B-170675, APR 13, 1972, 51 COMP GEN 641

B-170675, APR 13, 1972, 51 COMP GEN 641

COMPENSATION - WAGE BOARD EMPLOYEES - CONVERSION TO CLASSIFIED POSITIONS - RATE ESTABLISHMENT SINCE, IN ACCORDANCE WITH SECTION 539.203 OF THE CIVIL SERVICE REGULATIONS, A WAGE BOARD EMPLOYEE UPON CONVERSION OF HIS POSITION TO A GENERAL SCHEDULE POSITION IS ENTITLED TO THE INCLUSION OF NIGHT DIFFERENTIAL IN SETTING THE GENERAL SCHEDULE RATE ONLY IF HE WAS IN RECEIPT OF NIGHT DIFFERENTIAL AS PART OF BASIC PAY AT THE TIME OF POSITION CONVERSION, IF AN EMPLOYEE'S REGULAR NIGHT SHIFT TOUR IS WORKED ON A ROTATIONAL BASIS OR AT REGULARLY SCHEDULED ANTICIPATED INTERVALS, THE NIGHT DIFFERENTIAL MAY NOT BE PRORATED AND INCLUDED IN FIXING HIS GENERAL SCHEDULE RATE. HOWEVER, AN EMPLOYEE WHO WORKS A NIGHT SHIFT ON AN IRREGULAR, UNANTICIPATED BASIS AND IS IN RECEIPT OF NIGHT DIFFERENTIAL AT THE TIME OF POSITION CONVERSION MAY HAVE THE NIGHT DIFFERENTIAL TREATED AS PART OF BASIC PAY IN SETTING THE GENERAL SCHEDULE RATE UPON CONVERSION OF HIS WAGE BOARD POSITION. COMPENSATION - WAGE BOARD EMPLOYEES - OVERTIME - BASIC COMPENSATION DETERMINATIONS AS ONLY EMPLOYEES ACTUALLY WORKING AND BEING PAID FOR NIGHT SHIFT WORK AT THE TIME THEIR WAGE BOARD POSITIONS ARE CONVERTED TO GENERAL SCHEDULE POSITIONS ARE ENTITLED TO THE INCLUSION OF NIGHT DIFFERENTIAL AS BASIC PAY, EMPLOYEES WHO WORK ROTATING SHIFTS MAY NOT IN THE CONVERSION OF WAGE BOARD RATES TO GENERAL SCHEDULE RATES HAVE THEIR COMPENSATION CONVERTED TO THREE DIFFERENT RATES OF BASIC PAY - DAY SHIFT, AND SECOND AND THIRD SHIFTS AT DIFFERENT RATES OF NIGHT DIFFERENTIAL AND, FURTHERMORE, THE HIGHEST PREVIOUS RATE RULE IS NOT PRESCRIBED IN SECTION 539.203 OF THE CIVIL SERVICE REGULATIONS FOR USE IN THE CIRCUMSTANCES INVOLVED. COMPENSATION - WAGE BOARD EMPLOYEES - CONVERSION TO CLASSIFIED POSITIONS - "SAVED" COMPENSATION - NIGHT DIFFERENTIAL THE HOLDINGS IN CIVIL SERVICE REGULATIONS SECTION 539 AND 34 COMP. GEN. 708 THAT WHEN AN EMPLOYEE AND HIS POSITION ARE BROUGHT UNDER THE GENERAL SCHEDULE IN A CONVERSION ACTION AND THE BASIC PAY FOR THE WAGE BOARD POSITION, INCLUDING NIGHT DIFFERENTIAL, EXCEEDS THE MAXIMUM RATE FOR THE GENERAL SCHEDULE POSITION PLUS 10 PERCENT NIGHT DIFFERENTIAL, THE EMPLOYEE WILL BE PAID THE "SAVED" BASIC PAY OF THE WAGE BOARD POSITION, BUT NOT THE 10 PERCENT NIGHT DIFFERENTIAL AUTHORIZED, FOR THE GENERAL SCHEDULE POSITION REMAINS UNAFFECTED BY 50 COMP. GEN. 332, WHICH CONCURS WITH THE VIEW OF THE CIVIL SERVICE COMMISSION THAT WHEN THE BASIC PAY FOR THE GENERAL SCHEDULE POSITION DOES NOT EXCEED THE MAXIMUM RATE PLUS 10 PERCENT, THE CONVERSION RATE WILL BE FIXED TO GUARANTEE THE EMPLOYEE NO LOSS OF PAY, AND IF HE WORKS A NIGHT SHIFT HE WILL BE PAID NIGHT DIFFERENTIAL.

