B-173815, APR 5, 1974, 53 COMP GEN 744

B-173815, APR 5, 1974, 53 COMP GEN 744

COMPENSATION - WAGE BOARD EMPLOYEES - COORDINATED FEDERAL WAGE SYSTEM - COMPENSATION ADJUSTMENTS UPON CONVERSION TO THE FEDERAL WAGE SYSTEM UNDER PUBLIC LAW 92-392, WHICH ESTABLISHED A UNIFORM RATE OF 7 1/2 PERCENT NIGHT SHIFT DIFFERENTIAL FOR SECOND SHIFT WORKERS, EMPLOYEES WHO HAD PREVIOUSLY RECEIVED 10 PERCENT NIGHT SHIFT DIFFERENTIAL WOULD NOT SUFFER REDUCTION OF BASIC PAY BUT WOULD BE ENTITLED TO RECEIVE THE HIGHER DIFFERENTIAL UNDER NEW PAY SCALE UNTIL REASSIGNED TO OTHER DUTIES NOT INVOLVING NIGHT WORK, OR UNTIL ENTITLED TO HIGHER RATE OF BASIC PAY THAN RETAINED RATE BY REASON OF WAGE SCHEDULE ADJUSTMENT, HIGHER PREMIUM PAY, OR ANY OTHER ACTION IN THE NORMAL OPERATION OF THE SYSTEM.

IN THE MATTER OF NIGHT PAY FOR DEFENSE MAPPING AGENCY HYDROGRAPHIC CENTER EMPLOYEES, APRIL 5, 1974:

THERE IS BEFORE OUR OFFICE THE QUESTION OF THE PROPER PAY RATE FOR MR. KENNETH G. TAYLOR, AN ENGRAVER (LITHOGRAPHIC) WITH THE DEFENSE MAPPING AGENCY HYDROGRAPHIC CENTER IN SUITLAND, MARYLAND, UPON CONVERSION FROM THE COORDINATED FEDERAL WAGE SYSTEM TO THE FEDERAL WAGE SYSTEM EFFECTIVE NOVEMBER 26, 1972, ESTABLISHED BY PUBLIC LAW 92-392, 5 U.S.C. 5341.

THE INFORMATION IN OUR FILE SHOWS THAT MR. TAYLOR IS PAID UNDER THE LITHOGRAPHIC AND PRINTING PLANT WAGE SCHEDULE FOR THE WASHINGTON, D.C. AREA. THIS IS A 34-GRADE SCHEDULE WITH THREE STEP RATES AT EACH GRADE. IMMEDIATELY PRIOR TO NOVEMBER 26, 1972, MR. TAYLOR WAS AT GRADE 23, STEP 3, OF THAT SCHEDULE. THE PAY APPLICABLE IN THAT POSITION CONSISTED OF A $6.73 PER HOUR DAY RATE PLUS A NIGHT SHIFT DIFFERENTIAL (NSD) OF 10 PERCENT MAKING A TOTAL HOURLY RATE OF $7.40.

THE AMENDMENTS MADE BY PUBLIC LAW 92-392 BECAME EFFECTIVE WITH RESPECT TO MR. TAYLOR ON NOVEMBER 26, 1972, THE SAME DATE AS THE APPLICATION OF A NEW LITHOGRAPHIC AND PRINTING WAGE SCHEDULE. THE PRINCIPAL EFFECT OF THE ACT INSOFAR AS MR. TAYLOR WAS CONCERNED WAS THE ESTABLISHMENT OF A UNIFORM 7 1/2 PERCENT NSD FOR SECOND SHIFT WORK.

IN IMPLEMENTING THE TWO CHANGES WHICH BECAME EFFECTIVE NOVEMBER 26, 1972, THE DEFENSE MAPPING AGENCY INITIALLY GAVE MR. TAYLOR THE BENEFIT OF THE OLD 10 PERCENT NSD RATE IN COMPUTING HIS PAY UNDER THE NEW WAGE SCHEDULE. THIS RESULTED IN HIS PAY BEING FIXED AT THE RATE OF $7.81 PER HOUR - $7.10 BASIC RATE PLUS 10 PERCENT. LATER THE AGENCY DETERMINED THAT IT HAD INCORRECTLY APPLIED THE 10 PERCENT RATE TO THE RATES WHICH TOOK EFFECT ON NOVEMBER 26 AND THAT THE 7 1/2 PERCENT RATE PRESCRIBED BY PUBLIC LAW 92- 392 WHICH BECAME EFFECTIVE THAT DAY SHOULD HAVE BEEN APPLIED. ACCORDINGLY, MR. TAYLOR'S PAY RATE WAS REDUCED TO $7.63 PER HOUR EFFECTIVE NOVEMBER 26, 1972.

