B-159181, MAY 26, 1966

B-159181: May 26, 1966

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IS ENTITLED TO A RETROACTIVE ADJUSTMENT IN COMPENSATION UNDER THE FOLLOWING FACTS AND CIRCUMSTANCES AS QUOTED FROM THE LETTER OF MAY 11. WAS MOVED ON FEBRUARY 4. HE WAS DETAILED TO A LABORER. HE WAS DEMOTED BY REDUCTION IN-FORCE TO LABORER. 1959 HE WAS PROMOTED TO LABORER. 1965 AT WHICH TIME HIS GOVERNMENT OPERATOR'S PERMIT WAS PICKED UP AND HE WAS ASSIGNED TO THE WB-3 LABORER DUTIES. HE WAS PROMOTED TO MEDIUM VEHICLE OPERATOR. (THIS TITLE AND GRADE UNDER THE CURRENT CLASSIFICATION SYSTEM IS EQUIVALENT TO THE FORMER WB 7 POSITION ALLOCATION.). THE WB-3 DESCRIPTION WAS CERTIFIED BY MANAGEMENT AS COMPLETE AND ACCURATE AT THE TIME OF PREPARATION ON OCTOBER 30. 1959 AND WAS SIMILARLY RECERTIFIED BY MANAGEMENT FOR EACH YEAR FY 1960 THROUGH FY 1965.

B-159181, MAY 26, 1966

TO THE SECRETARY OF THE AIR FORCE:

BY LETTER DATED MAY 11, 1966, YOUR ACTING SPECIAL ASSISTANT FOR MANPOWER, PERSONNEL AND RESERVE FORCES REQUESTED OUR DECISION WHETHER MR. WILLIAM C. BROOKS, AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, IS ENTITLED TO A RETROACTIVE ADJUSTMENT IN COMPENSATION UNDER THE FOLLOWING FACTS AND CIRCUMSTANCES AS QUOTED FROM THE LETTER OF MAY 11, 1966.

"AS A RESULT OF A REORGANIZATION, MR. WILLIAM C. BROOKS, A CAREER WAGE BOARD EMPLOYEE AT EGLIN AIR FORCE BASE, FLORIDA, WAS MOVED ON FEBRUARY 4, 1958 FROM THE POSITION OF TRUCK DRIVER (MEDIUM) WB-7 IN THE BUS SECTION TO A POSITION WITH THE SAME TITLE, SERIES, GRADE AND PAY IN THE 3201ST TRANSPORTATION SQUADRON. APPROXIMATELY FEBRUARY 15, 1958, PENDING OFFICIAL ASSIGNMENT, HE WAS DETAILED TO A LABORER, WB-2 POSITION IN THE 3201ST INSTALLATIONS GROUP. SHORTLY THEREAFTER HE BEGAN TO DRIVE A TRUCK. ON JUNE 29, 1958, HE WAS DEMOTED BY REDUCTION IN-FORCE TO LABORER, WB-2 IN THE 3201ST INSTALLATIONS GROUP, AND ON NOVEMBER 1, 1959 HE WAS PROMOTED TO LABORER, WB-3 IN THE SAME ORGANIZATION. HOWEVER, RATHER THAN PERFORMING THE DUTIES OF THE WB-2 OR WB-3 POSITIONS, HE CONTINUED TO DRIVE A TRUCK UNTIL JUNE 4, 1965 AT WHICH TIME HIS GOVERNMENT OPERATOR'S PERMIT WAS PICKED UP AND HE WAS ASSIGNED TO THE WB-3 LABORER DUTIES. THEREUPON THE EMPLOYEE FILED A GRIEVANCE ASKING FOR REPROMOTION AND RETROACTIVE PAY ADJUSTMENT. ON FEBRUARY 27, 1966, AS THE RESULT OF A DECISION ON HIS GRIEVANCE, HE WAS PROMOTED TO MEDIUM VEHICLE OPERATOR, W-06. (THIS TITLE AND GRADE UNDER THE CURRENT CLASSIFICATION SYSTEM IS EQUIVALENT TO THE FORMER WB 7 POSITION ALLOCATION.)

