B-23395, FEBRUARY 14, 1942, 21 COMP. GEN. 773

B-23395, FEBRUARY 14, 1942, 21 COMP. GEN. 773

COMPENSATION - WITHIN-GRADE PROMOTIONS - ELIGIBILITY AS AFFECTED BY TEMPORARY ASSIGNMENTS AT HIGHER OR LOWER SALARIES 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.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, FEBRUARY 14, 1942:

BY FIRST INDORSEMENT DATED JANUARY 20, 1942, YOU FORWARDED HERE FOR DECISION LETTER DATED JANUARY 15, 1942, FROM LT. COL. W. E. LORENCE, OFFICE OF THE CHIEF OF ENGINEERS, WAR DEPARTMENT, READING AS FOLLOWS: SUBJECT: INTERPRETATION OF LAW AND RULES GOVERNING AUTOMATIC

WITHIN-GRADE PROMOTIONS. TO: THE SECRETARY OF WAR ( OFFICE OF THE ADMINISTRATIVE

ASSISTANT).

1. REFERENCE IS MADE TO RULE OF THE COMPTROLLER GENERAL DATED OCTOBER 2, 1941, B-20500, AND OCTOBER 13, 1941, B-20841.

2. THE REGULATIONS OF THE ENGINEER DEPARTMENT (PARAGRAPH 1017.6, ORDERS AND REGULATIONS) PROVIDE FOR TEMPORARY PROMOTIONS OF EMPLOYEES OF THE NONEDUCATIONAL GRADES FROM ONE SUCH GRADE TO ANOTHER AS THE NEEDS OF THE SERVICE MAY REQUIRE. FOR EXAMPLE, EMPLOYEES OF THE GRADE OF LOCKMAN FREQUENTLY ARE "PROMOTED" FOR TEMPORARY PERIODS OF ONE DAY OR POSSIBLY A WEEK, FOR SERVICE AS DIVER. ON COMPLETION OF THE DIVING WORK THEY RETURN TO THEIR REGULAR POSITIONS. OTHERS ARE AT TIMES PROMOTED FOR TEMPORARY PERIODS TO POSITIONS OF CARPENTER, PAINTER, AND THE LIKE FOR THE PERFORMANCE OF SPECIAL JOBS REQUIRING SERVICE FOR BRIEF PERIODS ONLY, AND THEN ARE RETURNED TO THEIR REGULAR POSITIONS. THE CHANGE IN STATUS IS NOT STRICTLY A PROMOTION BUT RATHER A TEMPORARY ASSIGNMENT TO ANOTHER JOB. THE PRACTICE OF MAKING THESE TEMPORARY PROMOTIONS IS ONE OF MANY YEARS' STANDING, AND IS ESSENTIAL TO THE INTEREST OF THE SERVICE, INASMUCH AS THE LOCATION OF THE WORK AND ITS TEMPORARY NATURE MAKE IT DIFFICULT TO SECURE SUITABLY QUALIFIED MEN FROM OUTSIDE SOURCES. THE MEN SELECTED FOR THE ASSIGNMENTS ARE, OF COURSE, THE MOST SKILLFUL AND BEST TRAINED MEN IN THE ORGANIZATION.

3. A LITERAL APPLICATION OF THE RULE REFERRED TO IN PARAGRAPH 1 ABOVE WOULD WORK AN INJUSTICE TO EMPLOYEES GIVEN "PROMOTIONS" UNDER THE PRACTICE ABOVE DESCRIBED. IN MANY INSTANCES THE BEST MEN IN THE ORGANIZATION, CHOSEN FOR TEMPORARY ASSIGNMENTS BECAUSE OF THEIR EXCELLENT QUALIFICATIONS, WOULD BE PENALIZED WHILE MEN OF LOWER QUALIFICATIONS AND SHORTER SERVICE WOULD RECEIVE ADMINISTRATIVE PROMOTION BEFORE THOSE WHO OUTRANK THEM IN EFFICIENCY AND IN POINT OF SERVICE.

4. INFORMATION IS REQUESTED AS TO WHETHER IN SUCH CASES THE PERIOD OF 18 MONTHS OR 30 MONTHS REQUIRED FOR AUTOMATIC PROMOTION SHOULD NOT, IN SUCH CASES, BE CONSIDERED AS BEGINNING ON THE FIRST DATE ON WHICH THE EMPLOYEE RECEIVED HIS PRESENT RATE OF PAY.

5. IN MANY CASES THE TEMPORARY PROMOTION IS TO A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT SCHEDULES. INFORMATION IS REQUESTED AS TO WHETHER A DIFFERENT RULE WOULD APPLY IN SUCH CASE FROM THE RULE WHICH WOULD BE APPLICABLE IN THE EVENT THE TEMPORARY PROMOTION WERE ALSO TO A POSITION SUBJECT TO THE CLASSIFICATION SCHEDULES.

