B-142583, SEP. 2, 1960

B-142583: Sep 2, 1960

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MAY BE EXERCISED AT THE TIME SUCH ACTION IS ORIGINALLY TAKEN AND THAT CORRECTIVE ACTION HAVING RETROACTIVE EFFECT MAY BE ACCOMPLISHED ONLY UPON A CLEAR SHOWING THAT AN ADMINISTRATIVE ERROR. WAS MADE IN FIXING THE ORIGINAL SALARY RATE. THE GRADE GS-14 POSITION WAS REALLOCATED BY THE CIVIL SERVICE COMMISSION TO GRADE GS-15 ON JUNE 18. YOUR SALARY RATE WAS FIXED. WE WERE INFORMED THAT 30 POSITIONS WERE INCLUDED IN THE REALLOCATION. FROM YOUR AGENCY CONCERNING THIS MATTER STATES THE PATTERN OF FIXING SALARIES IN THE DIVISION OF TRIAL EXAMINERS INDICATES THAT IT IS AND HAS BEEN THE PRACTICE TO ESTABLISH SALARIES BASED ON THE HIGHEST PREVIOUS RATE FOR WHICH THE EMPLOYEE IS ELIGIBLE. THE REPORT STATES THAT A REVIEW OF THE RECORDS FAILS TO ESTABLISH HOW YOU COULD HAVE BEEN DENIED THE BENEFIT OF YOUR HIGHEST PREVIOUS RATE OTHER THAN BY ADMINISTRATIVE OVERSIGHT.

B-142583, SEP. 2, 1960

TO MR. LOUIS LIBBIN, NATIONAL LABOR RELATIONS BOARD:

YOUR LETTER OF APRIL 8, 1960, REFERS TO THE ACTION OF OUR CIVIL ACCOUNTING AND AUDITING DIVISION REGARDING A RETROACTIVE SALARY ADJUSTMENT MADE IN YOUR FAVOR EFFECTIVE JUNE 20, 1954.

ON MARCH 8, 1960, WE ISSUED AN INFORMAL INQUIRY QUESTIONING A PAYMENT OF $2,637.10 RESULTING FROM AN ADMINISTRATIVE ACTION TAKEN IN JULY 1959 TO INCREASE YOUR SALARY RETROACTIVELY EFFECTIVE TO JUNE 20, 1954, PLUS SUBSEQUENT ADDITIONAL OVERPAYMENTS OF $11.20 EACH PAY PERIOD. WE DIRECTED ATTENTION TO THE FACT THAT ADMINISTRATIVE DISCRETION IN FIXING AN INITIAL SALARY RATE WITHIN THE SCHEDULED RATES OF THE GRADE TO WHICH PROMOTED, NOT IN EXCESS OF THE HIGHEST RATE PREVIOUSLY OBTAINED, MAY BE EXERCISED AT THE TIME SUCH ACTION IS ORIGINALLY TAKEN AND THAT CORRECTIVE ACTION HAVING RETROACTIVE EFFECT MAY BE ACCOMPLISHED ONLY UPON A CLEAR SHOWING THAT AN ADMINISTRATIVE ERROR, IN FACT, WAS MADE IN FIXING THE ORIGINAL SALARY RATE.

THE RECORDS SHOW THAT YOU HAD ATTAINED THE THIRD STEP OF GRADE GS-15 AS A GENERAL ATTORNEY UNDER AN EXCEPTED APPOINTMENT PRIOR TO REINSTATEMENT TO THE CAREER SERVICE AT THE MAXIMUM SCHEDULED RATE OF GRADE GS-14, AS A HEARING EXAMINER, EFFECTIVE APRIL 20, 1954. THE GRADE GS-14 POSITION WAS REALLOCATED BY THE CIVIL SERVICE COMMISSION TO GRADE GS-15 ON JUNE 18, 1954, AND YOUR SALARY RATE WAS FIXED, EFFECTIVE JUNE 20, 1954, AT $10,800, THE MINIMUM OF GRADE GS-15. WE WERE INFORMED THAT 30 POSITIONS WERE INCLUDED IN THE REALLOCATION.

