B-175124, APR 19, 1972

B-175124, APR 19, 1972

CIVILIAN EMPLOYEES - NATIONAL GUARD TECHNICIANS ACT OF 1968 - STATUTORY INTERPRETATION CONCERNING PROPER APPLICATION OF THE PAY RETENTION PROVISIONS OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968, WHICH AUTHORIZED THE CONVERSION OF ARMY AND AIR NATIONAL GUARD TECHNICIANS TO FEDERAL EMPLOYEE STATUS AS OF JANUARY 1, 1969. IT APPEARS THAT THE PAY SAVING PROVISIONS OF SECTION 8(A)(4) OF THE ACT WERE INCLUDED BECAUSE CONGRESS CONTEMPLATED THAT THE TOTAL CONVERSION PROCESS WOULD BE COMPLETED BETWEEN THE DATE OF ENACTMENT (AUGUST 13, 1968), AND THE EFFECTIVE DATE (JANUARY 1, 1969). SINCE CONVERSION REQUIRED CONSIDERABLY MORE TIME, RECLASSIFICATION OF WAGE BOARD POSITIONS SHOULD BE REGARDED AS CONVERSIONS FROM AN AGENCY WAGE BOARD SYSTEM TO THE COMBINED FEDERAL WAGE SCHEDULE (CFWS) AT THE TIME SUCH RECLASSIFICATIONS ARE EFFECTIVE. ACCORDINGLY, THE PROVISIONS OF SUBCHAPTER S10-9, FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1, CONCERNING PAY RETENTION RESULTING FROM CONVERSION ACTIONS, WOULD BE APPLICABLE. TECHNICIANS WHO WERE PLACED IN GENERAL SCHEDULE POSITIONS ON JANUARY 1, 1969, WERE NO LONGER SUBJECT TO SECTION 8(A)(4) AFTER THAT DATE AND ANY SUBSEQUENT CLASSIFICATION DECISIONS THAT WOULD "DOWNGRADE" THEM AND THEIR POSITIONS ARE FOR CONSIDERATION UNDER 5 U.S.C. 5337 AND IMPLEMENTING REGULATIONS. IT IS RECOGNIZED THAT TO HAVE CONSTRUED SECTION 8(A) AS REQUIRING ALL CONVERSION AND RECLASSIFICATION ACTIONS TO HAVE BEEN BY INDIVIDUAL ADJUSTMENTS BASED ON SALARY RATES EXISTING ON THE DATE OF ENACTMENT WOULD HAVE RESULTED IN VARIOUS INEQUITIES. FURTHER, SUCH CONSTRUCTION WOULD HAVE BEEN CONTRARY TO THE ADMINISTRATIVE INTERPRETATION OF ITS MEANING AND WOULD HAVE GENERATED VERY SEVERE ADMINISTRATIVE PROBLEMS. IT IS HOPED THAT FORTHCOMING LEGISLATIVE HEARINGS WILL CLARIFY WHETHER ANY FURTHER CONSIDERATION OF THIS MATTER IS WARRANTED AND WHETHER ADDITIONAL LEGISLATIVE ACTION IS NECESSARY.

TO MR. ROBERT C. MOOT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29, 1972, WITH ENCLOSURES, WHICH PRESENTS CERTAIN QUESTIONS WITH RESPECT TO THE PAY RETENTION PROVISIONS IN THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (HEREINAFTER REFERRED TO AS THE ACT), APPROVED AUGUST 13, 1968, PUBLIC LAW 90-486, 82 STAT. 755. THE ACT GENERALLY AUTHORIZED THE CONVERSION OF ARMY AND AIR NATIONAL GUARD TECHNICIANS TO FEDERAL EMPLOYEE STATUS AS OF JANUARY 1, 1969.

