B-128046, JULY 16, 1956, 36 COMP. GEN. 40

B-128046, JULY 16, 1956, 36 COMP. GEN. 40

COMPENSATION - CONVERSION OF POSITIONS FROM CLASSIFIED TO PREVAILING WAGE SYSTEM - RETROACTIVE SALARY INCREASES AIR FORCE EMPLOYEES WHOSE POSITIONS WERE CONVERTED FROM CLASSIFIED TO PREVAILING WAGE SYSTEM WERE ENTITLED BY REASON OF THE SAVING PROVISION IN SECTION 2 (C) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 TO A RETROACTIVE ADJUSTMENT IN COMPENSATION AT A RATE NOT IN EXCESS OF THE RATE OF THE PRIOR CLASSIFIED POSITION AS INCREASED BY THE 1955 ACT, AND ANY ADDITIONAL ADJUSTMENTS WHICH WERE MADE PURSUANT TO AN ADMINISTRATIVE REGULATION AUTHORIZING A HIGHER WAGE STEP RATE IN CASE THE CLASSIFIED RATE FALLS BETWEEN TWO WAGE STEP RATES MUST BE REFUNDED. AN ADMINISTRATIVE REGULATION WHICH AUTHORIZED THE ESTABLISHMENT OF A HIGHER WAGE RATE FOR EMPLOYEES WHOSE PRIOR COMPENSATION UPON CONVERSION FROM CLASSIFIED TO PREVAILING WAGE SYSTEM FELL BETWEEN TWO WAGE RATE STEPS AND WHICH WAS IN EFFECT AT THE TIME OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, EXPRESSLY LIMITING THE BASIC COMPENSATION RATES IN SUCH CONVERSION CASES, MUST BE REGARDED AS MODIFIED TO CONFORM TO THE STATUTE.

TO THE SECRETARY OF THE AIR FORCE, JULY 16, 1956:

IN LETTER DATED MAY 21, 1956, YOUR ASSISTANT SECRETARY REQUESTS OUR DECISION CONCERNING THE APPLICATION OF SECTION 2 (C) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, PUBLIC LAW 94, 69 STAT. 174, 175, IN THE CIRCUMSTANCES RELATED BELOW.

THE MATTER PERTAINS TO CERTAIN ENCLOSED AUDIT INFORMAL INQUIRIES NO. 6Q0- 294 AND 6Q0-326 DATED FEBRUARY 23 AND MARCH 9, 1956, RESPECTIVELY. UNDERSTAND THAT THE AIR FORCE EMPLOYEES INVOLVED WERE TRANSFERRED ON FEBRUARY 13, 1955, FROM CLASSIFICATION ACT POSITIONS ( CPC) TO PREVAILING RATE (WAGE BOARD) SCHEDULES PRIOR TO THE RETROACTIVELY EFFECTIVE DATE OF PUBLIC LAW 94. THE SPECIFIC QUESTION PRESENTED IS WHETHER OUR DECISION AT 35 COMP. GEN. 263 APPLIES ALSO TO THE SITUATION IN THE AIR FORCE WHERE A "PAY SETTING REGULATION" EXISTED AT THE TIME PUBLIC LAW 94 WAS ENACTED.

BOTH OF THE AUDIT INQUIRIES AND THE ASSISTANT SECRETARY'S LETTER RELATE TO THAT PART OF SECTION 2 (C), 5 U.S.C. 1113 NOTE, 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 OR TITLE I OF THE ACT OF SEPTEMBER 1, 1954 (1PUBLIC LAW 763, EIGHTY-THIRD CONGRESS) * * *

(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 * * *.

IN OUR DECISION OF NOVEMBER 2, 1955, B-125392, 35 COMP. GEN. 263--- REFERRED TO IN THE ABOVE AUDIT INQUIRIES AND IN THE ASSISTANT SECRETARY'S LETTER OF MAY 21, 1956--- WE HELD--- QUOTING THE HEADNOTE-- AS FOLLOWS:

AN EMPLOYEE WHOSE POSITION WAS CONVERTED FROM THE GENERAL SCHEDULE TO A PREVAILING RATE SCHEDULE DURING THE PERIOD BETWEEN JANUARY 1, 1952, AND THE ENACTMENT DATE OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 IS NOT ENTITLED UNDER THE SAVED PAY PROVISIONS IN SECTION 2 (C) OF THE ACT TO A HIGHER RATE OF COMPENSATION THAN THAT WHICH HE WOULD HAVE BEEN RECEIVING ON SUCH ENACTMENT DATE HAD HIS TRANSFER NOT OCCURRED UNTIL THE FOLLOWING DAY, NOTWITHSTANDING THERE IS NO COMPARABLE RATE UNDER THE PREVAILING RATE SCHEDULE.