TO THE DEPUTY ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, APRIL 13, 1972:

WE REFER FURTHER TO YOUR LETTER OF DECEMBER 22, 1971, WHICH CONCERNED THE SETTING OF RATES OF PAY UPON CONVERSION OF POSITIONS FROM WAGE BOARD TO GENERAL SCHEDULE.

YOU STATE THAT YOUR AGENCY HAS ENCOUNTERED A NUMBER OF PROBLEMS INVOLVING SUBSTANTIAL AMOUNTS OF MONEY IN ATTEMPTING TO IMPLEMENT 50 COMP. GEN. 332 (1970). THAT DECISION CONCURRED IN THE VIEW OF THE CIVIL SERVICE COMMISSION THAT BASIC PAY IN A WAGE BOARD POSITION INCLUDED NIGHT DIFFERENTIAL FOR THE PURPOSE OF FIXING THE RATE OF PAY IN THE GENERAL SCHEDULE POSITION TO WHICH THE POSITION WAS CONVERTED. YOUR PROBLEMS ARE STATED TO INVOLVE DETERMINING UNDER WHAT CIRCUMSTANCES A WAGE BOARD EMPLOYEE WOULD BE CONSIDERED AS EARNING A RATE OF PAY WHICH INCLUDED NIGHT DIFFERENTIAL FOR PURPOSES OF SETTING RATE OF PAY UPON CONVERSION OF HIS POSITION TO THE GENERAL SCHEDULE. YOU ARE PARTICULARLY CONCERNED ABOUT THOSE SITUATIONS WHERE THE POSITION INVOLVES REGULAR NIGHT SHIFT ROTATIONS OR REGULARLY ANTICIPATED NIGHT WORK OVER A PERIOD OF TIME.

IN MAKING YOUR DETERMINATIONS, YOU SAY YOU TAKE AS A GUIDING PRINCIPLE THE STATEMENT IN 50 COMP. GEN. 332 THAT THE DIFFERENTIAL FOR A REGULAR TOUR OF DUTY AT NIGHT HAS CONSISTENTLY BEEN HELD TO BE A PART OF BASIC PAY. YOU STATE THAT YOU BELIEVE 50 COMP. GEN. 332 WAS INTENDED TO MEAN THAT A POSITION MAY INCLUDE REGULAR TOURS OF NIGHT SHIFT WORKED ON A ROTATIONAL BASIS OR REGULARLY ANTICIPATED INTERVALS, AND THAT IT EXCLUDES TOURS WHICH ARE TRANSISTORY OR IRREGULAR. CONSISTENT WITH YOUR UNDERSTANDING, YOU BELIEVE THE RULE IN 50 COMP. GEN. 332 MAY BE IMPLEMENTED BY FOLLOWING PRORATION PRACTICES ALONG THE LINES DESCRIBED IN FPM SUPP. 532-1, SECTION S10-8A(4) FOR CONVERTING A POSITION TO THE COORDINATED FEDERAL WAGE SYSTEM.

AS "QUESTION 1" YOU REQUEST OUR APPROVAL OF THE FOLLOWING PRORATION FORMULA:

A. THOSE EMPLOYEES NOW WORKING A REGULARLY SCHEDULED NIGHT SHIFT WOULD RECEIVE A GS BASIC PAY RATE EQUIVALENT TO THEIR WAGE BOARD RATE PLUS THE NIGHT DIFFERENTIAL PLUS WHATEVER GS NIGHT DIFFERENTIAL THEY ARE ENTITLED TO.

B. EMPLOYEES ON A SCHEDULED ROTATING SHIFT ON A CYCLE SUCH AS TWO WEEKS OF DAY SHIFT WORK AND ONE WEEK OF NIGHT SHIFT WORK WOULD RECEIVE A GS BASIC PAY RATE EQUIVALENT TO THEIR WAGE BOARD RATE PLUS THE NIGHT SHIFT DIFFERENTIAL, PRORATED OVER THE ENTIRE THREE-WEEK WORK CYCLE.

