B-135744, MAY 9, 1958

B-135744: May 9, 1958

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UNITED STATES CIVIL SERVICE COMMISSION: WE HAVE BEFORE US TWO CASES CONCERNING EMPLOYEES OF THE DEPARTMENT OF THE NAVY REGARDING APPEALS FROM RECLASSIFICATION ACTIONS IN WHICH WE PROPOSE TO AUTHORIZE RETROACTIVE PAY ADJUSTMENT TO THE DATE OF THE INITIAL ADMINISTRATIVE RECLASSIFICATION. IN EACH CASE AN ADVERSE ADMINISTRATIVE DECISION WAS RENDERED ON APPEALS BY THE EMPLOYEES WHICH WERE FILED WITHIN 30 DAYS OF THE PERSONNEL ACTIONS LOWERING THE GRADES OF THE POSITIONS OCCUPIED. ON APPEALS BY THE EMPLOYEES TO THE THIRD UNITED STATES CIVIL SERVICE REGIONAL OFFICE THE GRADES OF THE POSITIONS WERE RESTORED TO THEIR FORMER LEVELS. BOTH OF WHICH ARE CLOSELY RELATED. ARE RECITED TO POINT OUT THE BASIS FOR OUR RECOMMENDATION.

B-135744, MAY 9, 1958

TO HONORABLE HARRIS ELLSWORTH, CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

WE HAVE BEFORE US TWO CASES CONCERNING EMPLOYEES OF THE DEPARTMENT OF THE NAVY REGARDING APPEALS FROM RECLASSIFICATION ACTIONS IN WHICH WE PROPOSE TO AUTHORIZE RETROACTIVE PAY ADJUSTMENT TO THE DATE OF THE INITIAL ADMINISTRATIVE RECLASSIFICATION. IN EACH CASE AN ADVERSE ADMINISTRATIVE DECISION WAS RENDERED ON APPEALS BY THE EMPLOYEES WHICH WERE FILED WITHIN 30 DAYS OF THE PERSONNEL ACTIONS LOWERING THE GRADES OF THE POSITIONS OCCUPIED. ON APPEALS BY THE EMPLOYEES TO THE THIRD UNITED STATES CIVIL SERVICE REGIONAL OFFICE THE GRADES OF THE POSITIONS WERE RESTORED TO THEIR FORMER LEVELS.

THE PRINCIPAL QUESTION RELATES TO THE TIMELINESS OF THE APPEALS TO THE COMMISSION AND WE SHOULD LIKE TO SUGGEST, IN THE INTEREST OF DEFINITE AND UNIFORM ADMINISTRATIVE PROCEDURE, IN THIS REGARD THAT THE INSTRUCTIONS IN THE FEDERAL PERSONNEL MANUAL, CHAPTER P 2-18, ET SEQ., BE SUPPLEMENTED, IF APPROPRIATE, TO ESTABLISH A FIXED PERIOD FOR FILING APPEALS WITH THE COMMISSION AFTER ADVERSE ADMINISTRATIVE DECISIONS ON ADMINISTRATIVE APPEALS.

THE FACTS IN ONE OF THE POSITIONS, BOTH OF WHICH ARE CLOSELY RELATED, ARE RECITED TO POINT OUT THE BASIS FOR OUR RECOMMENDATION.

VERA J. ARNOLD, SUPERVISORY FISCAL ACCOUNTING CLERK, GRADE GS-6, UNITED STATES NAVAL SUPPLY DEPOT, MECHANICSBURG, PENNSYLVANIA, WAS NOTIFIED ON DECEMBER 1, 1955, OF THE PROPOSED RECLASSIFICATION OF HER POSITION TO GRADE GS-5, EFFECTIVE JANUARY 1, 1956. SHE NOTIFIED OF HER RIGHTS TO APPEAL AS FOLLOWS:

"YOU ARE ADVISED OF YOUR RIGHT TO APPEAL THE CLASSIFICATION OF YOUR POSITION TO THE RESIDENT WAGE AND CLASSIFICATION OFFICE VIA THE INDUSTRIAL RELATIONS DEPARTMENT AND THE COMMANDING OFFICER OF THIS ACTIVITY, IN ACCORDANCE WITH THE PROCEDURE OUTLINED IN REFERENCE (A). YOU MAY ALSO APPEAL THIS ACTION UNDER THE PROVISIONS OF SECTION 501B OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, DIRECTLY TO THE UNITED STATES CIVIL SERVICE COMMISSION, PHILADELPHIA, PA. A CLASSIFICATION APPEAL CAN BE FILED AT ANY TIME. IF, HOWEVER, YOU DESIRE RETROACTIVE GRADE AND SALARY ADJUSTMENT, SUCH APPEAL MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE. NO APPEAL WILL BE ACCEPTED BY THE DEPARTMENT OF THE NAVY IF YOU ELECT TO PURSUE YOUR RIGHTS BY APPEALING DIRECT TO THE COMMISSION.'

