B-143121, JUN. 28, 1960

B-143121: Jun 28, 1960

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WAS DUE TO RECEIVE A PERIODIC-STEP INCREASE TO $11. THIS INCREASE WAS DENIED ON JULY 20. THE EMPLOYEE WAS SO ADVISED BY THE SUPERVISOR'S LETTER OF JULY 20. THE EMPLOYEE REPLIED TO THIS LETTER ON SEPTEMBER 15 BUT WAS INFORMED BY THE SUPERVISOR ON SEPTEMBER 17. IT IS NOT SHOWN FROM THE RECORD HERE. THAT THE EMPLOYEE WAS FULLY INFORMED OF THE LIMITED EFFECT OF FAVORABLE ACTION UNDER THE GRIEVANCE PROCEDURES. THE EMPLOYEE WAS DEMOTED FROM GRADE GS-14 TO GRADE GS -12 AT $9. AN ADVISORY COMMITTEE WAS APPOINTED TO INVESTIGATE AND MAKE RECOMMENDATIONS REGARDING THE CASE. A HEARING WAS HELD ON NOVEMBER 25. IN LINE WITH THAT DETERMINATION THE EMPLOYEE WAS INFORMED AS FOLLOWS: "1. IS CANCELLED EFFECTIVE OCTOBER 5.

B-143121, JUN. 28, 1960

TO THE HONORABLE JOHN A. MCCONE, CHAIRMAN, ATOMIC ENERGY COMMISSION:

ON JUNE 6, 1960, YOUR DEPUTY GENERAL MANAGER REQUESTED OUR APPROVAL OF A PROPOSAL TO PAY BACK SALARY AND TO EFFECT A RETROACTIVE ADJUSTMENT OF A WITHIN-GRADE PROMOTION IN THE CASE OF A PREFERENCE ELIGIBLE EMPLOYEE OF THE ATOMIC ENERGY COMMISSION.

THE EMPLOYEE, A FOREIGN AFFAIRS SPECIALIST, GS-14, WITH AN AEC REGULAR APPOINTMENT AT $11,355 PER ANNUM, WAS DUE TO RECEIVE A PERIODIC-STEP INCREASE TO $11,595 PER ANNUM, EFFECTIVE MAY 3, 1959. THIS INCREASE WAS DENIED ON JULY 20, 1959, BY THE EMPLOYEE'S SUPERVISOR. THE EMPLOYEE WAS SO ADVISED BY THE SUPERVISOR'S LETTER OF JULY 20, 1959, WHICH STATED THE REASONS FOR THE CERTIFICATION THAT THE CONDUCT AND SERVICE OF THE EMPLOYEE DID NOT MEET THE OVER-ALL REQUIREMENTS IN HIS POSITION. THIS ACTION FOLLOWED GENERALLY THE PROVISIONS OF SECTION 4132-05, AEC MANUAL. THE PERTINENT CHAPTER OF THE ANNUAL PROVIDES FOR AN APPEAL THROUGH REGULAR GRIEVANCE PROCEDURES FROM SUCH ACTIONS, ALTHOUGH THE RECORD FAILS TO DISCLOSE THAT THE EMPLOYEE APPEALED AT THE TIME.

ON SEPTEMBER 4, 1959, THE SUPERVISOR INFORMED THE EMPLOYEE BY LETTER OF HIS INTENTION TO DEMOTE THE EMPLOYEE TO A GRADE GS-12 POSITION, EFFECTIVE OCTOBER 5, 1959. THE EMPLOYEE REPLIED TO THIS LETTER ON SEPTEMBER 15 BUT WAS INFORMED BY THE SUPERVISOR ON SEPTEMBER 17, THAT AFTER REVIEWING THE EMPLOYEE'S LETTER HE FOUND NO REASON FOR CHANGING HIS DECISION. SEPTEMBER 22, THE SUPERVISOR INFORMED THE EMPLOYEE BY LETTER THAT HE COULD OBTAIN A REVIEW OF THE DECISION BY SUBMITTING A WRITTEN REQUEST WITHIN 10 WORKING DAYS TO THE ASSISTANT GENERAL MANAGER FOR ADMINISTRATION. THE LETTER ALSO INFORMED THE EMPLOYEE OF HIS APPEAL RIGHT TO THE AEC GENERAL MANAGER AND TO THE CIVIL SERVICE COMMISSION. IT IS NOT SHOWN FROM THE RECORD HERE, HOWEVER, THAT THE EMPLOYEE WAS FULLY INFORMED OF THE LIMITED EFFECT OF FAVORABLE ACTION UNDER THE GRIEVANCE PROCEDURES, AS DISTINGUISHED FROM THE RIGHTS THAT COULD BE AUTHORIZED BY THE CIVIL SERVICE COMMISSION. THE EMPLOYEE WAS DEMOTED FROM GRADE GS-14 TO GRADE GS -12 AT $9,050 PER ANNUM EFFECTIVE OCTOBER 5, 1959.

ON OCTOBER 2, 1959, THE EMPLOYEE APPEALED BOTH THE DENIAL OF THE WITHIN- GRADE STEP INCREASE AND THE PROPOSED CHANGE TO A LOWER GRADE TO THE ASSISTANT GENERAL MANAGER FOR ADMINISTRATION. AS A CONSEQUENCE, AN ADVISORY COMMITTEE WAS APPOINTED TO INVESTIGATE AND MAKE RECOMMENDATIONS REGARDING THE CASE. A HEARING WAS HELD ON NOVEMBER 25, 1959, AND ON MARCH 1, 1960, THE ADVISORY COMMITTEE SUBMITTED ITS RECOMMENDATIONS TO THE ASSISTANT GENERAL MANAGER.