THE HOUSE OF REPRESENTATIVES COMMITTEE ON POST OFFICE AND CIVIL SERVICE WHEN CONSIDERING PUBLIC LAW 92-392 WAS AWARE THAT CERTAIN WAGE BOARD EMPLOYEES WERE RECEIVING PAY DIFFERENTIALS FOR SECOND AND THIRD SHIFT WORK WHICH WERE IN EXCESS OF THE SHIFT DIFFERENTIALS SPECIFIED IN THE ACT. THE OTHER HAND, MANY WAGE BOARD EMPLOYEES WERE RECEIVING SHIFT DIFFERENTIALS WHICH WERE LOWER THAN THOSE SPECIFIED IN PUBLIC LAW 92-392. PRIOR TO PUBLIC LAW 92-392 SUCH SHIFT DIFFERENTIALS WERE DEPENDENT UPON THE PREVAILING CUSTOM OF EACH LABOR MARKET AREA. IT WAS THE COMMITTEE'S INTENT TO ESTABLISH UNIFORM SHIFT DIFFERENTIALS WHICH WOULD APPLY TO ALL PREVAILING RATE EMPLOYEES REGARDLESS OF THEIR GEOGRAPHICAL AREAS OF EMPLOYMENT. IN SO DOING, HOWEVER, THE COMMITTEE RECOGNIZED THAT CERTAIN EMPLOYEES COULD SUFFER A REDUCTION IN PAY. TO REMEDY THIS PROBLEM, SECTION 9(A)(2) OF PUBLIC LAW 92-392 (5 U.S.C. 5343 NOTE) PROVIDES AS FOLLOWS:

(2) IN THE CASE OF ANY EMPLOYEE DESCRIBED IN SECTION 2105(C), 5102(C) (7), (8), OR (14) OF TITLE 5, U.S.C. WHO IS IN THE SERVICE AS SUCH AN EMPLOYEE IMMEDIATELY BEFORE THE EFFECTIVE DATE, WITH RESPECT TO HIM, OF THE AMENDMENTS MADE BY THIS ACT, SUCH AMENDMENTS SHALL NOT BE CONSTRUED TO DECREASE HIS RATE OF BASIC PAY IN EFFECT IMMEDIATELY BEFORE THE DATE ON WHICH SUCH AMENDMENTS BECOME EFFECTIVE WITH RESPECT TO HIM. ***

FURTHER SUBSECTION 9(A)(1) OF PUBLIC LAW 92-392 PROVIDES IN PERTINENT PART:

EXCEPT AS PROVIDED BY THIS SUBSECTION, AN EMPLOYEE'S INITIAL RATE OF PAY ON CONVERSION TO A WAGE SCHEDULE ESTABLISHED PURSUANT TO THE AMENDMENTS MADE BY THIS ACT SHALL BE DETERMINED UNDER CONVERSION RULES PRESCRIBED BY THE CIVIL SERVICE COMMISSION. ***

THE CIVIL SERVICE COMMISSION HAS DETERMINED THAT A PREVAILING RATE EMPLOYEE WHO, PRIOR TO THE ENACTMENT OF PUBLIC LAW 92-392, REGULARLY RECEIVED A SHIFT DIFFERENTIAL THAT WAS HIGHER THAN THAT SPECIFIED IN THE ACT WOULD BE ENTITLED TO RECEIVE THE HIGHER DIFFERENTIAL UNDER THE NEW PAY SCALE UNTIL SUCH TIME AS HE WAS REASSIGNED TO OTHER DUTIES NOT INVOLVING NIGHT WORK, OR UNTIL ENTITLED TO A HIGHER RATE OF BASIC PAY THAN THE RETAINED RATE BY REASON OF A WAGE SCHEDULE ADJUSTMENT, HIGHER PREMIUM PAY, OR ANY OTHER ACTION IN THE NORMAL OPERATION OF THE FEDERAL WAGE SYSTEM.