SECTION 3(B) OF THE ACT PROVIDES THAT INCUMBENT EMPLOYEES AND ALL POSITIONS EXISTING ON DECEMBER 31, 1968, ARE THEREAFTER DEEMED TO BE CIVILIAN EMPLOYEES AND POSITIONS OF THE UNITED STATES IN EITHER THE DEPARTMENT OF THE ARMY OR THE DEPARTMENT OF THE AIR FORCE. SECTION 8(A) PROVIDES THAT THE RESPECTIVE DEPARTMENTAL SECRETARY "SHALL FIX THE RATE OF BASIC COMPENSATION OF POSITIONS EXISTING ON THE DATE OF ENACTMENT OF THIS ACT (AUGUST 13, 1968) IN ACCORDANCE WITH THE GENERAL SCHEDULE SET FORTH IN SECTION 5332, OR UNDER THE APPROPRIATE PREVAILING RATE SCHEDULE IN ACCORDANCE WITH SECTION 5341 OF TITLE 5, U.S.C. AS APPLICABLE." SUBSECTIONS (1)-(3) OF SECTION 8(A) PROVIDE THE PROCEDURE FOR DETERMINING THEIR RATES IN SUCH SCHEDULES.

WE ARE INFORMED THAT THE TECHNICIANS ON JANUARY 1, 1969, WERE PLACED IN GENERAL SCHEDULE AND WAGE BOARD POSITIONS, THE LATTER POSITIONS BEING BY FAR THE MORE PREDOMINATE. HOWEVER, IT WAS REALIZED AT THAT TIME THAT A MORE DETAILED STUDY WAS NECESSARY IN ORDER TO COMPLY WITH THE GRADE AND PAY STANDARDS ESTABLISHED BY THE CIVIL SERVICE COMMISSION. WHEN THE MAGNITUDE OF THE RECLASSIFICATION ACTIONS BECAME APPARENT (APPROXIMATELY HALF OF WHICH WOULD RESULT IN DOWNGRADINGS) THE COMMISSION REQUESTED A POSTPONEMENT OF ANY FURTHER ACTION UNTIL A FURTHER STUDY WAS MADE OF THE NATIONAL GUARD TECHNICIAN POSITIONS. SUCH POSTPONEMENT HAS NOW BEEN LIFTED WHICH GIVES RISE TO THE FOLLOWING QUESTIONS:

"1. DOES SECTION 8(A)(4) OF PUBLIC LAW 90-486 PERMIT THE SAVING OF THE GRADE OF THE APPROXIMATELY 9,000 NATIONAL GUARD TECHNICIANS, TOGETHER WITH FUTURE PAY RAISES APPLICABLE TO THE 'SAVED' GRADE, IF THE INCUMBENTS ARE DETERMINED TO BE OVERGRADE UNDER CIVIL SERVICE CLASSIFICATION STANDARDS?

"2. DOES THE TWO YEAR LIMITATION ON SAVED PAY (INCLUDING FUTURE INCREASES IN BASIC PAY AUTHORIZED BY STATUTE) - OR OTHER PROVISIONS OF 5 U.S.C. 5337 (RELATING TO PAY SAVING TO GENERAL SCHEDULE EMPLOYEES) HAVE ANY APPLICATION TO TECHNICIANS WHOSE POSITIONS ARE ALIGNED WITH FEDERAL POSITION CLASSIFICATION STANDARDS AND WHO ARE SUBJECT TO THE SPECIAL SAVED PAY SAVINGS PROVISION OF SECTION 8(A)(4)?

"3. DO THE PROVISIONS OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1, S10- 9, RELATING TO PAY RETENTION RESULTING FROM CONVERSION ACTIONS (PARTICULARLY S10-9.C PERTAINING TO ENTITLEMENT TO FUTURE WAGE SCHEDULE INCREASES) HAVE ANY APPLICATION TO TECHNICIANS WHOSE POSITIONS ARE ALIGNED TO WAGE BOARD POSITION CLASSIFICATION STANDARDS AND WHO ARE SUBJECT TO THE SPECIAL SAVED PAY PROVISIONS OF SECTION 8(A)(4) CF. FPMS 532-1, S9-3?"