THE COMMITTEE RECOMMENDED THAT THE DEMOTION ACTION BE RESCINDED BUT THAT THE ACTION DENYING THE WITHIN-GRADE INCREASE BE SUSTAINED. THE ASSISTANT GENERAL MANAGER DETERMINED THAT THE WITHIN-GRADE PROMOTION SHOULD NOT BE DENIED BUT SHOULD BE MADE EFFECTIVE MAY 3, 1959, INASMUCH AS THE ACTION TO CANCEL THE EMPLOYEE'S CHANGE TO A LOWER GRADE WOULD ALSO ELIMINATE THE FINDING OF UNSATISFACTORY SERVICE MADE UNDER AEC MANUAL CHAPTER 4132, SECTION 4132-051.

IN LINE WITH THAT DETERMINATION THE EMPLOYEE WAS INFORMED AS FOLLOWS:

"1. THE PERSONNEL ACTION FOR YOU DATED SEPTEMBER 22, 1959 FOR THE PURPOSE OF "CHANGE TO LOWER GRADE" FROM FOREIGN AFFAIRS SPECIALIST, POSITION NUMBER 585-57, GS-130-14, $11,355.00 PER ANNUM, OFFICE OF SPECIAL PROJECTS, GERMANTOWN, MARYLAND - TO - FOREIGN AFFAIRS SPECIALIST, POSITION NUMBER 122-60, GS-130-12, $9,050.00 PER ANNUM, OFFICE OF SPECIAL PROJECTS, GERMANTOWN, MARYLAND, EFFECTIVE OCTOBER 5, 1959, IS CANCELLED EFFECTIVE OCTOBER 5, 1959.

"2. YOUR ANNUAL RATE OF COMPENSATION WILL BE INCREASED TO $11,595.00 EFFECTIVE AS OF THE DATE OF THIS LETTER. THIS RATE INCLUDES A ONE-STEP INCREASE ABOVE THE ANNUAL RATE PAID TO YOU IMMEDIATELY PRIOR TO OCTOBER 5, 1959. THE 78-WEEK QUALIFYING PERIOD FOR YOUR NEXT PERIODIC STEP INCREASE WILL BE COMPUTED FROM MAY 3, 1959.

"THE ATOMIC ENERGY COMMISSION DOES NOT HAVE STATUTORY AUTHORITY TO PAY BACK PAY IN A CASE SUCH AS THIS. THE ATOMIC ENERGY COMMISSION, THEREFORE, IS REQUESTING APPROVAL FROM THE COMPTROLLER GENERAL TO PAY YOU RETROACTIVELY THE DIFFERENCE IN COMPENSATION BETWEEN THE RATES OF $9,050.00 AND $11,355.00 FOR THE PERIOD FROM OCTOBER 5, 1959 TO THE DATE OF THIS LETTER, AND ALSO APPROVAL TO PAY YOU RETROACTIVELY THE DIFFERENCE IN COMPENSATION BETWEEN THE ANNUAL RATES OF $11,355.00 AND $11,595.00 FOR THE PERIOD STARTING WITH MAY 3, 1959 TO THE DATE OF THIS LETTER. YOU WILL BE NOTIFIED OF THE COMPTROLLER GENERAL'S DECISION AS SOON AS IT IS RECEIVED.'

CONCERNING THE DEPUTY GENERAL MANAGER'S REQUEST THAT WE APPROVE RETROACTIVE PAYMENT OF THE EMPLOYEE'S SALARY AND WITHIN-GRADE PROMOTION, WE MUST ADVISE THAT IN CASES SUCH AS THIS THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE IS ONLY COEXTENSIVE WITH THAT OF YOUR AGENCY. WE CONCUR IN THE DEPUTY GENERAL MANAGER'S VIEW THAT THE ATOMIC ENERGY COMMISSION IS WITHOUT AUTHORITY TO GRANT BACK PAY IN THIS CASE AND IT FOLLOWS THAT WE TOO ARE UNABLE TO AUTHORIZE THE REQUESTED RELIEF.

THE GENERAL RULE IS THAT, IN THE ABSENCE OF STATUTORY AUTHORITY OTHERWISE, AN EMPLOYEE WHO HAS BEEN REDUCED IN GRADE AND SALARY MAY NOT BE RETROACTIVELY RESTORED TO A HIGHER GRADE WITH BACK PAY. 23 COMP. GEN. 486; 29 ID. 135; 36 ID. 598. CF. 16 COMP. GEN. 979.

THE ONLY STATUTORY AUTHORITY UNDER WHICH RETROACTIVE ADJUSTMENT OF SALARY FOR THE DEMOTION PERIOD MAY BE MADE IN THIS CASE IS FOUND IN SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 5 U.S.C. 863. THAT STATUTE PROVIDES THAT IT SHALL BE MANDATORY FOR AN ADMINISTRATIVE OFFICE TO TAKE SUCH CORRECTIVE ACTION AS THE CIVIL SERVICE COMMISSION FINALLY RECOMMENDS. SUCH A RECOMMENDATION MAY INCLUDE AN ALLOWANCE OF BACK PAY. FISCHER V. HEARBERLE, 80 F.SUPP. 652.

WE THEREFORE SUGGEST THAT THE EMPLOYEE IN THIS CASE FILE AN IMMEDIATE APPEAL WITH THE UNITED STATES CIVIL SERVICE COMMISSION AND THAT HIS APPEAL BE ACCOMPANIED BY AN ADMINISTRATIVE STATEMENT OF THE CASE.

NOTHING SAID ABOVE WOULD PRECLUDE AN ADMINISTRATIVE ADJUSTMENT OF THE EMPLOYEE'S WITHIN-GRADE SALARY INCREASE FOR PERIOD MAY 3 THROUGH OCTOBER 4, 1959.