B-148310, APR. 23, 1962

B-148310, APR. 23, 1962

TO THE COMPTROLLER, PANAMA CANAL COMPANY:

ON JANUARY 17, 1962, YOU FORWARDED TO OUR CLAIMS DIVISION FOR CONSIDERATION AND DECISION THE CLAIMS OF OSMOND N. AUSTIN, REED E. HOPKINS, JR., AND LARRY J. MILLER FOR RETROACTIVE PREMIUM COMPENSATION INCIDENT TO THEIR EMPLOYMENT IN THE FIRE DIVISION OF THE CANAL ZONE GOVERNMENT. FROM THE MATTERS DISCUSSED IN YOUR SUBMISSION WE ASSUME THAT YOU DESIRE OUR DECISION PURSUANT TO 31 U.S.C. 74, AND WE SHALL CONSIDER YOUR REQUEST ACCORDINGLY.

IT APPEARS THAT FOR SEVERAL YEARS PRIOR TO FEBRUARY 13, 1960, IN THE CASES OF AUSTIN AND MILLER, AND PRIOR TO APRIL 10, 1960, IN THE CASE OF HOPKINS, THE CLAIMANTS HAD BEEN ASSIGNED A WORKWEEK OF 72 HOURS CONSISTING OF A BASIC WORKWEEK OF 40 HOURS PLUS 32 HOURS OF STANDBY DUTY. FOR THE STANDBY DUTY THEY WERE PAID PREMIUM COMPENSATION ON AN ANNUAL BASIS PURSUANT TO SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926, AND APPLICABLE REGULATIONS THEREUNDER. ON THE DATES MENTIONED THEY WERE PLACED IN A COMPANY WITHIN THE FIRE DIVISION WHICH WAS CREATED FOR SUPPORT AND INSPECTION. NO CHANGE IN GRADE OR BASIC COMPENSATION WAS MADE BUT THEY WERE RELIEVED OF THE 32 HOURS PER WEEK STANDBY DUTY AND PREMIUM COMPENSATION WAS NO LONGER PAID TO THEM.

MR. AUSTIN CLAIMS PREMIUM PAY FROM FEBRUARY 13, 1960, TO MARCH 27, 1961, MR. MILLER CLAIMS FOR THE SAME PERIOD PLUS THE ADDITIONAL PERIOD FROM APRIL 30, 1961, TO MAY 20, 1961, AND MR. HOPKINS CLAIMS FROM APRIL 10, 1960, TO MAY 20, 1961. YOUR LETTER DOES NOT SHOW THE EMPLOYMENT STATUS OF THE CLAIMANTS SUBSEQUENT TO THE CLOSING DATES OF THEIR CLAIMS, THAT IS, WHETHER THEY ARE STILL IN SERVICE, HAVE BEEN SEPARATED, PROMOTED OR REASSIGNED TO A 72-HOUR WEEK INCLUDING STANDBY DUTY. NEITHER DO YOU STATE WHETHER THEY ARE PREFERENCE ELIGIBLES.

THE CLAIMS ARE PREDICATED UPON A DECISION OF JANUARY 24, 1961, BY THE BOARD OF APPEALS AND REVIEW, U.S. CIVIL SERVICE COMMISSION IN THE CASE OF BRUNO L. EMANUELE, A CANAL ZONE GOVERNMENT FIREMAN WHOSE SITUATION YOU SAY IS SIMILAR TO THAT OF THE CLAIMANTS. IN THAT CASE THE BOARD HELD THAT THE CHANGES IN THE ASSIGNED HOURS OF THE WORKWEEK WAS A REDUCTION IN COMPENSATION WITHIN THE MEANING OF SECTION 14 OF THE VETERANS PREFERENCE ACT, 5 U.S.C. 863; THAT THE PROCEDURAL REQUIREMENTS NECESSARY TO SUCH ACTION HAD NOT BEEN OBSERVED, AND THAT MR. EMANUELE SHOULD BE RETROACTIVELY RESTORED TO THE 72-HOUR WORKWEEK STATUS. SUBSEQUENTLY, THE BOARD DENIED THE REQUEST OF THE GOVERNOR OF THE CANAL ZONE TO RECONSIDER THE MATTER AND PAYMENT WAS MADE IN ACCORDANCE WITH THE DECISION. DECISION THEREAFTER WAS SOUGHT OR RENDERED ON THE MERITS OF THE CASE.

NO ADMINISTRATIVE APPLICATION OF THE BOARD'S RULING HAS BEEN MADE AS TO THE THREE CLAIMANTS, TWO OF WHOM, YOU SAY, HAD NOT APPEALED TO THE CIVIL SERVICE COMMISSION. THE THIRD HAD ABANDONED HIS APPEAL AFTER IT WAS REJECTED BY THE APPEAL EXAMINING OFFICE OF THE COMMISSION. YOU ALSO EXPRESS THE VIEW THAT THE DECISION OF THE BOARD OF APPEALS AND REVIEW IS UNSOUND AND SAY THAT IN ANY EVENT THERE IS NO AUTHORITY FOR ADMINISTRATIVELY APPLYING IT IN THE CASE OF EMPLOYEES WHO EITHER DID NOT SUCCESSFULLY PROSECUTE AN APPEAL OR HAD NO APPEAL RIGHTS.

THE DECISIONS OF THE CIVIL SERVICE COMMISSION PERTAINING TO LEGALLY ESTABLISHED RIGHTS OF PREFERENCE ELIGIBLES AS SET FORTH IN 5 U.S.C. 863 ARE NOT SUBJECT TO REVIEW BY US. IN OTHERWISE PROPER CASES IT IS MANDATORY UNDER 5 U.S.C. 863 THAT ADMINISTRATIVE OFFICERS TAKE SUCH CORRECTIVE ACTION AS THE COMMISSION FINALLY RECOMMENDS IN CASES APPEALED TO THAT BODY. HOWEVER, WE KNOW OF NO REQUIREMENT THAT SUCH OFFICERS APPLY A DECISION OF THE COMMISSION BASED ON LAW AND FINDING OF FACTS IN A PARTICULAR CASE TO OTHER PREFERENCE ELIGIBLES WHOSE CASES MAY BE SIMILAR BUT NOT NECESSARILY IDENTICAL WITH THAT APPEALED. BUT SEE 38 COMP. GEN. 135.

WE ARE AWARE OF NO STATUTE OR STATUTORY REGULATION WHICH PROVIDES THAT THE WITHDRAWAL OF PREMIUM COMPENSATION FROM A PREFERENCE ELIGIBLE UPON HIS ASSIGNMENT TO A BASIC WORKWEEK OF 40 HOURS IS A REDUCTION IN COMPENSATION WITHIN THE MEANING OF SECTION 14 OF THE VETERANS PREFERENCE ACT. HOWEVER, WE WOULD NOT IN THE CIRCUMSTANCES HERE PRESENT BE WARRANTED IN SAYING THE BOARD'S FINDING IS BASED UPON A MISCONSTRUCTION OF THE LAW.

THEREFORE, IF THE THREE CLAIMANTS ARE PREFERENCE ELIGIBLES AND IT IS ADMINISTRATIVELY FOUND THAT THE FACTS IN THEIR CASES ARE IDENTICAL WITH THOSE OF MR. EMANUELE'S CASE WE WOULD INTERPOSE NO OBLIGATION TO THEIR ADMINISTRATIVE RESTORATION TO A 72-HOUR WEEK WITH RETROACTIVE COMPENSATION.