SECTION 8(A)(4) OF THE ACT PROVIDES AS FOLLOWS:

"IF THE TECHNICIAN IS RECEIVING A RATE OF BASIC COMPENSATION WHICH IS IN EXCESS OF THE MAXIMUM RATE OF THE APPROPRIATE GRADE OF THE GENERAL SCHEDULE, OR WHICH IS IN EXCESS OF THE MAXIMUM RATE OF THE APPROPRIATE GRADE OR COMPENSATION LEVEL OF THE APPROPRIATE PREVAILING RATE SCHEDULE, AS APPLICABLE, IN WHICH HIS POSITION IS PLACED, HE SHALL CONTINUE TO RECEIVE BASIC COMPENSATION WITHOUT CHANGE IN RATE UNTIL -

"(A) HE LEAVES THAT POSITION, OR

"(B) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE,

BUT, WHEN ANY SUCH POSITION BECOMES VACANT, THE RATE OF BASIC COMPENSATION OF ANY SUBSEQUENT APPOINTEE THERETO SHALL BE FIXED IN THE MANNER PROVIDED BY APPLICABLE LAW AND REGULATION."

YOUR LETTER SUGGESTS THAT A LITERAL INTERPRETATION OF THE CITED STATUTORY LANGUAGE APPEARS TO "SAVE" ONLY THAT RATE OF BASIC COMPENSATION TO WHICH THE EMPLOYEE WAS ENTITLED ON JANUARY 1, 1969. HOWEVER, THE MATTER IS COMPLICATED BY THE FACT THAT INCREASES HAVE BEEN GRANTED (BOTH GENERAL SCHEDULE AND WAGE BOARD) ON THE SALARIES TO WHICH THE TECHNICIANS WERE CONVERTED ON JANUARY 1, 1969.

SECTION 8(A)(4) BECAME OPERATIVE ON JANUARY 1, 1969, WHEN THE INITIAL PHASE OF THE CONVERSION PROCESS WAS ACCOMPLISHED. AT THAT TIME WE UNDERSTAND IT WAS NOT NECESSARY TO INVOKE THAT PROVISION SINCE THERE WERE NO TECHNICIANS RECEIVING SALARIES IN EXCESS OF THE MAXIMUM RATES OF THE GENERAL SCHEDULE AND WAGE BOARD POSITIONS IN WHICH THEY WERE INITIALLY PLACED, EFFECTIVE JANUARY 1, 1969. HAD IT BEEN NECESSARY TO INVOKE SECTION 8(A)(4), OUR OPINION IS THAT THE TECHNICIANS WOULD HAVE RETAINED THEIR SALARIES - NOT GRADES - AS LONG AS THEY REMAINED IN THEIR SAME POSITIONS AND FUTURE INCREASES WOULD BE TIED TO THE GRADE TO WHICH DEMOTED. WE FURTHER UNDERSTAND IN NEARLY ALL CASES THE CONVERSION WAS MADE TO A WAGE BOARD POSITION WITHIN AN AGENCY ADMINISTERED GRADING AND PAY STRUCTURE AS DISTINGUISHED FROM A WAGE SCHEDULE OF THE NEW COORDINATED FEDERAL WAGE SYSTEM (CFWS). THIS SYSTEM WAS BEING ADOPTED ON AN AREA-BY- AREA BASIS BEGINNING IN OCTOBER 1968, AND IN A FEW CASES CONVERTED WAGE POSITIONS WERE DIRECTLY CLASSIFIED TO THE APPROPRIATE DESIGNATIONS IN CFWS (WG, WL, OR WS), DEPENDING ON WHETHER A GIVEN GEOGRAPHICAL AREA HAD ADOPTED CFWS BY JANUARY 1, 1969. IN OVER 90 PERCENT OF THE CONVERSIONS, HOWEVER, ACCORDING TO INFORMAL ESTIMATES MADE BY OFFICIALS IN THE NATIONAL GUARD BUREAU, THE DESIGNATIONS TO CFWS WERE NOT ADOPTED UNTIL SOME TIME LATER WHEN OTHER FEDERAL AGENCIES IN THE AREA ACCOMPLISHED THE CHANGEOVER. TO THE EXTENT THAT CERTAIN GEOGRAPHICAL AREAS HAVE NOT YET CONVERTED TO CFWS, THE NATIONAL GUARD TECHNICIANS STILL HOLD CLASSIFICATIONS TO AGENCY WAGE BOARD POSITIONS.

