B-123414, JUL. 25, 1955

B-123414, JUL. 25, 1955

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

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1955, ASKING WHETHER AN EMPLOYEE OF YOUR BOARD, WHO HAS COMPETITIVE STATUS AND OCCUPIES AN EXCEPTED (SCHEDULE A) POSITION, MAY BE COMPENSATED FOR LOSS OF SALARY REPRESENTING THE DIFFERENCE BETWEEN $9,360 PER ANNUM (GRADE GS-13) AND $8,040 PER ANNUM (GRADE GS-12) FOR THE PERIOD MAY 30, 1954, TO MARCH 3, 1955, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

ON OR ABOUT MAY 30, 1954, THE BOARD TERMINATED, WITHOUT OFFERS OF REASSIGNMENT, THE SERVICES OF SEVERAL EMPLOYEES. THESE EMPLOYEES INCLUDED SEVERAL WHO WERE VETERANS AND ONE WHO WAS NOT A VETERAN BUT WHO HAD A COMPETITIVE CIVIL-SERVICE STATUS. THE EMPLOYEE HERE INVOLVED--- A NONVETERAN--- WAS GIVEN A NOTICE OF TERMINATION WHICH CONTAINED AN OFFER OF REASSIGNMENT TO A LOWER GRADE. THE REASSIGNMENT WAS ACCEPTED BY THE EMPLOYEE WITHOUT AN APPEAL. THE EMPLOYEES WHO WERE SEPARATED--- AND WHO WERE VETERANS--- APPEALED TO THE CIVIL SERVICE COMMISSION AND IT WAS FOUND BY THE COMMISSION THAT PROCEDURAL ERRORS WERE MADE IN TERMINATING THOSE EMPLOYEES. AS A RESULT, UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT, 5 U.S.C. 863, THOSE EMPLOYEES WERE ORDERED RESTORED RETROACTIVELY. ADMINISTRATIVE ACTION WAS TAKEN ACCORDINGLY AND BACK PAY WAS ADMINISTRATIVELY ALLOWED FOR THE PERIODS INVOLVED. THE OTHER EMPLOYEE OF THE GROUP THAT APPEALED THE TERMINATION ACTIONS--- AND WHO WAS NOT A VETERAN--- WAS FOUND BY THE COMMISSION TO HAVE BEEN IMPROPERLY SEPARATED UNDER THE HOLDING IN THE CASE OF ROTH V. BROWNELL, 215 F.2D 500. THE COMMISSION FOUND THAT THE SEPARATION DID NOT COMPLY WITH THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, AND PART 9 OF ITS REGULATIONS GOVERNING REMOVAL, NOR WITH THE RETENTION PREFERENCE REGULATIONS GOVERNING SEPARATION FROM THE COMPETITIVE SERVICE BY REDUCTION IN FORCE. AS A RESULT OF THE FINDINGS OF THE COMMISSION AND THE RECOMMENDATION THAT THE EMPLOYEE BE RESTORED RETROACTIVELY, ADMINISTRATIVE ACTION WAS TAKEN ACCORDINGLY AND THE EMPLOYEE ALLOWED BACK PAY FOR THE PERIOD INVOLVED, UNDER THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652.

BASED UPON THE RECOMMENDATIONS OF THE COMMISSION WITH RESPECT TO THE EMPLOYEES WHO WERE SEPARATED, RETROACTIVELY RESTORED, AND ADMINISTRATIVELY ALLOWED BACK PAY FOR THE PERIODS INVOLVED, IT WAS DETERMINED ADMINISTRATIVELY THAT AN ERROR HAD BEEN MADE REGARDING THE EMPLOYEE HERE INVOLVED. ACCORDINGLY, THE EMPLOYEE WAS ADMINISTRATIVELY RESTORED RETROACTIVELY TO THE HIGHER GRADE POSITION. HE NOW SEEKS BACK PAY FOR THE PERIOD OF THE DEMOTION AS A RESULT OF THE ADMINISTRATIVE ACTION.

PROVIDED THE FACTS AND CIRCUMSTANCES GOVERNING THE MATTER HERE INVOLVED ARE THE SAME AS IN THE CASE OF THE NONVETERAN EMPLOYEE WHO WAS RESTORED UPON RECOMMENDATION OF THE CIVIL SERVICE COMMISSION UNDER THE HOLDING IN THE CASE OF ROTH V. BROWNELL ABOVE, AND SINCE ADMINISTRATIVE ACTION RETROACTIVELY RESTORING THE EMPLOYEE HAS ALREADY BEEN TAKEN, IT WOULD APPEAR PROPER TO ALLOW BACK PAY IN THIS CASE FOR THE PERIOD OF THE DEMOTION.