B-67618, AUGUST 5, 1947, 27 COMP. GEN. 63

B-67618: Aug 5, 1947

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RETROACTIVE ADJUSTMENTS IN COMPENSATION UPON THE SUCCESSFUL PROSECUTION OF APPEAL FROM SUCH REALLOCATION SO AS TO PAY THE EMPLOYEE THE APPROPRIATE RATE FOR THE GRADE TO WHICH THE POSITION FINALLY WAS ALLOCATED WOULD NOT BE AUTHORIZED UNLESS SPECIFICALLY PROVIDED FOR BY REGULATION. AS FOLLOWS: THERE IS ENCLOSED HEREWITH A LETTER FROM THE DEPUTY CHIEF. THE SITUATIONS SUBMITTED ARE HYPOTHETICAL ONES. DECISIONS THEREON ARE NECESSARY BECAUSE OF PROPOSED ADMINISTRATIVE REGULATIONS TO THE EFFECT THAT A CHANGE IN CLASSIFICATION ACTION BASED UPON A CHANGE IN DUTIES AND RESPONSIBILITIES OF A POSITION WILL BE MADE REGARDLESS OF THE PENDENCY OF AN APPEAL FROM SUCH ACTION. YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT NAVAL APPROPRIATIONS WOULD BE AVAILABLE FOR RETROACTIVE PAYMENTS OF INCREASES IN SALARIES IN THE SITUATIONS PRESENTED.

B-67618, AUGUST 5, 1947, 27 COMP. GEN. 63

CLASSIFICATION - REALLOCATIONS - FIELD SERVICE - RETROACTIVE COMPENSATION ADJUSTMENTS UPON SUCCESSFUL APPEAL FROM REALLOCATION A CHANGE IN CLASSIFICATION AND SALARY RESULTING FROM A REALLOCATION DOWNWARD OF CERTAIN FIELD POSITIONS BASED UPON A REVALUATION OF THE DUTIES AND RESPONSIBILITIES OF SUCH POSITIONS MAY, BY ADMINISTRATIVE REGULATIONS, BE MADE IMMEDIATELY EFFECTIVE, WITHOUT REGARD TO THE FILING OF AN APPEAL IN THE MATTER, AND RETROACTIVE ADJUSTMENTS IN COMPENSATION UPON THE SUCCESSFUL PROSECUTION OF APPEAL FROM SUCH REALLOCATION SO AS TO PAY THE EMPLOYEE THE APPROPRIATE RATE FOR THE GRADE TO WHICH THE POSITION FINALLY WAS ALLOCATED WOULD NOT BE AUTHORIZED UNLESS SPECIFICALLY PROVIDED FOR BY REGULATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 5, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 27, 1947, REFERENCE JAG:II:RT:EO, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A LETTER FROM THE DEPUTY CHIEF, OFFICE OF INDUSTRIAL RELATIONS OF THE NAVY DEPARTMENT, DATED JUNE 9, 1947, REQUESTING DECISIONS IN THE VARIOUS SITUATIONS PRESENTED ON THE RIGHT TO RETROACTIVE ADJUSTMENTS IN SALARIES OF EMPLOYEES OF THE FIELD SERVICE OF THE NAVY IN THE EVENT OF SUCCESSFUL APPEALS BY THE EMPLOYEES ON CHANGES IN CLASSIFICATION AND SALARY RESULTING FROM A REALLOCATION, OR CLASSIFICATION ACTION BASED UPON A CHANGE IN DUTIES AND RESPONSIBILITIES OF A POSITION.

THE SITUATIONS SUBMITTED ARE HYPOTHETICAL ONES, BUT DECISIONS THEREON ARE NECESSARY BECAUSE OF PROPOSED ADMINISTRATIVE REGULATIONS TO THE EFFECT THAT A CHANGE IN CLASSIFICATION ACTION BASED UPON A CHANGE IN DUTIES AND RESPONSIBILITIES OF A POSITION WILL BE MADE REGARDLESS OF THE PENDENCY OF AN APPEAL FROM SUCH ACTION.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT NAVAL APPROPRIATIONS WOULD BE AVAILABLE FOR RETROACTIVE PAYMENTS OF INCREASES IN SALARIES IN THE SITUATIONS PRESENTED.

THE REFERRED-TO LETTER FROM THE DEPUTY CHIEF, OFFICE OF INDUSTRIAL RELATIONS, NAVY DEPARTMENT, READS, IN PART, AS FOLLOWS:

1. THE NAVY DEPARTMENT IS AT THE PRESENT TIME ENGAGED IN CONDUCTING A FIELD-WIDE POSITION CLASSIFICATION SURVEY OF ALL POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923 AS AMENDED. THIS PROGRAM WILL RESULT IN THE REEVALUATION OF ALL SUCH POSITIONS AND WHILE IT IS NOT A DOWNGRADING PROGRAM, A CERTAIN AMOUNT OF DOWNGRADING HAS BEEN AND WILL CONTINUE TO RESULT.

