B-124070, JUNE 28, 1955, 34 COMP. GEN. 708

B-124070: Jun 28, 1955

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1954 - CONVERSION OF POSITION INCUMBENTS OF POSITIONS WHICH ARE CONVERTED FROM CLASSIFICATION ACT SCHEDULES TO PREVAILING RATE SCHEDULES. ARE ENTITLED TO THE COMPENSATION SAVING BENEFITS OF SECTION 114 OF THE 1954 ACT. IS APPLICABLE ONLY TO BASIC COMPENSATION AND DOES NOT INCLUDE FOREIGN POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCES. THERE IS NOTHING IN THE ACT WHICH WOULD PRECLUDE A DETERMINATION BY THE CIVIL SERVICE COMMISSION. THAT IT IS IN THE PUBLIC INTEREST TO SAVE FOREIGN AND TERRITORIAL DIFFERENTIALS FOR EMPLOYEES OUTSIDE THE UNITED STATES WHOSE POSITIONS ARE CONVERTED FROM CLASSIFIED TO PREVAILING RATE SCHEDULES. WHERE A PREVAILING RATE POSITION IS CONVERTED TO A CLASSIFIED POSITION AND THE COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION EXCEEDS THE BASIC COMPENSATION OF THE NEW (CLASSIFIED) POSITION.