A REPORT FROM THE COMMISSION ADVISES US THAT UNDER ITS REGULATIONS FOR IMPLEMENTING PUBLIC LAW 92-392 IT BELIEVES THAT THE 10 PERCENT NSD SHOULD HAVE BEEN APPLIED TO THE NEW RATE WHICH BECAME EFFECTIVE NOVEMBER 26, 1972, AND THAT EMPLOYEES SHOULD HAVE RETAINED THAT RATE UNDER THE RULES PRESCRIBED. THUS, THE COMMISSION BELIEVES THAT THE ORIGINAL ACTION TAKEN BY THE DEFENSE MAPPING AGENCY WAS CORRECT AND SHOULD NOT HAVE BEEN RESCINDED.

WE RECOGNIZE THAT MR. TAYLOR WOULD NOT HAVE SUFFERED A DECREASE IN HIS AGGREGATE RATE OF BASIC PAY HAD THE DEFENSE MAPPING AGENCY APPLIED THE 7 1/2 PERCENT NSD RATE ON NOVEMBER 26, 1972, WHEN THE WAGE RATES WERE INCREASED.

ON THE OTHER HAND THE CSC APPARENTLY CONSIDERS THAT THE SAVINGS PROVISION IN SECTION 9(A)(2) OF THE ACT APPLIES NOT ONLY TO PREVENT A REDUCTION IN AGGREGATE BASIC PAY BUT ALSO TO PRECLUDE A REDUCTION IN THE 10 PERCENT NIGHT DIFFERENTIAL WHICH UNDER 5343(F) IS A PART OF BASIC PAY. IN VIEW THEREOF AND OF THE BROAD AUTHORITY OF THE CIVIL SERVICE COMMISSION TO ISSUE REGULATIONS FOR THE IMPLEMENTATION OF PUBLIC LAW 92-392 AS CONTAINED IN SECTION 9(A)(1) OF THAT ACT WE NEED RAISE NO OBJECTION TO THE VIEW TAKEN BY THE COMMISSION WITH RESPECT TO THE MATTER. ALTHOUGH THE COMMISSION'S REGULATIONS IN THAT REGARD ARE NOT ENTIRELY CLEAR, THE COMMISSION'S INTERPRETATION OF ITS OWN REGULATIONS AND ITS ADVICE AS TO THE INTENT OF THOSE REGULATIONS ARE ENTITLED TO GREAT WEIGHT IN THE CONSIDERATION OF CLAIMS ARISING THEREUNDER. ACCORDINGLY, WE CONSIDER THAT EMPLOYEES RECEIVING NIGHT DIFFERENTIAL UNDER THE LITHOGRAPHIC AND PRINTING PLANT WAGE SCHEDULE FOR THE WASHINGTON, D.C. AREA SHOULD HAVE HAD THEIR PAY RATES ADJUSTED ON NOVEMBER 26, 1972, ON THE BASIS OF THE HIGHER NIGHT DIFFERENTIAL RATES APPLICABLE THE DAY BEFORE THE PROVISIONS OF PUBLIC LAW 92-392 TOOK EFFECT.

WE HAVE BEEN ADVISED THAT THE SCHEDULE ADJUSTMENT WHICH WAS EFFECTED NOVEMBER 25, 1973, PRODUCED A NEW BASIC RATE INCLUDING NIGHT DIFFERENTIAL OF $8.05 FOR MR. TAYLOR ($7.49 SCHEDULED RATE AT WP-23/3, PLUS A 7 1/2 PERCENT NSD). AT THIS POINT, HIS RETAINED RATE WOULD TERMINATE UNDER THE CIVIL SERVICE COMMISSION REGULATIONS.

MR. TAYLOR'S COMPENSATION AND THE COMPENSATION OF EMPLOYEES SIMILARLY SITUATED SHOULD BE COMPUTED IN ACCORDANCE WITH THE FOREGOING AND NECESSARY ADJUSTMENTS MADE.