THE REPORT OF AUGUST 10, 1960, FROM YOUR AGENCY CONCERNING THIS MATTER STATES THE PATTERN OF FIXING SALARIES IN THE DIVISION OF TRIAL EXAMINERS INDICATES THAT IT IS AND HAS BEEN THE PRACTICE TO ESTABLISH SALARIES BASED ON THE HIGHEST PREVIOUS RATE FOR WHICH THE EMPLOYEE IS ELIGIBLE, AND THAT A STUDY SHOWS ADDITIONAL CASES OF HEARING EXAMINER SALARIES ESTABLISHED ON THE BASIS OF PREVIOUS EARNINGS, BOTH PRIOR TO AND SINCE YOUR PROMOTION. FURTHER, THE REPORT STATES THAT A REVIEW OF THE RECORDS FAILS TO ESTABLISH HOW YOU COULD HAVE BEEN DENIED THE BENEFIT OF YOUR HIGHEST PREVIOUS RATE OTHER THAN BY ADMINISTRATIVE OVERSIGHT, AND THAT THE "NATIONAL LABOR RELATIONS BOARD IS WILLING TO CONCEDE" THAT THE ORIGINAL ACTION PLACING YOU IN THE FIRST STEP OF GS 15 "WAS, IN FACT, AN ADMINISTRATIVE ERROR.' THE REPORT THEN OUTLINES YOU MET THE AGENCY CONSIDERATIONS FOR USE OF THE HIGHEST PREVIOUS RATE IN THE CASE OF NEW APPOINTEES, AND THAT THERE WERE NO BUDGETARY OR OTHER CONSIDERATIONS IN 1954 WHICH WOULD HAVE PRECLUDED THE GRANTING OF THE HIGHEST PREVIOUS RATE IN YOUR CASE.

THE REPORT, HOWEVER, POINTS OUT THAT MR. ARTHUR H. LANG WAS DIRECTOR OF THE DIVISION OF ADMINISTRATION IN 1954 WHEN YOU WERE RE-PROMOTED. BASED UPON HIS RECOLLECTION MR. LANG, IN A RECENT LETTER SAYS:

"* * * "IT IS SURPRISING HOW CERTAIN THINGS ESCAPE ONE'S MEMORY. IN THE LIBBIN CASE, TO THE BEST OF MY ABILITY TO RECALL, THE TRANSFER TO HEARING EXAMINER POSITION AND SALARY ACCORDED WAS RECOMMENDED BY N.L.R.B. AND APPROVED BY THE CIVIL SERVICE. WHEN ALL OF THE HEARING EXAMINERS IN GRADES BELOW GS-15 WERE PROMOTED TO GS-15, THE COMMISSION AUTHORIZED THE PROMOTIONS AND LISTED THE SALARIES. I AM PRETTY SURE THE SITUATION IN REGARD TO LIBBIN WAS BROUGHT UP AND THAT (1) THE BOARD FELT NOTHING FURTHER SHOULD BE DONE AND (2) THE COMMISSION DID NOT INSIST UPON IT. THAT IS THE BEST I CAN DO.'"

ADDITIONALLY, WE UNDERSTAND THE SALARIES OF ALL OF THE 30 PERSONS AFFECTED BY THE JUNE 1954 REALLOCATION WERE FIXED AT THE MINIMUM STEP OF GRADE GS-15, AND THAT AT LEAST ONE OTHER EMPLOYEE IN THE GROUP WAS NOT GIVEN THE BENEFIT OF HIS HIGHEST PREVIOUS RATE. ALSO, WE NOTE THAT IN A MEMORANDUM OF JULY 10, 1959, FROM ALLIE MAY MOTT TO MR. BRADLEY SHE SAYS THAT "AS I RECALL IT SEEMS THAT IT WAS GENERALLY UNDERSTOOD THAT THE GIVING OF THE HIGHER SALARY TO MR. LIBBIN AT THAT TIME COULD HAVE RESULTED IN A MORALE PROBLEM.' WE HAVE NO INFORMATION AS TO WHY YOU DID NOT QUESTION THE SALARY RATE ALLOWED YOU IN 1954 UNTIL SOMETIME IN 1959; HOWEVER, IT IS EVIDENT THAT THE UNUSUAL DELAY MAKES IT DIFFICULT IF NOT IMPOSSIBLE TO ASCERTAIN THE FACTS OF THE CASE. THEREFORE, AND SINCE IT IS APPARENT FROM HIS LETTER THAT MR. LANG, THE OFFICIAL WHO SIGNED YOUR PROMOTION JOURNAL IN 1954, TO THE BEST OF HIS RECOLLECTION BELIEVES THE ACTION AS TAKEN WAS INTENDED AND AS ALL OF THE 30 EMPLOYEES INVOLVED AT THE TIME OF THE 1954 REALLOCATION WERE PLACED IN THE MINIMUM STEP OF GRADE GS-15, WE ARE OF THE VIEW THAT THE RECORD NOW BEFORE US DOES NOT ADEQUATELY ESTABLISH AN ADMINISTRATIVE ERROR IN YOUR CASE.