2. THE NAVY DEPARTMENT HAS ADOPTED AN APPEAL PROCEDURE EXTENDING TO EMPLOYEES THE RIGHT TO APPEAL THE CLASSIFICATION OF THEIR POSITIONS. FURTHER, ADMINISTRATIVE INSTRUCTIONS HAVE BEEN ISSUED TO THE EFFECT THAT SHOULD AN EMPLOYEE APPEAL THE CLASSIFICATION OF HIS POSITION DETERMINED AS A RESULT OF RECLASSIFICATION ACTION OR CHANGE IN CLASSIFICATION ON THE BASIS OF A CHANGE IN DUTIES AND RESPONSIBILITIES, SUCH APPEAL WOULD HAVE THE EFFECT OF STAYING THE EFFECTIVE DATE OF THE RESULTING PERSONNEL ACTION UNTIL THE APPEAL HAS BEEN SETTLED BY THE DEPARTMENT. AS THE PROPER CONSIDERATION AND HEARING OF APPEALS IS A TIME-CONSUMING PROCESS, LENGTHY DELAYS IN THE EFFECTUATION OF PERSONNEL ACTIONS ARE RESULTING IN INCREASING NUMBERS. FURTHER, THE FILING OF APPEALS COULD BE RESORTED TO BY EMPLOYEES WHOSE POSITIONS ARE DOWNGRADED AS A METHOD OF DELAYING THE EFFECTIVE DATE OF THE REDUCTION.

3. IN THE COMPTROLLER'S DECISION B-54432 OF 28 FEBRUARY 1946, SUPRA, IT WAS HELD THAT AN EMPLOYEE WHOSE POSITION HAD BEEN REALLOCATED DOWNWARD WITH APPROPRIATE REDUCTION IN PAY AS A RESULT OF AN ERRONEOUS EVALUATION, OR A MISAPPREHENSION OF THE DUTIES OF THAT POSITION--- INDUCED BY THE APPARENTLY INADEQUATE DESCRIPTION THEN OF RECORD--- AND, THAT, BUT FOR SUCH ERRONEOUS DESCRIPTION, THE CLASSIFICATION OF HIS POSITION WOULD HAVE REMAINED UNCHANGED, AS EVIDENCED BY THE FACT THAT SUCH ACTION WAS RESCINDED UPON THE SUBMISSION OF A MORE COMPREHENSIVE DESCRIPTION OF THE DUTIES OF HIS POSITION, AND THAT IN THE ABSENCE OF ANY ADMINISTRATIVE REGULATION TO THE CONTRARY AND IN VIEW OF THE CIRCUMSTANCES APPEARING IN THE CASE THE GENERAL ACCOUNTING OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF COMPENSATION FOR THE PERIOD OF TIME THAT HIS SALARY WAS REDUCED AS A RESULT OF THE ERRONEOUS ALLOCATION.

4. THE NAVY DEPARTMENT IS CONSIDERING THE ADVISABILITY OF ISSUING ADMINISTRATIVE REGULATIONS TO THE EFFECT THAT A CHANGE IN CLASSIFICATION AND SALARY RESULTING FROM A REALLOCATION, OR CLASSIFICATION ACTION BASED UPON A CHANGE IN DUTIES AND RESPONSIBILITIES OF A POSITION, WILL BE MADE REGARDLESS OF THE PENDENCY OF AN APPEAL FROM SUCH ACTION. BEFORE A DECISION MAY BE REACHED AS TO THE ADVISABILITY OF SUCH ACTIONS CERTAIN QUESTIONS IN REGARD TO THE POSSIBLE COMPLICATIONS IN PAY MATTERS MUST BE ANSWERED. * * *

THE EXAMPLES GIVEN IN THE LETTER FROM THE DEPUTY CHIEF, OFFICE OF INDUSTRIAL RELATIONS, NAVY DEPARTMENT, INVOLVE THE REALLOCATION DOWNWARD OF CERTAIN FIELD POSITIONS AS THE RESULT OF AN EVALUATION OF THE DUTIES AND RESPONSIBILITIES OF SUCH POSITIONS AND THE SUBSEQUENT RESTORATION OF SOME OF THOSE POSITIONS TO THE FORMER GRADE ASSIGNED THERETO OR, IN OTHERS, TO THE ALLOCATION OF THE POSITIONS TO AN INTERMEDIATE HIGHER GRADE UPON THE SUCCESSFUL APPEAL OF THE EMPLOYEE INVOLVED. AND, UPON THE ASSUMPTION THAT THE PROPOSED REGULATION TO REQUIRE IMMEDIATE ADJUSTMENT IN SALARY IN THE EVENT OF SUCH REALLOCATION--- WITHOUT REGARD TO THE FACT THAT THE EMPLOYEE MAY APPEAL FROM SUCH ADVERSE ACTION--- ADMINISTRATIVELY WILL BE ADOPTED, DECISION IS REQUESTED AS TO THE PROPRIETY OF MAKING RETROACTIVE ADJUSTMENTS IN COMPENSATION COVERING THE PERIOD FROM THE EFFECTIVE DATE OF THE REALLOCATION DOWNWARD TO THE EFFECTIVE DATE OF THE ACTION ADMINISTRATIVELY TAKEN AS A RESULT OF AN APPEAL, TO PAY THE EMPLOYEES THE APPROPRIATE RATE FOR THE GRADE TO WHICH THE POSITION FINALLY IS ALLOCATED.