ON DECEMBER 22, 1955, THE EMPLOYEE APPEALED THE PROPOSED RECLASSIFICATION ACTION TO THE RESIDENT WAGE AND CLASSIFICATION OFFICE IN ACCORDANCE WITH INSTRUCTIONS IN THE LETTER OF NOTICE. BY LETTER OF DECEMBER 27, 1955, SHE WAS INFORMED THAT EFFECTIVE JANUARY 1, 1956, THE GRADE OF HER POSITION WOULD BE LOWERED TO GRADE GS-5 PROVISIONALLY BECAUSE OF HER APPEAL. THE EMPLOYEE AGAIN WAS NOTIFIED OF HER RIGHT TO APPEAL TO THE CIVIL SERVICE COMMISSION IN LANGUAGE AS FOLLOWS:

"YOU ARE ADVISED OF YOUR RIGHT TO APPEAL THIS CHANGE TO LOWER GRADE UNDER THE PROVISIONS OF SECTION 501B OF THE CLASSIFICATION ACT TO THE UNITED STATES CIVIL SERVICE COMMISSION, PHILADELPHIA 8, PENNSYLVANIA. CLASSIFICATION APPEAL CAN BE FILED AT ANY TIME. IF, HOWEVER, YOU DESIRE ADJUSTMENT, THE APPEAL TO THE COMMISSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTER RECEIPT OF THE REFERENCE (A) (NOTICE OF PROPOSED RECLASSIFICATION) AS PROVIDED THEREIN.'

BY LETTER OF APRIL 26, 1956, THE EMPLOYEE WAS NOTIFIED OF THE DECISION OF THE AREA WAGE AND CLASSIFICATION OFFICE, PHILADELPHIA, PENNSYLVANIA, SUSTAINING THE ADMINISTRATIVE RECLASSIFICATION.

IT SEEMS APPROPRIATE TO INTERJECT AT THIS POINT THAT NEITHER OF THE NOTICES, AS QUOTED ABOVE, INTERPRET THE INSTRUCTIONS IN CHAPTER P 2 18, ET SEQ., AS WE UNDERSTAND THEM. EACH NOTICE INFORMS THE

THE CLAIMANT THAT TO OBTAIN RETROACTIVE BENEFITS UPON POSSIBLE FAVORABLE ACTION OF THE COMMISSION SHE MUST FILE AN APPEAL WITHIN 30 DAYS OF THE NOTICE OF PROPOSED RECLASSIFICATION RATHER THAN 30 DAYS AFTER RECEIVING NOTICE OF THE ACTION LOWERING HER GRADE. THE EXTENT TO WHICH THIS INFORMATION MAY HAVE AFFECTED THE EMPLOYEE'S SUBSEQUENT STEPS IS NOT DISCLOSED BY THE RECORD, ALTHOUGH IT WELL MAY BE THAT SHE BELIEVED THAT THE TIME FOR FILING AN APPEAL WITH THE COMMISSION, CARRYING WITH IT THE BENEFIT OF POSSIBLE RETROACTIVE ADJUSTMENT, HAD EXPIRED.

FOLLOWING THE UNFAVORABLE ADMINISTRATIVE DECISION OF APRIL 26, 1956, THE EMPLOYEE WAS INFORMED ON MAY 4, 1956, OF HER RIGHT TO APPEAL THE ADVERSE DECISION TO THE COMMISSION, BUT IN THIS NOTICE NOTHING WAS SAID OF THE REQUIREMENTS FOR OBTAINING RETROACTIVE ADJUSTMENT.

THEREAFTER, A REQUEST EVIDENTLY WAS MADE BY THE CLAIMANT TO HAVE HER CASE CONSIDERED FOR THE SALARY RETENTION BENEFITS PROVIDED BY PUBLIC LAW 594, APPROVED JUNE 18, 1956, 5 U.S.C. 1107. ON SEPTEMBER 14, 1956, THE EMPLOYEE WAS INFORMED THAT HER CASE DID NOT FALL WITHIN THE PURVIEW OF THAT ACT.

