B-132395, AUGUST 13, 1957, 37 COMP. GEN. 106

B-132395: Aug 13, 1957

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FEDERAL EMPLOYEES - DOWNGRADING - SALARY RETENTION BENEFITS - EFFECT OF TRANSFER TO DIFFERENT INSTALLATION IN THE DETERMINATION OF WHETHER EMPLOYEES WHO ARE TRANSFERRED TO DIFFERENT FACILITIES MAY BE REGARDED AS REMAINING IN THE SAME POSITION FOR ENTITLEMENT TO THE SALARY RETENTION BENEFITS OF THE ACT OF JUNE 18. THE CHARACTER OF THE EMPLOYEES' ASSIGNED WORK BEFORE AND AFTER TRANSFER IS FOR CONSIDERATION RATHER THAN THE LOCATION OR TYPE OF FACILITY. IF THE TRANSFERS INVOLVE NOTHING MORE THAN LOCATION CHANGES OR IF IN FACT THE EMPLOYEES' ASSIGNED WORK IS NOT MATERIALLY CHANGED AS RESULT OF THE TRANSFER. THE EMPLOYEES ARE ENTITLED TO THE SALARY RETENTION BENEFITS. IN THE CASE OF CERTAIN EMPLOYEES OF THE CIVIL AERONAUTICS ADMINISTRATION WHO ARE TRANSFERRED UNDER ONE OR THE OTHER OF THE TWO SETS OF CIRCUMSTANCES OUTLINED IN THAT LETTER.

B-132395, AUGUST 13, 1957, 37 COMP. GEN. 106

FEDERAL EMPLOYEES - DOWNGRADING - SALARY RETENTION BENEFITS - EFFECT OF TRANSFER TO DIFFERENT INSTALLATION IN THE DETERMINATION OF WHETHER EMPLOYEES WHO ARE TRANSFERRED TO DIFFERENT FACILITIES MAY BE REGARDED AS REMAINING IN THE SAME POSITION FOR ENTITLEMENT TO THE SALARY RETENTION BENEFITS OF THE ACT OF JUNE 18, 1956, 5 U.S.C. 1107, IN DOWNWARD RECLASSIFICATION ACTIONS, THE CHARACTER OF THE EMPLOYEES' ASSIGNED WORK BEFORE AND AFTER TRANSFER IS FOR CONSIDERATION RATHER THAN THE LOCATION OR TYPE OF FACILITY; AND, THEREFORE, IF THE TRANSFERS INVOLVE NOTHING MORE THAN LOCATION CHANGES OR IF IN FACT THE EMPLOYEES' ASSIGNED WORK IS NOT MATERIALLY CHANGED AS RESULT OF THE TRANSFER, THE EMPLOYEES ARE ENTITLED TO THE SALARY RETENTION BENEFITS.

TO THE SECRETARY OF COMMERCE, AUGUST 13, 1957:

YOUR ASSISTANT SECRETARY'S LETTER OF JUNE 28, 1957, REQUESTS OUR DECISION CONCERNING THE APPLICATION OF THE SALARY RETENTION PROVISIONS OF THE ACT OF JUNE 18, 1956, 70 STAT. 291, PUBLIC LAW 594, 5 U.S.C. 1107, IN THE CASE OF CERTAIN EMPLOYEES OF THE CIVIL AERONAUTICS ADMINISTRATION WHO ARE TRANSFERRED UNDER ONE OR THE OTHER OF THE TWO SETS OF CIRCUMSTANCES OUTLINED IN THAT LETTER.

THE LETTER SAYS THAT IN THE PERFORMANCE OF ITS AIR TRAFFIC CONTROL FUNCTION UNDER SECTION 302 OF THE CIVIL AERONAUTICS ACT, 49 U.S.C. 452, THE CIVIL AERONAUTICS ADMINISTRATION OFTEN TRANSFERS AIRWAYS OPERATION SPECIALISTS BETWEEN AIR NAVIGATION FACILITIES OF DIFFERENT TYPES AND AT DIFFERENT LOCATIONS. THE EMPLOYEES INVOLVED IN THE FIRST SET OF CIRCUMSTANCES ARE THOSE WHO RECEIVE TRANSFERS OF LOCATION ONLY AND PERFORM IDENTICAL DUTIES IN IDENTICAL AIR NAVIGATION FACILITIES AT THEIR NEW LOCATIONS. THE EMPLOYEES INVOLVED IN THE SECOND SET OF CIRCUMSTANCES RECEIVE TRANSFERS TO DIFFERENT TYPES OF FACILITIES AS WELL AS TO DIFFERENT LOCATIONS BUT, AFTER THEIR TRANSFERS, PERFORM THE SAME DUTIES OR AT LEAST THE SAME BASIC, PRIMARY DUTIES WITH CHANGES IN MINOR OR INCIDENTAL DUTIES ONLY.

