B-55259, JANUARY 25, 1946, 25 COMP. GEN. 561

B-55259: Jan 25, 1946

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

FEDERAL EMPLOYEES PAY ACT OF 1945 - AGGREGATE COMPENSATION GUARANTEE AS AFFECTING INITIAL SALARY RATE UPON TRANSFER AN EMPLOYEE WHOSE COMPENSATION IN GRADE CAF-3 IS IN EXCESS OF THE MINIMUM OF THAT GRADE AS INCREASED BY SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BUT LESS THAN THE NEXT SALARY STEP IN SUCH GRADE BY REASON OF THE AGGREGATE COMPENSATION GUARANTEE PROVISIONS OF SECTION 603 (A) OF SAID ACT IS NOT ENTITLED TO SUCH GUARANTEE BENEFITS BEYOND THE DATE OF HIS TRANSFER TO A POSITION IN SUCH GRADE WITH SIMILAR OR DIFFERENT DUTIES IN THE SAME OR DIFFERENT AGENCY. 1946: I HAVE A LETTER DATED JANUARY 11. AS FOLLOWS: A NUMBER OF CASES HAVE ARISEN IN THE SMALLER WAR PLANTS CORPORATION WHICH REQUIRE AN INTERPRETATION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

B-55259, JANUARY 25, 1946, 25 COMP. GEN. 561

FEDERAL EMPLOYEES PAY ACT OF 1945 - AGGREGATE COMPENSATION GUARANTEE AS AFFECTING INITIAL SALARY RATE UPON TRANSFER AN EMPLOYEE WHOSE COMPENSATION IN GRADE CAF-3 IS IN EXCESS OF THE MINIMUM OF THAT GRADE AS INCREASED BY SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BUT LESS THAN THE NEXT SALARY STEP IN SUCH GRADE BY REASON OF THE AGGREGATE COMPENSATION GUARANTEE PROVISIONS OF SECTION 603 (A) OF SAID ACT IS NOT ENTITLED TO SUCH GUARANTEE BENEFITS BEYOND THE DATE OF HIS TRANSFER TO A POSITION IN SUCH GRADE WITH SIMILAR OR DIFFERENT DUTIES IN THE SAME OR DIFFERENT AGENCY, AND, THEREFORE, SUCH TRANSFER MUST BE AT THE MINIMUM SALARY RATE OF GRADE CAF-3 AND NOT AT THE NEXT SALARY STEP OF THE GRADE, EVEN THOUGH A REDUCTION IN COMPENSATION RESULTS THEREFROM.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, BOARD OF DIRECTORS, SMALLER WAR PLANTS CORPORATION, JANUARY 25, 1946:

I HAVE A LETTER DATED JANUARY 11, 1946, FROM THE DIRECTOR AND ASSISTANT GENERAL MANAGER, AS FOLLOWS:

A NUMBER OF CASES HAVE ARISEN IN THE SMALLER WAR PLANTS CORPORATION WHICH REQUIRE AN INTERPRETATION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. SECTION 603 (A) (59 STAT. 302) PROVIDES AS FOLLOWS:

"THE AGGREGATE PER ANNUM RATE OF COMPENSATION WITH RESPECT TO ANY PAY PERIOD, IN THE CASE OF ANY FULL-TIME EMPLOYEE IN THE SERVICE ON JULY 1, 1945, (1) WHO WAS A FULL-TIME EMPLOYEE ON JUNE 30, 1945, (2) WHOSE PER ANNUM BASIC RATE OF COMPENSATION ON JUNE 30, 1945, DID NOT EXCEED A RATE OF $1,800 PER ANNUM, AND (3) WHOSE COMPENSATION IS FIXED IN ACCORDANCE W THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR THE ACT ENTITLED "AN ACT TO ADJUST THE COMPENSATION OF CERTAIN EMPLOYEES IN THE CUSTOMS SERVICE," APPROVED MAY 29, 1928, AS AMENDED, SHALL NOT, UNDER THE RATE OF COMPENSATION ESTABLISHED BY THIS ACT, SO LONG AS HE CONTINUES TO OCCUPY THE POSITION HE OCCUPIED ON JUNE 30, 1945, BE LESS THAN HIS PER ANNUM BASIC RATE OF COMPENSATION ON SUCH DATE, PLUS THE RATE OF $300 PER ANNUM OR 25 PERCENTUM OF SUCH PER ANNUM BASIC RATE OF COMPENSATION, WHICHEVER IS THE SMALLER AMOUNT.'

ONE OF THE SPECIFIED CONDITIONS NECESSARY FOR THE RETENTION OF BENEFITS RECEIVED UNDER SECTION 603 (A) IS THAT THE EMPLOYEE REMAIN IN THE SAME POSITION OCCUPIED ON JUNE 30, 1945. SEVERAL DECISIONS, PARTICULARLY B- 50927, JULY 18, 1945; B-51099, JULY 28, 1945; B-51389, AUGUST 14, 1945 AND B-51696, AUGUST 21, 1945, CLEARLY DEFINE CONDITIONS ESSENTIAL TO "CONTINUE TO OCCUPY THE POSITION" WITHIN THE MEANING OF THE ACT. THE PROBLEM WHICH CONFRONTS THIS OFFICE IS WHAT TO DO IN CASES WHERE THERE IS A DEFINITE CHANGE IN POSITION WITH SIMILAR OR DIFFERENT DUTIES IN THE SAME OR A DIFFERENT AGENCY. THE FOLLOWING CASES ILLUSTRATE THE QUESTIONS AT ISSUE: CASE 1. A. EMPLOYEE "A," A CLERK-STENOGRAPHER, CAF-3, WAS GIVEN THE $300