C. EMPLOYEES NOT ASSIGNED FULL-TIME OR ON ROTATION BUT WHOSE NIGHT SHIFT WORK OCCURS WITH ANTICIPATED FREQUENCY OR AT PREDETERMINED INTERVALS, WOULD ALSO RECEIVE A GS BASIC PAY RATE EQUIVALENT TO THEIR WAGE BOARD RATE PLUS THE NIGHT SHIFT DIFFERENTIAL, PRORATED OVER THE ENTIRE WORK CYCLE. THIS WOULD COVER EMPLOYEES WHO WORK NIGHT SHIFTS REGULARLY WITHIN THREE AND SIX MONTH PERIODS WHEN ROCKET LAUNCHINGS OCCUR. AND IT WOULD ALSO COVER THOSE EMPLOYEES WHO OVER A YEAR, WITH ANTICIPATED FREQUENCY, WORK NIGHT SHIFTS TO COVER OTHER EMPLOYEES' POSITIONS DURING VACATION PERIODS.

D. EMPLOYEES WHO, ON AN IRREGULAR, UNANTICIPATED BASIS, WORK A NIGHT SHIFT BECAUSE OF AN UNUSUAL WORK REQUIREMENT OR FILL IN FOR AN ILL OR VACATIONING EMPLOYEE, WOULD NOT HAVE THE NIGHT SHIFT DIFFERENTIAL TREATED AS PART OF THEIR BASIC RATE FOR PAY SETTING UPON CONVERSION, EVEN IF THEY WERE ON A NIGHT SHIFT OF THAT CHARACTER AT THE TIME OF CONVERSION, AND THEY WERE BEING PAID AT THAT TIME AN HOURLY NIGHT SHIFT DIFFERENTIAL.

YOU URGE IN SUPPORT OF YOUR PROPOSAL TO USE THE ABOVE-DESCRIBED PRORATION THAT IT (A) AVOIDS THE HARSH INEQUITIES THAT WOULD RESULT WHEN BASIC PAY RATES INCORPORATING NIGHT SHIFT DIFFERENTIAL SIMPLY DEPENDS UPON THE HAPPENSTANCE OF AN EMPLOYEE BEING ON A NIGHT SHIFT AT THE TIME OF CONVERSION; (B) ALLOWS A REASONABLE ALLOCATION OF THE DIFFERENTIAL OVER THE ENTIRE SCOPE OF WORK OF A POSITION; AND (C) ACCORDS WITH YOUR UNDERSTANDING THAT IT IS A POSITION, INVOLVING PERHAPS SEVERAL WORK CYCLES WITH DIFFERING ENTITLEMENTS TO PREMIUM PAY, WHICH IS BEING CONVERTED.

PURSUANT TO THE SPECIFIC PROVISIONS OF 5 U.S.C. 5334(A) THE RATE OF BASIC PAY TO WHICH AN EMPLOYEE IS ENTITLED IS GOVERNED BY REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION. EACH SUBSECTION OF SECTION 539.203 OF THE GOVERNING REGULATION, PROVIDING FOR THE FIXING OF RATES IN THE VARIOUS SITUATIONS, COMMENCES WITH THE WORDS "WHEN THE EMPLOYEE IS RECEIVING A RATE OF BASIC PAY ***." NO PROVISION IS MADE FOR A DETERMINATION OF A RATE TO BE BASED UPON PRORATION SUCH AS YOU PROPOSE ALONG LINES SIMILAR TO THOSE PROVIDED BY REGULATION FOR CONVERTING A POSITION TO THE COORDINATED FEDERAL WAGE SYSTEM. WHILE WE APPRECIATE THE MERITS OF YOUR PROPOSAL, WE DO NOT VIEW THE PRESENT REGULATIONS AS AUTHORIZING OR CONTEMPLATING A PRORATION SUCH AS YOU SUGGEST. ACCORDINGLY "QUESTION 1" MUST BE ANSWERED IN THE NEGATIVE.

