B-134611, DEC. 31, 1957

B-134611, DEC. 31, 1957

TO THE SECRETARY OF COMMERCE:

ON DECEMBER 9, 1957, THE ASSISTANT SECRETARY FOR ADMINISTRATION TRANSMITTED A COPY OF HIS LETTER OF AUGUST 15, 1957--- THE ORIGINAL NEVER HAVING BEEN RECEIVED HERE--- WHEREIN HE REQUESTS A DECISION ON THE PROPRIETY OF ADJUSTING THE SALARY OF AN EMPLOYEE WHO TRANSFERRED TO THE DEPARTMENT OF COMMERCE FROM A WAGE-BOARD POSITION IN ANOTHER AGENCY.

ON DECEMBER 31, 1956, THE EMPLOYEE WAS TRANSFERRED FROM A WAGE-BOARD POSITION ($2.23 PER HOUR) WITH THE GENERAL SERVICE ADMINISTRATION TO A POSITION SUBJECT TO THE CLASSIFICATION ACT (GS-7) WITH YOUR DEPARTMENT. SINCE THE PER ANNUM SALARY EQUIVALENT OF $2.23 AN HOUR IS $4,638.40 THE EMPLOYEE'S SALARY WAS FIXED AT $4,660 PER ANNUM, THE SECOND STEP OF GRADE GS-7, IN ACCORDANCE WITH SECTION 25.103 (B) OF THE CIVIL SERVICE REGULATIONS. THAT SECTION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * AN EMPLOYEE WHO IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, REPROMOTED, OR DEMOTED MAY BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED THE EMPLOYEE'S HIGHEST PREVIOUS RATE. IF THE EMPLOYEE'S HIGHEST RATE FALLS BETWEEN TWO SCHEDULED RATES OF THE NEW GRADE, HE MAY BE GIVEN THE HIGHER RATE * * *"

SECTION 25.102 (J) OF THE CIVIL SERVICE REGULATIONS DEFINES "HIGHEST PREVIOUS RATE" AS FOLLOWS:

"HIGHEST PREVIOUS RATE IS THE HIGHEST BASIC SALARY RATE PREVIOUSLY PAID TO A FEDERAL CIVILIAN EMPLOYEE OCCUPYING A POSITION IN A DEPARTMENT AS DEFINED IN SECTION 201 (A) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED.'

IN JANUARY 1957 THE EMPLOYEE RECEIVED A COPY OF NOTICE OF SEPARATION FROM THE GENERAL SERVICES ADMINISTRATION CONTAINING A STATEMENT THAT HIS WAGE RATE OF $2.23 HAD BEEN INCREASED TO $2.36 PER HOUR EFFECTIVE DECEMBER 2, 1956, CONTINGENT UPON APPROPRIATION OF NECESSARY ADDITIONAL FUNDS. JUNE 21, 1957, THE GENERAL SERVICES ADMINISTRATION OBTAINED ADDITIONAL FUNDS (PUBLIC LAW 58, 85TH CONGRESS) FOR PAYMENT OF THE WAGE INCREASES AND THE EMPLOYEE SUBSEQUENTLY RECEIVED A CHECK COVERING PAYMENT OF THE INCREASE FROM DECEMBER 2 TO DECEMBER 31, 1956, THE DATE OF HIS SEPARATION BY TRANSFER TO THE DEPARTMENT OF COMMERCE.

IN VIEW OF SUCH RETROACTIVE WAGE INCREASE THE FOLLOWING QUESTIONS ARE PRESENTED:

1. MAY THE EMPLOYEE'S SALARY IN HIS CLASSIFICATION ACT JOB BE ADJUSTED RETROACTIVELY TO THE DATE OF TRANSFER TO THE MARITIME ADMINISTRATION AND HIS SALARY FIXED AT THE HIGHER RATE OF GRADE GS-7, $4930 PER ANNUM, WHICH WOULD TAKE INTO CONSIDERATION THE HIGHEST PREVIOUS RATE OF $2.36 PER HOUR?

2.MAY THE EMPLOYEE'S RATE OF PAY IN GRADE GS-7 BE ADJUSTED AS OF A CURRENT DATE OR THE DATE OF ENACTMENT OF PUBLIC LAW 58, 85TH CONGRESS, WHICH APPROPRIATED FUNDS FOR THE RETROACTIVE INCREASE, IN VIEW OF THE CIRCUMSTANCES STATED ABOVE?

THE LETTER STATES THAT WHILE THE DEPARTMENT HAS NO POLICY CONCERNING THE FIXING OF SALARY UNDER THE ABOVE REGULATIONS--- SUCH CASES BEING CONSIDERED ON AN INDIVIDUAL BASIS--- THE RATE OF COMPENSATION USUALLY IS FIXED AT A RATE ABOVE THE ENTRANCE RATE OF THE GRADE WHEN SUCH IS POSSIBLE AFTER TAKING INTO CONSIDERATION THE HIGHEST PREVIOUS RATE; ALSO, THAT IT WAS THE INTENTION TO FIX THIS EMPLOYEE'S RATE OF PAY AT A STEP RATE WITHIN GRADE GS-7 WHICH WOULD NOT RESULT IN A LOSS OF PAY. THE RATE OF $2.36 PER HOUR AMOUNTS TO A PER ANNUM RATE OF $4,908.80 AND IF THE RETROACTIVE ADJUSTMENT IS AUTHORIZED IT WOULD RESULT IN THE EMPLOYEE BEING PLACED IN THE 4TH STEP OF GRADE GS-7 AT A SALARY RATE OF $4,930 PER ANNUM AS OF DECEMBER 31, 1956.

WE HAVE PERMITTED RETROACTIVE ADJUSTMENTS OF SALARY RATES IN CERTAIN CASES WHERE BONA FIDE ERRORS HAVE OCCURRED IN NOT CARRYING OUT ADMINISTRATIVE POLICY OR IN COMPLYING WITH ADMINISTRATIVE REGULATIONS. SEE 31 COMP. GEN. 15; 34 COMP. GEN. 380. HERE, IT IS CONCEDED THERE WAS NO ADMINISTRATIVE POLICY TO TRANSFER OR APPOINT EMPLOYEES AT THE HIGHEST PREVIOUS SALARY ATTAINED IN THE FEDERAL SERVICE, EVEN THOUGH IT MAY HAVE BEEN THE PRACTICE TO DO SO IN MANY CASES.

THEREFORE, SINCE THE FIXING OF THE EMPLOYEE'S SALARY WAS PROPER AT THE TIME AND NO ADMINISTRATIVE ERROR OCCURRED IN THE MANNER INDICATED ABOVE WE CONCLUDE THAT NEITHER A RETROACTIVE NOR A PROSPECTIVE ADJUSTMENT OF THE SALARY RATE IS AUTHORIZED. SPECIFICALLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE. SEE, GENERALLY, 27 COMP. GEN. 550; 32 ID.463; 35 ID. 262.