B-129243, NOVEMBER 21, 1956, 36 COMP. GEN. 419

B-129243, NOVEMBER 21, 1956, 36 COMP. GEN. 419

COMPENSATION - WAGE BOARD EMPLOYEES - DOWNGRADING - ADVANCE NOTICE REQUIREMENT ACTION OF A SUBORDINATE OFFICER IN ORDERING AN IMMEDIATE REDUCTION IN COMPENSATION OF NAVAL ACADEMY LAUNDRY EMPLOYEES BASED ON CORRECTION OF RATINGS WITHOUT COMPLIANCE WITH THE 30 DAYS' ADVANCE NOTICE REQUIREMENT IN THE REGULATIONS APPLICABLE TO WAGE BOARD EMPLOYEES, WHOSE COMPENSATION IS FIXED PURSUANT TO THE ACT OF JULY 16, 1862, 34 U.S.C. 505, IS WITHOUT LEGAL FORCE AND EFFECT AND THE EMPLOYEES MAY RECEIVE THE WAGES OF THEIR FORMER RATINGS DURING THE PREMATURE REDUCTION PERIOD.

TO SECRETARY OF THE NAVY, NOVEMBER 21, 1956:

ON SEPTEMBER 13, 1956, THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT) REQUESTED OUR DECISION CONCERNING THE PROPER RATE OF COMPENSATION PAYABLE TO CERTAIN EMPLOYEES OF THE NAVAL ACADEMY LAUNDRY DURING THE PERIOD THEY WERE REDUCED IN COMPENSATION WITHOUT THEIR FIRST BEING GIVEN THE 30 DAYS' ADVANCE NOTICE PRESCRIBED IN NAVY CIVILIAN PERSONNEL INSTRUCTIONS 160.5-2B (1).

THE ASSISTANT SECRETARY ADVISES THAT AS A RESULT OF A NAVY-WIDE SURVEY OF POSITIONS IN THE LAUNDRY AND COMMISSARY SERVICES AND A WAGE SURVEY CONDUCED IN THE BALTIMORE, MARYLAND, AREA, YOUR DEPARTMENT PROMULGATED IN SEPTEMBER 1955 A REVISED LIST OF AUTHORIZED RATINGS AND A REVISED SCHEDULE OF WAGES FOR THE NAVAL ACADEMY LAUNDRY. A FURTHER RESULT OF THE STUDY WAS THE DETERMINATION THAT THE SUBJECT EMPLOYEES WERE "MISASSIGNED" AND THAT THE CONVERSIONS TO NEW RATINGS CONSTITUTED "CORRECTIONS OF MISASSIGNMENTS.' IN CARRYING OUT THE CONVERSIONS, THE EMPLOYEES WERE VERBALLY NOTIFIED ON OCTOBER 1, 1955, BY THE INDUSTRIAL RELATIONS OFFICER THAT THEIR RATINGS WOULD BE CHANGED AND THAT THEY WOULD BE "DOWNGRADED" IN PAY. THE REDUCTION IN PAY WAS MADE EFFECTIVE OCTOBER 17, 1955. WHEN IT WAS REALIZED BY THE INDUSTRIAL RELATIONS OFFICER AT THE NAVAL ACADEMY THAT THE ADVANCE NOTICE PREVIOUSLY MENTIONED HAD NOT BEEN GIVEN, STEPS WERE TAKEN ON APRIL 12, 1956, TO RESCIND THE EARLIER ACTIONS AND THEN TO REINSTITUTE THE PROPER RATINGS AFTER DUE NOTICE. IT IS STATED THAT SOME OF THE EMPLOYEES HAVE VETERANS PREFERENCE ENTITLING THEM TO THE BENEFITS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863, WHILE OTHERS ARE NONVETERANS.

WE UNDERSTAND FROM INFORMAL CONTACT WITH MEMBERS OF YOUR DEPARTMENT THAT THE EMPLOYEES HERE INVOLVED PREVIOUSLY HAD BEEN ASSIGNED RATINGS UNDER THE GENERAL CATEGORY, LABORER, HELPER AND MECHANIC SERVICE, BUT THAT AS A RESULT OF THE POSITION SURVEY YOUR DEPARTMENT DETERMINED THAT RATINGS UNDER THE SPECIFIC CATEGORY, LAUNDRY SERVICE, WERE MORE PROPERLY APPLICABLE.

SINCE THE MATTER PRESENTED INVOLVES REDUCTION IN COMPENSATION AND NOT REMOVAL, DISCHARGE, SUSPENSION, OR FURLOUGH WITHOUT PAY, THE "BACK PAY" PROVISIONS OF SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B), DO NOT APPLY TO EITHER THE VETERANS OR NONVETERANS. COMP. GEN. 200, 205; GREGORY V. UNITED STATES, 123 C.1CLS. 794. FURTHERMORE, SINCE, AS THE ASSISTANT SECRETARY POINTS OUT, THE PREFERENCE EMPLOYEES WERE NOT RETROACTIVELY RESTORED PURSUANT TO AN ORDER OF THE CIVIL SERVICE COMMISSION (NONE OF SUCH EMPLOYEES HAVING APPEALED TO THE COMMISSION), THERE IS NO BASIS FOR APPLYING OUR DECISION IN 34 COMP. GEN. 563. HOWEVER, AS WE SHALL EXPLAIN BELOW, WE ARE OF THE OPINION THAT THE DISPOSITION OF THE MATTER IS CONTROLLED BY CONSIDERATIONS OTHER THAN THOSE JUST MENTIONED.

