B-84502, JUNE 29, 1949, 28 COMP. GEN. 730

B-84502: Jun 29, 1949

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ARE TEMPORARILY ASSIGNED FOR DEFINITE PERIODS TO POSITIONS PAYING HIGHER OR LOWER SALARIES THAN THEIR REGULAR POSITIONS ARE ENTITLED UPON RESTORATION TO THEIR REGULAR POSITIONS TO WITHIN-GRADE ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. 1949: REFERENCE IS MADE TO YOUR LETTER OF MARCH 11. THE PROMOTION BORE THE LIMITATION " NTE COB 7-10-48" AND THE REMARK ON THE FANFOLD STATED THAT THIS ACTION WAS "1TEMPORARY THRU COB 7-10-48. AT WHICH TIME * * * WILL REVERT TO HIS FORMER POSITION.'. THE EMPLOYEE WAS RETURNED TO HIS FORMER POSITION OF AIRWAYS OPERATIONS SPECIALIST ( COMMUNICATIONS). YOU EXPRESS THE OPINION THAT IN ACCORDANCE WITH HIS REEMPLOYMENT RIGHTS THE EMPLOYEE'S WAITING PERIOD FOR PERIODIC PAY INCREASES SHOULD HAVE BEEN COMPUTED FROM THE EFFECTIVE DATE OF HIS LAST EQUIVALENT INCREASE IN HIS REGULAR POSITION.

B-84502, JUNE 29, 1949, 28 COMP. GEN. 730

COMPENSATION - WITHIN-GRADE ADVANCEMENTS - ELIGIBILITY AS AFFECTED BY TEMPORARY ASSIGNMENTS AT HIGHER OR LOWER SALARIES EMPLOYEES WHO, PURSUANT TO ADMINISTRATIVE PRACTICE PROVIDING FOR TEMPORARY "UP AND DOWN" SALARY CHANGES, ARE TEMPORARILY ASSIGNED FOR DEFINITE PERIODS TO POSITIONS PAYING HIGHER OR LOWER SALARIES THAN THEIR REGULAR POSITIONS ARE ENTITLED UPON RESTORATION TO THEIR REGULAR POSITIONS TO WITHIN-GRADE ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AFTER 12 OR 18 MONTHS FROM THE LAST EQUIVALENT INCREASE RECEIVED IN THEIR REGULAR POSITIONS, WITHOUT REGARD TO THE SALARY CHANGES RESULTING FROM THE TEMPORARY ASSIGNMENTS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JUNE 29, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1949, PRESENTING FOR CONSIDERATION CERTAIN QUESTIONS, HEREINAFTER SPECIFICALLY SET FORTH, ARISING OUT OF THE FOLLOWING STATED FACTS:

ON APRIL 18, 1948, THE CIVIL AERONAUTICS ADMINISTRATION PROMOTED ONE OF ITS EMPLOYEES FROM HIS REGULAR POSITION AS AIRWAYS OPERATIONS SPECIALIST ( COMMUNICATIONS), CAF-13, $7,581 PER ANNUM, TO AIRWAYS OPERATIONS SPECIALIST ( TELE-COMMUNICATION ICAO REGIONAL), CAF-14, $8,179.50 PER ANNUM, FOR THE DURATION OF A SPECIAL ASSIGNMENT OUTSIDE THE CONTINENTAL UNITED STATES. THE PROMOTION BORE THE LIMITATION " NTE COB 7-10-48" AND THE REMARK ON THE FANFOLD STATED THAT THIS ACTION WAS "1TEMPORARY THRU COB 7-10-48, AT WHICH TIME * * * WILL REVERT TO HIS FORMER POSITION.' ON JUNE 27, 1948, THE EMPLOYEE WAS RETURNED TO HIS FORMER POSITION OF AIRWAYS OPERATIONS SPECIALIST ( COMMUNICATIONS), CAF 13, AT HIS FORMER SALARY OF $7,581 PER ANNUM. PRIOR TO THE FOREGOING ACTIONS, THE EMPLOYEE HAD RECEIVED A PROMOTION FROM CAF-12 TO CAF-13 ON NOVEMBER 9, 1943, AND PERIODIC PAY INCREASES IN GRADE CAF-13 ON JULY 1, 1945, AND JANUARY 12, 1947.

YOU EXPRESS THE OPINION THAT IN ACCORDANCE WITH HIS REEMPLOYMENT RIGHTS THE EMPLOYEE'S WAITING PERIOD FOR PERIODIC PAY INCREASES SHOULD HAVE BEEN COMPUTED FROM THE EFFECTIVE DATE OF HIS LAST EQUIVALENT INCREASE IN HIS REGULAR POSITION--- IN THIS CASE JANUARY 12, 1947--- AND THAT HE THEN HAVING MET THE PRESCRIBED REQUIREMENTS FOR PERIODIC PAY INCREASE PURPOSES, SUCH INCREASE SHOULD HAVE BEEN PROCESSED EFFECTIVE JULY 25, 1948. THE OPERATING OFFICE CONCERNED HAS REQUESTED THAT THE SALARY OF THIS EMPLOYEE BE ADJUSTED TO GIVE HIM THE BENEFIT OF THIS PERIODIC PAY INCREASE EFFECTIVE JULY 25, 1948. IT IS STATED THAT THE FOREGOING IS IN ACCORDANCE WITH THE POLICY OF THE CIVIL AERONAUTICS ADMINISTRATION OF RESTORING, TO THEIR REGULAR POSITIONS FOR THE PURPOSE OF PRESERVING SENIORITY, STATUS, AND PAY RIGHTS, THOSE EMPLOYEES WHO HAVE BEEN SELECTED FOR SPECIAL ASSIGNMENTS; THAT THAT POLICY ARISES BECAUSE OF THE LONG-STANDING PRACTICE OF THE CIVIL AERONAUTICS ADMINISTRATION TO FREQUENTLY SEND CERTAIN OF ITS EMPLOYEES ON SPECIAL ASSIGNMENTS EITHER INSIDE OR OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES; AND THAT SUCH SPECIAL ASSIGNMENTS MAY BE OF SHORT DURATION WHILE OTHERS HAVE BEEN AS LONG AS TWO YEARS. IN CONNECTION WITH SUCH POLICY, YOU REFER TO THE "UP AND DOWN RATING OF EMPLOYEES PRINCIPLE" OF 21 COMP. GEN. 773, AND REQUEST DECISION UPON THREE QUESTIONS STATED AS FOLLOWS:

(1) IS THE PRINCIPLE OF THE "UP AND DOWN RATING OF EMPLOYEES" PROPERLY FOR APPLICATION IN THIS CASE? IF SO, THE CIVIL AERONAUTICS ADMINISTRATION WILL PROCESS A PERIODIC PAY INCREASE FOR THIS EMPLOYEE EFFECTIVE 7-25-48, ALL PRESCRIBED CONDITIONS HAVING BEEN MET.

(2) IF THIS CASE IS NOT WITHIN THE SCOPE OF THE "UP AND DOWN RATING OF EMPLOYEES" WE CONCLUDE THAT RETROACTIVE CORRECTION OF THE EMPLOYEE'S SALARY FROM $7581 PER ANNUM TO $7820.40 PER ANNUM EFFECTIVE 6-27-48 MAY BE MADE BECAUSE OF ADMINISTRATIVE ERROR. IN THAT CASE THE EMPLOYEE'S WAITING PERIOD FOR FURTHER PERIODIC PAY INCREASES WOULD RUN FROM 4-18-48, THE DATE OF HIS PROMOTION TO GRADE CAF-14, FOR SPECIAL ASSIGNMENT.

(3) IF THIS CASE IS NOT WITHIN THE SCOPE OF THE "UP AND DOWN RATING OF EMPLOYEES" PRINCIPLE, WHAT CRITERIA CAN BE USED IN APPLYING THIS PRINCIPLE TO SPECIAL ASSIGNMENTS OF THE CIVIL AERONAUTICS ADMINISTRATION?

IN THE UP AND DOWN RATING DECISION REFERRED TO BY YOU, NAMELY, 21 COMP. GEN. 773, IT WAS HELD, QUOTING FROM THE SYLLABUS:

CIVILIAN EMPLOYEES OF THE ENGINEER DEPARTMENT OF THE ARMY WHO, PURSUANT TO AN ADMINISTRATIVE REGULATION PROVIDING FOR TEMPORARY "UP AND DOWN" SALARY CHANGES AS DISTINGUISHED FROM SALARY CHANGES UNDER RULES AND REGULATIONS APPLICABLE TO GOVERNMENT AGENCIES GENERALLY, ARE TEMPORARILY ASSIGNED FOR 30 DAYS OR LESS TO POSITIONS--- EITHER WITHIN OR WITHOUT THE CLASSIFICATION ACT--- PAYING HIGHER OR LOWER SALARIES THAN THEIR REGULAR POSITIONS AND WHO ARE RESTORED TO THEIR REGULAR POSITIONS AND SALARIES UPON COMPLETION OF SUCH ASSIGNMENTS ARE ENTITLED, IF OTHERWISE ELIGIBLE, TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, AFTER 18 OR 30 MONTHS FROM THE LAST EQUIVALENT COMPENSATION INCREASE RECEIVED IN THEIR REGULAR POSITIONS, WITHOUT REGARD TO THE SALARY CHANGES RESULTING FROM THE TEMPORARY ASSIGNMENTS. 21 COMP. GEN. 285 AND 21 COMP. GEN. 326, DISTINGUISHED.

THE PRACTICE WHICH IS STATED AS BEING FOLLOWED IN THE CIVIL AERONAUTICS ADMINISTRATION APPEARS TO BE ANALOGOUS TO THE REGULATIONS CONSIDERED IN THE DECISION, SUPRA, IN THAT THE SALARY ADJUSTMENTS ARE OF A RECURRING NATURE, AND--- ALTHOUGH SOME ASSIGNMENTS HAVE LASTED AS LONG AS TWO YEARS- -- USUALLY ARE FOR SHORT PERIODS OF TIME. TO HOLD THAT ANY SUCH SALARY ADJUSTMENT CONSTITUTED AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 49 STAT. 299, WOULD RESULT EITHER IN A COMPLETE DENIAL OF A PERIODIC WITHIN-GRADE SALARY ADVANCEMENT TO THE EMPLOYEE IN HIS REGULAR POSITION WITH NO COMPENSATING BENEFIT IN THAT POSITION, OR WOULD RESULT IN A COMPLETE CIRCUMVENTION OF THE PURPOSES OF THAT SECTION THROUGH APPLICATION OF THE RULE AS TO THE INITIAL SALARY RATE PAYABLE UPON TRANSFER, PROMOTION, DEMOTION, ETC., STATED IN 26 COMP. GEN. 368.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE, RENDERING UNNECESSARY ANY ANSWERS TO THE REMAINING QUESTIONS. CF. 26 COMP. GEN. 964.