B-137226, SEPTEMBER 4, 1958, 38 COMP. GEN. 188

B-137226, SEPTEMBER 4, 1958, 38 COMP. GEN. 188

CIVILIAN PERSONNEL - COMPENSATION - INCREASES - PROMOTIONS DURING THE RETROACTIVE PERIOD IN THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 THE SALARIES OF CIVILIAN EMPLOYEES WHO WERE GIVEN GRADE PROMOTIONS AT THE MINIMUM RATE OF THE NEXT GRADE DURING THE RETROACTIVE PERIOD IN THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 ( JANUARY 12, TO JUNE 20, 1958) BUT WHO BY REASON OF THE NEW RATES HAVE NOT RECEIVED PROMOTIONS WHICH RESULT IN AT LEAST A ONE-STEP INCREASE AS PROVIDED IN SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1132 (B), ARE TO BE ADJUSTED AS THOUGH THE NEW INCREASED RATES ACTUALLY WERE IN EFFECT AT THE TIME THE PROMOTIONS OCCURRED AND THE EXCEPTION IN SECTION 2 (B) (5) OF THE 1958 ACT, WHICH PRECLUDES SALARY ADJUSTMENTS IN THE CASE OF PROMOTIONS AT RATES HIGHER THAN THE MINIMUM STEP OF THE GRADE, IS NOT FOR APPLICATION.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, SEPTEMBER 4, 1958:

YOUR LETTER OF AUGUST 22, 1958, PRESENTS THE QUESTION CONCERNING THE COMPENSATION ENTITLEMENT OF AN EMPLOYEE PROMOTED EFFECTIVE APRIL 30, 1958, FROM GS-9, $6,250 PER ANNUM, THE LAST STEP IN THE GRADE. THE QUESTION ARISES AS TO WHETHER THE INCREASES PROVIDED IN THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, 72 STAT. 203, OPERATE TO REQUIRE THAT HIS SALARY IN GS-11 BE FIXED IN THE SECOND STEP OF GS-11, EFFECTIVE APRIL 30, 1958.

AT THE TIME THE PROMOTION OF THE EMPLOYEE TO GS-11 WAS MADE ON APRIL 30, 1958, SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 969, 5 U.S.C. 1132 (B), REQUIRED THAT HE BE GIVEN AT LEAST A "ONE STEP INCREASE OF THE GRADE" FROM WHICH HE WAS PROMOTED. THAT REQUIREMENT WAS MET BY PLACING HIM IN THE FIRST STEP OF GS-11.

IN 31 COMP. GEN. 166, CONCERNING THE ACT OF OCTOBER 24, 1951, 65 STAT. 612, 5 U.S.C. 1113, WHICH GRANTED SALARY INCREASES TO FEDERAL EMPLOYEES, WE SAID THAT THE RETROACTIVE PROVISIONS OF THAT ACT WERE TO BE REGARDED AS REQUIRING THE ADJUSTMENT OF AN EMPLOYEE'S COMPENSATION FOR THE PERIOD BETWEEN ITS EFFECTIVE DATE AND ENACTMENT DATE TO REFLECT THE PAY STATUS HE WOULD HAVE ATTAINED HAD THE AMENDED PAY SCHEDULES BEEN OPERATIVE AND APPLIED CURRENTLY DURING THE SAME PERIOD. WE SEE NO REASON WHY THE SAME RULE SHOULD NOT BE APPLICABLE TO THE 1958 SALARY INCREASE ACT IN THE ABSENCE OF ANY SPECIAL PROVISION OF THE ACT CREATING AN EXCEPTION TO THAT RULE. THE ONLY PROVISION WHICH REQUIRES CONSIDERATION IN THAT CONNECTION IS SECTION 2 (B) (5) OF THE 1958 ACT, REFERRED TO IN YOUR LETTER. THAT SECTION READS AS FOLLOWS:

(B) THE RATES OF COMPENSATION OF OFFICERS AND EMPLOYEES TO WHOM THIS SECTION APPLIES SHALL BE ADJUSTED AS FOLLOWS:

(5) IF THE OFFICER OR EMPLOYEE, AT ANY TIME DURING THE PERIOD BEGINNING ON THE EFFECTIVE DATE OF THIS SECTION AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, WAS PROMOTED FROM ONE GRADE UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, TO ANOTHER SUCH GRADE AT A RATE WHICH IS ABOVE THE MINIMUM RATE THEREOF, HIS RATE OF BASIC COMPENSATION SHALL BE ADJUSTED RETROACTIVELY FROM THE EFFECTIVE DATE OF THIS SECTION TO THE DATE ON WHICH HE WAS SO PROMOTED, ON THE BASIS OF THE RATE WHICH HE WAS RECEIVING DURING THE PERIOD FROM SUCH EFFECTIVE DATE TO THE DATE OF SUCH PROMOTION AND, FROM THE DATE OF SUCH PROMOTION, ON THE BASIS OF THE RATE FOR THAT STEP OF THE APPROPRIATE GRADE OF THE GENERAL SCHEDULE CONTAINED IN THIS SECTION WHICH CORRESPONDS NUMERICALLY TO THE STEP OF THE GRADE OF THE GENERAL SCHEDULE FOR SUCH OFFICER OR EMPLOYEE WHICH WAS IN EFFECT (WITHOUT REGARD TO THIS ACT) AT THE TIME OF SUCH PROMOTION.