B-124070, JUNE 28, 1955, 34 COMP. GEN. 708

COMPENSATION - SAVING PROVISION IN ACT OF SEPTEMBER 1, 1954 - CONVERSION OF POSITION INCUMBENTS OF POSITIONS WHICH ARE CONVERTED FROM CLASSIFICATION ACT SCHEDULES TO PREVAILING RATE SCHEDULES, OR VICE VERSA, UNDER PRESENT CIVIL SERVICE COMMISSION STANDARDS RATHER THAN UNDER SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949 AS IT EXISTED PRIOR TO THE AMENDATORY ACT OF SEPTEMBER 1, 1954, ARE ENTITLED TO THE COMPENSATION SAVING BENEFITS OF SECTION 114 OF THE 1954 ACT. ALTHOUGH THE COMPENSATION SAVING PROVISION IN SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, IS APPLICABLE ONLY TO BASIC COMPENSATION AND DOES NOT INCLUDE FOREIGN POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCES, THERE IS NOTHING IN THE ACT WHICH WOULD PRECLUDE A DETERMINATION BY THE CIVIL SERVICE COMMISSION, OR IN ABSENCE THEREOF, BY AN ADMINISTRATIVE AGENCY, THAT IT IS IN THE PUBLIC INTEREST TO SAVE FOREIGN AND TERRITORIAL DIFFERENTIALS FOR EMPLOYEES OUTSIDE THE UNITED STATES WHOSE POSITIONS ARE CONVERTED FROM CLASSIFIED TO PREVAILING RATE SCHEDULES. WHERE A PREVAILING RATE POSITION IS CONVERTED TO A CLASSIFIED POSITION AND THE COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION EXCEEDS THE BASIC COMPENSATION OF THE NEW (CLASSIFIED) POSITION, PLUS THE POST DIFFERENTIAL OR COST-OF-LIVING ALLOWANCE, SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, SAVES THE BASIC COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION IN ITS ENTIRETY; HOWEVER, SINCE THE COMPENSATION OF A PREVAILING RATE POSITION WHICH IS SAVED TO AN OVERSEAS EMPLOYEE AFTER THE CONVERSION OF HIS POSITION TO A CLASSIFIED POSITION IS NOT A RATE FIXED BY STATUTE, NO FOREIGN OR TERRITORIAL DIFFERENTIAL IS PAYABLE. WHERE THE COMPENSATION OF AN OVERSEAS POSITION WHICH IS CONVERTED FROM A PREVAILING RATE SYSTEM TO A CLASSIFIED SCHEDULE IS LESS THAN THE BASIC COMPENSATION OF THE NEW POSITION, PLUS FOREIGN OR TERRITORIAL DIFFERENTIAL, THE SAVING PROVISION OF SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, IS INAPPLICABLE AND THE EMPLOYEES SHOULD BE PAID AT THE CLASSIFIED RATE PLUS THE DIFFERENTIAL. ALTHOUGH THE NIGHT DIFFERENTIAL PAYABLE TO EMPLOYEES HOLDING CLASSIFIED POSITIONS IS NOT A PART OF THE BASIC COMPENSATION WHICH, UPON CONVERSION OF THE POSITIONS TO THE PREVAILING RATE SYSTEM, MAY BE SAVED UNDER SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, THERE IS NOTHING IN THE ACT WHICH WOULD PRECLUDE THE CIVIL SERVICE COMMISSION OR AN ADMINISTRATIVE AGENCY FROM MAKING A DETERMINATION THAT THE PUBLIC INTEREST REQUIRES THE SAVING OF NIGHT DIFFERENTIAL IN CONVERSION CASES. THE SAVING PROVISION OF SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, IS COMPLIED WITH IF UPON CONVERSION OF A CLASSIFIED POSITION TO A PREVAILING RATE SCHEDULE THE EMPLOYEE IS COMPENSATED AT A NIGHT RATE EQUAL TO HIS PREVIOUS BASIC COMPENSATION EXCLUSIVE OF NIGHT DIFFERENTIAL; HOWEVER, IF THE NIGHT RATE IN THE CLASSIFIED POSITION IS NOT SAVED BY SPECIAL REGULATION UPON CONVERSION TO A PREVAILING RATE SCHEDULE, THE EMPLOYEE WOULD BE ENTITLED TO NIGHT DIFFERENTIAL AT THE RATE PRESCRIBED GENERALLY FOR EMPLOYEES UNDER THE PREVAILING RATE SYSTEM. WHERE AT THE TIME OF CONVERSION FROM A PREVAILING RATE TO A CLASSIFIED POSITION THE COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION EXCEEDS THE BASIC COMPENSATION OF THE NEW CLASSIFIED POSITION, PLUS 10 PERCENT NIGHT DIFFERENTIAL, THE ENTIRE NIGHT RATE MAY BE SAVED UNDER SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954; HOWEVER, NIGHT DIFFERENTIAL MAY NOT BE PAID IN THE NEW POSITION IF IT HAS BEEN INCLUDED IN THE SAVED COMPENSATION. ALTHOUGH THE SAVING PROVISION OF SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, IS NOT APPLICABLE TO TRANSFERS BETWEEN DIFFERENT POSITIONS AFTER THE CONVERSION ACTION UNDER TITLE I HAS BEEN EFFECTED IF TRANSFERS ARE BETWEEN CLASSIFIED POSITIONS AFTER CONVERSION, THE CIVIL SERVICE COMMISSION MAY PRESCRIBE THE BASIC RATE OF COMPENSATION UNDER AUTHORITY OF SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949; BUT IF THE TRANSFERS ARE BETWEEN PREVAILING RATE POSITIONS, THE COMPENSATION MAY BE SAVED ONLY UPON ADMINISTRATIVE DETERMINATION THAT THE ACTION IS IN THE PUBLIC INTEREST.

COMPTROLLER GENERAL CAMPBELL TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 28, 1955:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1955, PRESENTING A NUMBER OF QUESTIONS CONCERNING SAVED COMPENSATION OF CERTAIN EMPLOYEES WHOSE POSITIONS WILL BE CONVERTED FROM CLASSIFICATION ACT SCHEDULES TO PREVAILING RATE SCHEDULES, OR VICE VERSA, IN ACCORDANCE WITH SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED BY SECTION 105 (A) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1106, PUBLIC LAW 763. THE APPLICABLE SAVINGS PROVISION IS THAT CONTAINED IN SECTION 114 OF PUBLIC LAW 763, 68 STAT. 1108, READING AS FOLLOWS:

NOTHING CONTAINED IN THIS TITLE SHALL BE CONSTRUED TO DECREASE THE EXISTING RATE OF BASIC COMPENSATION OF ANY PRESENT EMPLOYEE, BUT WHEN HIS POSITION BECOMES VACANT ANY SUBSEQUENT APPOINTEE TO SUCH POSITION SHALL BE COMPENSATED IN ACCORDANCE WITH THE SCALE OF PAY APPLICABLE TO SUCH POSITION.

