B-142561, MAY 19, 1960

B-142561: May 19, 1960

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300 CLAIM IS THAT HAD THE POSITION BEEN PROPERLY CLASSIFIED AT THE TIME OF THE ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958. ENTITLEMENT TO INCREASED PAY UNDER APPLICABLE PROVISIONS THEREOF WOULD HAVE COMMENCED ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JANUARY 1. EFFECTIVE THAT DATE HE WAS PROMOTED TO THE POSITION OF MILITARY COMMUNITY AND REGIONAL PLANNER. THE MINIMUM RATES OF "ALL PROFESSIONAL ENGINEERING POSITIONS IN ANY PROFESSIONAL ENGINEERING SERIES IN THE GS-800 -0 GROUPS" WERE INCREASED. AT THAT TIME HE WAS ADVISED THAT THE CIVIL SERVICE COMMISSION LACKED AUTHORITY TO PLACE THEIR DECISION INTO EFFECT RETROACTIVELY. HE WAS NOT ENTITLED TO THE ADJUSTMENT SOUGHT.

B-142561, MAY 19, 1960

TO MR. H. V. PRATER, DIRECTOR, EMPLOYEE RELATIONS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES:

THIS REFERS TO YOUR LETTERS DATED APRIL 7 AND 15, 1960, TO OUR OFFICE APPEALING THE ACTION OF OUR CLAIMS DIVISION IN ITS SETTLEMENT OF OCTOBER 29, 1959, WHICH DENIED THE CLAIM OF ROBERT H. SCHUCKMAN FOR $1,300 ALLEGED TO BE DUE BECAUSE OF AN ERRONEOUS CLASSIFICATION OF HIS POSITION AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE FOR THE PERIOD FEBRUARY 5, 1956, TO JUNE 26, 1959. THE BASIS OF THE $1,300 CLAIM IS THAT HAD THE POSITION BEEN PROPERLY CLASSIFIED AT THE TIME OF THE ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, 72 STAT. 203, ENTITLEMENT TO INCREASED PAY UNDER APPLICABLE PROVISIONS THEREOF WOULD HAVE COMMENCED ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JANUARY 1, 1958.

PRIOR TO FEBRUARY 5, 1956, MR. SCHUCKMAN HELD THE POSITION OF CIVIL ENGINEER, GRADE GS-810-11, $6,820 PER ANNUM, AND EFFECTIVE THAT DATE HE WAS PROMOTED TO THE POSITION OF MILITARY COMMUNITY AND REGIONAL PLANNER, GRADE GS-020-12, $7,570 PER ANNUM. PURSUANT TO SECTION 104 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1106, AMENDING SECTION 803 OF THE CLASSIFICATION ACT OF 1949, THE CIVIL SERVICE COMMISSION BY DEPARTMENTAL CIRCULAR NO. 793, SUPPLEMENT NO. 12, DATED JUNE 27, 1956, INCREASED THE MINIMUM RATE OF COMPENSATION OF CIVILIAN PROFESSIONAL ENGINEERS AND CERTAIN PHYSICAL SCIENTISTS IN GRADES GS-9 AND GS-11. THAT ACTION EFFECTED A CHANGE IN THE MINIMUM RATE OF ALL GS-11 PROFESSIONAL ENGINEERS AT MR. SCHUCKMAN'S PLACE OF EMPLOYMENT WITH THE EXCEPTION OF THOSE IN GS- 020 SERIES, MILITARY COMMUNITY AND REGIONAL PLANNERS. BY SUPPLEMENT NO. 33, DATED DECEMBER 9, 1957, THE MINIMUM RATES OF "ALL PROFESSIONAL ENGINEERING POSITIONS IN ANY PROFESSIONAL ENGINEERING SERIES IN THE GS-800 -0 GROUPS" WERE INCREASED. SECTIONS 2 (B), (6) AND (7) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, INCREASED THE COMPENSATION OF EMPLOYEES ON THE ROLLS WHO HAD HAD THEIR RATE OF COMPENSATION ESTABLISHED UNDER SECTION 803, ABOVE, PRIOR TO THE DATE OF ENACTMENT OF SAID 1958 ACT.

ON JUNE 26, 1959, THE CIVIL SERVICE COMMISSION RULED THAT MR. SCHUCKMAN'S POSITION SHOULD BE CLASSIFIED AS GENERAL ENGINEER, GS-801 12. AT THAT TIME HE WAS ADVISED THAT THE CIVIL SERVICE COMMISSION LACKED AUTHORITY TO PLACE THEIR DECISION INTO EFFECT RETROACTIVELY.

