B-28027, AUGUST 19, 1942, 22 COMP. GEN. 151

B-28027: Aug 19, 1942

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COMPENSATION - WITHIN-GRADE PROMOTIONS THE WORDS "WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED" APPEARING IN THE ACT OF AUGUST 1. HAVE REFERENCE TO THE GRADE HELD BY AN EMPLOYEE AT THE BEGINNING OF THE QUARTER WHEN HE OTHERWISE WOULD BE ELIGIBLE FOR AUTOMATIC PROMOTION AND NOT A GRADE HELD BY HIM DURING A PART OF THE PERIOD OF SERVICE REQUIRED FOR AUTOMATIC PROMOTION. IF THE EMPLOYEE IS OTHERWISE ELIGIBLE AS TO EFFICIENCY. THE INCREASE IN COMPENSATION TO WHICH HE IS ENTITLED UPON SUCH PROMOTION IS AN AMOUNT EQUAL TO THE SALARY INCREMENT OF THE HIGHER GRADE AND NOT A LESSER AMOUNT OBTAINED BY REDUCING SAID SALARY INCREMENT BY THE AMOUNT OF THE INCREASE IN COMPENSATION RECEIVED BY REASON OF THE REALLOCATION.

B-28027, AUGUST 19, 1942, 22 COMP. GEN. 151

COMPENSATION - WITHIN-GRADE PROMOTIONS THE WORDS "WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED" APPEARING IN THE ACT OF AUGUST 1, 1941, WHICH PROVIDES FOR PERIODIC WITHIN-GRADE SALARY ADVANCEMENT FOR EMPLOYEES OF THE CLASS THEREIN SPECIFIED, HAVE REFERENCE TO THE GRADE HELD BY AN EMPLOYEE AT THE BEGINNING OF THE QUARTER WHEN HE OTHERWISE WOULD BE ELIGIBLE FOR AUTOMATIC PROMOTION AND NOT A GRADE HELD BY HIM DURING A PART OF THE PERIOD OF SERVICE REQUIRED FOR AUTOMATIC PROMOTION. AN INCREASE IN COMPENSATION, BY REASON OF REALLOCATION OF A POSITION TO A HIGHER GRADE, IN AN AMOUNT LESS THAN THE COMPENSATION INCREMENTS OF THE LOWER GRADE DOES NOT RENDER THE EMPLOYEE INELIGIBLE FOR A WITHIN GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, IF THE EMPLOYEE IS OTHERWISE ELIGIBLE AS TO EFFICIENCY, SERVICE, AND CONDUCT; AND THE INCREASE IN COMPENSATION TO WHICH HE IS ENTITLED UPON SUCH PROMOTION IS AN AMOUNT EQUAL TO THE SALARY INCREMENT OF THE HIGHER GRADE AND NOT A LESSER AMOUNT OBTAINED BY REDUCING SAID SALARY INCREMENT BY THE AMOUNT OF THE INCREASE IN COMPENSATION RECEIVED BY REASON OF THE REALLOCATION.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, CIVIL AERONAUTICS BOARD, AUGUST 19, 1942:

I HAVE RECEIVED A LETTER DATED AUGUST 8, 1942, FROM THE SECRETARY OF THE CIVIL AERONAUTICS BOARD, AS FOLLOWS:

THE CIVIL AERONAUTICS BOARD SUBMITS, FOR YOUR EARLY CONSIDERATION, THE FOLLOWING QUESTIONS:

WE HAVE AN EMPLOYEE WHO WAS APPOINTED TO A POSITION, CAF-5, $2,500 PER ANNUM, ON OCTOBER 16, 1938, IN THE AIR SAFETY BOARD OF THE CIVIL AERONAUTICS AUTHORITY. ON JULY 1, 1940, UPON THE ABOLITION OF THE AIR SAFETY BOARD UNDER SECTION 7 (B) OF THE PRESIDENT'S REORGANIZATION PLAN NO. IV, APPROVED APRIL 3, 1939, THIS EMPLOYEE WAS APPOINTED AS CLERK- STENOGRAPHER, CAF-4, IN THE OFFICE OF THE SAFETY BUREAU OF THE CIVIL AERONAUTICS BOARD AT $2,160 PER ANNUM. THIS LATTER POSITION WAS REALLOCATED TO A CAF-5 WITH A SALARY OF $2,200 PER ANNUM ON FEBRUARY 16, 1941. IS THE EMPLOYEE ELIGIBLE, AS OF OCTOBER 1, 1941, FOR AN AUTOMATIC INCREASE IN COMPENSATION UNDER THE PROVISIONS OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923 AS AMENDED BY THE ACT OF AUGUST 1, 941?

IN 21 C.G. 369, YOU HELD THAT A REDUCTION IN SALARY COMING DURING THE PRESCRIBED PERIOD WHICH MUST BE SERVED BY AN EMPLOYEE WITHOUT AN "EQUIVALENT INCREASE IN COMPENSATION" IN ORDER TO BE ELIGIBLE FOR A WITHIN -GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, HAS NO EFFECT ON THE EMPLOYEE'S ELIGIBILITY FOR THE INCREASE.

IT WILL BE SEEN FROM THE FACTS GIVEN ABOVE THAT, FOR THE PERIOD JULY 1, 1940, TO FEBRUARY 16, 1941, THE EMPLOYEE INVOLVED RECEIVED THE MAXIMUM SALARY FOR A CAF-4 POSITION. SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923 AS AMENDED, PROVIDES:

"ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT QUARTER, FOLLOWING THE COMPLETION OF: (1) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $60 OR $100, OR (2) EACH THIRTY MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR $250, SUBJECT TO THE FOLLOWING CONDITIONS: * * *" ( ITALICS SUPPLIED.)