THE VARIOUS QUESTIONS SUBMITTED WILL BE ANSWERED IN THE ORDER PRESENTED.

A. WHEN AN EMPLOYEE TOGETHER WITH HIS POSITION IS CHANGED FROM THE CLASSIFICATION ACT CATEGORY TO THE PREVAILING RATE CATEGORY, OR VICE VERSA, AS A RESULT OF THE APPLICATION OF GUIDELINES ISSUED BY THE CIVIL SERVICE COMMISSION TO ASSIST IN THE ADMINISTRATION OF TITLE I, PUBLIC LAW 763, IS HIS EXISTING RATE OF PAY SAVED BY SECTION 114 EVEN THOUGH THE POSITION COULD HAVE BEEN CHANGED UNDER SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949 PRIOR TO ITS AMENDMENT BY PUBLIC LAW 763?

B. IF NOT, CAN THE CIVIL SERVICE COMMISSION ISSUE REGULATIONS WHICH REQUIRE IT TO BE SAVED?

IT IS UNDERSTOOD THAT ALL OF THE POSITION CHANGES INDICATED IN THE GUIDELINES PROMULGATED BY YOUR COMMISSION IN CONNECTION WITH THE CONVERSION OF POSITIONS FROM CLASSIFICATION ACT SCHEDULES TO PREVAILING RATE SCHEDULES, OR VICE VERSA, ARE REQUIRED BY PUBLIC LAW 763. HOWEVER, CERTAIN OF THE CHANGES OR CONVERSIONS ALSO COULD HAVE BEEN EFFECTED UNDER THE LAW (SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949), 63 STAT. 954, AS IT EXISTED PRIOR TO ENACTMENT OF PUBLIC LAW 763.

UNDER SECTION 110 OF PUBLIC LAW 763, 68 STAT. 1108, THE POSITIONS, WHICH COULD HAVE BEEN CONVERTED UNDER SECTION 202 (7) PRIOR TO THE AMENDMENT THEREOF BY SECTION 105 OF PUBLIC LAW 763, ARE REQUIRED--- ALONG WITH THE OTHER POSITIONS COVERED BY THE AMENDMENT--- TO BE CONVERTED BY A SPECIFIED DATE. THEREFORE, IT MAY BE SAID THAT ALL SUCH CONVERSIONS ARE IN FACT BEING MADE UNDER PUBLIC LAW 763. FOR THAT REASON WE CONCUR IN YOUR VIEW THAT THE INCUMBENTS OF THE POSITIONS, WHICH COULD HAVE BEEN CONVERTED UNDER THE LAW AS IT PREVIOUSLY EXISTED, BUT WHICH WILL NOW BE CONVERTED PURSUANT TO THE GUIDELINES MENTIONED ABOVE, ARE ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISION OF SECTION 114 OF PUBLIC LAW 763.

2A. WHEN AN EMPLOYEE OUTSIDE CONTINENTAL UNITED STATES TOGETHER WITH HIS POSITION IS CHANGED FROM THE CLASSIFICATION ACT CATEGORY TO A PREVAILING/RATE PAY SYSTEM UNDER TITLE I OF PUBLIC LAW 763, IS COMPENSATION RECEIVED IN THE FORM OF A FOREIGN OR TERRITORIAL POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCE SAVED BY SECTION 114?

