B-150673, MARCH 26, 1963, 42 COMP. GEN. 521

B-150673: Mar 26, 1963

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CLASSIFICATION - RECLASSIFICATION - ADMINISTRATIVE ACTION - AUTHORITY AN AGENCY RECLASSIFICATION OF A POSITION TO GRADE GS-5 AFTER CERTIFICATION OF THE POSITION AS GRADE GS-4 BY THE CIVIL SERVICE COMMISSION AND THE DEMOTION OF THE INCUMBENTS WITH RETENTION RIGHTS PURSUANT TO 5 U.S.C. 1107 WAS NOT WITHIN THE SCOPE OF THE AGENCY'S AUTHORITY UNDER SECTION 502 OF THE CLASSIFICATION ACT OF 1949. THE ACTION TAKEN WAS WITHOUT LEGAL EFFECT TO DEPRIVE THE EMPLOYEES OF THEIR STATUTORY RIGHT TO RETAINED SALARY AND THEY SHOULD BE RESTORED TO THE SAVED PAY STATUS. MAY BE PROSPECTIVELY RESTORED TO THE STEPS OF THE GRADE THEY WOULD HAVE ATTAINED WITHOUT REGARD TO THE ERRONEOUS PROMOTION. EMPLOYEES OF THE SPRINGFIELD ARMORY WHICH WERE TO HAVE BEEN EFFECTIVE FEBRUARY 17.

B-150673, MARCH 26, 1963, 42 COMP. GEN. 521

CLASSIFICATION - RECLASSIFICATION - ADMINISTRATIVE ACTION - AUTHORITY AN AGENCY RECLASSIFICATION OF A POSITION TO GRADE GS-5 AFTER CERTIFICATION OF THE POSITION AS GRADE GS-4 BY THE CIVIL SERVICE COMMISSION AND THE DEMOTION OF THE INCUMBENTS WITH RETENTION RIGHTS PURSUANT TO 5 U.S.C. 1107 WAS NOT WITHIN THE SCOPE OF THE AGENCY'S AUTHORITY UNDER SECTION 502 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, TO CLASSIFY POSITIONS ORIGINALLY, OR TO RECLASSIFY SUCH POSITIONS, AND THE AGENCY LACKING AUTHORITY TO RECLASSIFY POSITIONS CLASSIFIED BY THE COMMISSION, THE ACTION TAKEN WAS WITHOUT LEGAL EFFECT TO DEPRIVE THE EMPLOYEES OF THEIR STATUTORY RIGHT TO RETAINED SALARY AND THEY SHOULD BE RESTORED TO THE SAVED PAY STATUS, AND THE EMPLOYEES PROMOTED TO THE GS-5 GRADE ON THE BASIS OF THE ADMINISTRATIVE RECLASSIFICATION ACTION, ALTHOUGH REQUIRED TO BE DOWNGRADED TO GS-4, MAY BE PROSPECTIVELY RESTORED TO THE STEPS OF THE GRADE THEY WOULD HAVE ATTAINED WITHOUT REGARD TO THE ERRONEOUS PROMOTION.

TO THE SECRETARY OF THE ARMY, MARCH 26, 1963:

THIS REFERS TO LETTER OF MARCH 8, 1963, FROM THE ACTING DIRECTOR OF CIVILIAN PERSONNEL, REGARDING THE PROPOSED DOWNGRADING ACTIONS OF MR. FRANK J. KANE AND MRS. GRACE K. DIBBINS, EMPLOYEES OF THE SPRINGFIELD ARMORY WHICH WERE TO HAVE BEEN EFFECTIVE FEBRUARY 17, 1963.

IN LETTER OF FEBRUARY 19, 1963, THE DIRECTOR OF CIVILIAN PERSONNEL SAID THAT THE BOSTON REGIONAL OFFICE OF THE UNITED STATES CIVIL SERVICE COMMISSION GRANTED PERMISSION TO THE SPRINGFIELD ARMORY TO POSTPONE FOR 30 DAYS THE PROPOSED DOWNGRADING ACTIONS FOR THE ABOVE-NAMED TWO EMPLOYEES AND FOR TWO OTHER EMPLOYEES WHOSE POSITIONS ARE DIRECTLY INVOLVED.