"FACTS ESTABLISHED AS A RESULT OF HIS GRIEVANCE SHOW THAT MR. BROOKS DROVE A TRUCK FROM FEBRUARY 1958 UNTIL JUNE 4, 1965 WITH MANAGEMENT'S KNOWLEDGE AND CONSENT UP TO 80 TO 90 PERCENT OF HIS TIME. MR. BROOKS' LABORER POSITION DESCRIPTIONS CLEARLY CONTEMPLATE NO REQUIREMENT FOR VEHICLE OPERATION. THE WB-3 DESCRIPTION WAS CERTIFIED BY MANAGEMENT AS COMPLETE AND ACCURATE AT THE TIME OF PREPARATION ON OCTOBER 30, 1959 AND WAS SIMILARLY RECERTIFIED BY MANAGEMENT FOR EACH YEAR FY 1960 THROUGH FY 1965. HAD THE DUTIES ACTUALLY PERFORMED BEEN DESCRIBED, THE POSITION WOULD HAVE BEEN ALLOCATED AS MEDIUM VEHICLE OPERATOR, W-06.'

THE ACTING SPECIAL ASSISTANT SUGGESTS THAT SINCE MR. BROOKS DID NOT PERFORM THE DUTIES OF LABORER, WB-2 AND WB-3, DURING THE PERIOD JUNE 29, 1958, THROUGH JUNE 4, 1965, BUT CONTINUED TO PERFORM THE DUTIES OF MEDIUM VEHICLE OPERATOR, WB-7, HE MAY BE ENTITLED TO A RETROACTIVE INCREASE IN SALARY FOR THE PERIOD INVOLVED UNDER THE AUTHORITY OF OUR DECISION OF AUGUST 29, 1950, 30 COMP. GEN. 94. IN THAT DECISION WE EXPRESSED THE GENERAL RULE THAT "* * * WHERE AN INCUMBENT OF A POSITION PERFORMS THE DUTIES THEREOF AND IS OTHERWISE QUALIFIED TO HOLD SUCH POSITION HE IS ENTITLED TO THE SALARY ESTABLISHED FOR THE POSITION, AND WHEN, THROUGH ADMINISTRATIVE ERROR, HE IS NOT PAID THE LAWFUL SALARY ATTACHING THERETO, A FUTURE PAYMENT OF AN AMOUNT TO CORRECT THE ERROR RETROACTIVELY IS NOT TO BE REGARDED AS A RETROACTIVE PROMOTION SUCH AS ORDINARILY IS PROHIBITED BY LAW. * * *"

IN THE PRESENT CASE, THERE IS NO QUESTION THAT THE EMPLOYEE DID RECEIVE THE LAWFUL SALARY ESTABLISHED FOR THE POSITIONS TO WHICH HE WAS APPOINTED (LABORER, WB-2 AND WB-3). THEREFORE, THIS CASE DOES NOT FALL WITHIN THE RULE QUOTED ABOVE.

THE PROBLEM HERE IS THAT THE EMPLOYEE, WHILE APPOINTED TO THE POSITIONS OF LABORER, WB-2 AND WB-3, DID NOT PERFORM THE DUTIES THEREOF, BUT INSTEAD, PERFORMED THE DUTIES OF A HIGHER POSITION. IN SUCH CASE, THERE IS FOR APPLICATION THE WELL-ESTABLISHED RULE THAT THE PERFORMANCE OF DUTIES OF A HIGHER CLASSIFICATION THAN THAT TO WHICH THE EMPLOYEE IS OFFICIALLY ASSIGNED DOES NOT, IN ITSELF, EFFECT A CHANGE IN CLASSIFICATION NOR DOES IT ENTITLE THE EMPLOYEE TO ADDITIONAL COMPENSATION FOR THE DUTIES PERFORMED. A FEDERAL EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE PROPERLY IS APPOINTED, REGARDLESS OF THE DUTIES AND RESPONSIBILITIES ASSIGNED TO HIM AND WHETHER THE APPOINTMENT TO SUCH POSITION RESULTS FROM ADMINISTRATIVE ERROR OR INADVERTENCE. SEE COLEMAN V. UNITED STATES, 100 CT.CL. 41; UNITED STATES V. MCLEAN, 95 U.S. 750; 15 COMP. GEN. 593; 6 ID. 133.

THEREFORE, MR. BROOKS IS NOT ENTITLED TO A RETROACTIVE ADJUSTMENT IN COMPENSATION FOR THE PERIOD PRIOR TO HIS PROMOTION ON FEBRUARY 27, 1966.

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    We dismiss the protest because the protester's allegations are untimely.
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