B-160843, MAR. 13, 1967

B-160843, MAR. 13, 1967

TO AUTHORIZED CERTIFYING OFFICER:

THIS IS IN REPLY TO YOUR UNDATED LETTER, WITH ENCLOSURES, RECEIVED IN OUR OFFICE ON FEBRUARY 8, 1967, REQUESTING A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A CLAIM FOR WAGE RETENTION IN THE CASE OF MARION E. AMES, A PREVAILING RATE EMPLOYEE OF THE MARITIME ADMINISTRATION AT THE OLYMPIA RESERVE FLEET.

IN YOUR LETTER YOU STATE THAT MR. AMES WAS DEMOTED ON JANUARY 3, 1965, FROM FLEET PATROLMAN-LAUNCH OPERATOR, WB-8 ($3.18 PER HOUR) TO FLEET WORKMAN, WB-6 ($2.94 PER HOUR) AND HE IS STILL EMPLOYED AS AWB 6. HIS SALARY HAS BEEN ADJUSTED SEVERAL TIMES UNTIL IT IS PRESENTLY $3.16 PER HOUR. THE APPOINTING OFFICER IN APPROVING THE DEMOTION ACTION ON JANUARY 3, 1965, FOLLOWED AND CONFORMED WITH THE THEN EXISTING DEPARTMENT OF COMMERCE REGULATIONS.

YOU REFER TO SECTION 5.05 3 (4) OF DEPARTMENT OF COMMERCE ADMINISTRATIVE ORDER NO. 202-550, DATED APRIL 25, 1963, WHICH PROVIDED IN EFFECT FOR WAGE RETENTION FOR TWO YEARS IF AN EMPLOYEE IS CHANGED TO A LOWER GRADE INVOLUNTARILY AND WITHOUT FAULT WHERE SUCH REDUCTION IS NOT BASED ON LACK OF FUNDS OR CURTAILMENT OF WORK (NOT PRESENT HERE).

YOU FURTHER STATE THAT OUR DECISION OF JUNE 17, 1963, B-151438, TO THE SECRETARY OF THE INTERIOR, SUBSEQUENTLY PUBLISHED AS 42 COMP. GEN. 697, WAS WIDELY INTERPRETED BY YOUR AGENCY AND OTHERS "AS PRECLUDING THE ADOPTION OR CONTINUANCE OF AN AGENCY POLICY TO PROVIDE WAGE RETENTION FOR WAGE BOARD EMPLOYEES UPON DEMOTION, IN THE ABSENCE OF SPECIAL STATUTORY AUTHORIZATION REFOR.' YOU ATTRIBUTE THE FOREGOING INTERPRETATION TO THE FOLLOWING LANGUAGE IN THE ABOVE DECISION:

"THE CASES REFERRED TO IN YOUR LETTER MUST BE DIFFERENTIATED IN THAT THEY PERTAIN SOLELY TO THE QUESTION OF WHETHER RATES OF COMPENSATION MAY LAWFULLY BE SAVED TO WAGE BOARD EMPLOYEES WHEN THEY ARE REDUCED TO LOWER GRADE WAGE BOARD POSITIONS.

"WE ARE AWARE OF NO STATUTE OF GENERAL APPLICATION TO WAGE BOARD EMPLOYEES SIMILAR TO SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, AS AMENDED BY SECTION 605 OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, PUBLIC LAW 87-793, APPROVED OCTOBER 11, 1962, 76 STAT. 848, WHICH PROVIDES SALARY RETENTION TO CLASSIFICATION ACT EMPLOYEES REDUCED IN GRADE. IT IS TRUE THAT SEVERAL BILLS HAVE BEEN INTRODUCED TO PROVIDE COMPENSATION RETENTION TO WAGE BOARD EMPLOYEES REDUCED TO LOWER GRADE POSITIONS--- SEE H.R. 3293, 87TH CONG.; H.R. 6300, H.R. 6313 AND H.R. 821, 86TH CONGRESS, AND EARLIER VERSIONS--- BUT NONE HAS BEEN ENACTED INTO LAW.

"WE ARE NOT EMPOWERED UNDER EXISTING LAW TO WAIVE RECOVERY OF OVERPAYMENTS, AND SINCE THE CONGRESS HAS FAILED TO PROVIDE WAGE RETENTION BENEFITS TO WAGE BOARD EMPLOYEES, WE CANNOT AUTHORIZE THE WAIVER OF RECOVERY IN THESE CASES.'

ON THE BASIS OF THE FOREGOING DECISION, SECTION 5.05 3 (4) OF ADMINISTRATIVE ORDER NO. 202-550 WAS REVISED ON OCTOBER 8, 1964, TO PROVIDE THAT THERE WOULD BE NO SALARY SAVINGS WHEN WAGE BOARD EMPLOYEES ARE REDUCED TO LOWER GRADE WAGE BOARD POSITIONS, CITING 42 COMP. GEN. 697.

