B-123220, JUN. 2, 1955

B-123220: Jun 2, 1955

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

AS FOLLOWS: "ANY PERSON WHO IS DISCHARGED UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944. IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE WAS UNJUSTIFIED OR UNWARRANTED. SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED. SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.'. THE TWO EMPLOYEES WERE SEPARATED FROM THEIR POSITIONS ON APRIL 1. THE COMMISSION FOUND IN BOTH CASES THAT THE EMPLOYEES' DISMISSALS WERE PROCEDURALLY DEFECTIVE AND. RETROACTIVE RESTORATIONS TO THE DATES OF SEPARATION WERE RECOMMENDED BY THE COMMISSION.

B-123220, JUN. 2, 1955

TO THE HONORABLE GUY FARMER, CHAIRMAN, NATIONAL LABOR RELATIONS BOARD:

YOUR LETTER OF MARCH 8, 1955, REQUESTS OUR DECISION WITH RESPECT TO THE PROPER PERIOD TO BE USED IN COMPUTING BACK PAY UNDER THE PROVISIONS OF SECTION 6 (B) (2) OF PUBLIC LAW 623, 80TH CONGRESS, 62 STAT. 354, AS IT AFFECTS TWO EMPLOYEES OF YOUR BOARD. THE LETTER ALSO REQUESTS ADVICE AS TO THE DISPOSITION TO BE MADE OF THE LEAVE EARNED BY THOSE EMPLOYEES DURING THEIR INTERIM EMPLOYMENT.

SECTION 6 (B) (2) READS, IN PERTINENT PART, AS FOLLOWS:

"ANY PERSON WHO IS DISCHARGED UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WHO, AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.'

THE TWO EMPLOYEES WERE SEPARATED FROM THEIR POSITIONS ON APRIL 1, 1954, AND BOTH APPEALED THEIR DISMISSALS TO THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT, 5 U.S.C. 863. THE COMMISSION FOUND IN BOTH CASES THAT THE EMPLOYEES' DISMISSALS WERE PROCEDURALLY DEFECTIVE AND, ON FEBRUARY 10, 1955, RETROACTIVE RESTORATIONS TO THE DATES OF SEPARATION WERE RECOMMENDED BY THE COMMISSION. IT APPEARS WITH RESPECT TO ONE OF THE EMPLOYEES THAT HE WAS GIVEN A TEMPORARY APPOINTMENT--- WITHOUT A BREAK IN SERVICE--- AT THE SAME GRADE AND SALARY HELD AT DATE OF HIS SEPARATION FOR THE PERIOD APRIL 2 THROUGH JUNE 30, 1954, AFTER WHICH DATE HE WAS ACTUALLY SEPARATED. LATER, ON AUGUST 16, 1954, THIS SAME EMPLOYEE WAS REEMPLOYED BY YOUR BOARD IN ANOTHER POSITION TWO GRADES HIGHER THAN THE POSITION PREVIOUSLY HELD--- WHICH POSITION THE EMPLOYEE STILL HOLDS. CONSEQUENTLY, THE PERIOD DURING WHICH THIS EMPLOYEE DID NOT RENDER SERVICE EXTENDED FROM JULY 1, THROUGH AUGUST 15, 1954.

THE OTHER EMPLOYEE APPARENTLY RENDERED NO SERVICE AFTER APRIL 1, 1954, THE DATE HE WAS SEPARATED, UNTIL DECEMBER 20, 1954, THE DATE HE WAS REEMPLOYED BY ANOTHER DEPARTMENT AT THE SAME GRADE AND SALARY WHICH HE WAS RECEIVING AT THE TIME OF SEPARATION AND IN WHICH POSITION HE IS STILL SERVING.

YOU STATE IN YOUR LETTER THAT ON FEBRUARY 21, 1955--- PURSUANT TO THE CIVIL SERVICE RECOMMENDATION OF FEBRUARY 10, 1955--- OFFERS OF RESTORATION WERE MADE TO EACH EMPLOYEE. IT IS INFORMALLY UNDERSTOOD, HOWEVER, THAT NEITHER EMPLOYEE HAS SIGNIFIED HIS INTENTION RESPECTING THE OFFER WHICH WAS MADE IN SUCH A WAY AS TO HOLD THE MATTER OPEN PENDING A DECISION ON THE QUESTIONS WHICH HAVE ARISEN.

YOUR QUESTIONS WITH RESPECT TO BOTH EMPLOYEES ARE SIMILAR. YOU ASK, IN EFFECT, WHAT IS THE PERIOD OF UNWARRANTED REMOVAL FOR THE PURPOSES OF COMPUTING BACK PAY. DEPENDING UPON THE ANSWER TO THAT QUESTION, YOU ASK WHAT DISPOSITION IS TO BE MADE OF THE LEAVE EARNED BY THE EMPLOYEES DURING THEIR INTERIM EMPLOYMENT.

WITH RESPECT TO THE PERIODS OF UNWARRANTED REMOVAL IN THE CASES OF THE EMPLOYEES HERE INVOLVED, UNDER THE HOLDING IN B-122137, MARCH 29, 1955 (34 COMP. GEN. 48), TO THE ATTORNEY GENERAL, SUCH PERIODS WOULD BE FROM THE DATE OF SEPARATION, APRIL 1, 1954, TO DATE OF THE OFFER OF RESTORATION, FEBRUARY 21, 1955. ACCORDINGLY, FOR PURPOSES OF BACK PAY COMPUTATIONS UNDER THE PROVISIONS OF SECTION 6 (B) (2), ABOVE, ALL EMPLOYMENT DURING THE PERIOD APRIL 1, 1954, TO THE DATE OF THE OFFER OF RESTORATION, FEBRUARY 21, 1955, MUST BE CONSIDERED AND THE TOTAL AMOUNTS EARNED DURING SUCH EMPLOYMENTS DEDUCTED FROM THE AMOUNTS OTHERWISE DUE.

CREDIT FOR LEAVE EARNED DURING THE PERIODS OF INTERIM EMPLOYMENTS NEED NOT BE DISTURBED.