SECTION 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, PRESCRIBES AS ONE OF THE CONDITIONS TO ENTITLE AN EMPLOYEE TO A WITHIN-GRADE SALARY ADVANCEMENT "THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION.' SEE SECTION 7B (1) OF THE AMENDED STATUTE. THE TERM "EQUIVALENT INCREASE IN COMPENSATION" HAS BEEN DEFINED IN SECTION 2 (D) OF THE PRESIDENT'S REGULATIONS ISSUED UNDER AUTHORITY OF THE STATUTE ( EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941), AS FOLLOWS:

"EQUIVALENT INCREASE IN COMPENSATION" SHALL MEAN ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

IT WAS HELD IN THE TWO DECISIONS CITED IN THE FIRST PARAGRAPH OF THE QUOTED LETTER, SUPRA (SEE 21 COMP. GEN. 285; ID. 326), THAT A RESTORATION IN SALARY OF AN EMPLOYEE TO THE RATE RECEIVED PRIOR TO A REDUCTION WAS TO BE REGARDED AS "EQUIVALENT INCREASE IN COMPENSATION" AND THAT THE PRESCRIBED PERIOD OF 18 OR 30 MONTHS, AS THE CASE MAY BE, BEGINS TO RUN FROM THE DATE OF RESTORATION.

PARAGRAPHS 1017.5 AND 1017.6, ORDERS AND REGULATIONS OF THE ENGINEER DEPARTMENT OF THE ARMY, PROVIDE, RESPECTIVELY, AS FOLLOWS:

TEMPORARY PROMOTION TO DIVER.--- ANY PROBATIONAL OR PERMANENT CLASSIFIED EMPLOYEE MAY, IN THE DISCRETION OF THE DISTRICT ENGINEER, BE TEMPORARILY PROMOTED TO THE POSITION OF DIVER, DIVER'S HELPER, OR DIVER'S TENDER, WHEN THE NEEDS OF THE SERVICE REQUIRE, FOR A PERIOD NOT TO EXCEED 30 DAYS, AND SHALL BE REASSIGNED TO HIS FORMER POSITION UPON COMPLETION OF THE WORK. ALL SUCH TEMPORARY PROMOTIONS SHALL BE REPORTED IN THE REPORTS OF CHANGES.

REDUCTIONS AND RESTORATIONS TO FORMER GRADE.--- WHEN THE CONDITION OF THE WORK MAKES IT EXPEDIENT TO DO SO, THE OFFICER IN CHARGE MAY TEMPORARILY REDUCE ANY CLASSIFIED EMPLOYEE OF NONEDUCATIONAL GRADE TO A LOWER GRADE OR RATE OF PAY AND MAY SUBSEQUENTLY RESTORE HIM TO HIS FORMER GRADE OR RATE OF PAY OR TO ANY INTERMEDIATE GRADE OR RATE OF PAY WITHOUT REFERENCE TO THE CHIEF OF ENGINEERS, THE PROVISIONS OF PARAGRAPH 1018.4 OF THESE REGULATIONS TO GOVERN WITH REFERENCE TO REDUCTIONS IN GRADE OR PAY OF HONORABLY DISCHARGED SOLDIERS OR SAILORS OR THE WIDOWS AND ORPHANS OF SUCH PERSONS.

IN DECISION OF JULY 26, 1932, 12 COMP. GEN. 117, 119, WHEREIN WERE QUOTED AND CONSIDERED SIMILAR REGULATIONS OF THE ENGINEER DEPARTMENT OF THE ARMY THEN IN FORCE, IT WAS STATED:

THE TERMS OF THE REGULATIONS QUOTED IN YOUR SUBMISSION, NO. 1029, CONSTITUTE A PART OF THE CONTRACT OF EMPLOYMENT OF EACH PERSON AFFECTED THEREBY. THE REGULATION IS SIMILAR TO A REGULATION IN FORCE IN THE GOVERNMENT PRINTING OFFICE ENTITLED "UP-AND-DOWN RATING FOR TEMPORARY CHANGES," AUTHORIZING THE PUBLIC PRINTER TO TRANSFER EMPLOYEES FROM ONE TRADE TO ANOTHER WHEN NECESSARY, INVOLVING BOTH TEMPORARY INCREASES AND DECREASES IN COMPENSATION. IN APPLYING THE TERMS OF SECTION 202 OF THE ECONOMY ACT TO EMPLOYEES IN THE GOVERNMENT PRINTING OFFICE, IT WAS STATED IN DECISION OF JULY 7, 1932, A-43098, 12 COMP. GEN. 5, AS FOLLOWS:

"* * * VARIATIONS IN THE RATES OF PAY RESULTING FROM THE APPLICATION OF THIS REGULATION PROMULGATED UNDER AUTHORITY OF THE ACT OF JUNE 7, 1924, SUPRA, DO NOT CONSTITUTE ADMINISTRATIVE PROMOTIONS OR DEMOTIONS WITHIN THE MEANING OF THE ACT OF JUNE 30, 1932. OF COURSE, THERE IS NO AUTHORITY ADMINISTRATIVELY TO INCREASE THE RATES OF COMPENSATION FOR THE VARIOUS TRADES DURING THE FISCAL YEAR 1933.'