SUBSEQUENTLY, UPON ISSUANCE OF OUR DECISION OF FEBRUARY 15, 1965, B 155939, PUBLISHED AS 44 COMP. GEN. 476, HOLDING THAT RATES OF COMPENSATION MAY BE SAVED WHEN WAGE BOARD EMPLOYEES ARE REDUCED TO LOWER GRADE POSITIONS, THE MARITIME ADMINISTRATION ON APRIL 14, 1965, REINSTATED ITS FORMER POLICY OF SAVING PAY TO THAT CLASS OF EMPLOYEES UPON REDUCTION IN GRADE.

YOU CONCLUDE BY STATING:

"D. DURING THE PERIOD INVOLVED, THE DEPARTMENT HAS AT NO TIME ADOPTED AN ADMINISTRATIVE POLICY ON ITS OWN VOLITION THAT WAGE RETENTION WOULD NOT BE GRANTED TO WAGE BOARD EMPLOYEES UPON DEMOTION. THE ONLY TIME AND CIRCUMSTANCE SINCE 1963 WHEN THE DEPARTMENT'S POLICY OF PROVIDING SUCH WAGE RETENTION HAS NOT BEEN IN EFFECT HAS BEEN THE PERIOD DURING WHICH IT WAS UNDERSTOOD FROM THE STATEMENTS IN 42 COMP. GEN. 697 THAT SUCH A POLICY WAS IN CONFLICT WITH THAT DECISION. THERE IS NO QUESTION BUT THAT HAD 42 COMP. GEN. 697 NOT CONTAINED THE LANGUAGE QUOTED ABOVE, THE DEPARTMENT WOULD NOT HAVE RESCINDED SECTION 5.05 3 (4) OF ADMINISTRATIVE ORDER 202- 555 DATED APRIL 25, 1963, AND THAT THAT SECTION WOULD HAVE CONTINUED IN EFFECT AND BEEN APPLICABLE TO THE MARITIME ADMINISTRATION EMPLOYEE WHO WAS DEMOTED ON JANUARY 3, 1965.'

ON THE BASIS OF THE FOREGOING YOU INQUIRE AS TO WHETHER IT IS PERMISSIBLE TO PAY MR. AMES THE DIFFERENCE BETWEEN THE SALARY RATE OF $3.18 PER HOUR AND THE RATES HE ACTUALLY RECEIVED FROM JANUARY 3, 1965, TO THE PRESENT.

IN OUR DECISION OF JUNE 17, 1963, 42 COMP. GEN. 697, WE DID NOT CATEGORICALLY INDICATE THAT THERE WOULD BE NO WAGE RETENTION BENEFITS FOR WAGE BOARD EMPLOYEES IN GENERAL UPON REDUCTION TO LOWER GRADE WAGE BOARD POSITIONS, BUT MERELY HELD THAT AS FAR AS THE EMPLOYEES IN QUESTION WERE CONCERNED THE BUREAU OF INDIAN AFFAIRS COULD NOT GRANT SAVED PAY IN THE ABSENCE OF A LAW OR REGULATION HAVING THE FORCE AND EFFECT OF LAW. THE QUESTION AS TO WHETHER IF THE BUREAU OF INDIAN AFFAIRS HAD HAD A REGULATION SAVING PAY UPON DEMOTION SUCH A REGULATION WOULD HAVE BEEN VALID WAS NOT INVOLVED. MOREOVER, IT WOULD SEEM THAT IN VIEW OF OUR PRIOR DECISIONS IN 34 COMP. GEN. 563 AND 42 ID. 231, A DOUBT SHOULD HAVE ARISEN AS TO WHETHER THE ADMINISTRATIVE INTERPRETATION OF THE DECISION OF JUNE 17, 1963, WAS CORRECT.

ALTHOUGH THAT PART OF THE REGULATIONS OF THE DEPARTMENT OF COMMERCE DATED APRIL 25, 1963, AUTHORIZING SAVED PAY FOR DEMOTED WAGE BOARD EMPLOYEES WAS DELETED ON OCTOBER 8, 1964, BECAUSE OF A MISINTERPRETATION OF OUR DECISION OF JUNE 17, 1963, SUPRA, AND NOT REINSTATED UNTIL APRIL 14, 1965, NEVERTHELESS, WE DO NOT BELIEVE THE REASON FOR SUCH CANCELLATION IS SUFFICIENT FOR US TO HOLD THAT THE DELETED OR REVISED PART OF THE REGULATIONS IS TO BE REGARDED AS REMAINING IN EFFECT FOR THE PERIOD OCTOBER 8, 1964, TO APRIL 14, 1965.

ACCORDINGLY, MR. AMES' CLAIM FOR SAVED PAY WHICH AROSE PRIOR TO APRIL 14, 1965, MAY NOT BE CERTIFIED FOR PAYMENT.