B. IF NOT, CAN THE CIVIL SERVICE COMMISSION ISSUE REGULATIONS WHICH REQUIRE OR PERMIT IT TO BE SAVED?

C. CAN IT BE SAVED BY ADMINISTRATIVE ACTION OF A DEPARTMENT IN THE ABSENCE OF CIVIL SERVICE COMMISSION REGULATIONS?

THE STATUTORY BASIS FOR PAYMENT OF THE FOREIGN AND TERRITORIAL POST DIFFERENTIAL, AS WELL AS THE TERRITORIAL COST-OF-LIVING ALLOWANCE, IS THAT CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, 62 STAT. 1205. THE MONETARY BENEFITS PAYABLE UNDER SECTION 207 ARE EXPRESSLY CLASSIFIED AS "ADDITIONAL COMPENSATION"--- NOT BASIC COMPENSATION. 28 COMP. GEN. 266. SINCE ONLY "BASIC COMPENSATION" IS SAVED BY SECTION 114 OF PUBLIC LAW 763, 68 STAT. 1108, THE PROVISION OF THAT SECTION DOES NOT OPERATE TO SAVE THE POST DIFFERENTIALS OR TERRITORIAL COST-OF-LIVING ALLOWANCE UPON THE CONVERSION OF AN EMPLOYEE AND HIS POSITION FROM A CLASSIFIED SCHEDULE TO A PREVAILING RATE SCHEDULE.

HOWEVER, UNDER SECTION 113 OF PUBLIC LAW 763, 68 STAT. 1110, THE COMMISSION IS AUTHORIZED TO ISSUE SUCH REGULATIONS AS MAY BE NECESSARY FOR THE ADMINISTRATION OF TITLE I OF THE ACT. IT IS NOTED, HOWEVER, THAT THE SAVINGS PROVISION CONTAINED IN SECTION 114 MERELY PRESCRIBES A MINIMUM THAT MUST BE SAVED AND DOES NOT EXPRESSLY PLACE A CEILING ON THE AMOUNT THAT MAY BE SAVED BY REGULATION OF THE COMMISSION OR BY ADMINISTRATIVE ACTION. THERE IS NO LANGUAGE IN SECTION 114 PRECLUDING THE SAVING OF POST DIFFERENTIALS AND TERRITORIAL COST-OF-LIVING ALLOWANCES WHERE CONSISTENT WITH THE PUBLIC INTEREST. HENCE, A DETERMINATION BY THE COMMISSION THAT IT IS IN THE PUBLIC INTEREST TO SAVE SUCH ADDITIONAL PAY UPON THE CONVERSION OF EMPLOYEES AND THEIR POSITIONS FROM CLASSIFICATION ACT SCHEDULES TO PREVAILING RATE SCHEDULES WOULD NOT BE DEEMED TO CONTRAVENE SECTION 114 OF PUBLIC LAW 763. SIMILARLY, IN THE ABSENCE OF A REGULATION OF YOUR COMMISSION, A DETERMINATION BY THE DEPARTMENT OR AGENCY CONCERNED TO THE EFFECT THAT A FAILURE TO SAVE SUCH ADDITIONAL COMPENSATION UPON CONVERSION FROM A CLASSIFIED SCHEDULE TO A PREVAILING RATE SCHEDULE WOULD BE CONTRARY TO THE PUBLIC INTEREST WOULD NOT BE QUESTIONED BY OUR OFFICE AS CONTRAVENING SECTION 114. HOWEVER, THE POST DIFFERENTIALS AND TERRITORIAL COST-OF-LIVING ALLOWANCES THAT MAY BE SAVED BY REGULATION OF YOUR COMMISSION OR BY ADMINISTRATIVE ACTION MUST CONTINUE TO BE REGARDED AS ,ADDITIONAL" RATHER THAN "BASIC" COMPENSATION FOR PAY AND RETIREMENT PURPOSES.

