B-125481, OCTOBER 28, 1955, 35 COMP. GEN. 249

B-125481, OCTOBER 28, 1955, 35 COMP. GEN. 249

COMPENSATION - CONVERSION BETWEEN CLASSIFIED AND PREVAILING RATE SCHEDULE POSITIONS - SAVED PAY UNDER FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 AN EMPLOYEE WHO WAS TRANSFERRED FROM A GENERAL SCHEDULE POSITION TO A PREVAILING RATE POSITION, AND WHO DUE TO A REDUCTION-IN-FORCE ACTION WAS RECEIVING A LESSER RATE OF COMPENSATION ON THE DATE OF THE ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 THAN HE WOULD HAVE RECEIVED HAD HE REMAINED IN THE GENERAL SCHEDULE POSITION, IS NOT ENTITLED TO THE SAVED PAY PROVISION OF SECTION 2 (C) OF SAID ACT WHICH IS APPLICABLE TO LOSSES OF COMPENSATION DUE SOLELY TO TRANSFERS.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, OCTOBER 28, 1955:

YOUR LETTER OF SEPTEMBER 8, 1955, REQUESTS OUR DECISION CONCERNING THE INTERPRETATION OF SECTION 2 (C) OF PUBLIC LAW 94, APPROVED JUNE 28, 1955, 69 STAT. 174, AS IT APPLIES TO A CASE BEFORE YOU FOR CONSIDERATION.

AS RELATED IN YOUR LETTER THE FACTS CONCERNING THE CASE ARE AS FOLLOWS:

EMPLOYEE A, ON JANUARY 1, 1952, WAS A STOREKEEPER, GS-5. IN FEBRUARY, 1954, HE AND HIS POSITION WERE PLACED UNDER WAGE BOARD, WITHOUT A MATERIAL CHANGE IN DUTIES, AS WAREHOUSEMAN, WB-S-2. HIS RATE OF COMPENSATION IN GS -5 HAD BEEN $3,785. HIS LAST PERIODIC STEP INCREASE HAD BEEN EARNED JUNE 21, 1953. ON JULY 1, 1954, HE WAS AFFECTED BY A REDUCTION IN FORCE AND OFFERED A REASSIGNMENT TO A DIFFERENT AND LOWER GRADED POSITION AT WB-7. HE IS NOW EARNING $2.07 PER HOUR IN THIS LOWER GRADE WAGE BOARD POSITION.

IF HE HAD REMAINED IN GS-5 UNTIL THE PRESENT, HE WOULD BE EARNING $4,345 PER ANNUM OR $2.09 PER HOUR AS OF JUNE 19, 1955. ON MARCH 13, 1955, HE WOULD HAVE BEEN EARNING $4,210, OR $2.02 PER HOUR.

YOU EXPRESS THE VIEW THAT IT WAS NOT THE INTENT OF PUBLIC LAW 94 TO REQUIRE THE EMPLOYEE'S RATE TO BE INCREASED TO $2.09 AN HOUR AS OF JUNE 19, 1955--- APPARENTLY THE DATE ON WHICH HE WOULD HAVE RECEIVED A PERIODIC STEP-INCREASE HAD HIS POSITION REMAINED UNDER THE CLASSIFICATION ACT OF 1949--- BECAUSE HE NO LONGER IS OCCUPYING THE POSITION UNDER THE PREVAILING RATE SYSTEM TO WHICH HE INITIALLY WAS TRANSFERRED.

SECTION 2 (C) OF PUBLIC LAW 94, 5 U.S.C. 1113 NOTE, SO FAR AS HERE PERTINENT, READS AS FOLLOWS:

(C) EACH OFFICER OR EMPLOYEE---

(1) (A) WHO WITH HIS POSITION HAS BEEN TRANSFERRED, AT ANY TIME DURING THE PERIOD BEGINNING JANUARY 1, 1952, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, FROM THE CRAFTS, PROTECTIVE, AND CUSTODIAL SCHEDULE OR THE GENERAL SCHEDULE TO A PREVAILING RATE SCHEDULE PURSUANT TO THE CLASSIFICATION ACT OF 1949 * * *

(2) WHO AT ALL TIMES SUBSEQUENT TO SUCH TRANSFER WAS IN THE SERVICE OF THE UNITED STATES * * *

(3) WHO IS ON SUCH DATE OF ENACTMENT BEING COMPENSATED UNDER A PREVAILING RATE SCHEDULE, AND

(4) WHOSE RATE OF BASIC COMPENSATION IS LESS ON SUCH DATE OF ENACTMENT THAN THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED ON SUCH DATE OF ENACTMENT IF SUCH TRANSFER HAD NOT OCCURRED (UNLESS HE IS RECEIVING SUCH LESSER RATE BY REASON OF AN ADVERSE PERSONNEL ACTION RESULTING FROM HIS OWN FAULT), SHALL BE PAID BASIC COMPENSATION AT A RATE EQUAL TO THE RATE WHICH HE WOULD HAVE BEEN RECEIVING ON SUCH DATE OF ENACTMENT (INCLUDING COMPENSATION FOR EACH WITHIN-GRADE AND LONGEVITY STEP-INCREASE WHICH HE WOULD HAVE EARNED) IF SUCH TRANSFER HAD NOT OCCURRED UNTIL THE DAY IMMEDIATELY FOLLOWING SUCH DATE OF ENACTMENT * * *.

SECTION 2 (C) OF THE ACT IS AN EXCEPTION TO THE NORMAL COMPENSATION RULES, ITS EVIDENT PURPOSE BEING TO SAVE EMPLOYEES TRANSFERRED WITH OR WITHOUT THEIR POSITIONS FROM THE PURVIEW OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, TO THE PREVAILING RATE SYSTEM, FROM ANY LOSS OF COMPENSATION RESULTING SOLELY FROM SUCH TRANSFERS. LOGICALLY, AN EMPLOYEE TRANSFERRED TO THE PREVAILING RATE SYSTEM AND RECEIVING A LESSER RATE OF COMPENSATION ON THE DATE OF ENACTMENT OF PUBLIC LAW 94 THAN HE WOULD HAVE RECEIVED HAD HE REMAINED UNDER THE CLASSIFICATION ACT AS A RESULT OF AN INTERVENING REDUCTION IN FORCE PROCEEDING CANNOT BE SAID TO BE RECEIVING A LESS RATE BECAUSE OF THE TRANSFER. ACCORDINGLY, IT IS OUR VIEW THAT THE EMPLOYEE IN THE CASE REFERRED TO IN YOUR LETTER MAY NOT HAVE HIS COMPENSATION INCREASED UNDER SECTION 2 (C) OF THE ACT.