B-145285, APR. 19, 1961

B-145285: Apr 19, 1961

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THE ATOMIC ENERGY COMMISSION MANUAL GOVERNING PERIODIC AND LONGEVITY STEP INCREASES WAS REVISED TO PROVIDE THAT: "CONTINUOUS SERVICE IN A GRADE HIGHER THAN THE EMPLOYEE'S CURRENT GRADE MAY BE COUNTED TOWARD THE LONGEVITY PERIOD (A) IF THE EMPLOYEE WAS PROMOTED TO THAT HIGHER GRADE FROM THE MAXIMUM RATE OR A LONGEVITY STEP OF HIS PRESENT GRADE. (B) IF THE EMPLOYEE WAS SUBSEQUENTLY REDUCED IN GRADE TO THE MAXIMUM RATE OR A LONGEVITY STEP OF HIS PRESENT GRADE.'. THE EFFECT OF THAT REVISION ON INDIVIDUAL ATOMIC ENERGY COMMISSION EMPLOYEES WAS THAT SOME EMPLOYEES WOULD BECOME ELIGIBLE FOR LONGEVITY STEPS AT A DATE EARLIER THAN WOULD PREVIOUSLY HAVE BEEN PERMITTED. THE EFFECTIVE DATE OF THE REVISION WAS FEBRUARY 21.

B-145285, APR. 19, 1961

TO CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION:

ON MARCH 8, 1961, THE ASSISTANT GENERAL MANAGER REQUESTED OUR DECISION CONCERNING THE REQUIREMENTS FOR CREDITING TIME TOWARD LONGEVITY STEP INCREASES.

BY TRANSMITTAL NOTICE - 4000-214, DATED JANUARY 5, 1960, THE ATOMIC ENERGY COMMISSION MANUAL GOVERNING PERIODIC AND LONGEVITY STEP INCREASES WAS REVISED TO PROVIDE THAT:

"CONTINUOUS SERVICE IN A GRADE HIGHER THAN THE EMPLOYEE'S CURRENT GRADE MAY BE COUNTED TOWARD THE LONGEVITY PERIOD (A) IF THE EMPLOYEE WAS PROMOTED TO THAT HIGHER GRADE FROM THE MAXIMUM RATE OR A LONGEVITY STEP OF HIS PRESENT GRADE, AND (B) IF THE EMPLOYEE WAS SUBSEQUENTLY REDUCED IN GRADE TO THE MAXIMUM RATE OR A LONGEVITY STEP OF HIS PRESENT GRADE.'

THE EFFECT OF THAT REVISION ON INDIVIDUAL ATOMIC ENERGY COMMISSION EMPLOYEES WAS THAT SOME EMPLOYEES WOULD BECOME ELIGIBLE FOR LONGEVITY STEPS AT A DATE EARLIER THAN WOULD PREVIOUSLY HAVE BEEN PERMITTED. THE EFFECTIVE DATE OF THE REVISION WAS FEBRUARY 21, 1960. SINCE, UNDER 5 U.S.C. 1082 AND 42 U.S.C. 2201 (D), AEC IS EXEMPTED FROM THE CLASSIFICATION ACT OF 1949, AS AMENDED, THE USE OF A STEP INCREASE PLAN IS BASED ON AN ATOMIC ENERGY COMMISSION ADMINISTRATIVE DETERMINATION. THE ATOMIC ENERGY COMMISSION USES STEP RATES IDENTICAL WITH THOSE IN THE GENERAL SCHEDULE.

AS A RESULT OF THE REVISED LONGEVITY STEP REQUIREMENTS, IT WAS NECESSARY FOR EACH ATOMIC ENERGY COMMISSION PERSONNEL OFFICE TO REVIEW THE SERVICE RECORDS OF ITS EMPLOYEES AND DETERMINE, ON THE BASIS OF THE REVISED CRITERIA, WHETHER ANY OF SUCH EMPLOYEES WOULD BENEFIT BY THE REVISED REGULATION.

TWO SITUATIONS DEVELOPED FROM THAT REVISION. THE FIRST IS THAT THE ALBUQUERQUE OPERATIONS OFFICE, BECAUSE OF THE QUESTION OF THE EFFECTIVE DATE OF THE REVISION, DID NOT PLACE IT INTO EFFECT FOR ELIGIBLE EMPLOYEES UNTIL OCTOBER 30, 1960. WITH THE EXCEPTION OF ONE INDIVIDUAL WHO HAD RESIGNED ON MAY 6, 1960, THE ADJUSTMENTS WERE MADE EFFECTIVE ON OCTOBER 30, 1960. THE SECOND SITUATION AROSE AT HEADQUARTERS WHEN BECAUSE OF A CLERICAL OVERSIGHT IN EXAMINING THE SERVICE RECORD CARDS,AN EMPLOYEE, OTHERWISE ENTITLED TO BENEFIT, WAS OVERLOOKED. HIS RATE OF COMPENSATION ALSO WAS ADJUSTED, EFFECTIVE OCTOBER 30, 1960.

