B-149337, SEPTEMBER 18, 1962, 42 COMP. GEN. 164

B-149337: Sep 18, 1962

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(WAGE BOARD EMPLOYEES) WAS WITHOUT FORCE AND EFFECT AND DID NOT VITIATE THE RIGHT OF THE EMPLOYEES CONFERRED BY SECTION 202 (7) TO BE PAID UNDER THE WAGE BOARD SYSTEM. THE LOSS OF PAY TO EMPLOYEES BECAUSE OF THE ERRONEOUS CHANGE OF THE WAGE BOARD POSITIONS TO THE CLASSIFICATION ACT SYSTEM MAY BE ADJUSTED RETROACTIVELY IF NO CHANGE OF DUTIES BUT ONLY THE LAWFUL RATE OF PAY FOR THE DUTIES ACTUALLY PERFORMED WAS INVOLVED. ARE ENTITLED TO THE DIFFERENCE BETWEEN THE PAY RECEIVED UNDER CLASSIFICATION ACT GRADES AND THE GREATER PAY THEY WOULD HAVE RECEIVED UNDER THE WAGE BOARD SYSTEM BUT FOR THE ADMINISTRATIVE ERROR. 1962: WE REFER TO RECENT CORRESPONDENCE BETWEEN YOUR DEPARTMENT AND OUR OFFICE CONCERNING RETROACTIVE RESTORATION OF PAY IN THE CASES OF A NUMBER OF EMPLOYEES OF YOUR SERVICE STORES OPERATIONS WHO WERE CHANGED FROM THE WAGE -BOARD SYSTEM OF PAY TO THE CLASSIFICATION ACT SYSTEM BUT WHO.

B-149337, SEPTEMBER 18, 1962, 42 COMP. GEN. 164

COMPENSATION - WAGE BOARD EMPLOYEES - CONVERSION TO CLASSIFIED POSITIONS - ERRONEOUS. COMPENSATION - WAGE BOARD EMPLOYEES - CONVERSION TO CLASSIFIED POSITIONS - RECONVERSION - RETROACTIVE THE ADMINISTRATIVE ACTION CHANGING POSITIONS FROM A WAGE BOARD SYSTEM OF PAY TO CLASSIFICATION ACT GRADES WITHOUT THE CONCURRENCE OF THE CIVIL SERVICE COMMISSION AND NOTWITHSTANDING THE COMMISSION UNDER SECTION 203 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1081, HAD FOR YEARS CONSIDERED THE POSITIONS EXCLUDED FROM THE ACT PURSUANT TO SECTION 202 (7), 5 U.S.C. 1082 (7), WHICH CONCERNS PREVAILING RATE EMPLOYEES IN THE TRADES, CRAFTS, ETC. (WAGE BOARD EMPLOYEES) WAS WITHOUT FORCE AND EFFECT AND DID NOT VITIATE THE RIGHT OF THE EMPLOYEES CONFERRED BY SECTION 202 (7) TO BE PAID UNDER THE WAGE BOARD SYSTEM; THEREFORE, THE LOSS OF PAY TO EMPLOYEES BECAUSE OF THE ERRONEOUS CHANGE OF THE WAGE BOARD POSITIONS TO THE CLASSIFICATION ACT SYSTEM MAY BE ADJUSTED RETROACTIVELY IF NO CHANGE OF DUTIES BUT ONLY THE LAWFUL RATE OF PAY FOR THE DUTIES ACTUALLY PERFORMED WAS INVOLVED. UPON THE RETROACTIVE RESTORATION TO WAGE BOARD GRADES AND PAY BY THE CIVIL SERVICE COMMISSION, THE VETERANS PREFERENCE EMPLOYEES, WHO UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944 HAD SUCCESSFULLY APPEALED THE ADMINISTRATIVE CONVERSION OF THEIR POSITIONS FROM THE WAGE BOARD SYSTEM OF PAY TO THE CLASSIFICATION ACT SYSTEM, BECAUSE OF LOSS OF PAY, AS WELL AS THE EMPLOYEES WITH VETERANS PREFERENCE WHO HAD BEEN ADMINISTRATIVELY RESTORED TO THEIR WAGE BOARD GRADES AND PAY ON THE BASIS OF THE SUCCESSFUL APPEAL, ARE ENTITLED TO THE DIFFERENCE BETWEEN THE PAY RECEIVED UNDER CLASSIFICATION ACT GRADES AND THE GREATER PAY THEY WOULD HAVE RECEIVED UNDER THE WAGE BOARD SYSTEM BUT FOR THE ADMINISTRATIVE ERROR.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 18, 1962:

WE REFER TO RECENT CORRESPONDENCE BETWEEN YOUR DEPARTMENT AND OUR OFFICE CONCERNING RETROACTIVE RESTORATION OF PAY IN THE CASES OF A NUMBER OF EMPLOYEES OF YOUR SERVICE STORES OPERATIONS WHO WERE CHANGED FROM THE WAGE -BOARD SYSTEM OF PAY TO THE CLASSIFICATION ACT SYSTEM BUT WHO, AS THE RESULT OF APPEALS TO THE CIVIL SERVICE COMMISSION BY SOME OF THE AFFECTED EMPLOYEES, WERE CHANGED BACK TO THE WAGE-BOARD SYSTEM.

ACCORDING TO THE LETTER OF AUGUST 6, 1962, FROM THE CHIEF, PAY AND REGULATIONS DIVISION, DIRECTORATE OF CIVILIAN PERSONNEL, OF YOUR DEPARTMENT, ACTION WAS INITIATED IN DECEMBER 1959 LOOKING TOWARD A REVISION OF WAGE-BOARD STANDARDS FOR WAREHOUSE ACTIVITIES. IT WAS ADMINISTRATIVELY CONCLUDED THAT POSITIONS WITH DUTIES PECULIAR TO SERVICE STORES OPERATIONS WERE EXCLUDED FROM THE WAGE-BOARD SYSTEM OF THE WAREHOUSE JOB FAMILY AND MORE PROPERLY WERE ALLOCABLE TO CLASSIFICATION ACT GRADES UNDER THE STOREKEEPER CLERICAL SERIES (GS 2033-0) PROMULGATED BY THE CIVIL SERVICE COMMISSION. A CONSIDERABLE NUMBER OF EMPLOYEES WERE CHANGED FROM THE WAGE-BOARD SYSTEM OF PAY TO CLASSIFICATION ACT GRADES, WITH A RESULTING LOSS IN PAY. THE DECISIONS OF VARIOUS REGIONAL OFFICES OF THE CIVIL SERVICE COMMISSION ON EMPLOYEE APPEALS WERE NOT UNIFORM; HOWEVER, ON JANUARY 23, 1962, AFTER CONSIDERATION OF MATERIAL SUBMITTED BY THE REGIONAL OFFICES AND YOUR DEPARTMENT, THE DIRECTOR, BUREAU OF INSPECTIONS, CIVIL SERVICE COMMISSION, CONCLUDED THAT THE POSITIONS OF "DEPARTMENT MANAGERS" AND THEIR SUBORDINATES IN AIR FORCE SERVICE STORES PROPERLY ARE WAGE-BOARD POSITIONS (WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT) AND INSTRUCTIONS WERE ISSUED TO THE REGIONAL OFFICES OF THE COMMISSION ACCORDINGLY. THE AFFECTED EMPLOYEES NOW HAVE BEEN CHANGED BACK TO THE WAGE-BOARD SYSTEM.