IN OUR SETTLEMENT OF OCTOBER 29 WE EXPLAINED THAT SINCE THE CLAIMANT DID NOT OCCUPY A POSITION IN THE PROFESSIONAL ENGINEER GROUP PRIOR TO THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, HE WAS NOT ENTITLED TO THE ADJUSTMENT SOUGHT. YOU CONTEND THAT INASMUCH AS THERE HAS BEEN NO CHANGE IN HIS DUTIES SINCE 1956, HE IS ENTITLED TO THE TOP STEP OF HIS GRADE EFFECTIVE JANUARY 4, 1958.

THE FACT THAT THE CLAIMANT MAY HAVE PERFORMED THE DUTIES OF AN ENGINEER DURING THE PERIOD INVOLVED IN ITSELF DOES NOT ENTITLE THE CLAIMANT TO THE INCREASED PAY. OUR OFFICE HAS LONG HELD THAT PAYMENT OF SALARY ATTACHES TO THE OFFICE OR POSITION RATHER THAN TO THE DUTIES PERFORMED. SEE 24 COMP. GEN. 816.

THE DECISIONS OF OUR OFFICE CITED BY YOU ARE NOT CONTROLLING HERE. THE ACTION GIVING RISE TO THE COMPLAINT IS THE FAILURE OF THE CIVIL SERVICE COMMISSION TO MAKE ITS DECISION OF JUNE 26, 1959, RETROACTIVE TO THE DATE OF CLASSIFICATION OF THE POSITION AS A MILITARY COMMUNITY AND REGIONAL PLANNER. THE DECISION REPORTED AT 37 COMP. GEN. 492 INVOLVED DEPARTMENTAL ACTION AFTER PUBLICATION BY THE CIVIL SERVICE COMMISSION OF REVISED STANDARDS FOR CERTAIN POSITIONS AND 30 COMP. GEN. 156, INVOLVED DEPARTMENTAL ALLOCATION AND REALLOCATION OF POSITIONS UNDER SECTION 502 OF THE CLASSIFICATION ACT OF 1949. ON JULY 19, 1959, THE DEPARTMENT OF THE AIR FORCE REASSIGNED MR. SCHUCKMAN TO THE POSITION OF GENERAL ENGINEER PURSUANT TO THE CIVIL SERVICE COMMISSION'S DECISION OF JUNE 26, 1959. ORDER FOR THE PRINCIPLES STATED IN 37 COMP. GEN. 492 AND 30 COMP. GEN. 156 TO APPLY, THE COMPLAINT WOULD HAVE TO RELATE TO DEPARTMENTAL ACTION AFTER THE CIVIL SERVICE RECLASSIFICATION. WE DO NOT UNDERSTAND THIS TO BE THE CASE. SIMILARLY 21 COMP. GEN. 369 RELATING TO WITHIN-GRADE ADVANCEMENTS, IS NOT CONTROLLING IN THE DETERMINATION OF THIS CASE. THE PRINCIPLE REFERRED TO IN THAT DECISION INVOLVED A RETROACTIVE ADJUSTMENT TO THE DATE OF ENTITLEMENT. THE ENTITLEMENT HERE BEGAN WHEN THE CIVIL SERVICE COMMISSION MADE ITS RECLASSIFICATION AND THE DEPARTMENT OF THE AIR FORCE TOOK THE NECESSARY STEPS TO EFFECT ENTITLEMENT. AS PREVIOUSLY INDICATED THE COMPLAINT RELATES TO THE PERIOD PRIOR TO THE RECLASSIFICATION AND DATE OF ENTITLEMENT.

THE CIVIL SERVICE COMMISSION HAS ADVISED YOU THAT ITS DECISION AS TO THE CLASSIFICATION DOES NOT APPLY RETROACTIVELY. AS POINTED OUT IN OUR SETTLEMENT OF OCTOBER 29, 1959, THE PROVISIONS OF CHAPTER P2 OF THE FEDERAL PERSONNEL MANUAL GOVERN THE EFFECTIVE DATE OF APPEALS FROM CLASSIFICATION ACTIONS. THESE PROCEDURES WERE FOLLOWED IN THIS CASE AND NO FURTHER ACTION IS REQUIRED. MOREOVER, SECTION 502 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 958, SPECIFICALLY PROVIDES THAT DEPARTMENTAL CLASSIFICATION ACTIONS "SHALL BE THE BASIS FOR THE PAYMENT OF COMPENSATION * * * UNTIL CHANGED BY THE CERTIFICATE OF THE COMMISSION.'

THEREFORE, THE SETTLEMENT OF OCTOBER 29, 1959, UPON REVIEW, IS SUSTAINED.