B-177878, MAR 16, 1973

B-177878: Mar 16, 1973

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SINCE THE CIVIL SERVICE COMMISSION HAS NOT PRESCRIBED ANY REGULATIONS PURSUANT TO 5 U.S.C. 5334 WHEREBY CONSIDERATION CAN BE GIVEN TO ROTATING SHIFT SITUATIONS WHERE THE AGENCY EFFECTS THE CONVERSION AT A TIME WHEN THE EMPLOYEE IS NOT RECEIVING NIGHT DIFFERENTIAL. JR.: REFERENCE IS MADE TO YOUR RECENT LETTER CONCERNING A DECISION OF OUR OFFICE WHICH AFFECTED THE RATES OF PAY THAT RADIATION MONITORS EMPLOYED IN A NAVAL SHIPYARD RECEIVED UPON THEIR CONVERSION FROM THE WAGE SYSTEM TO THE GENERAL SCHEDULE. THE DECISION REFERRED TO IS APPARENTLY 51 COMP. ONLY WHEN THE EMPLOYEE IS ACTUALLY WORKING AND BEING PAID FOR NIGHT SHIFT WORK AT THE TIME HIS POSITION IS CONVERTED FROM THE WAGE SYSTEM TO THE GENERAL SCHEDULE.

B-177878, MAR 16, 1973

CIVILIAN PERSONNEL - CONVERSION FROM WAGE BOARD TO GENERAL SCHEDULE - ROTATING SHIFT EMPLOYEES CONCERNING THE PROPRIETY OF GAO'S DECISION AT 51 COMP. GEN. 641 (1972) MADE IN CONNECTION WITH THE CONVERSION OF POSITIONS FROM WAGE BOARD TO GENERAL SCHEDULE. SINCE THE CIVIL SERVICE COMMISSION HAS NOT PRESCRIBED ANY REGULATIONS PURSUANT TO 5 U.S.C. 5334 WHEREBY CONSIDERATION CAN BE GIVEN TO ROTATING SHIFT SITUATIONS WHERE THE AGENCY EFFECTS THE CONVERSION AT A TIME WHEN THE EMPLOYEE IS NOT RECEIVING NIGHT DIFFERENTIAL, NO SUCH CONSIDERATION CAN BE MADE BY THE EMPLOYING AGENCY OR GAO DUE TO THEIR LACK OF AUTHORITY.

TO MR. RICHARD N. THOMAS, JR.:

REFERENCE IS MADE TO YOUR RECENT LETTER CONCERNING A DECISION OF OUR OFFICE WHICH AFFECTED THE RATES OF PAY THAT RADIATION MONITORS EMPLOYED IN A NAVAL SHIPYARD RECEIVED UPON THEIR CONVERSION FROM THE WAGE SYSTEM TO THE GENERAL SCHEDULE.

THE DECISION REFERRED TO IS APPARENTLY 51 COMP. GEN. 641 (B-170675, APRIL 13, 1972), COPY ENCLOSED, TO THE DEPUTY ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA). THAT DECISION HOLDS THAT NIGHT DIFFERENTIAL MAY BE INCLUDED IN THE RATE OF BASIC PAY FOR A WAGE BOARD EMPLOYEE, WHO OCCUPIES A POSITION SUBJECT TO ROTATING SHIFTS, ONLY WHEN THE EMPLOYEE IS ACTUALLY WORKING AND BEING PAID FOR NIGHT SHIFT WORK AT THE TIME HIS POSITION IS CONVERTED FROM THE WAGE SYSTEM TO THE GENERAL SCHEDULE. YOU BELIEVE THE DECISION IS UNFAIR SINCE IT RESULTED IN RADIATION MONITORS WITH EQUAL QUALIFICATIONS, WHO PRIOR TO CONVERSION HAD THE SAME BASE PAY, HAVING THREE RATES OF BASE PAY RANGING FROM $4.79 PER HOUR TO $5.22 PER HOUR.

AS INDICATED IN OUR DECISION, THE CIVIL SERVICE COMMISSION HAS AUTHORITY UNDER 5 U.S.C. 5334 TO REGULATE AS TO THE RATE OF BASIC PAY FOR EMPLOYEES UNDER THE SITUATIONS DESCRIBED THEREIN. 5 U.S.C. 5334(D) PROVIDES SPECIFICALLY THAT THE COMMISSION MAY PRESCRIBE REGULATIONS GOVERNING THE RETENTION OF THE BASIC RATE OF AN EMPLOYEE WHO TOGETHER WITH HIS POSITION IS BROUGHT UNDER THE GENERAL SCHEDULE. IT WAS POINTED OUT THAT NO REGULATORY PROVISION IS MADE WHEREBY CONSIDERATION COULD BE GIVEN TO ROTATING SHIFT SITUATIONS WHERE THE AGENCY EFFECTS THE CONVERSION AT A TIME WHEN THE EMPLOYEE IS NOT RECEIVING NIGHT DIFFERENTIAL. THE MERITS OF THE PROPOSAL OF NASA TO PRORATE WAS RECOGNIZED BUT IN VIEW OF THE GOVERNING REGULATIONS, IT WAS CONCLUDED THAT NO AUTHORITY EXISTED TO APPROVE THE PROPOSAL.

WE HAVE CALLED THIS SITUATION AND ITS HARSH RESULT TO THE ATTENTION OF THE CIVIL SERVICE COMMISSION. HOWEVER, WE ARE NOT AWARE AS TO WHETHER THE COMMISSION IS CONSIDERING ANY AMENDMENT TO ITS REGULATIONS TO RECTIFY THE MATTER. IT HAS BEEN SUGGESTED THAT WHERE POSSIBLE THE AGENCY INVOLVED SHOULD ONLY CONVERT WAGE BOARD POSITIONS TO THE GENERAL SCHEDULE WHEN THE EMPLOYEES ARE ON THE NIGHT SHIFT AND RECEIVING NIGHT DIFFERENTIAL.