THE SAME PRINCIPLE IS APPLICABLE TO CHANGES AUTHORIZED UNDER REGULATION NO. 1029 QUOTED IN YOUR LETTER. ACCORDINGLY, RESTORATION OF THE EMPLOYEES IN QUESTION TO THEIR REGULAR RATES OF COMPENSATION APPLICABLE TO THEIR POSITIONS DURING THE FISCAL YEAR 1933 WOULD NOT BE PROHIBITED AS ADMINISTRATIVE PROMOTIONS UNDER SECTION 202 OF THE ECONOMY ACT.

LIKEWISE, IN THE INSTANT CASE, THERE APPEARS TO BE INVOLVED AN ADMINISTRATIVE REGULATION APPLICABLE TO A PARTICULAR CLASS OF EMPLOYEES WHICH REGULATION IN EFFECT CONSTITUTES A PART OF THE CONTRACT OF EMPLOYMENT OF THE PARTICULAR CLASS OF EMPLOYEES INVOLVED. THE "UP AND DOWN RATING" OF EMPLOYEES, PURSUANT TO WHICH THEY MAY BE ASSIGNED, PROMOTED, OR REDUCED TO OTHER POSITIONS PAYING HIGHER OR LOWER SALARY RATES FOR A LIMITED PERIOD--- SUCH AS NOT TO EXCEED 30 DAYS--- IS CLEARLY DISTINGUISHABLE FROM THE PROMOTION OR REDUCTION OF EMPLOYEES UNDER GENERAL RULES AND REGULATIONS ESTABLISHED UNDER THE CIVIL SERVICE LAWS AND REGULATIONS OR SIMILAR AUTHORITY.

IN CASES SUCH AS HERE INVOLVED THE TEMPORARY ASSIGNMENT FOR A BRIEF PERIOD TO WORK PAYING A LOWER SALARY RATE WOULD NOT BE REGARDED AS A REDUCTION IN THE REGULAR SALARY RATE OF THE EMPLOYEE; NOR IS IT NECESSARY TO REGARD THE RESTORATION TO THE REGULAR DUTIES AND SALARY AFTER SUCH A REDUCTION AS AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS, BUT RATHER, SIMPLY AS A CONDITION OF THEIR EMPLOYMENT IN THE REGULAR POSITION.

ACCORDINGLY, REFERRING TO THE QUESTION STATED IN PARAGRAPH NUMBERED 4 OF THE QUOTED LETTER, THE PRESCRIBED PERIOD NECESSARY FOR AUTOMATIC PROMOTION SHOULD BE COMPUTED FROM THE LAST EQUIVALENT INCREASE IN COMPENSATION THE EMPLOYEE RECEIVED IN HIS REGULAR POSITION WITHOUT REGARD TO TEMPORARY ASSIGNMENTS TO WORK PAYING A HIGHER OR LOWER RATE UNDER AUTHORITY OF THE ADMINISTRATIVE REGULATIONS ABOVE QUOTED.

REFERRING TO THE QUESTION STATED IN PARAGRAPH NUMBERED 5, THE RULE WOULD BE THE SAME WHETHER THE POSITION TO WHICH THE TEMPORARY ASSIGNMENT IS MADE IS, OR IS NOT SUBJECT TO THE CLASSIFICATION ACT.

THE RULE STATED IN THIS CASE WITH RESPECT TO THE "UP AND DOWN RATING" OF EMPLOYEES UNDER THE LONG EXISTING ADMINISTRATIVE REGULATION IS TO BE UNDERSTOOD AS NOT MODIFYING THE RULE STATED IN DECISIONS OF OCTOBER 2, 1941, 21 COMP. GEN. 285, AND OCTOBER 13, 1941, 21 COMP. GEN. 326, RELATING TO SALARY CHANGES UNDER THE GENERAL RULES AND REGULATIONS GOVERNING SUCH CHANGES. FOR INSTANCE, WHERE THERE IS NO ADMINISTRATIVE REGULATION PROVIDING FOR "UP AND DOWN RATING" OF EMPLOYEES INVOLVED, A TEMPORARY PROMOTION INVOLVING AN INCREASE OF COMPENSATION OF $60, $100, $200, OR $250 OR MORE PER ANNUM, AS THE CASE MAY BE, SUCH AS A TEMPORARY PROMOTION TO FILL A VACANCY CAUSED BY THE ABSENCE OF A REGULAR INCUMBENT IN THE MILITARY SERVICE, OR THE TEMPORARY PROMOTION OF AN EMPLOYEE ON ANOTHER ROLL ESTABLISHED UNDER A SPECIAL APPROPRIATION TO PERFORM A PARTICULAR JOB, WOULD CONSTITUTE AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND UPON RESTORATION TO THE REGULAR ROLL THE PRESCRIBED PERIOD TO BE CONSIDERED FOR AUTOMATIC PROMOTION PURPOSES WOULD BEGIN TO RUN FROM THE DATE OF THE TEMPORARY PROMOTION.