THE INFORMATION AVAILABLE SHOWS THAT MR. KANE AND MRS. DIBBINS WERE IN GRADE GS-5 FOR SOME YEARS BEFORE THE CIVIL SERVICE COMMISSION AUDITED THEIR POSITIONS AND CERTIFIED THEM AS GRADE GS-4. THE CHANGES TO THE LOWER GRADE WERE EFFECTED DECEMBER 10, 1961. THEY EVIDENTLY WERE ENTITLED TO SALARY RETENTION UNDER 5 U.S.C. 1107, AND THEIR COMPENSATION WAS NOT REDUCED. MR. KANE APPEALED THE DOWNGRADING ACTION TO THE COMMISSION. WHILE THE APPEAL WAS PENDING, THE POSITIONS OF MR. KANE AND MRS. DIBBINS WERE RECLASSIFIED BY THE SPRINGFIELD ARMORY TO GRADE GS-5, EFFECTIVE APRIL 1, 1962. UPON A FURTHER AUDIT OF THE POSITIONS AS NEWLY DESCRIBED AND CLASSIFIED, THE CIVIL SERVICE COMMISSION DETERMINED THAT THERE HAD BEEN NO SIGNIFICANT CHANGES IN THE MANNER IN WHICH THE POSITIONS FUNCTIONED AND NO BASIC CHANGE IN THE KIND AND NATURE OF THE WORK PERFORMED, AND AGAIN DIRECTED THE POSITIONS BE CLASSIFIED IN GRADE GS-4.

THE ACTING DIRECTOR OF CIVILIAN PERSONNEL SAYS THAT IF A DETERMINATION IS MADE THAT THE PROMOTION ACTIONS OF APRIL 1, 1962, INVOLVING MR. KANE AND MRS. DIBBINS ARE WITHOUT LEGAL BASIS, THE PROMOTIONS TO GRADE GS-5 ON APRIL 1, 1962, OF MRS. STARZYK AND MISS HAMMOND WERE LIKEWISE ILLEGAL BECAUSE ALL FOUR NAMED EMPLOYEES ARE ENCUMBERED ON THE SAME JOB DESCRIPTION.

SECTION 502 OF CLASSIFICATION ACT OF 1949, 5 U.S.C. 1102, THE AUTHORITY UNDER WHICH AGENCIES CLASSIFY THEIR OWN POSITIONS, PROVIDES AS FOLLOWS:

(A) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBCHAPTER, EACH DEPARTMENT SHALL PLACE EACH POSITION UNDER ITS JURISDICTION AND TO WHICH THIS CHAPTER APPLIES IN ITS APPROPRIATE CLASS AND GRADE IN CONFORMANCE WITH STANDARDS PUBLISHED BY THE COMMISSION OR, IF NO PUBLISHED STANDARDS DIRECTLY APPLY, CONSISTENTLY WITH PUBLISHED STANDARDS. A DEPARTMENT MAY, WHENEVER THE FACTS WARRANT, CHANGE ANY POSITION WHICH IT HAS PLACED IN A CLASS OR GRADE UNDER THIS SUBSECTION FROM SUCH CLASS OR GRADE TO ANOTHER CLASS OR GRADE. SUCH ACTIONS OF THE DEPARTMENTS SHALL BE THE BASIS FOR THE PAYMENT OF COMPENSATION AND FOR PERSONNEL TRANSACTIONS UNTIL CHANGED BY CERTIFICATE OF THE COMMISSION.

(B) THE COMMISSION SHALL, FROM TIME TO TIME, REVIEW SUCH NUMBER OF POSITIONS IN EACH DEPARTMENT AS WILL ENABLE THE COMMISSION TO DETERMINE WHETHER SUCH DEPARTMENT IS PLACING POSITIONS IN CLASSES AND GRADES IN CONFORMANCE WITH OR CONSISTENTLY WITH PUBLISHED STANDARDS.