3. WHEN AN EMPLOYEE OUTSIDE CONTINENTAL UNITED STATES TOGETHER WITH HIS POSITION IS CHANGED FROM A PREVAILING/RATE SYSTEM TO THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT, WILL THE REQUIREMENTS OF SECTION 114 BE SATISFIED IF THE EMPLOYEE IS PAID A RATE OF BASIC COMPENSATION WHICH WITH THE ADDITION OF THE APPLICABLE FOREIGN OR TERRITORIAL POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCE IS NOT LESS THAN HIS EXISTING WAGE RATE UNDER THE PREVAILING/RATE SYSTEM, EVEN THOUGH HIS NEW RATE OF BASIC COMPENSATION ALONE IS LESS THAN HIS EXISTING WAGE RATE?

IT IS UNDERSTOOD THAT AN EMPLOYEE WHOSE SCHEDULED RATE OF COMPENSATION IS BASED SOLELY UPON A LOCALITY WAGE SURVEY IS PAID A RATE OF COMPENSATION WHICH TAKES INTO CONSIDERATION LIVING COSTS AND OTHER ENVIRONMENTAL CONDITIONS IN THE AREA. LIKEWISE, PREVAILING RATE EMPLOYEES WHOSE WAGE SCHEDULES ARE ESTABLISHED ON THE BASIS OF AVERAGE RATES PAID FOR SIMILAR POSITIONS IN THE UNITED STATES, PLUS A RECRUITMENT OR RETENTION DIFFERENTIAL, RECEIVE A RATE OF COMPENSATION WHICH TAKES INTO CONSIDERATION LIVING COSTS AND OTHER CONDITIONS OF ENVIRONMENT. HOWEVER, ONCE THE RATE OF COMPENSATION FOR A PREVAILING RATE POSITION OUTSIDE THE UNITED STATES IS FIXED, IT IS UNDERSTOOD THAT SUCH RATE CONSTITUTES BASIC COMPENSATION WHICH IS NOT DIVISIBLE AS BASIC AND ADDITIONAL COMPENSATION OF THE POSITION. HENCE, WE ARE OF THE OPINION THAT WHERE THERE IS A CONVERSION FROM A PREVAILING RATE POSITION TO A CLASSIFIED POSITION AND THE COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION EXCEEDS THE BASIC COMPENSATION OF THE NEW (CLASSIFIED) POSITION, PLUS THE APPLICABLE POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCE, SECTION 114 OF PUBLIC LAW 763 OPERATES TO SAVE THE BASIC COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION IN ITS ENTIRETY. ON THE OTHER HAND, AN WHO AFTER SUCH CONVERSION CONTINUES TO RECEIVE, AS SAVED COMPENSATION, THE COMPENSATION OF HIS FORMER PREVAILING RATE POSITION IS NOT ELIGIBLE FOR A POST DIFFERENTIAL OR A TERRITORIAL COST-OF-LIVING ALLOWANCE. THE ADDITIONAL COMPENSATION (POST DIFFERENTIALS AND TERRITORIAL COST-OF LIVING ALLOWANCES) AUTHORIZED UNDER SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, AS AMENDED, IS PAYABLE ONLY TO "PERSONS * * * WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE.' THE COMPENSATION OF A PREVAILING RATE POSITION WHICH IS SAVED TO AN EMPLOYEE AFTER HIS CONVERSION TO A CLASSIFIED POSITION IS NOT A RATE OF BASIC COMPENSATION ,FIXED BY STATUTE" BUT RATHER IS ONE FIXED BY ADMINISTRATIVE ACTION AND, THEREFORE, NO POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCE IS PAYABLE UNDER SECTION 207.

CONCERNING THOSE CASES WHERE THE COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION IS LESS THAN THE BASIC COMPENSATION OF THE NEW (CLASSIFIED) POSITION, PLUS THE APPLICABLE POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCE, IT IS OUR VIEW THAT THE SAVINGS PROVISION OF THE STATUTE IS INAPPLICABLE AND THAT THE EMPLOYEES INVOLVED SHOULD BE PAID AT THE CLASSIFIED RATE PLUS THE DIFFERENTIAL OR ALLOWANCE.

