B-193959.OM, AUG 5, 1980

B-193959.OM, AUG 5, 1980

SUBJECT: THE MATTER OF WILLIAM L. HURT AND WALTER HAYWARD B-193959, SEPTEMBER 21, 1979

GENERAL COUNSEL:

ON OCTOBER 2, 1979, MR. SHELDON HAUSE OF THIS DIVISION MET WITH MR. THOMAS KIRKPATRICK, THE ATTORNEY WHO PREPARED DECISION B-193959, TO DISCUSS THE APPLICATION OF THE TURNER - CALDWELL LINE OF DECISIONS TO THE MATTER OF WILLIAM L. HURT AND WALTER HAYWARD. AT THAT MEETING IT WAS DETERMINED THAT THE TURNER - CALDWELL DECISIONS MIGHT NOT APPLY AS INDICATED IN B-193959, AND THAT RECONSIDERATION OF THE MATTER WOULD BE IN ORDER.

THE MATTER OF WILLIAM L. HURT AND WALTER HAYWARD WAS WRITTEN IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY THE CONTROLLER- DIRECTOR OF ADMINISTRATION OF THE GENERAL SERVICES ADMINISTRATION, AND HELD THAT EXCEPTED SERVICE WAGE SYSTEM EMPLOYEES COULD BE ENTITLED TO RETROACTIVE TEMPORARY PROMOTIONS UNDER THE TURNER- CALDWELL LINE OF DECISIONS.

THE MATTER OF EVERETT TURNER AND DAVID L. CALDWELL, 55 COMP.GEN. 539 (1975) WAS BASED ON A CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW DECISION WHICH HELD THAT REGULATIONS FOUND IN SUBCHAPTER 8 OF FEDERAL PERSONNEL MANUAL, CHAPTER 300, LIMITED THE DISCRETIONARY POWER OF AGENCIES TO DETAIL EMPLOYEES TO HIGHER GRADE POSITIONS TO A MAXIMUM OF 120 DAYS UNLESS PRIOR APPROVAL WAS GRANTED BY THE COMMISSION. HOWEVER, PARAGRAPH 8 -2 OF THAT SUBCHAPTER STATES, "THE MATERIAL NOW COVERED IN THIS SUBCHAPTER RELATES ONLY TO DETAILS WITHIN THE SAME AGENCY OF EMPLOYEES SERVING IN COMPETITIVE POSITIONS OR IN POSITIONS UNDER THE GENERAL SCHEDULE WITHOUT CHANGE IN THE EMPLOYEE'S CIVIL SERVICE OR PAY STATUS." SINCE THE MATERIAL IN THAT SUBCHAPTER DOES NOT APPLY TO EMPLOYEES IN EXCEPTED POSITIONS WHICH ARE NOT UNDER THE GENERAL SCHEDULE, THE REGULATIONS REQUIRING (BY BAR INTERPRETATION) TEMPORARY PROMOTION FOR OVERLONG ASSIGNMENT TO HIGHER GRADE POSITIONS WITHOUT CSC APPROVAL WOULD NOT APPLY. WE NOTE THAT 5 U.S.C. 3341, WHICH LIMITS THE LENGTH OF PERMISSIBLE DETAILS, DOES NOT PROVIDE A REMEDY WHICH COULD BE APPLIED RETROACTIVELY.

ADDITIONALLY, IT SHOULD BE NOTED THAT B-193959, FOUND THAT, "CSC APPROVAL IS UNNECESSARY FOR THE DETAIL OF A VETERANS READJUSTMENT APPOINTEE TO A POSITION IN THE COMPETITIVE SERVICE AS LONG AS THE DETAIL IS PART OF THE DOCUMENTED TRAINING PROGRAM WHICH SUCH APPOINTEES ARE REQUIRED TO HAVE." WHILE THE POINT IS WELL TAKEN, WE QUESTION ANY ENTITLEMENT TO A RETROACTIVE PROMOTION OF A TRAINEE FOR PERFORMING THE DUTIES REQUIRED BY THE TRAINING PROGRAM.

FOR THESE REASONS, AND BECAUSE OF THE LARGE NUMBER OF WAGE SYSTEM EMPLOYEES IN THE EXCEPTED SERVICE (E.G., NATIONAL GUARD TECHNICIANS, ETC.), WE REQUEST THAT YOU RECONSIDER THE CITED MATTER AND MODIFY OR CLARIFY B-193959.

