B-173969, NOV 22, 1971

B-173969: Nov 22, 1971

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IS SUBJECT TO THE FREEZE EXCEPT FOR ANY PORTION OF THE PAYMENT DUE FOR AUGUST 15 ITSELF. THE CLAIM IS DENIED. THE EFFECTIVE DATE THEREOF WAS THE BEGINNING OF THE NEXT PAY PERIOD AS PRESCRIBED BY THE STATUTE. PRESIDENT NIXON SIGNED EXECUTIVE ORDER 11615 WHICH DIRECTED THAT A WAGE AND PRICE FREEZE WAS TO TAKE EFFECT FOR A PERIOD OF 90 DAYS FROM THE DATE OF THE ORDER. PRAY WAS INFORMED THAT HIS PAY RATE DURING THE "FREEZE" WOULD REMAIN AT THE GS-13. IT IS MR. THE FREEZE IS DEEMED TO EXPIRE AT MIDNIGHT OF NOVEMBER 13. "THE DAY OF AUGUST 15 IS A DAY NOT SUBJECT TO THE FREEZE. ANY ACTION COMPLETED ON THAT DAY TO INCLUDE DELIVERY WAS NOT SUBJECT TO THE FREEZE. AN ACTION STARTED ON AUGUST 15 AND EXTENDING BEYOND IT (SUCH AS A RENT OR WAGE INCREASE) IS SUBJECT TO THE FREEZE EXCEPT THAT THE PORTION OF THE PAYMENT FOR THE DAY ITSELF IS EXEMPT.".

B-173969, NOV 22, 1971

CIVILIAN EMPLOYEE - STEP INCREASE - WAGE-PRICE FREEZE DENIAL OF CLAIM OF ARTHUR R. PRAY FOR MONIES ALLEGEDLY DUE BY VIRTUE OF A PERIODIC STEP INCREASE AS A GOVERNMENT EMPLOYEE WHEN THE INCREASE BECAME EFFECTIVE AT 12:01 A.M. ON AUGUST 15, 1971. EXECUTIVE ORDER 11615, SIGNED AUGUST 15, 1971, ESTABLISHED A WAGE-PRICE FREEZE FOR A 90-DAY PERIOD. STABILIZATION PROGRAM GUIDELINE 4.0821, ISSUED BY THE OFFICE OF EMERGENCY PREPAREDNESS, PROVIDES THAT ANY WAGE ACTION STARTED ON AUGUST 15, AND EXTENDING BEYOND THAT DATE, IS SUBJECT TO THE FREEZE EXCEPT FOR ANY PORTION OF THE PAYMENT DUE FOR AUGUST 15 ITSELF. THEREFORE, THE CLAIM IS DENIED.

TO MR. NORMAN MOGUL:

WE REFER TO YOUR LETTER OF AUGUST 20, 1971, REFERENCE DPSC-ZA, WHICH REQUESTS AN ADVANCE DECISION CONCERNING THE CLAIM OF MR. ARTHUR R. PRAY FOR MONEYS ALLEGEDLY DUE HIM BY VIRTUE OF A PERIODIC STEP INCREASE.

THE RECORD INDICATES THAT MR. PRAY COMPLETED HIS WAITING PERIOD FOR A STEP INCREASE FROM A GS-13, STEP 4, TO A GS-13, STEP 5, AS REQUIRED BY 5 U.S.C. 5335(A)(2), AS OF MIDNIGHT ON AUGUST 14, 1971. HOWEVER, THE EFFECTIVE DATE THEREOF WAS THE BEGINNING OF THE NEXT PAY PERIOD AS PRESCRIBED BY THE STATUTE. THE NEXT PAY PERIOD BEGAN AT 12:01 A.M. ON AUGUST 15, 1971.

ON AUGUST 15, 1971, PRESIDENT NIXON SIGNED EXECUTIVE ORDER 11615 WHICH DIRECTED THAT A WAGE AND PRICE FREEZE WAS TO TAKE EFFECT FOR A PERIOD OF 90 DAYS FROM THE DATE OF THE ORDER. PURSUANT TO THIS ANNOUNCEMENT, AS WELL AS CIVIL SERVICE COMMISSION BULLETIN NO. 531-51, MR. PRAY WAS INFORMED THAT HIS PAY RATE DURING THE "FREEZE" WOULD REMAIN AT THE GS-13, STEP 4 LEVEL. IT IS MR. PRAY'S VIEW THAT THE WAGE FREEZE SHOULD NOT APPLY TO HIS PARTICULAR CASE AND THEREFORE HE SHOULD BE PAID AT THE GS-13, STEP 5 PAY LEVEL BEGINNING AUGUST 15, 1971. HE CONTENDS THAT SINCE HE COMPLETED THE WAITING PERIOD AT MIDNIGHT ON AUGUST 14, 1971, HIS RIGHT TO THE STEP INCREASE BECAME VESTED PRIOR TO THE EFFECTIVE DATE OF THE EXECUTIVE ORDER.