4A. WHEN AN EMPLOYEE ON A NIGHT SHIFT TOGETHER WITH HIS POSITION IS CHANGED FROM THE CLASSIFICATION ACT CATEGORY TO A PREVAILING/RATE PAY SYSTEM, IS NIGHT PAY DIFFERENTIAL BEING RECEIVED IN A CLASSIFICATION ACT POSITION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, SAVED BY SECTION 114?

B. IF NOT, CAN THE CIVIL SERVICE COMMISSION ISSUE REGULATIONS WHICH REQUIRE OR PERMIT IT TO BE SAVED?

C. CAN IT BE SAVED BY ADMINISTRATIVE ACTION OF A DEPARTMENT IN THE ABSENCE OF CIVIL SERVICE COMMISSION REGULATIONS?

D. IF NIGHT DIFFERENTIAL IS NOT SAVED BY SECTION 114, WILL THE REQUIREMENTS OF SECTION 114 BE SATISFIED IF THE EMPLOYEE IS PAID A NIGHT RATE UNDER THE PREVAILING/RATE SCHEDULE WHICH EQUALS OR EXCEEDS HIS EXISTING RATE OF BASIC COMPENSATION UNDER THE CLASSIFICATION ACT SCHEDULE; OR MUST HE BE PAID A NIGHT RATE WHICH IS NOT LESS THAN THE SUM OF HIS EXISTING RATE OF BASIC COMPENSATION UNDER THE CLASSIFICATION ACT SCHEDULE PLUS THE DIFFERENTIAL FOR NIGHT WORK APPLICABLE UNDER THE PREVAILING/RATE SCHEDULE?

SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 206 OF PUBLIC LAW 763, 68 STAT. 1110, RELATING TO NIGHT DIFFERENTIAL FOR EMPLOYEES OCCUPYING POSITIONS UNDER THE CLASSIFICATION ACT, IS, IN PART, AS FOLLOWS:

* * * AND ANY OFFICER OR EMPLOYEE PERFORMING SUCH WORK TO WHOM THIS TITLE APPLIES SHALL BE COMPENSATED FOR SUCH WORK AT HIS RATE OF BASIC COMPENSATION PLUS PREMIUM COMPENSATION AMOUNTING TO 10 PERCENTUM OF SUCH RATE, UNLESS OTHERWISE PROVIDED IN TITLE IV OF THIS ACT. * * *

SINCE THE NIGHT DIFFERENTIAL PAYABLE TO EMPLOYEES HOLDING CLASSIFIED POSITIONS DOES NOT CONSTITUTE A PART OF THEIR BASIC COMPENSATION, THE SAVINGS PROVISION CONTAINED IN SECTION 114 OF THE ACT IS NOT CONSTRUED AS APPLYING TO IT. COMPARE THE ANSWER TO YOUR SECOND QUESTION RELATING TO THE ADDITIONAL COMPENSATION PAYABLE UNDER SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, AS AMENDED, TO EMPLOYEES STATIONED OUTSIDE THE UNITED STATES.

FOR THE SAME REASONS STATED IN ANSWER TO PARTS (B) AND (C) OF QUESTION 2, WE ARE OF THE VIEW THAT UPON CONVERSION THE NIGHT DIFFERENTIAL MAY BE SAVED BY REGULATIONS OF THE COMMISSION OR BY ADMINISTRATIVE ACTION IF IT BE DETERMINED THAT SUCH ACTION IS NECESSARY IN THE PUBLIC INTEREST. HOWEVER, THE SAVING OF SUCH DIFFERENTIAL BY REGULATION OF YOUR COMMISSION OR BY ADMINISTRATIVE ACTION DOES NOT CONVERT IT FROM "ADDITIONAL" TO "BASIC" COMPENSATION.

