B-155357, DEC. 1, 1964

B-155357: Dec 1, 1964

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IT IS URGED THAT MR. BALL WAS A DE FACTO EMPLOYEE DURING THE PERIOD HIS SALARY EXCEEDED THAT ALLOWED BY THE REGULATIONS THEN IN EFFECT. WAGE BOARD EMPLOYEES ARE NOT COMPENSATED BY PAY RATES ESTABLISHED BY STATUTE AS ARE. ARE EXCEPTED FROM THAT ACT. ARE COMPENSATED AT A RATE COMMENSURATE WITH PREVAILING RATES FOR PRIVATE INDUSTRY FOR THE SAME TYPE OF WORK IN THE LOCALITY WHERE THEY ARE EMPLOYED AS PROVIDED IN SECTION 202 OF THE CLASSIFICATION ACT OF 1949. EMPLOYEES IN THE BUREAU OF ENGRAVING AND PRINTING THE DUTIES OF WHOM ARE TO PERFORM OR TO DIRECT MANUAL OR MACHINE OPERATIONS REQUIRING SPECIAL SKILL OR EXPERIENCE OR TO PERFORM OR DIRECT THE COUNTING. THAT THE COMPENSATION OF SUCH EMPLOYEES SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES: PROVIDED FURTHER.

B-155357, DEC. 1, 1964

TO THE HONORABLE JAMES E. WEBB, ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

ON OCTOBER 8, 1964, THE DEPUTY ADMINISTRATOR REQUESTED OUR DECISION WHETHER THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION MUST COLLECT AN OVERPAYMENT OF SALARY MADE TO MR. EDWARD W. BALL, JR., A WAGE BOARD EMPLOYEE AT THE GEORGE C. MARSHALL SPACE FLIGHT CENTER, MASA,HUNTSVILLE, ALABAMA, THROUGH AN ADMINISTRATIVE ERROR IN SETTING HIS RATE OF PAY.

IT IS URGED THAT MR. BALL WAS A DE FACTO EMPLOYEE DURING THE PERIOD HIS SALARY EXCEEDED THAT ALLOWED BY THE REGULATIONS THEN IN EFFECT, AND, THEREFORE, HE NEED NOT REFUND THE OVERPAYMENT.

WAGE BOARD EMPLOYEES ARE NOT COMPENSATED BY PAY RATES ESTABLISHED BY STATUTE AS ARE, FOR EXAMPLE, EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949, BUT ARE EXCEPTED FROM THAT ACT, AND ARE COMPENSATED AT A RATE COMMENSURATE WITH PREVAILING RATES FOR PRIVATE INDUSTRY FOR THE SAME TYPE OF WORK IN THE LOCALITY WHERE THEY ARE EMPLOYED AS PROVIDED IN SECTION 202 OF THE CLASSIFICATION ACT OF 1949, CH. 782, TITLE II, 63 STAT. 954, AS AMENDED, 5 U.S.C. 1082:

"THIS CHAPTER (EXCEPT TITLE XII) SHALL NOT APPLY TO---

"/7) EMPLOYEES IN RECOGNIZED TRADES OR CRAFTS, OR OTHER SKILLED MECHANICAL CRAFTS, OR IN UNSKILLED, SEMISKILLED, OR SKILLED MANUAL LABOR OCCUPATIONS, AND OTHER EMPLOYEES INCLUDING FOREMEN AND SUPERVISORS IN POSITIONS HAVING TRADE, CRAFT, OR LABORING EXPERIENCE AND KNOWLEDGE AS THE PARAMOUNT REQUIREMENT, AND EMPLOYEES IN THE BUREAU OF ENGRAVING AND PRINTING THE DUTIES OF WHOM ARE TO PERFORM OR TO DIRECT MANUAL OR MACHINE OPERATIONS REQUIRING SPECIAL SKILL OR EXPERIENCE OR TO PERFORM OR DIRECT THE COUNTING, EXAMINING, SORTING, OR OTHER VERIFICATION OF THE PRODUCT OF MANUAL OR MACHINE OPERATIONS: PROVIDED, THAT THE COMPENSATION OF SUCH EMPLOYEES SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES: PROVIDED FURTHER, THAT WHENEVER THE CIVIL SERVICE COMMISSION CONCURS IN THE OPINION OF THE EMPLOYING AGENCY THAT IN ANY GIVEN AREA THE NUMBER OF SUCH EMPLOYEES IS SO FEW AS TO MAKE PREVAILING RATE DETERMINATIONS IMPRACTICABLE, SUCH EMPLOYEE OR EMPLOYEES SHALL BE SUBJECT TO THE PROVISIONS OF THIS CHAPTER WHICH ARE APPLICABLE TO POSITIONS OF EQUIVALENT DIFFICULTY OR RESPONSIBILITY; "

DURING THE PERIOD OF THE SALARY OVERPAYMENT TO MR. BALL, THE REGULATIONS APPLICABLE WERE THE ARMY CIVILIAN PERSONNEL REGULATIONS, WHICH WERE UTILIZED BY YOUR AGENCY PENDING ISSUANCE OF NATIONAL AERONAUTICS AND SPACE ADMINISTRATION REGULATIONS. THROUGH AN OVERSIGHT, MR. BALL'S RATE OF PAY UPON PROMOTION WAS FIXED AT A STEP RATE OF THE GRADE TO INCLUDE A WITHIN GRADE STEP-INCREASE TO WHICH HE WAS NOT ENTITLED UNDER THE REGULATIONS.

IN 29 COMP. GEN. 75 WE HELD THAT THE DE FACTO RULE COULD NOT BE APPLIED TO THE CASE OF A POSTAL SERVICE EMPLOYEE WHO WAS GIVEN A STEP INCREASE IN VIOLATION OF THE LENGTH OF SERVICE REQUIREMENT PRESCRIBED BY STATUTE AS A PREREQUISITE TO ENTITLEMENT TO THE INCREASE, AND THAT HE WAS REQUIRED TO REFUND THE SALARY PAID HIM THAT WAS IN EXCESS OF THAT PRESCRIBED BY LAW. 33 COMP. GEN. 448. ALTHOUGH THE SERVICE REQUIREMENT FOR STEP-INCREASES IS FIXED IN MR. BALL'S CASE BY REGULATION RATHER THAN BY STATUTE, THE REGULATIONS ARE ISSUED PURSUANT TO AUTHORITY GRANTED BY STATUTE. SUCH REGULATIONS ARE TO BE GIVEN THE FORCE AND EFFECT OF LAW. CONSEQUENTLY, WE HOLD THAT MR. BALL IS LIABLE FOR THE OVERPAYMENT IN ACCORDANCE WITH THE WELL-ESTABLISHED RULE THAT ALL MONIES PAID FOR SALARY IN EXCESS OF THE LAWFUL AMOUNT MUST BE REFUNDED TO THE GOVERNMENT REGARDLESS OF WHETHER THE EMPLOYEE WAS AT FAULT IN ACCEPTING THE ERRONEOUS PAYMENTS. SEE 31 COMP. GEN. 177.