ON NOVEMBER 14, 1956, THE EMPLOYEE APPEALED HER POSITION CLASSIFICATION TO THE THIRD UNITED STATES CIVIL SERVICE REGION. PERTINENT PARTS OF HER LETTER ARE AS FOLLOWS:

"* * * ALTHOUGH THE DUTIES AND RESPONSIBILITIES OF OUR POSITIONS HAD NOT CHANGED, THE GRADES OF FOUR OF THE PERSONNEL I SUPERVISED HAD BEEN DOWNGRADED. ONE WAS OUT FROM A GS-5 TO A GS-4 AND THREE GS-4'S TO GS 3-S. IT WAS ALSO EXPLAINED THAT A CERTAIN NUMBER OF POINTS, LOST BY THESE DOWNGRADINGS, BROUGHT THE GRADES OF MY SUPERVISOR AND OF ME INTO THE CATEGORY OF A GS-6 AND GS-5, RESPECTIVELY. THE WRITER WAS ALSO ADVISED THAT IF THE LOWER ECHELON WON THEIR APPEALS, MY SUPERVISOR AND MY GRADES WOULD BE RESTORED BUT A DECISION COULD NOT BE REACHED UNTIL ALL APPEALS HAD BEEN UPHELD.

"IT WILL BE NOTED THAT ENCLOSURE (2) (ADMINISTRATIVE DECISION OF APRIL 26), ADVISING ME THAT MY POSITION WAS CORRECTLY CLASSIFIED, WAS WRITTEN SIX MONTHS BEFORE THE DECISION DATED 5 NOVEMBER 1956 WAS HANDED DOWN RESTORING THE GS-5 GRADE TO THE FINANCIAL EDITOR SUPERVISOR, HELEN E. MILLER. HAD MRS. DUGAN'S AND MY APPEALS BEEN HELD BY AWCO UNTIL THE DECISION ON THE POSITION OF THE FINANCIAL EDITOR SUPERVISOR (GS-5) HAD BEEN REACHED, I FEEL WE WOULD HAVE AUTOMATICALLY RECEIVED OUR FORMER GRADES WITH RETROACTIVE PAY.

"IN VIEW OF THE FACT THAT CIVIL SERVICE COMMISSION, WASHINGTON LETTER OF 26 OCTOBER 1956 TO COMMANDING OFFICER, NSD, MECHANICSBURG REINSTATED THE THREE GS-3'S TO GS-4'S AND THE AREA WAGE AND CLASSIFICATION OFFICE REINSTATED THE GS-4 TO A GS-5, IT IS REQUESTED THAT I ALSO BE REINSTATED TO MY FORMER GRADE OF A GS-6 WITH RETROACTIVE SALARY.'

APPARENTLY, THE INCUMBENTS OF THE LOWER GRADE POSITIONS REFERRED TO ABOVE, HAD APPEALED TO THE COMMISSION PRIOR TO THE FINAL ADMINISTRATIVE DISPOSITION OF THE CLAIMANT'S APPEAL AND IT FURTHER APPEARS THAT THEIR POSITIONS UPON REVIEW BY THE COMMISSION WERE RESTORED TO THE HIGHER GRADE RETROACTIVELY.

THE THIRD REGION DISCLAIMED JURISDICTION BUT INFORMED THE CLAIMANT 1957, INFORMED THE CLAIMANT THAT HER POSITION SHOULD BE CLASSIFIED IN GRADE GS- 6, AND SHE WAS PROMOTED TO THAT GRADE EFFECTIVE FEBRUARY 10, 1957.

SUBSEQUENT STEPS WERE TAKEN BY THE EMPLOYEE TO OBTAIN A RETROACTIVE PAY ADJUSTMENT THROUGH BOTH THE THIRD REGION AND ADMINISTRATIVE CHANNELS.

THE THIRD REGION DISCLAIMED JURISDICTION BUT INFORMED TO CLAIMANT THAT IT HAD ADVISED THE OFFICE OF INDUSTRIAL RELATIONS AT THE INSTALLATION THAT IN ITS OPINION THE CLAIMANT HAD FULFILLED THE REQUIREMENTS OF CHAPTER P 2-18 FEDERAL PERSONNEL MANUAL, AND, THEREFORE SHOULD RECEIVE RETROACTIVE PAY ADJUSTMENT.

THE CHIEF OF INDUSTRIAL RELATIONS, DEPARTMENT OF THE NAVY, INFORMED THE COMMANDING OFFICER, AS FOLLOWS:

"1. PARAGRAPH 1 OF REFERENCE (A) REFERS TO A DECISION MADE BY THE OFFICE OF INDUSTRIAL RELATIONS. THIS DECISION WAS NOT MADE DIRECTLY IN MISS ARNOLD'S CASE, BUT IN THAT OF HER SUPERVISOR, MRS. RUTH DUGAN. A SIMILAR TIME LAG SITUATION IS FOUND IN EACH OF THE TWO APPELLANTS' CASES.