AS POINTED OUT IN YOUR ASSISTANT SECRETARY'S LETTER, PUBLIC LAW 594 ENTITLES AN EMPLOYEE TO RETAIN HIS EXISTING RATE OF COMPENSATION AFTER A DOWNWARD RECLASSIFICATION OCCURRING AFTER THE DATE OF ENACTMENT OF SUCH LAW ONLY IF, AMONG OTHER THINGS, HE HAS "HELD SUCH POSITION FOR A CONTINUOUS PERIOD OF NOT LESS THAN TWO YEARS ENDING IMMEDIATELY PRIOR TO THE DATE OF SUCH RECLASSIFICATION.' THE ONLY QUESTION PRESENTED IS WHETHER AN EMPLOYEE REMAINS IN THE SAME POSITION WITHIN THE MEANING OF THE QUOTED STATUTORY LANGUAGE FOLLOWING HIS TRANSFER TO ANOTHER FACILITY UNDER EACH OF THE TWO SETS OF CIRCUMSTANCES DESCRIBED.

WHILE PUBLIC LAW 594 CONTAINS NO DEFINITION OF THE TERM "POSITION, THAT LAW IS AN AMENDMENT TO THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, 5 U.S.C. 1091, AND THEREFORE IT IS APPROPRIATE TO LOOK TO SECTION 301 OF THE CLASSIFICATION ACT TO DETERMINE THE SCOPE AND MEANING OF THE TERM. SECTION 301 PROVIDES THAT "FOR THE PURPOSES OF THIS ACT, THE TERM (1) "POSITION" MEANS THE WORK, CONSISTING OF THE DUTIES AND RESPONSIBILITIES, ASSIGNABLE TO AN OFFICER OR EMPLOYEE.'

UNDER THAT STATUTORY DEFINITION OF THE TERM,"POSITION," IT IS EVIDENT THAT THE CHARACTER OF AN EMPLOYEE'S ASSIGNED WORK BEFORE AND AFTER HIS TRANSFER WOULD DETERMINE WHETHER HIS POSITION HAD BEEN CHANGED AS A RESULT OF SUCH TRANSFER. THE LOCATION WHERE HIS WORK IS PERFORMED IS IMMATERIAL AND THE TYPE OF FACILITY IN WHICH SUCH WORK IS PERFORMED WOULD SEEM TO BE MATERIAL ONLY AS AN AID IN DETERMINING WHETHER THE CHARACTER OF THE EMPLOYEE'S WORK HAD IN FACT BEEN CHANGED. HENCE UNDER THE FIRST SET OF CIRCUMSTANCES, INVOLVING NOTHING MORE THAN CHANGES OF LOCATION, THE EMPLOYEES REASONABLY MAY BE REGARDED AS REMAINING IN THE SAME POSITIONS FOLLOWING THEIR TRANSFERS.

LIKEWISE UNDER THE SECOND SET OF CIRCUMSTANCES NO CHANGE IN A POSITION WOULD OCCUR UNLESS AS A FACTUAL MATTER THE EMPLOYEE'S ASSIGNED WORK IS CHANGED MATERIALLY. IF NO MATERIAL CHANGE IN THE CHARACTER OF AN EMPLOYEE'S WORK OCCURS AS A RESULT OF SUCH TRANSFER, HE TOO MAY BE REGARDED AS OCCUPYING THE SAME POSITION FOR PURPOSES OF THE QUOTED PROVISIONS OF PUBLIC LAW 594. THE QUESTION WHETHER A MATERIAL CHANGE OCCURS IN AN EMPLOYEE'S ASSIGNED WORK AS A RESULT OF ANY SUCH TRANSFER IS ONE OF FACT TO BE DETERMINED IN EACH INDIVIDUAL CASE AND IS A MATTER PRIMARILY FOR THE CONSIDERATION OF THE EMPLOYING AGENCY AND THE CIVIL SERVICE COMMISSION.