ADDITIONALLY YOU ASK THE FOLLOWING:

QUESTION 2

A. IF OUR ASSUMPTIONS ARE INCORRECT, THEN IT WOULD APPEAR THAT ONLY EMPLOYEES ACTUALLY WORKING AND BEING PAID FOR NIGHT SHIFT WORK AT THE TIME OF CONVERSION ARE ENTITLED TO INCLUSION OF NIGHT DIFFERENTIAL IN THEIR RATE OF BASIC PAY. IF SO, WOULD EMPLOYEES WORKING A ROTATING SHIFT BE CONVERTED TO THREE DIFFERENT RATES OF BASIC PAY: ONE AT THE DAY SHIFT RATE; ONE AT THE SECOND SHIFT RATE, INCLUDING NIGHT SHIFT DIFFERENTIAL; AND ONE AT THE THIRD SHIFT, INCLUDING A DIFFERENT NIGHT DIFFERENTIAL?

B. IF THESE EMPLOYEES WHO WOULD OTHERWISE BE CONVERTED AT THE DAY RATE AND SECOND SHIFT RATES ARE GIVEN THE THIRD SHIFT RATE BASED ON THE HIGHEST PREVIOUS RATE, WOULD THEIR INCREASES IN SALARY BE COUNTED TOWARD EQUIVALENT INCREASES FOR WITHIN GRADE INCREASES UNDER THE GENERAL SCHEDULE? FOR EXAMPLE, THREE EMPLOYEES WG-14, STEP 3, ARE CONVERTED WITH THEIR POSITIONS TO GS-9. AT TIME OF CONVERSION, THEY SHARE A ROTATING SHIFT.

1ST SHIFT $5.41 PER HOUR ($11,252)

2ND SHIFT $5.59 PER HOUR ($11,627)

3RD SHIFT $5.64 PER HOUR ($11,731)

ALL ARE CONVERTED TO GS-9, STEP 5, $11,866 BASED ON 3RD SHIFT RATE. EQUIVALENT INCREASE FOR GS-9 IS $349. WAITING PERIOD IS 104 WEEKS.

INCREASE

1ST SHIFT EMPLOYEE - $11,252-$11,866 *$614

2ND SHIFT EMPLOYEE - $11,627-$11,866 239

3RD SHIFT EMPLOYEE - $11,731-$11,866 135

*EQUIVALENT INCREASE - NEW TWO-YEAR WAITING PERIOD.

WITH RESPECT TO "QUESTION 2," AND FOR THE REASONS STATED IN ANSWER TO "QUESTION 1," ONLY EMPLOYEES ACTUALLY WORKING AND BEING PAID FOR NIGHT SHIFT WORK AT THE TIME OF CONVERSION WOULD BE ENTITLED TO INCLUSION OF NIGHT DIFFERENTIAL IN THEIR RATE OF BASIC PAY. CONSISTENT THEREWITH EMPLOYEES WORKING ON A ROTATING SHIFT WOULD BE CONVERTED TO THE RATE OF BASIC PAY RECEIVED AT TIME OF CONVERSION.

"QUESTION 2B" APPEARS TO BE PREMISED UPON THE USE OF THE HIGHEST PREVIOUS RATE RULE. HOWEVER, NO PROVISION IS MADE IN SECTION 539.203 FOR THE USE OF SUCH RULE IN CIRCUMSTANCES SUCH AS SET FORTH IN YOUR QUESTION.

QUESTION 3

A. IS 50 CG 332 TO BE CONSIDERED AS RETROACTIVE FROM THE DATE OF CSC REGULATION 539, AS AN ORIGINAL CONSTRUCTION OF A REGULATION HAVING THE FORCE AND EFFECT OF LAW?

B. OR IS 50 CG 332 TO BE CONSIDERED AS A MODIFICATION OF 34 CG 708 AND THEREFORE EFFECTIVE FROM NOVEMBER 4, 1970, FOLLOWING 27 CG 686?

C. OR IF 50 CG 332 IS NOT A MODIFICATION OF 34 CG 708 BUT BY IMPLICATION A MODIFICATION OF CSC LETTER TO NASA, DATED DECEMBER 16, 1969, (COPY ATTACHED) WHICH INTERPRETS CSC REGULATION 539, IS IT EFFECTIVE FROM THE DATE OF THAT LETTER, 24 CG 688?