UNDER THE ABOVE-QUOTED SECTION, A DEPARTMENT IS AUTHORIZED TO CLASSIFY A POSITION ORIGINALLY OR TO RECLASSIFY A POSITION WHICH IT HAS PREVIOUSLY CLASSIFIED. WE WOULD NOTE, HOWEVER, THAT THE FEDERAL PERSONNEL MANUAL, P2 -10.02, PROVIDES THAT "EMPLOYING AGENCIES ARE RESPONSIBLE FOR ASSURING THAT A CLASSIFICATION CERTIFIED BY THE COMMISSION IS NOT CHANGED UNLESS THE JOB CONTENT CHANGES SIGNIFICANTLY.'

THE FACTS CONCERNING THE CASES OF MRS. DIBBINS AND MR. KANE WERE PRESENTED TO THE CIVIL SERVICE COMMISSION, AND THE CHAIRMAN OF THAT ORGANIZATION HAS EXPRESSED THE FOLLOWING VIEW CONCERNING THOSE ACTIONS:

THIS PROVISION (REFERRING TO SECTION 502) GIVES THE AGENCY AUTHORITY ONLY TO CLASSIFY A POSITION ORIGINALLY OR TO RECLASSIFY A POSITION WHICH IT HAS ITSELF CLASSIFIED. THE AGENCY DOES NOT HAVE AUTHORITY TO RECLASSIFY A POSITION WHICH THE COMMISSION HAS CLASSIFIED.

ON THE FACTS OF RECORD, THE AGENCY DID ATTEMPT TO RECLASSIFY IN GS-5 THE SAME POSITION WHICH THE COMMISSION HAD CERTIFIED AT GS-4. IN OUR OPINION THAT ACTION SHOULD NOT BE GIVEN THE EFFECT OF TERMINATING THE RETAINED RATE WHICH THE EMPLOYEE BEGAN TO RECEIVE UPON THE RECLASSIFICATION DECEMBER 10, 1961.

REGARDING THE PURPORTED RECLASSIFICATION OF THE POSITIONS OF MRS. DIBBINS AND MR. KANE ON APRIL 1, 1962, BASED UPON AN ADMINISTRATIVE DETERMINATION THAT THERE WAS A SIGNIFICANT CHANGE IN THE DUTIES AND RESPONSIBILITIES OF THE POSITION--- LATER DETERMINED BY THE COMMISSION TO BE THE SAME POSITION --- WE CONCUR WITH THE OPINION OF THE COMMISSION THAT THE ADMINISTRATIVE ACTION WAS WITHOUT LEGAL EFFECT TO DEPRIVE THESE EMPLOYEES OF THEIR STATUTORY RIGHT TO RETAINED SALARY. THEREFORE, THEY SHOULD BE RESTORED TO THE SAVED PAY STATUS.

WE UNDERSTAND THAT MRS. STARZYK AND MISS HAMMOND HAD NO SALARY RETENTION RIGHTS BUT ALSO WERE PROMOTED TO GRADE GS-5 ON APRIL 1, 1962, AFTER THE POSITION, CERTIFIED AS GRADE GS-4 BY THE CIVIL SERVICE COMMISSION, WAS REWRITTEN AND ADMINISTRATIVELY RECLASSIFIED AS GRADE GS-5. THE AGENCY ACTION, AS INDICATED ABOVE, WAS BASED UPON ITS DETERMINATION THAT A "NEW POSITION" RESULTED FROM THE ADMINISTRATIVELY REVISED POSITION DESCRIPTION. WHILE, IN OUR OPINION, THE AGENCY HAD AUTHORITY TO CLASSIFY A "NEW POSITION," THE COMMISSION HELD THAT THE AGENCY'S CLASSIFICATION ACTION WAS ERRONEOUS SINCE THE RECLASSIFIED POSITION WAS "THE SAME POSITION" WHICH THE COMMISSION HAD RECLASSIFIED TO THE GS-4, EFFECTIVE DECEMBER 10, 1961. THEREFORE, THE DOWNGRADING OF MRS. STARZYK AND MISS HAMMOND TO GS-4 IS REQUIRED. IN THE CIRCUMSTANCES PRESENTED, HOWEVER, WE WILL NOT OBJECT TO SUCH ACTION BEING ON A PROSPECTIVE BASIS WITH THE EMPLOYEES BEING RESTORED TO THE STEPS OF THE GRADE THEY WOULD HAVE ATTAINED WITHOUT REGARD TO THE ERRONEOUS PROMOTION TO GRADE GS-5 ON APRIL 1, 1962.