PRIMARILY FOR CONSIDERATION HERE IS THE VALIDITY OF THE AIR FORCE INSTRUCTIONS (AF-CPL17-55, JUNE 27, 1955) ISSUED PURSUANT TO SECTION 2 (C). SUCH INSTRUCTIONS WERE BASED ON AN ADMINISTRATIVE INTERPRETATION THAT "A RATE EQUAL TO THE RATE WHICH HE WOULD HAVE BEEN RECEIVING" MUST, IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY, REFER TO THE RATE WHICH WOULD HAVE BEEN PAID UNDER AIR FORCE REGULATION AFM 40-1, AF P9-7.19A (2). THAT REGULATION, HOWEVER, MERELY GOVERNS THE ESTABLISHMENT OF CONVERTED PAY RATES OF AIR FORCE CIVILIAN EMPLOYEES WHOSE POSITIONS ARE TRANSFERRED FROM THE CLASSIFICATION ACT TO A PREVAILING WAGE RATE SYSTEM. PARAGRAPH P9.7-19A (2), PROVIDES THAT, IF THE EXISTING CLASSIFICATION RATE FALLS BETWEEN TWO WAGE STEP RATES, THE EMPLOYEE'S RATE OF PAY WILL BE ADJUSTED TO THE HIGHER OF THE TWO WAGE STEP RATES.

WE NOTE THAT SUCH PROVISION IN THE CITED REGULATION AF P9 HAS BEEN IN EFFECT SEVERAL YEARS AND IT APPEARS TO BE IN CONFORMITY WITH SECTIONS 202 (7) AND 802 (A) (2) OF THE CLASSIFICATION ACT, 5 U.S.C. 1082 AND 1132. SIMILAR PROVISION IS MADE IN AIR FORCE CIVILIAN PERSONNEL LETTER 24-54, DECEMBER 20, 1954, FOR RETENTION OF AN EMPLOYEE'S EXISTING CLASSIFICATION ACT RATE UPON CONVERSION TO A PREVAILING RATE POSITION PURSUANT TO TITLE I, SECTION 114, OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, 68 STAT. 1108. HOWEVER, THERE IS NO INDICATION THAT SUCH LAWS AND REGULATIONS--- WHICH MERELY REQUIRE THE RETENTION OF A CONVERTED EMPLOYEE'S EXISTING RATE OF PAY--- ARE TO BE APPLIED FOR THE RETROACTIVE SALARY INCREASE PURPOSES IN GIVING EFFECT TO SECTION 2 (C) OF PUBLIC LAW 94. AS STATED IN OUR DECISION AT 35 COMP. GEN. 263, 265, WE KNOW OF NO AUTHORITY FOR PAYMENT TO AN EMPLOYEE OF AN AMOUNT GREATER THAN THAT TO WHICH HE WOULD HAVE BEEN ENTITLED ON THE DATE OF ENACTMENT OF PUBLIC LAW 94. IN OTHER WORDS, IF AN EMPLOYEE WAS TRANSFERRED FROM A CLASSIFICATION ACT POSITION TO A PREVAILING RATE POSITION DURING THE PERIOD FROM JANUARY 1, 1952, TO JUNE 28, 1955, HIS PAY FOR THE RETROACTIVE PERIOD HERE INVOLVED UNDER PUBLIC LAW 94 (MARCH 13 TO JUNE 28, 1955) WAS FOR ADJUSTMENT AT A RATE NOT IN EXCESS OF THE INCREASED RATE OF HIS PRIOR CLASSIFIED POSITION WHICH WOULD HAVE BEEN APPLICABLE HAD HE CONTINUED IN SUCH POSITION UNTIL JUNE 28, 1955. ANY FURTHER ADJUSTMENT REQUIRED UNDER THE ADMINISTRATIVE "WAGE RATE" REGULATIONS, REFERRED TO ABOVE, WOULD BE FOR PROSPECTIVE APPLICATION ONLY.

AS STATED IN YOUR DEPARTMENT'S LETTER OF MAY 21, 1956, OUR DECISION AT 36 COMP. GEN. 263, DID NOT MENTION EXISTING ADMINISTRATIVE PAY REGULATIONS. HOWEVER, THAT DECISION DID CONCERN AN EXPRESS PROVISION OF PUBLIC LAW 94 WHICH EXPRESSLY LIMITS THE BASIC COMPENSATION RATES OF EMPLOYEES COMING WITHIN THE PURVIEW OF THAT LAW. UNDER THE RULES OF STATUTORY CONSTRUCTION AN EXISTING ADMINISTRATIVE REGULATION NOT IN CONFORMITY THEREWITH MUST BE REGARDED AS MODIFIED ACCORDINGLY. HENCE, OUR ANSWER TO THE QUESTION PRESENTED IS IN THE AFFIRMATIVE.

ACCORDINGLY, THE RETROACTIVE PAYMENTS IN THIS CASE, AND ANY SIMILAR PAYMENTS AS MAY BE REVEALED IN THE PAY RECORD OF OTHER EMPLOYEES, PROPERLY ARE FOR REFUND AS NOT BEING IN CONFORMITY WITH LAW.

THE PAPERS FORWARDED HERE WITH THE ASSISTANT SECRETARY'S LETTER OF MAY 21, 1956, ARE RETURNED.