IN REPLY TO QUESTION 4D, THE PROVISIONS OF SECTION 114 ARE REGARDED AS SATISFIED IF, UPON CONVERSION FROM A POSITION UNDER A CLASSIFIED SCHEDULE TO A POSITION UNDER A PREVAILING RATE SCHEDULE, THE EMPLOYEE IS COMPENSATED AT A NIGHT RATE EQUAL TO HIS PREVIOUS BASIC COMPENSATION RATE EXCLUSIVE OF NIGHT DIFFERENTIAL. THIS CONCLUSION IS REQUIRED INASMUCH AS SECTION 114 SAVES BASIC COMPENSATION ONLY. HOWEVER, IN THE EVENT THE NIGHT DIFFERENTIAL IN THE CLASSIFIED POSITION IS NOT BY SPECIAL REGULATION SAVED TO AN EMPLOYEE UPON HIS CONVERSION TO A PREVAILING RATE SCHEDULE, IT WOULD SEEM THAT HE WOULD BE ENTITLED TO NIGHT DIFFERENTIAL AT THE RATE PRESCRIBED GENERALLY FOR EMPLOYEES UNDER THE PREVAILING RATE SCHEDULE.

5. WHEN AN EMPLOYEE ON A NIGHT SHIFT TOGETHER WITH HIS POSITION IS CHANGED FROM A PREVAILING/RATE SYSTEM TO THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT, WILL THE REQUIREMENTS OF SECTION 114 BE SATISFIED IF THE EMPLOYEE IS PAID A RATE OF BASIC COMPENSATION WHICH WITH THE ADDITION OF THE APPLICABLE NIGHT DIFFERENTIAL IS NOT LESS THAN HIS EXISTING NIGHT RATE UNDER THE PREVAILING/RATE SYSTEM, EVEN THOUGH HIS NEW RATE OF BASIC COMPENSATION ALONE IS LESS THAN HIS EXISTING NIGHT RATE?

THE NIGHT RATE OF COMPENSATION OF AN EMPLOYEE OCCUPYING A PREVAILING RATE POSITION CONSTITUTES HIS BASIC COMPENSATION. SEE 31 COMP. GEN. 48; ID. 391; AND UNPUBLISHED DECISION OF NOVEMBER 10, 1950, B-97721. HENCE, IF AT THE TIME OF CONVERSION FROM A PREVAILING RATE TO A CLASSIFIED POSITION THE NIGHT RATE OF COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION EXCEEDS THE BASIC COMPENSATION OF THE NEW (CLASSIFIED) POSITION PLUS THE 10 PERCENT NIGHT DIFFERENTIAL APPLICABLE THERETO, SECTION 114 OF PUBLIC LAW 763 OPERATES TO SAVE THE ENTIRE NIGHT RATE OF COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION. HOWEVER, WE ARE OF THE VIEW THAT SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY PUBLIC LAW 763, PROVIDING FOR THE PAYMENT OF P*EMIUM COMPENSATION FOR NIGHT WORK AT THE BASIC RATE PLUS 10 PERCENT DOES NOT CONTEMPLATE THE PAYMENT OF THE 10 PERCENT DIFFERENTIAL IN ANY CASE WHERE THE NIGHT RATE RECEIVED BY AN EMPLOYEE AS SAVED COMPENSATION ALREADY INCLUDES A NIGHT-TIME DIFFERENTIAL. REFERRING TO THOSE CASES WHERE THE COMPENSATION OF THE CONVERTED (PREVAILING RATE) POSITION IS LESS THAN THE BASIC COMPENSATION OF THE NEW (CLASSIFIED) POSITION PLUS THE 10 PERCENT NIGHT DIFFERENTIAL, THE SAVING PROVISION OF SECTION 114 IS NOT REGARDED AS BEING APPLICABLE AND THE EMPLOYEE SHOULD BE PAID AT THE CLASSIFIED RATE PLUS THE 10 PERCENT NIGHT DIFFERENTIAL. SEE THE ANSWER TO QUESTION 3.