WERE THIS SECTION INTERPRETED TO MEAN THAT AN EMPLOYEE SHALL NOT HAVE ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH HER POSITION WAS ALLOCATED FOR THE 18 MONTHS PRIOR TO OCTOBER 1, 1941, THE ABOVE QUESTION WOULD BE ANSWERED IN THE NEGATIVE. HOWEVER, SHOULD THE INTERPRETATION BE THAT AN EMPLOYEE SHALL NOT HAVE, ON OCTOBER 1, 1941, ATTAINED THE MAXIMUM RATE OF COMPENSATION IN HER GRADE IN ORDER TO BECOME ELIGIBLE, THE QUESTION WOULD BE ANSWERED IN THE AFFIRMATIVE.

IT IS NOTED THAT THE ABOVE EMPLOYEE RECEIVED AN INCREASE IN COMPENSATION OF $40 PER ANNUM UPON REALLOCATION OF HER POSITION FROM GRADE 4 TO GRADE 5. THIS INCREASE, HOWEVER, IS NOT "AN EQUIVALENT INCREASE IN COMPENSATION" FOR THE PURPOSES OF THE ACT AS DEFINED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941. THE DEFINITION THERE GIVEN IS AS FOLLOWS:

"SECTION 2 (D) "EQUIVALENT INCREASE IN COMPENSATION" SHALL MEAN ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.'

IF THIS EMPLOYEE IS ELIGIBLE FOR AN INCREASE ON OCTOBER 1, 1941, A FURTHER QUESTION IS PRESENTED. SHOULD THE EMPLOYEE RECEIVE AN ADDITIONAL INCREASE OF $60 PER ANNUM OR A FULL $100 INCREASE IN ORDER TO BRING HER SALARY RATE UP TO THE ESTABLISHED SALARY STEP OF $2,300 PER ANNUM FOR A GRADE 5 EMPLOYEE?

WE SHALL BE PLEASED TO RECEIVE YOUR EARLY ANSWER TO THESE QUESTIONS.

AN EMPLOYEE'S ELIGIBILITY FOR AN AUTOMATIC PROMOTION UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, IS FOR DETERMINATION AT THE BEGINNING OF A QUARTER OF THE CALENDAR YEAR, THAT IS, JANUARY 1, APRIL 1, JULY 1, AND OCTOBER 1. 21 COMP. GEN. 1067, 1070. ACCORDINGLY, THE CONDITION IN SECTION 7 (B) OF THE CLASSIFICATION ACT, AS AMENDED, WHICH READS,"WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED"--- UNDERLINED IN YOUR LETTER--- RELATES TO THE GRADE HELD BY AN EMPLOYEE AT THE BEGINNING OF THE QUARTER WHEN THE EMPLOYEE OTHERWISE WOULD BE ELIGIBLE FOR AUTOMATIC PROMOTION.

ON AUGUST 1, 1941, THE DATE OF THE AMENDMENT, AND, ALSO, ON OCTOBER 1, 1941, THE BEGINNING OF THE FIRST QUARTER FOLLOWING THE EFFECTIVE DATE OF THE ACT AND THE FIRST DATE ON WHICH AUTOMATIC PROMOTIONS COULD BE MADE UNDER THE STATUTE, THE INVOLVED EMPLOYEE WAS RECEIVING $2,200 PER ANNUM IN GRADE CAF-5 WHICH IS THE THIRD STEP AND NOT THE MAXIMUM, IN THAT GRADE. PRIOR TO OCTOBER 1, 1941, THE EMPLOYEE HAD SERVED MORE THAN 18 MONTHS WITHOUT HAVING RECEIVED AN EQUIVALENT INCREASE IN COMPENSATION AS THAT TERM IS DEFINED IN SECTION 2 (D) OF THE PRESIDENT'S REGULATIONS QUOTED IN YOUR LETTER. THAT IS, DURING A PERIOD OF 18 MONTHS IMMEDIATELY PRECEDING OCTOBER 1, 1941, THE EMPLOYEE HAD NOT RECEIVED AN INCREASE IN COMPENSATION OF AS MUCH AS $60 PER ANNUM, THE AMOUNT OF THE COMPENSATION INCREMENTS IN THE LOWEST GRADE, CAF-4, HELD DURING THAT PERIOD. THE INCREASE IN COMPENSATION FROM $2,160 TO $2,200 PER ANNUM--- AMOUNTING TO $40 PER ANNUM --- RECEIVED AS A RESULT OF THE REALLOCATION OF THE POSITION, EFFECTIVE FEBRUARY 16, 1941, DID NOT CONSTITUTE AN EQUIVALENT INCREASE IN COMPENSATION. ACCORDINGLY, THE QUESTION CONTAINED IN THE LAST SENTENCE OF THE SECOND PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE PROVIDED THE EMPLOYEE WAS THEN OTHERWISE ELIGIBLE AS TO EFFICIENCY, SERVICE, AND CONDUCT.

REFERRING TO THE QUESTION CONTAINED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, THERE IS NO AUTHORITY TO PAY AN EMPLOYEE WHOSE POSITION FALLS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OTHER THAN AT ONE OF THE SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT EXCEPT IN THE FORM OF A PERCENTAGE DIFFERENTIAL AUTHORIZED BY LAW. NOTWITHSTANDING THE EMPLOYEE RECEIVED AN INCREASE IN COMPENSATION OF $40 PER ANNUM ON FEBRUARY 16, 1941, THE LEGAL SALARY RATE PAYABLE TO THE EMPLOYEE ON AND AFTER OCTOBER 1, 1941, WAS $2,300 PER ANNUM, ASSUMING ALL CONDITIONS OF THE STATUTE AND REGULATIONS HAD THEN BEEN MET TO AUTHORIZE AN AUTOMATIC PROMOTION.