INDORSEMENT

B-193959-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

RETURNED. DECISION WILLIAM L. HURT, ET AL., B-193959, SEPTEMBER 21, 1979, HELD THAT EXCEPTED SERVICE WAGE SYSTEM EMPLOYEES WITH VETERANS READJUSTMENT APPOINTMENTS MAY RECEIVE TEMPORARY PROMOTIONS AND BACK PAY UNDER THE TURNER-CALDWELL DECISIONS IF THEY WERE DETAILED TO HIGHER GRADE POSITIONS IN THE COMPETITIVE SERVICE FOR MORE THAN 120 DAYS WITHOUT THE PRIOR APPROVAL OF THE CIVIL SERVICE COMMISSION (CSC), PROVIDED THAT THE DETAILS WERE PART OF A DOCUMENTED TRAINING PROGRAM. IT ALSO HELD THAT GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES SHOULD BE TREATED IN LIKE MANNER AND THAT EMPLOYEES SERVING ON AN INTERMITTENT BASIS WOULD BE ENTITLED TO BACK PAY ON THE 121ST CALENDAR DAY, IF THEY WERE OTHERWISE QUALIFIED.

THE COMMISSION'S INSTRUCTION IN SUBCHAPTER 3 OF FPM, CHAPTER 300, FOR SECURING PRIOR APPROVAL FOR CONTINUATION OF DETAILS BEYOND 120 DAYS RELATES ONLY TO DETAILS WITHIN THE SAME AGENCY OF EMPLOYEES SERVING IN COMPETITIVE POSITIONS (EITHER WAGE SYSTEM OR GENERAL SCHEDULE) AND TO EMPLOYEES IN EXCEPTED POSITIONS UNDER THE GENERAL SCHEDULE. PARA 8-2 OF SUBCHAPTER 8. ALSO, STATUTORY AND REGULATORY REQUIREMENTS FOR PROMOTION MUST BE MET BEFORE AN EMPLOYEE IS GRANTED THE BENEFITS OF TURNER- CALDWELL. SEE SECTION 8C OF CSC BULLETIN NO. 300-40, SUPRA.

IN THIS CONNECTION SECTION 6.5 OF CIVIL SERVICE RULE VI REQUIRES THAT PRIOR COMMISSION APPROVAL BE OBTAINED WHEN EXCEPTED EMPLOYEES ARE ASSIGNED TO DO THE WORK OF COMPETITIVE POSITIONS. IN ACCORDANCE WITH THE ABOVE IT WAS HELD IN MERLE H. MORROW, 58 COMP.GEN. 88 (1978), THAT A GS-13 EMPLOYEE IN THE EXCEPTED SERVICE WAS NOT ENTITLED TO THE BENEFITS OF TURNER-CALDWELL FOR HER DETAIL TO A GS-14 POSITION IN THE COMPETITIVE SERVICE SINCE THE PRIOR APPROVAL OF THE COMMISSION HAD NOT BEEN OBTAINED AS REQUIRED BY COMMISSION RULE VI.

IN VIEW OF PARA. 8-2, SUBCHAPTER 8, FPM CHAPTER 300, WAGE BOARD EMPLOYEES IN EXCEPTED POSITIONS ARE NOT ENTITLED TO THE BENEFITS OF TURNER- CALDWELL. NOTWITHSTANDING THAT, THE HURT DECISION GRANTED THE EMPLOYEES IN QUESTION THE BENEFITS OF TURNER-CALDWELL BECAUSE (1) CSC GAVE A PARTIAL EXCEPTION TO CIVIL SERVICE RULE VI; (2) CSC SPECIFICALLY PROVIDED IN 5 C.F.R. SEC. 307.106 THAT AGENCIES MAY REASSIGN, PROMOTE, OR TRANSFER AN EMPLOYEE SERVING UNDER A VETERANS READJUSTMENT APPOINTMENT TO ANY POSITION FOR WHICH HE MEETS THE QUALIFICATION STANDARDS OF THE COMMISSION; AND (3) CSC ADVISED THE GENERAL SERVICES ADMINISTRATION (GSA), THE AGENCY FOR WHICH THE INVOLVED EMPLOYEES WORKED, THAT THE PARTIAL EXCEPTION TO SECTION 6.5 OF CIVIL SERVICE RULE VI DID NOT "RELIEVE AGENCIES FROM COMPLYING WITH OTHER REQUIREMENTS CONCERNING DETAILS WHICH ARE PRESCRIBED IN SUBCHAPTER 8 OF FPM CHAPTER 300 INCLUDING THE REQUIREMENT THAT DETAILS BEYOND 120 DAYS MUST BE APPROVED BY THE COMMISSION." THE CSC ALSO ADVISED GSA THAT THE AUTHORITY TO DETAIL EMPLOYEES SERVING UNDER VETERANS READJUSTMENTS MAY BE MADE ONLY IF THE DETAIL IS PART OF A DOCUMENTED TRAINING PROGRAM WHICH SUCH EMPLOYEES ARE REQUIRED TO HAVE.