THE EMPLOYEES HERE INVOLVED APPEAR TO FALL WITHIN THE CLASS USUALLY REFERRED TO AS "UNGRADED" OR "WAGE-BOARD" EMPLOYEES WHOSE COMPENSATION IS FIXED PURSUANT TO THE ACT OF JULY 16, 1862, 12 STAT. 587, 34 U.S.C. 505, WHICH PROVIDES IN SUBSTANCE FOR THE FIXING OF THE WAGES OF " NAVY YARD" EMPLOYEES ON A PREVAILING/RATE BASIS, TO BE DETERMINED BY THE COMMANDERS OF THE NAVY YARDS, SUBJECT TO THE APPROVAL AND REVISION OF THE SECRETARY OF THE NAVY. REGULATIONS PROMULGATED IN NAVY CIVILIAN PERSONNEL INSTRUCTIONS BY OR UNDER AUTHORITY OF THE SECRETARY OF THE NAVY PRESCRIBE THE PROCEDURES AND OTHER MATTER INCIDENT TO THE MAKING AND EFFECTUATION OF WAGE RATE DETERMINATIONS UNDER THE STATUTE. REFERENCE MAY BE MADE PARTICULARLY TO THE PROVISIONS OF THE REGULATIONS FOR KEEPING UNGRADED POSITION RATINGS CURRENT ( MCPI 250.3-6) AND FOR UNGRADED MAINTENANCE REVIEW ( MCPI 250.3-7, ET SEQ.) HAVING FOR THEIR PRINCIPAL PURPOSE AND DETECTION AND CORRECTION OF MISASSIGNMENTS.' MISASSIGNMENT" IS DEFINED IN NCPI 250-1-2 J AS AN ASSIGNMENT OF AN EMPLOYEE TO WORK INAPPROPRIATE TO HIS RATING, EXCEPT WHERE SUCH ASSIGNMENT IS AN AUTHORIZED DETAIL.

OBVIOUSLY THE WAGE RATES OF EMPLOYEES UNDER THE 1862 STATUTE ARE SUBJECT TO ADMINISTRATIVE DISCRETION, THE FINAL AUTHORITY BEING VESTED IN THE SECRETARY OF THE NAVY. IT SEEMS REASONABLE TO CONCLUDE THAT THE AUTHORITY TO PRESCRIBE RULES FOR DETERMINING THE EFFECTIVE DATES (OTHER THAN RETROACTIVE) OF WAGE RATE CHANGES IS AN INCIDENT OF THE DISCRETION VESTED IN THE SECRETARY OF THE NAVY BY THE STATUTE, AND THAT A DEPARTURE BY A SUBORDINATE FROM SUCH RULES IN ATTEMPTING TO CHANGE AN EMPLOYEE'S WAGE RATE WITHOUT A CHANGE IN DUTIES, IS INEFFECTIVE. IT IS IMPLICIT IN THE SUBMISSION OF THE PRESENT MATTER FOR OUR DECISION, AS WELL AS IN THE ACTION TAKEN LOCALLY TO RESCIND THE DECREASE, THAT THE DEPARTMENT OF THE NAVY REGARDS THE REGULATIONS IN NCPI 160.5-2 B (1) CONCERNING ADVANCE NOTICE OF DECREASE IN RATE OF COMPENSATION AS AN INTEGRAL PART OF THE WAGE -FIXING PROCEDURES UNDER THE STATUTE.

IN VIEW THEREOF, WE HOLD THAT THE PURPORTED CHANGES IN RATINGS WITH THE ATTENDANT REDUCTION IN COMPENSATION WITHOUT COMPLIANCE WITH THE ADVANCE NOTICE REQUIREMENTS HAD NO LEGAL FORCE AND EFFECT. IT FOLLOWS THAT THE SUBJECT EMPLOYEES MAY BE PAID THE COMPENSATION ATTACHING TO THEIR FORMER RATINGS FOR THE PERIOD PRIOR TO THE DATE THE WAGE RATES WERE EFFECTIVELY REDUCED AFTER COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE REGULATIONS, LESS THE AMOUNT ALREADY RECEIVED FOR SUCH PERIOD. THE AMOUNTS DUE MAY BE COMPUTED UPON THE BASIS OF THE REVISED WAGE SCHEDULE WHICH BECAME EFFECTIVE OCTOBER 17, 1955.

WE SHOULD EMPHASIZE THAT OUR DECISION HEREIN RELATES SPECIFICALLY TO THE CIRCUMSTANCE IN WHICH THERE IS A DECREASE IN RATE OF PAY WITHOUT A CHANGE IN DUTIES AND IS NOT NECESSARILY FOR APPLICATION IN THE CASES WHERE THE CHANGE IN RATE OF COMPENSATION IS AN INCIDENT OF A CHANGE IN DUTIES.