1953, HAD NO AGENCY REALLOCATION OCCURRED?

EXAMPLE: EMPLOYEE DOE:

CHART

4-17-49 PROMOTED PAYROLL CLERK CAF-5--- $2,974 ( CSC

ALLOCATION)

10-30-49 CLASS. ACT GS-5----------------- 3,100 (5198)

4-16-50 PSI----------------------------- 3,225

4-15-51 PSI----------------------------- 3,350

4-13-52 PSI----------------------------- 3,785

4-27-52 PROMOTION PAYROLL SUPERVISOR. GS-6 3,920 ( DEPT.

NO. 5756. ALLOCATION)

6-11-53 CSC CERTIFIED POSITION TO GS-4.

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE THE DECISION CITED IN THE ANSWER TO QUESTION (3).

QUESTIONS (5) AND (6) PARTAKE OF THE NATURE OF HYPOTHETICAL SITUATIONS; HENCE, NO SPECIFIC ANSWERS THERETO MAY BE GIVEN AT THIS TIME. 21 COMP. GEN. 83. HOWEVER, SHOULD A SPECIFIC CASE ABOUT WHICH A QUESTION REGARDING THE RATE OF COMPENSATION ARISE, SUCH CASE UPON THE SUBMISSION THEREOF HERE WILL RECEIVE SPECIAL CONSIDERATION AND A DECISION RENDERED ACCORDINGLY. BUT SEE, GENERALLY, IN THIS CONNECTION, 32 COMP. GEN. 527; B-115956, JULY 8, 1953.

QUESTION (7): MAY AN EMPLOYEE WHO WAS ON THE CIVIL SERVICE COMMISSION ALLOCATED GS-5 NO. 5198 PAYROLL POSITION ON OCTOBER 30, 1949, AND WHO WAS REASSIGNED TO A GS-5 POSITION IN ANOTHER LINE OF WORK AND REASSIGNED TWO WEEKS LATER TO THE SAME GS-5 PAYROLL POSITION PRIOR TO ITS ADMINISTRATIVE REALLOCATION TO GS-6, BE PERMITTED TO RETAIN THE HIGHEST SALARY EARNED IN GS-5 PLUS ANY WITHIN GRADE PROMOTIONS, UNDER 25.103 (E/?

EXAMPLE: EMPLOYEE GREEN:

CHART

9-18-49 PSI CONTROL CLERK CAF-5 NO. 5198---- $3,225.60

10-30-49 CLASS ACT GS-5 (543/------------------ 3,350.00

9-17-50 PSI GS-5------------------------------- 3,475.00

4-29-51 TRANS. AND REASSIGN. ( STATISTICAL

CLERK) GS-5 (1531/------------------- 3,475.00

5-14-51 TRANS. AND REASSIGN. ( CONTROL CLERK)

GS-5 (543) NO. 5198------------------ 3,475.00

9-16-51 PSI------------------------------------ 3,600.00

4-27-52 PROMOTION GS-6 (543) S-5756------------- 4,045.00

COULD EMPLOYEE GREEN'S SALARY IN THE GS-4 TO WHICH SHE IS NOW BEING DEMOTED AS A RESULT OF THE CERTIFICATION BY THE CIVIL SERVICE COMMISSION, BE ESTABLISHED AT A SAVED RATE UNDER 25.103 (E) BY DISREGARDING THE AGENCY REALLOCATION TO GS-6, AND COMPUTING PERIODIC STEP INCREASES IN THE GS-5 FROM 9-16-51 TO $4,035 ABOUT 9-16-52 SO THAT NOW UPON DEMOTION TO GS-4 SHE COULD RECEIVE A SALARY OF $4,035?

SINCE IT IS UNDERSTOOD THAT THE EMPLOYEE'S REASSIGNMENT TO A GS-5 POSITION "IN ANOTHER LINE OF WORK" ON APRIL 29, 1951, WAS NOT CONTEMPLATED AT THE TIME TO BE A TEMPORARY ONE, QUESTION (7) IS ANSWERED IN THE NEGATIVE. 31 COMP. GEN. 202; ID. 537.