"2. THE LETTER TO THE COMMANDING OFFICER, NDS, MECHANICSBURG, TO WHICH REFERENCE (A) ALLUDES STATES, IN PERTINENT PART:

" "1. REFERENCE (A) ASKS "IF AN EMPLOYEE FILES A TIMELY APPEAL UNDER SECTION 8 OF NCPI 156, AND THE APPEAL IS DENIED, IS THERE A TIME LIMIT WHICH MUST BE MET FOR FILING AN APPEAL UNDER SECTION 501 (B) OF THE CLASSIFICATION ACT OF 1949, IN ORDER TO OBTAIN RETROACTIVE ADJUSTMENT IN SALARY.'

" "2. IN PREVIOUS DISCUSSIONS WITH THE CIVIL SERVICE COMMISSION WE HAVE RAISED THIS QUESTION, SINCE THE FEDERAL PERSONNEL MANUAL DOES NOT SPECIFICALLY STATE A TIME INTERVAL. THE COMMISSION HAS INFORMED US THAT THERE IS NO TIME LIMIT BUT THAT EMPLOYEES SHOULD BE ADVISED TO FILE SUCH APPEALS "PROMPTLY; " FURTHER, THE COMMISSION HERE WOULD INTERPRET "PROMPTLY" AS WITHIN 30 DAYS.'

"THIS 30-DAY TIME LIMIT IS THE INTENT OF THE LANGUAGE OF FPM CHAP. P 2-18 AND P 2-23, AND THIS IS FURTHER BORNE OUT BY THE NEWLY ADDED PROVISIONS OF SECTION 25.411 OF THE FEDERAL EMPLOYEES PAY REGULATIONS.

"3. IN VIEW OF THE FOREGOING (PARAGRAPH 2) AND OF THE SIMILARITIES IN THE TWO CASES, THE OFFICE OF INDUSTRIAL RELATIONS IS OF THE OPINION THAT NO RELIEF TO MISS ARNOLD IS POSSIBLE UNDER THE REGULATIONS.'

AS A CONSEQUENCE OF THE ABOVE QUOTED LETTER THE EMPLOYEE'S REQUEST FOR RETROACTIVE PAY ADJUSTMENT WAS ADMINISTRATIVELY DENIED AND BOTH SHE AND MRS. RUTH DUGAN, REFERRED TO IN THE LETTER, FILED CLAIMS IN THE GENERAL ACCOUNTING OFFICE.

WE ARE ALLOWING THE CLAIMS IN THESE CASES BECAUSE OF THE EVIDENT DIFFERENCES IN INTERPRETATION OF CONTROLLING REGULATIONS, THE ABSENCE OF ANY REGULATION ESTABLISHING A SPECIFIC TIME LIMIT, THE CONTINUATION OF THE CLAIMANTS' EFFORTS AND OF THE APPARENT ADMINISTRATIVE FAILURE TO NOTIFY THE CLAIMANTS THAT THEY MUST APPEAL TO THE COMMISSION WITHIN 30 DAYS AFTER FINAL ADMINISTRATIVE DISPOSITION OF THEIR ADMINISTRATIVE APPEALS IF THEY DESIRED TO PROTECT THEIR RIGHTS TO POSSIBLE RETROACTIVE PAY ADJUSTMENT. FURTHER, OTHER EVIDENCE IN THE CASES INDICATES THAT THE CLAIMANTS MAY HAVE BEEN MISINFORMED CONCERNING THEIR RIGHTS.

WHILE WE AGREE IN PRINCIPLE WITH WHAT IS SAID IN THE LETTER OF THE CHIEF OF INDUSTRIAL RELATIONS CONCERNING TIMELINESS OF THE APPEALS, WE BELIEVE THESE CASES EVIDENCE A NEED FOR REGULATIONS, TO TAKE EFFECT PROSPECTIVELY, FIXING A DEFINITE TIME IN WHICH THE COMMISSION WILL ACCEPT APPEALS BY EMPLOYEES FROM ADMINISTRATIVE DISPOSITIONS OF CLASSIFICATION ACTION APPEALS. WE THEREFORE RECOMMEND THAT SUCH REGULATIONS BE CONSIDERED FOR ISSUANCE BY THE COMMISSION. THE CASES INDICATE, TOO, THAT EXISTING INSTRUCTIONS IN CHAPTER P 2-18 MAY NOT BE CLEARLY UNDERSTOOD, AS SHOWN BY THE NOTICE LETTERS REFERRED TO ABOVE, AND WE WOULD URGE SUCH CLARIFICATION OF EXISTING LANGUAGE AS THE COMMISSION MIGHT DEEM NECESSARY.

WE SHOULD LIKE TO BE APPRISED OF THE RESULT OF YOUR CONSIDERATION OF THE MATTER RECOMMENDED ABOVE.