A PROVISION SIMILAR TO THE FOREGOING APPEARED IN SECTION 2 (B) (6) OF THE 1955 SALARY INCREASE ACT (69 STAT. 174) BUT NO EXPLANATION THEREOF APPEARS IN THE COMMITTEE REPORTS, SUCH PROVISION APPARENTLY HAVING BEEN ADDED IN CONFERENCE WITHOUT COMMENT. HOWEVER, IN HOUSE REPORT NO. 1660 ON S. 734 WHICH BECAME THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, THE FOLLOWING STATEMENT APPEARS ON PAGE 6:

PARAGRAPH (5) PROVIDES THAT, IF THE OFFICER OR EMPLOYEE AT ANY TIME BEGINNING ON THE EFFECTIVE DATE OF SECTION 2 AND ENDING ON THE DATE OF THE ENACTMENT OF THE BILL, WAS PROMOTED FROM ONE GRADE OF THE CLASSIFICATION ACT OF 1949 TO ANOTHER GRADE AT A RATE ABOVE THE MINIMUM RATE, HIS RATE OF BASIC COMPENSATION SHALL BE ADJUSTED RETROACTIVELY FROM THE EFFECTIVE DATE OF SECTION 2 TO THE DATE ON WHICH HE WAS PROMOTED. THIS ADJUSTMENT WILL BE MADE ON THE BASIS OF THE RATE WHICH THE OFFICER OR EMPLOYEE WAS RECEIVING DURING THE PERIOD FROM SUCH EFFECTIVE DATE TO THE DATE OF HIS PROMOTION AND, FROM THE DATE OF SUCH PROMOTION, ON THE BASIS OF THE RATE OF THAT STEP OF THE APPROPRIATE GRADE OF THE GENERAL SCHEDULE AS INCREASED BY SECTION 2 WHICH CORRESPONDS NUMERICALLY TO THE STEP OF THE GRADE OF THE GENERAL SCHEDULE FOR THE OFFICER OR EMPLOYEE WHICH WAS IN EFFECT (WITHOUT REGARD TO THIS BILL) AT THE TIME OF SUCH PROMOTION.

OBVIOUSLY SECTION 2 (B) (6) OF THE 1955 SALARY INCREASE ACT AND THE SIMILAR SECTION 2 (B) (5) OF THE 1958 SALARY INCREASE ACT WERE INTENDED TO CREATE AN EXCEPTION TO THE RULE IN 31 COMP. GEN. 166 (SEE ANSWER TO QUESTION 7) REFERRED TO ABOVE. ALSO, IT IS OBVIOUS THAT THE LANGUAGE OF SUCH SECTION HAS REFERENCE TO PROMOTIONS WHICH WERE REQUIRED TO BE MADE ABOVE THE MINIMUM RATE OF THE HIGHER GRADE UNDER THE COMPENSATION SCHEDULES IN EFFECT AT THE TIME THE PROMOTION WAS MADE.

IN THE CASE AT HAND THE EMPLOYEE'S SALARY STEP IN THE GRADE TO WHICH PROMOTED ON APRIL 30, 1958, PROPERLY WAS DETERMINED AT THAT TIME AS THE FIRST OR MINIMUM STOP OF GRADE 11. THUS, SECTION 2 (B) (5) OF THE 1958 SALARY INCREASE ACT IS NOT APPLICABLE IN HIS CASE AND THE GENERAL RULE IS FOR APPLICATION, NAMELY, THAT HIS SALARY STEP IS FOR DETERMINATION AS THOUGH THE NEW INCREASED RATES ACTUALLY WERE IN EFFECT AT THE TIME THE PROMOTION OCCURRED. THEREFORE, THE EMPLOYEE'S SALARY RATE OF $6,250 PER ANNUM (PRIOR TO APRIL 30, 1958) BECOMES $6,885 PER ANNUM, AND BECAUSE OF HIS PROMOTION ON APRIL 30, 1958, HE IS ENTITLED AS OF THAT DATE, IN ACCORDANCE WITH SECTION 802 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1132, TO BE PLACED IN THE SECOND STEP RATE OF GRADE GS-11 WHICH CALLS FOR A SALARY RATE OF $7,270 PER ANNUM.