AS STATED IN THE DECISION OF FEBRUARY 28, 1946, B-54432, REFERRED TO IN THE LETTER OF JUNE 9, 1947, SUPRA, THE GENERAL RULE THAT AN ADJUSTMENT IN SALARY IS NOT REQUIRED DURING THE PENDENCY OF AN APPEAL FROM THE REALLOCATION OF A DEPARTMENTAL POSITION IS NOT NECESSARILY FOR APPLICATION TO POSITIONS IN THE FIELD SERVICE. HENCE, WITH RESPECT TO SUCH POSITIONS, IT WOULD APPEAR TO BE WITHIN THE PROVINCE OF AN ADMINISTRATIVE OFFICE, BY THE ISSUANCE OF APPROPRIATE REGULATIONS, TO PROVIDE THAT ORIGINAL DETERMINATIONS AS TO THE GRADE TO WHICH A POSITION PROPERLY IS ALLOCABLE IS FINAL AND SALARY ADJUSTMENTS RESULTING THEREFROM SHALL BE EFFECTIVE IMMEDIATELY--- WITH THE FURTHER PROVISO THAT ANY SALARY ADJUSTMENT REQUIRED BY REASON OF A SUCCESSFUL APPEAL FROM SUCH ACTION SHALL DATE FROM THE EFFECTIVE DATE OF DECISION RENDERED ON THE APPEAL.

ON THE OTHER HAND, IF, AS A MATTER OF POLICY, ORIGINAL REALLOCATION ACTIONS ADMINISTRATIVELY ARE VIEWED MERELY AS TENTATIVE FINDINGS RATHER THAN FINAL DETERMINATIONS, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE ISSUANCE OF APPROPRIATE REGULATIONS AUTHORIZING THE RETROACTIVE ADJUSTMENT OF COMPENSATION TO THE EFFECTIVE DATE OF THE ORIGINAL ACTION IN THOSE CASES WHEREIN IT IS SHOWN UPON APPEAL THAT SUCH ORIGINAL ACTION WAS ERRONEOUS. OF COURSE, SUCH REGULATIONS SHOULD LIMIT THE RIGHT OF APPEAL TO A REASONABLE PERIOD FOLLOWING NOTICE TO THE EMPLOYEE OF THE ORIGINAL REALLOCATION ACTION AND THE PROCEDURE ADMINISTRATIVELY ADOPTED TO PROCESS SUCH APPEALS SHOULD BE SUCH AS WILL EXPEDITE ACTION THEREON.

IN THE LIGHT OF THE FOREGOING, IT WILL BE SEEN THAT THE ANSWER TO THE BASIC QUESTION INVOLVED IN THE EXAMPLES GIVEN IN THE LETTER FROM THE DEPUTY CHIEF, OFFICE OF INDUSTRIAL RELATIONS, NAVY DEPARTMENT, IS DEPENDENT UPON THE PROVISIONS OF SUCH REGULATIONS AS MAY BE ADMINISTRATIVELY ADOPTED. THAT IS TO SAY, UNDER REGULATIONS PROVIDING THAT ADJUSTMENTS IN COMPENSATION RESULTING FROM THE REALLOCATION OF FIELD POSITIONS SHALL BE EFFECTIVE IMMEDIATELY--- WITHOUT REGARD TO THE FILING OF AN APPEAL IN THE MATTER--- IN THE ABSENCE OF A REGULATORY PROVISION TO THE CONTRARY, RETROACTIVE ADJUSTMENTS IN COMPENSATION UPON THE SUCCESSFUL PROSECUTION OF AN APPEAL FROM SUCH ACTION WOULD NOT BE AUTHORIZED. HOWEVER, IF, WITHIN PROPER LIMITATIONS, SUCH REGULATIONS SHOULD PROVIDE FOR RETROACTIVE ADJUSTMENTS IN SUCH CASES, NO OBJECTION WOULD BE RAISED AGAINST SUCH SALARY ADJUSTMENTS.