AS TO THOSE EMPLOYEES WITH VETERANS PREFERENCE WHO, UPON APPEAL TO THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863, WERE ORDERED TO BE RETROACTIVELY RESTORED TO THEIR WAGE-BOARD GRADES AND PAY, THERE CAN BE NO DOUBT BUT THAT THEY ARE ENTITLED TO THE DIFFERENCE BETWEEN THE PAY RECEIVED UNDER THE CLASSIFICATION ACT GRADES AND THE GREATER PAY THEY WOULD HAVE RECEIVED UNDER THE WAGE-BOARD SYSTEM BUT FOR THE ERRONEOUS ADMINISTRATIVE ACTION. 34 COMP. GEN. 561. ALSO, SIMILAR ACTION IS AUTHORIZED AS TO THOSE VETERANS PREFERENCE EMPLOYEES WHO DID NOT APPEAL BUT WHO WERE ADMINISTRATIVELY RESTORED ON THE BASIS OF THE APPEALED CASES. 38 COMP. GEN. 135; CF. 39 ID. 639.

SECTION 210 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, 5 U.S.C. 1081, PROVIDES FOR BROAD COVERAGE, SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 202, 5 U.S.C. 1082. PARAGRAPH 7 OF SECTION 202, AS AMENDED (5 U.S.C. 1982 (7) (, CONCERNING PREVAILING RATE EMPLOYEES IN THE TRADES, CRAFTS, ETC. (WAGE-BOARD EMPLOYEES), SPECIFIES THE EXEMPTION PERTINENT TO THIS CASE. SECTION 203, 5 U.S.C. 1083, PROVIDES THAT THE CIVIL SERVICE COMMISSION "IS AUTHORIZED AND DIRECTED TO DETERMINE FINALLY THE APPLICABILITY OF SECTIONS 210 AND 202 TO SPECIFIC POSITIONS, OFFICERS, AND EMPLOYEES.' THE LATTER SECTION PLACES THE AUTHORITY AND DUTY FOR DETERMINING INCLUSION OR EXCLUSION MATTERS SQUARELY UPON THE CIVIL SERVICE COMMISSION AND NO WHERE IN THE ACT IS THERE ANY PROVISION GIVING TENTATIVE EFFECT FOR PAY PURPOSES TO AGENCY DECISIONS ON SUCH MATTERS, SUCH AS THAT GIVEN BY SECTION 502 OF THAT ACT, 5 U.S.C. 1102, TO AGENCY ALLOCATION ACTIONS IN CONNECTION WITH POSITIONS "TO WHICH THIS ACT APPLIES.' CONSEQUENTLY, WE MUST CONCLUDE IN THIS PARTICULAR CASE--- IN WHICH A LARGE GROUP OF POSITIONS HAS BEEN TREATED FOR A NUMBER OF YEARS AS EXCLUDED FROM THE CLASSIFICATION ACT BY SECTION 202 (7) THEREOF, AND, IN ALL PROBABILITY AS HAVING BEEN SUBJECT TO THE SIMILAR PROVISIONS OF SECTION 5 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1989--- THAT THE PURPORTED ADMINISTRATIVE ACTION, WITHOUT THE CONCURRENCE OF THE CIVIL SERVICE COMMISSION, CHANGING THE POSITIONS FROM THE WAGE-BOARD SYSTEM TO THE CLASSIFICATION ACT SYSTEM WAS WITHOUT FORCE AND EFFECT AND DID NOT VITIATE THE RIGHT OF THE EMPLOYEES CONFERRED BY SECTION 202 (7) TO BE PAID AT PREVAILING RATES (THAT IS, UNDER THE WAGE-BOARD SYSTEM). ACCORDINGLY, YOU ARE AUTHORIZED TO RETROACTIVELY ADJUST THE PAY OF ALL OF THE AFFECTED EMPLOYEES (VETERANS AND NONVETERANS ALIKE) ON THE BASIS INDICATED ABOVE FOR THE CASES FALLING WITHIN SECTION 14 OF THE VETERANS PREFERENCE ACT.

WE SHOULD POINT OUT THAT OUR DECISION HEREIN IS PREMISED UPON THE UNDERSTANDING THAT NO CHANGE OF DUTIES IS INVOLVED, THERE BEING ONLY THE QUESTION OF THE LAWFUL RATE OF PAY FOR THE DUTIES ACTUALLY PERFORMED. CF. 36 COMP. GEN. 419, 421; ID. 598.