B-113131, JANUARY 9, 1953, 32 COMP. GEN. 317

B-113131, JANUARY 9, 1953, 32 COMP. GEN. 317

COMPENSATION - RATES - POSITION REALLOCATION - SAVED COMPENSATION BENEFITS AN EMPLOYEE WHO WAS PROMOTED AFTER THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949 TO A POSITION WHICH WAS SUBSEQUENTLY ALLOCATED DOWNWARD IS NOT ENTITLED TO THE SAVED COMPENSATION BENEFITS OF THE FEDERAL EMPLOYEES PAY REGULATIONS.

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, UNITED STATES TARIFF COMMISSION, JANUARY 9, 1953:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10, 1952, REQUESTING DECISION WITH RESPECT TO THE APPLICATION OF THE SAVING CLAUSE PROMULGATED BY THE CIVIL SERVICE COMMISSION IN SECTION 25.103E OF THE FEDERAL PERSONNEL MANUAL TO THE FOLLOWING SITUATION:

IT APPEARS THAT ONE VINCENT A. FLYNN HAD BEEN EMPLOYED IN THE TARIFF COMMISSION, NEW YORK OFFICE, SINCE 1926; THAT ON AUGUST 3, 1942, HE WAS PROMOTED TO CUSTOMS RECORDS ANALYST, CAF-9; THAT ON APRIL 6, 1949, THE CHIEF OF THAT OFFICE DIED, AND MR. FLYNN WAS DESIGNATED AS ACTING CHIEF, WITH NO CHANGE IN HIS GRADE OR SALARY; THAT ON OCTOBER 30, 1949, HIS CLASSIFICATION WAS CONVERTED FROM CAF-9 TO GS-9 IN ACCORDANCE WITH THE PROVISIONS OF SECTION 604 OF THE ACT OF OCTOBER 28, 1949, 63 STAT. 966; AND THAT ON JANUARY 8, 1950, MR. FLYNN WAS PROMOTED AND APPOINTED CHIEF OF THE NEW YORK OFFICE IN GS-11, BUT ON NOVEMBER 20, 1952, THE REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION REQUIRED THE TARIFF COMMISSION TO REDUCE HIS GRADE TO GS-9. YOU STATE THAT YOU HAVE APPEALED THIS ACTION TO THE CIVIL SERVICE BOARD OF APPEALS BUT IN THE MEANTIME YOU REDUCED THE INCUMBENT'S GRADE TO GS-9 EFFECTIVE DECEMBER 7, 1952, AND YOU DESIRE TO KNOW WHETHER HIS SALARY IN GS-11 MAY BE SAVED TO THIS EMPLOYEE.

SECTION 25.103E OF THE FEDERAL PERSONNEL MANUAL PROVIDES AS FOLLOWS:

EMPLOYEES WHO ON THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949 OCCUPIED POSITIONS (1) WHICH IMMEDIATELY PRIOR TO SUCH DATE WERE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, (2) WHICH WERE INITIALLY ALLOCATED TO ANY OF THE GRADES OF THE CLASSIFICATION ACT OF 1949 IN THE MANNER PRESCRIBED THEREIN, AND (3) WHICH THEREAFTER ARE REDUCED BELOW SUCH GRADE, MAY CONTINUE TO RECEIVE THE SAME RATES OF BASIC COMPENSATION WHICH THEY RECEIVED ON THE EFFECTIVE DATE OF THE ACTION TAKEN TO REDUCE THE GRADE OF SUCH POSITION, SO LONG AS THEY REMAIN IN THE SAME POSITIONS WHICH THEY OCCUPIED ON THE EFFECTIVE DATE OF TITLE VI.

IT IS CONTENDED IN THE LETTER OF DECEMBER 10, IN SUBSTANCE, THAT THE FOREGOING REGULATION SHOULD BE APPLIED TO THE POSITION OCCUPIED BY THE EMPLOYEE DETERMINED BY THE DUTIES PERFORMED BY HIM RATHER THAN BY THE CLASSIFICATION GRADE TO WHICH THE EMPLOYEE WAS ACTUALLY AND INITIALLY ALLOCATED UNDER THE CLASSIFICATION ACT OF 1949. THE GRADE TO WHICH THIS EMPLOYEE HAD BEEN APPOINTED WAS INITIALLY ALLOCATED UNDER THE CLASSIFICATION ACT OF 1949 AS GS-9 AND THE SALARY HE WAS IN RECEIPT OF UNDER SUCH INITIAL ALLOCATION WAS THAT PROVIDED FOR GS-9, AND IT IS TO SUCH GRADE AND SALARY THAT THE SAVING REGULATION IS DIRECTED. IN 31 COMP. GEN. 537, REFERRED TO BY YOU, IT WAS HELD:

UNDER THE SAVED COMPENSATION PROVISION OF THE FEDERAL EMPLOYEES PAY REGULATIONS SAVING TO EMPLOYEES SALARIES ATTACHED TO POSITIONS REALLOCATED DOWNWARD, EMPLOYEES WHO OCCUPIED POSITIONS WHICH WERE REALLOCATED DOWNWARD SUBSEQUENT TO THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949, ARE ENTITLED TO THE SAVED PAY BENEFITS OF THE REGULATION ONLY IF THEY CONTINUE TO OCCUPY THE SAME POSITIONS.

THE "OCCUPIED POSITIONS" CONSIDERED IN THAT DECISION WERE THOSE REPRESENTED BY THE CLASSIFICATION GRADES TO WHICH THE EMPLOYEES HAD BEEN INITIALLY ALLOCATED UNDER THE CLASSIFICATION ACT OF 1949 AND THE DECISION AUTHORIZED THE SAVING TO THE EMPLOYEES OF THE SALARIES OF THE GRADES TO WHICH THEY WERE SO ALLOCATED UPON THE PASSAGE OF THE CLASSIFICATION ACT OF 1949, SO LONG AS THEY OCCUPIED THE SAME POSITIONS, AND THE DECISION WAS ADDRESSED TO THE QUESTION OF WHETHER THEY CONTINUED TO OCCUPY SUCH POSITIONS.

ACCORDINGLY, AS MR. FLYNN'S POSITION WAS INITIALLY ALLOCATED TO GS-9 AND HE WAS PAID THE SALARY OF THAT GRADE HE CANNOT BE SAVED THE SALARY OF GS- 11 UNDER THE ABOVE REGULATION AS HE DID NOT BECOME ENTITLED TO THAT SALARY UNTIL HIS PROMOTION ON JANUARY 8, 1950.