QUESTION 4

A. IF B-170675 IS TO BE APPLIED RETROACTIVELY, SHOULD IT APPLY TO EMPLOYEES WHO HAVE BEEN SEPARATED FROM THE AGENCY?

B. SHOULD FEDERAL AND STATE TAX WITHHOLDINGS, RETIREMENT AND GROUP LIFE INSURANCE DEDUCTIONS BE MADE FROM ANY RETROACTIVE PAY BENEFITS?

IN CONNECTION WITH "QUESTION 3" YOU FORWARDED A COPY OF A LETTER DATED DECEMBER 16, 1969, FROM THE BUREAU OF POLICIES AND STANDARDS, UNITED STATES CIVIL SERVICE COMMISSION, ADDRESSED TO THE PERSONNEL MANAGEMENT BRANCH, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA). THE LETTER WAS IN RESPONSE TO A QUESTION FROM NASA OF WHAT CONSTITUTES BASIC PAY FOR WAGE EMPLOYEES. AFTER STATING THAT NIGHT DIFFERENTIAL PAID TO A WAGE EMPLOYEE IS CONSIDERED BASIC PAY FOR ALL PURPOSES, IT WAS EXPLAINED THAT:

UNDER PART 539 OF THE COMMISSION'S REGULATIONS AND 34 COMP. GEN. 708, WHEN AN EMPLOYEE AND HIS POSITION ARE BROUGHT UNDER THE GENERAL SCHEDULE IN A CONVERSION ACTION, AND THE BASIC PAY FOR THE WAGE POSITION (INCLUDING NIGHT DIFFERENTIAL) EXCEEDS THE MAXIMUM RATE FOR THE GENERAL SCHEDULE POSITION PLUS 10 PERCENT NIGHT DIFFERENTIAL, THE EMPLOYEE WILL BE PAID THE "SAVED" BASIC PAY OF THE WAGE POSITION; HOWEVER, HE MAY NOT BE PAID THE 10 PERCENT NIGHT DIFFERENTIAL AUTHORIZED FOR THE GENERAL SCHEDULE POSITION. WHEN THE BASIC PAY FOR THE WAGE POSITION DOES NOT EXCEED THE MAXIMUM RATE FOR THE GENERAL SCHEDULE POSITION PLUS 10 PERCENT, HIS PAY WILL BE FIXED AT THE LOWEST RATE OF THE GENERAL SCHEDULE GRADE WHICH, WHEN THE 10 PERCENT NIGHT DIFFERENTIAL IS ADDED TO THE GENERAL SCHEDULE RATE, WILL GUARANTEE HIM NO LOSS OF PAY. IN THE LATTER CASE, IF HE PERFORMS NIGHT WORK, HE IS ENTITLED TO THE 10 PERCENT NIGHT DIFFERENTIAL AUTHORIZED FOR GENERAL SCHEDULE EMPLOYEES.

THE ABOVE PARAGRAPH IS A STATEMENT OF THE PROCEDURE TO BE USED UNDER SECTION 539 OF THE REGULATIONS AND 34 COMP. GEN. 708 (1954). IT SHOULD BE NOTED THAT THE FIRST SENTENCE CONCERNS ONLY THOSE CASES WHEREIN THE BASIC PAY FOR THE WAGE POSITION, INCLUDING DIFFERENTIAL, EXCEEDS THE MAXIMUM RATE FOR THE GENERAL SCHEDULE POSITION PLUS 10 PERCENT NIGHT DIFFERENTIAL. THE QUESTION TO WHICH 50 COMP. GEN. 332 WAS ADDRESSED RELATED TO THE STEP WITHIN THE GENERAL SCHEDULE GRADE, AND WHETHER THE NIGHT DIFFERENTIAL SHOULD BE USED IN DETERMINING THE STEP. THE DECISION CONCURRED IN THE VIEW OF THE CIVIL SERVICE COMMISSION, WHICH VIEW WAS CONSISTENT WITH THE ADVICE FURNISHED NASA IN THE SECOND AND THIRD SENTENCES OF THE PARAGRAPH QUOTED ABOVE FROM THE DECEMBER 16, 1969, LETTER. IN SUCH CIRCUMSTANCES NO CHANGE WAS EFFECTED BY 50 COMP. GEN. 332 AND, THEREFORE, "QUESTIONS 3" AND "4" DO NOT REQUIRE AN ANSWER.