THE ASSISTANT GENERAL MANAGER SAYS THAT THE ATOMIC ENERGY COMMISSION REQUIRES IN ADDITION TO THE COMPLETION OF SPECIFIED PERIODS OF CREDITABLE SERVICE IN GRADE AND STEP, CERTIFICATION BY AN EMPLOYEE'S SUPERVISOR AS TO THE EMPLOYEE'S SATISFACTORY SERVICE AND CONDUCT. NORMALLY A FORM FOR THE CERTIFICATION IS REFERRED BY THE PERSONNEL OFFICE PRIOR TO THE COMPLETION OF THE TIME REQUIREMENT TO THE SUPERVISOR FOR CERTIFICATION. IF THE SUPERVISOR CERTIFIES POSITIVELY, THE STEP INCREASE IS THEN ROUTINELY PROCESSED. THE SUPERVISORS OF THE EMPLOYEES CONCERNED IN THE TWO SITUATIONS PRESENTED HAD NOT BEEN INFORMED OF THE EMPLOYEES' ELIGIBILITY AND HAD NOT PRIOR TO OCTOBER 30, 1960, BEEN SENT ANY FORMS FOR CERTIFICATION. HOWEVER, THERE ARE NOW ON FILE CERTIFICATIONS FROM THE SUPERVISORS STATING THAT HAD THEY TIMELY RECEIVED THE FORMS FROM THE PERSONNEL OFFICE FOR CERTIFICATION AS TO THE EMPLOYEES' CONDUCT AND SERVICE, THEY WOULD HAVE MADE POSITIVE CERTIFICATIONS.

YOUR OFFICE REQUESTS INFORMATION WHETHER UNDER THE FACTS AND CIRCUMSTANCES RELATED ABOVE, IT MAY MAKE A RETROACTIVE ADJUSTMENT IN COMPENSATION TO ELIGIBLE EMPLOYEES UNDER THE REVISED REGULATIONS FOR THE PERIOD FEBRUARY 21, 1960, TO OCTOBER 30, 1960.

BY SUBSECTION (D) OF SECTION 161 OF THE ATOMIC ENERGY ACT OF 1946, AS AMENDED, 68 STAT. 948, THE ATOMIC ENERGY COMMISSION IS AUTHORIZED, WITHIN THE LIMITATIONS SPECIFIED, TO EMPLOY PERSONNEL AND FIX THEIR COMPENSATION WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND THE CLASSIFICATION ACT OF 1949, AS AMENDED. UNDER SUBSECTION (Q) OF THAT SECTION, 68 STAT. 951, THE COMMISSION MAY MAKE, PROMULGATE, ISSUE, RESCIND, AND AMEND SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THE ACT. THE ASSISTANT GENERAL MANAGER SAYS THAT UNDER THE ATOMIC ENERGY COMMISSION REGULATIONS, APPLICABLE AT THE TIME OF THE REVISION, THE REVISION WOULD BE EFFECTIVE FEBRUARY 21, 1960. HE FURTHER SAYS THAT THE DELAY IN THE IMPLEMENTATION OF THE REVISION WAS NOT THE FAULT OF THE EMPLOYEES BUT WAS ATTRIBUTABLE TO AN ADMINISTRATIVE OVERSIGHT AND THAT THE EMPLOYEES INVOLVED HAD MET THE PRESCRIBED STANDARDS FOR A LONGEVITY INCREASE EFFECTIVE FEBRUARY 21, 1960.

THERE IS FOR APPLICATION HERE, THE RULE STATED IN 21 COMP. GEN. 369, 376, TO THE EFFECT THAT AN ADMINISTRATIVE ERROR OR OVERSIGHT DOES NOT DEFEAT OR DELAY THE RIGHT OF AN EMPLOYEE TO THE STEP INCREASE ON AND AFTER THE DATE HE BECOMES QUALIFIED AND ENTITLED THERETO. THEREFORE, ADMINISTRATIVE ACTION RETROACTIVELY CORRECTING SUCH ERROR OR OVERSIGHT IN THIS CASE WILL NOT BE REGARDED BY US AS PROHIBITED UNDER THE GENERAL RULE PROHIBITING RETROACTIVE INCREASES IN COMPENSATION. SEE 39 COMP. GEN. 211.

THE SUBMISSION IS ANSWERED ACCORDINGLY.

CONCERNING THE EMPLOYEE WHO WAS SEPARATED ON MAY 6, 1960, AS AN EMPLOYEE OF THE ATOMIC ENERGY COMMISSION, WE WOULD HAVE NO OBJECTION TO YOUR MAKING A RETROACTIVE ADJUSTMENT IN HIS COMPENSATION FOR THE PERIOD FEBRUARY 21, 1960, TO MAY 6, 1960, PROVIDED HE MEETS THE NECESSARY REQUIREMENTS FOR A LONGEVITY STEP INCREASE AND SUBMITS A CLAIM FOR PAYMENT.