EXECUTIVE ORDER 11615, SIGNED AUGUST 15, 1971, STATES IN PERTINENT PART:

"SECTION 1. (A) PRICES, RENTS, WAGES, AND SALARIES SHALL BE STABILIZED FOR A PERIOD OF 90 DAYS FROM THE DATE HEREOF AT LEVELS NOT GREATER THAN THE HIGHEST OF THOSE PERTAINING TO A SUBSTANTIAL VOLUME OF ACTUAL TRANSACTIONS BY EACH INDIVIDUAL, BUSINESS, FIRM OR OTHER ENTITY OF ANY KIND DURING THE 30-DAY PERIOD ENDING AUGUST 14, 1971 *** "

ON AUGUST 26, 1971, PRESUMABLY AT THE DIRECTION OF THE COST OF LIVING COUNCIL ESTABLISHED BY THE EXECUTIVE ORDER, THE OFFICE OF EMERGENCY PREPAREDNESS ISSUED GUIDELINES FOR IMPLEMENTATION OF THE WAGE-PRICE FREEZE. IN PARTICULAR, STABILIZATION PROGRAM GUIDELINE 4.0821 STATED:

"IT HAS BEEN DETERMINED THAT THE PRICE-WAGE-RENT FREEZE BEGAN AT 12:01 A.M. ON AUGUST 16. THEREFORE, THE FREEZE IS DEEMED TO EXPIRE AT MIDNIGHT OF NOVEMBER 13, 1971.

"THE DAY OF AUGUST 15 IS A DAY NOT SUBJECT TO THE FREEZE; AND HENCE, ANY ACTION COMPLETED ON THAT DAY TO INCLUDE DELIVERY WAS NOT SUBJECT TO THE FREEZE. HOWEVER, AN ACTION STARTED ON AUGUST 15 AND EXTENDING BEYOND IT (SUCH AS A RENT OR WAGE INCREASE) IS SUBJECT TO THE FREEZE EXCEPT THAT THE PORTION OF THE PAYMENT FOR THE DAY ITSELF IS EXEMPT."

WE HAVE RECENTLY RECEIVED A BULLETIN FROM THE CIVIL SERVICE COMMISSION (NO. 531-55 DATED OCTOBER 19, 1971) CONTAINING THE FOLLOWING QUESTION AND ANSWER THERETO WHICH APPEARS TO FOLLOW THE GUIDELINES QUOTED ABOVE:

"Q. IF AN EMPLOYEE BECAME ENTITLED TO A PAY INCREASE NOT PERMITTED DURING THE FREEZE PERIOD (SUCH AS A WITHIN-GRADE INCREASE) ON AUGUST 15, 1971, AND IF HE ACTUALLY WORKED OR WAS IN A PAID LEAVE STATUS ON THAT DAY (WHICH WAS A SUNDAY), IS HE TO BE PAID AT THE INCREASED PAY RATE?

"A. HE IS TO BE PAID AT THE HIGHER RATE FOR AUGUST 15 ONLY. ON MONDAY, AUGUST 16, HIS PAY RATE MUST BE READJUSTED TO DISCONTINUE PAYMENT FOR ANY INCREASE THAT IS NOT PERMITTED DURING THE FREEZE PERIOD."

THE INFORMATION CONTAINED IN THE BULLETIN OF OCTOBER 19, 1971, IS IN ADDITION TO THE INFORMATION PREVIOUSLY SET FORTH IN BULLETIN NO. 531 51, ISSUED BY THE CIVIL SERVICE COMMISSION, WHICH OMITTED ANY REFERENCE TO THE POSSIBILITY OF THE INCREASE BECOMING EFFECTIVE FOR ONE DAY ONLY.

ACCORDINGLY, MR. PRAY'S CLAIM SHOULD BE DENIED. WE ASSUME THAT HIS TOUR OF DUTY IN A PAY STATUS DID NOT INCLUDE AUGUST 15, A SUNDAY, SO AS TO QUALIFY HIM FOR PAY AT STEP 5 FOR THIS ONE DAY.