IN THE LIGHT OF THESE FACTORS THE HURT DECISION IS NARROW IN SCOPE AND IS APPLICABLE ONLY TO WAGE BOARD EMPLOYEES SERVING UNDER VETERANS READJUSTMENT APPOINTMENTS WHEN DETAILED TO COMPETITIVE POSITIONS AND WHEN THE DETAILS ARE PART OF A DOCUMENTED TRAINING PROGRAM. IT DOES NOT APPLY TO OTHER WAGE BOARD EMPLOYEES IN EXCEPTED POSITIONS, SUCH AS NATIONAL GUARD TECHNICIANS. IN FACT IT DOES NOT APPLY TO WAGE BOARD EMPLOYEES SERVING UNDER VETERANS READJUSTMENT APPOINTMENTS WHEN THE DETAILS ARE NOT PART OF A DOCUMENTED TRAINING PROGRAM.

IN THIS CONNECTION, VETERANS READJUSTMENT APPOINTMENTS WERE FIRST AUTHORIZED BY EXECUTIVE ORDER 11521, MARCH 26, 1970, WHICH PROVIDES IN SECTION 1A:

"*** THE HEAD OF AN AGENCY MAY MAKE AN EXCEPTED APPOINTMENT, TO BE KNOWN AS A 'VETERANS READJUSTMENT APPOINTMENT,' TO ANY POSITION IN THE COMPETITIVE SERVICE ***."

IN ACCORDANCE WITH EXECUTIVE ORDER 11521, BOTH CLAIMANTS WERE APPOINTED TO A "POSITION IN THE COMPETITIVE SERVICE" AND WERE SERVING IN SUCH A POSITION AT THE TIME OF THEIR DETAIL. CONSEQUENTLY, THEY WERE CLEARLY SUBJECT TO SUBCHAPTER 8, FPM CHAPTER 300, AND WERE ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION. SEE ALSO PUB. L. 93 508, SEC. 403(A), DECEMBER 3, 1974, 38 U.S.C. SEC. 2014 (1976).

THE ABOVE ANALYSIS AGREES WITH THE CSC GENERAL COUNSEL'S OPINION OF MARCH 25, 1976, OBSERVING THAT VETERANS READJUSTMENT APPOINTEES ARE INITIALLY PLACED IN COMPETITIVE POSITIONS, ALTHOUGH HIRED UNDER EXCEPTED APPOINTMENTS. A COPY OF THE OPINION IS ATTACHED.

FINALLY, YOU QUESTION WHETHER THERE IS ANY ENTITLEMENT TO A RETROACTIVE PROMOTION OF A TRAINEE FOR PERFORMING DUTIES REQUIRED BY A TRAINING PROGRAM. WE AGREE THAT, AS A GENERAL PROPOSITION, THE PERFORMANCE OF TRAINING DUTIES DOES NOT ENTITLE AN EMPLOYEE TO A RETROACTIVE PROMOTION. HOWEVER, THE READJUSTMENT PROGRAM FOR VIETNAM VETERANS IS A SPECIAL STATUTORY PROGRAM AND THE CIVIL SERVICE COMMISSION, BY LETTER DATED JULY 24, 1978, EXPRESSLY STATED THAT THE PROGRAM IS SUBJECT TO FPM CHAPTER 300, INCLUDING THE REQUIREMENT FOR COMMISSION APPROVAL OF DETAILS BEYOND 120 DAYS. OUR DECISION OF SEPTEMBER 21, 1979, WAS BASED SQUARELY ON THE COMMISSION'S STATEMENT ABOUT THE PROGRAM.

ACCORDINGLY, WE DO NOT BELIEVE THAT ANY MODIFICATION OF THE DECISION OF SEPTEMBER 21, 1979, IS NECESSARY.