IT IS APPARENT THAT SECTION 8(A)(4) WAS DIRECTED TO A SITUATION THAT DID NOT ACTUALLY DEVELOP BECAUSE OF THE ADMINISTRATIVE IMPLEMENTATION OF THE STATUTE AT THE TIME OF CONVERSION TO FEDERAL STATUS ON JANUARY 1, 1969. CONGRESS EVIDENTLY CONTEMPLATED THAT THE TOTAL CONVERSION PROCESS COULD BE COMPLETED BETWEEN THE DATE OF ENACTMENT (AUGUST 13, 1968) AND THE EFFECTIVE DATE (JANUARY 1, 1969), AND INCLUDED THE CITED SAVING PROVISION ON THAT BASIS. SUBSEQUENT EVENTS DETERMINED THAT THE CONVERSION PROCESS WAS MORE COMPLEX AND REQUIRED CONSIDERABLY MORE TIME. IT ALSO DEVELOPED THAT IN THE CASE OF WAGE BOARD POSITIONS THE NEW FEDERAL STATUS CONFERRED BY THE ACT COINCIDED WITH THE GENERAL GOVERNMENT TRANSITION TO CFWS. VIEW OF THESE FACTORS WE BELIEVE THAT RECLASSIFICATION ACTIONS WITH RESPECT TO THE WAGE BOARD POSITIONS MAY ACTUALLY BE REGARDED AS CONVERSIONS FROM AN AGENCY WAGE BOARD SYSTEM TO CFWS AT THE TIME SUCH RECLASSIFICATIONS ARE EFFECTIVE. SUCH A CONCLUSION WOULD THEN INVOKE THE PAY RETENTION PROVISIONS OF SUBCHAPTER S10-9, FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1.

THOSE TECHNICIANS WHO WERE PLACED IN GENERAL SCHEDULE POSITIONS ON JANUARY 1, 1969, WERE NO LONGER SUBJECT TO SECTION 8(A)(4) AFTER THAT DATE AND ANY SUBSEQUENT CLASSIFICATION DECISIONS THAT WOULD "DOWNGRADE" THEM AND THEIR POSITIONS ARE FOR CONSIDERATION UNDER 5 U.S.C. 5337 AND IMPLEMENTING REGULATIONS. THEIR ENTITLEMENT TO FUTURE GENERAL INCREASES IN THE RATES SAVED BY 5 U.S.C. 5337 WOULD BE GOVERNED BY THE PAY-FIXING RULES INCLUDED IN THE LAW OR EXECUTIVE ORDER PROVIDING THE INCREASE. SEE, FOR EXAMPLE, THE RULES APPLICABLE TO THE INCREASE AUTHORIZED BY PUBLIC LAW 92-210 AND PUBLISHED IN 37 F.R. 859, JANUARY 20, 1972.

WE RECOGNIZE THAT THE LANGUAGE OF SECTION 8(A) READILY LENDS ITSELF TO AN INTERPRETATION WHICH WOULD HAVE REQUIRED ALL CONVERSION AND RECLASSIFICATION ACTIONS TO HAVE BEEN BY INDIVIDUAL ADJUSTMENTS BASED ON SALARY RATES EXISTING ON THE DATE OF ENACTMENT OF PUBLIC LAW 90-486, AND WITH THE COMPLETE PAY CONVERSION HAVING BEEN COMPLETED BY JANUARY 1, 1969. TO HAVE SO CONSTRUED IT WOULD HAVE RESULTED IN SOME INDIVIDUALS RECEIVING MORE FAVORABLE AND OTHERS LESS FAVORABLE TREATMENT THAN UNDER THE INTERPRETATION ADOPTED HEREIN. FURTHER, WE UNDERSTAND THAT SUCH A CONSTRUCTION OF THE STATUTE WOULD HAVE NOT ONLY BEEN CONTRARY TO THE ADMINISTRATIVE INTERPRETATION OF ITS MEANING BUT IF ADOPTED AT THIS TIME - OVER 3 YEARS AFTER ITS EFFECTIVE DATE - WOULD GENERATE VERY SEVERE ADMINISTRATIVE PROBLEMS. LEGISLATIVE HEARINGS WHICH HAVE BEEN SCHEDULED WILL UNDOUBTEDLY CLARIFY WHETHER ANY FURTHER CONSIDERATION OF THIS MATTER IS WARRANTED BY OUR OFFICE AND WHETHER ANY ADDITIONAL LEGISLATIVE ACTION IS NECESSARY.