MINIMUM INCREASE BY THE WAR DEPARTMENT AS SPECIFIED IN SECTION

603 (A). B. EMPLOYEE "A" WAS APPOINTED BY TRANSFER FROM CLERK STENOGRAPHER,

CAF-3, $1,920 PER ANNUM IN THE WAR DEPARTMENT TO

CLERK-STENOGRAPHER, CAF-3, WITH THE SMALLER WAR PLANTS

CORPORATION WITHOUT A BREAK IN SERVICE. QUESTION 1. SHOULD EMPLOYEE "A" BE APPOINTED BY TRANSFER FROM ANOTHER AGENCY AT BASIC SALARY OF $1,902, OR IS IT PERMISSIBLE TO APPOINT THIS INDIVIDUAL AT THE NEXT HIGHER WITHIN- GRADE STEP OF $1,968? CASE 2. A. THE SALARY OF EMPLOYEE "B" CAF-3, WAS INCREASED TO $1,920 PER ANNUM

BY THE APPLICATION OF SECTION 603 (A), FEDERAL EMPLOYEES PAY

ACT OF 1945. B. EMPLOYEE "B" WAS TRANSFERRED TO ANOTHER DIVISION IN THE AGENCY, TO

A POSITION OF THE SAME GRADE INVOLVING DIFFERENT DUTIES.

QUESTION 2. MUST EMPLOYEE "B" BE REDUCED FROM $1,920 TO $1,902 OR IS IT PERMISSIBLE TO TRANSFER THIS INDIVIDUAL AT THE NEXT HIGHER WITHIN-GRADE STEP OF $1,968? IT IS THE POLICY OF THIS CORPORATION TO PROTECT THE SALARIES OF ITS EMPLOYEES WHENEVER POSSIBLE AND CONSISTENT WITH GOOD ADMINISTRATION. IF, IN THE CASES CITED, IT IS NECESSARY TO REDUCE THE SALARY OF THE EMPLOYEES, WITH NO CORRESPONDING DECREASE IN DUTIES OR RESPONSIBILITIES, AN OBVIOUS INJUSTICE RESULTS. MOREOVER, ONE OF THE EXPRESSED PURPOSES OF PUBLIC LAW 106, 79TH CONGRESS, IS TO IMPROVE SALARY AND WAGE ADMINISTRATION IN THE FEDERAL SERVICE. TO ARBITRARILY TAKE FROM AN EMPLOYEE SOME OF THE BENEFITS THE ACT SPECIFICALLY PROVIDES IS TO CONTRAVENE, IN PART, THE INTENT OF THE ACT. IT IS THE CONSIDERED OPINION OF THIS OFFICE THAT, IN THE CASES REFERRED TO, IF OTHERWISE WARRANTED BY FACTS AND CIRCUMSTANCES, THERE SHOULD BE NO RESTRICTION AGAINST EFFECTING TRANSFERS AT AN INCREASE IN SALARY. BUT, SINCE YOUR OFFICE IN AN INFORMAL OPINION HAS STATED THAT IT CANNOT BE DONE, AND, INASMUCH AS INFORMAL OPINIONS ARE NOT CONSIDERED BINDING ON YOUR OFFICE, A FORMAL OPINION IS RESPECTFULLY REQUESTED. AS THE ILLUSTRATIONS GIVEN REPRESENT ACTUAL CASES WHICH HAVE ARISEN IN THE CORPORATION, YOUR EARLY CONSIDERATION WILL BE APPRECIATED.

IN ANSWER TO QUESTION 1, AS EMPLOYEE "A" WOULD NOT BE HOLDING THE SAME POSITION IN THE SAME GOVERNMENT AGENCY AFTER HIS TRANSFER FROM THE WAR DEPARTMENT TO THE SMALLER WAR PLANTS CORPORATION, THE GUARANTEE OF $300 DOES NOT EXTEND BEYOND THE DATE OF HIS TRANSFER AND, ACCORDINGLY, HE SHOULD BE APPOINTED IN YOUR CORPORATION AT THE MINIMUM SALARY RATE OF CAF- 3 AS INCREASED BY SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 300, OR $1,902. THE EMPLOYEE LAWFULLY COULD NOT BE PAID AT THE NEXT HIGHER RATE WITHIN THE GRADE UNTIL HE HAS SERVED TWELVE MONTHS FROM THE LAST EQUIVALENT INCREASE AND ATTAINED AN EFFICIENCY RATING OF GOOD OR BETTER IN ACCORDANCE WITH SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299. SEE 25 COMP. GEN. 62 (PARTICULARLY AT PP. 68, 69--- ANSWER TO QUESTION 3); AND COMPARE ID. 210.

IN ANSWER TO QUESTION 2, AS EMPLOYEE "B" WOULD NOT BE HOLDING THE SAME POSITION AFTER BEING TRANSFERRED TO A POSITION INVOLVING ENTIRELY DIFFERENT DUTIES, HE MUST UPON SUCH TRANSFER--- IN LINE WITH THE HOLDING SUPRA--- BE REDUCED TO $1,902. LIKEWISE, THIS EMPLOYEE COULD NOT BE GIVEN A WITHIN-GRADE ADVANCEMENT UNTIL HE HAS SATISFIED THE CONDITIONS REQUIRED, AS STATED IN ANSWER TO QUESTION 1.