6A. DOES AN EMPLOYEE'S RATE OF PAY CONTINUE TO BE SAVED BY THE STATUTE IF, WHILE HE IS RECEIVING A SAVED RATE UNDER SECTION 114, HE IS CHANGED TO ANOTHER POSITION WHICH, HAD HE OCCUPIED IT AT THE TIME OF THE CONVERSION, WOULD HAVE ENTITLED HIM TO THE SAME OR A HIGHER SAVED RATE?

B. IF NOT, CAN THE CIVIL SERVICE COMMISSION ISSUE REGULATIONS WHICH REQUIRE OR PERMIT IT TO BE SAVED?

C. CAN IT BE SAVED BY ADMINISTRATIVE ACTION OF A DEPARTMENT IN THE ABSENCE OF CIVIL SERVICE COMMISSION REGULATIONS?

THE SAVINGS PROVISION OF SECTION 114 OF PUBLIC LAW 763 MERELY PRECLUDES ANY CONSTRUCTION OF TITLE I THAT WOULD OPERATE TO REDUCE THE EXISTING RATE OF BASIC COMPENSATION OF ANY EMPLOYEE TO WHOM TITLE I APPLIES. HOWEVER, SECTION 114 IS NOT CONSTRUED AS PRECLUDING REDUCTIONS IN BASIC COMPENSATION OTHER THAN AS A RESULT OF THE APPLICATION OF TITLE I. HENCE, ANY REDUCTION IN AN EMPLOYEE'S BASIC COMPENSATION RESULTING FROM HIS TRANSFER BETWEEN DIFFERENT POSITIONS AFTER CONVERSION OF HIS POSITION WOULD NOT APPEAR TO BE A REDUCTION IN COMPENSATION DUE TO THE OPERATION OF THE PROVISIONS OF TITLE I. THEREFORE, SECTION 114 OF THAT TITLE AFFORDS NO PROTECTION TO THE EMPLOYEE IN SUCH A CASE.

HOWEVER, UNDER SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 969, YOUR COMMISSION IS VESTED WITH AMPLE AUTHORITY TO PRESCRIBE BY REGULATION THE RATE OF BASIC COMPENSATION TO BE RECEIVED BY AN EMPLOYEE WHO, AFTER CONVERSION FROM A PREVAILING RATE POSITION TO A POSITION UNDER A CLASSIFIED SCHEDULE, IS TRANSFERRED TO ANOTHER POSITION UNDER THE CLASSIFICATION ACT. ON THE OTHER HAND, AFTER THE CONVERSION OF AN EMPLOYEE FROM A CLASSIFIED TO A PREVAILING RATE POSITION HAS BEEN COMPLETED, THE COMMISSION NO LONGER MAY REGULATE TO SAVE THE EMPLOYEE'S COMPENSATION, AND UPON SUBSEQUENT TRANSFER TO ANOTHER PREVAILING RATE POSITION THE EMPLOYEE'S RATE OF COMPENSATION MAY BE SAVED ONLY WHEN IT BE ADMINISTRATIVELY DETERMINED TO BE NECESSARY IN THE PUBLIC INTEREST.

IT SHOULD BE UNDERSTOOD THAT THE CONCLUSIONS HEREIN CONCERNING THE SAVINGS PROVISION CONTAINED IN SECTION 114 OF PUBLIC LAW 763 DO NOT PURPORT TO COVER ALL CONTINGENCIES AND UNUSUAL CASES THAT MAY ARISE FROM THE CONVERSIONS OF THE POSITIONS INVOLVED. HENCE, ANY CASE THE PROPER DISPOSITION OF WHICH IS DOUBTFUL MAY BE SUBMITTED HERE FOR INDIVIDUAL CONSIDERATION AND DECISION.