B-36834, SEPTEMBER 18, 1943, 23 COMP. GEN. 201

B-36834, SEPTEMBER 18, 1943, 23 COMP. GEN. 201

COMPENSATION - INITIAL SALARY RATES - RETRANSFER TO FORMER POSITION AFTER PROMOTION TO FILL VACANCY CREATED BY ANOTHER EMPLOYEE'S ENTRANCE IN MILITARY, ETC., SERVICE IN FIXING UNDER THE CLASSIFICATION ACT THE INITIAL SALARY RATE OF AN EMPLOYEE WHO, AFTER PROMOTION OR REASSIGNMENT TO A HIGHER GRADE FOR AN INDEFINITE PERIOD TO FILL A VACANCY CAUSED BY ANOTHER EMPLOYEE'S ENTRANCE INTO THE ACTIVE MILITARY SERVICE, WAS REDUCED TO HIS FORMER GRADE UPON RETURN OF THE EMPLOYEE FROM THE SERVICE, THE RATE MAY BE (1) THE SAME AS THAT OF THE HIGHER GRADE TO WHICH PROMOTED OR REASSIGNED (INCLUDING ANY PERIODIC OR MERITORIOUS SALARY ADVANCEMENT) PROVIDED THE SALARY RATE OF THAT GRADE IS ALSO A STANDARD RATE IN THE GRADE TO WHICH REDUCED, OR (2) WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PRESCRIBED FOR THE GRADE TO WHICH REDUCED. 21 COMP. GEN. 436, DISTINGUISHED.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, SEPTEMBER 18, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 2, 1943, AS FOLLOWS:

IN ACCORDANCE WITH YOUR DECISION OF SEPTEMBER 20, 1940, (20 COMP. GEN. 167) THE DEPARTMENT HAS EXERCISED THE ADMINISTRATIVE DISCRETION OUTLINED THEREIN BY ADOPTING THE POLICY OF GRANTING MILITARY FURLOUGH STATUS TO CIVILIAN EMPLOYEES WHO ENTER ON ACTIVE MILITARY, NAVAL, OR MERCHANT MARINE DUTY. SINCE SUCH EMPLOYEES REMAIN, TECHNICALLY, INCUMBENTS IN THEIR ORIGINAL POSITIONS, IT HAS BECOME NECESSARY TO CREATE ADDITIONAL IDENTICAL POSITIONS FOR REPLACEMENTS AND TO FILL THEM ON AN INDEFINITE BASIS, THAT IS, FOR THE DURATION OF THE FURLOUGHED EMPLOYEE'S MILITARY OR NAVAL SERVICE. IN A SUBSTANTIAL NUMBER OF CASES THESE REPLACEMENTS ARE MADE BY PROMOTION OR REASSIGNMENT OF EMPLOYEES ALREADY IN THE SERVICE. YOUR ASSISTANCE IS REQUESTED IN SOLVING A PROBLEM WHICH HAS ARISEN IN CONNECTION WITH THE PROCEDURE TO BE FOLLOWED WHEN THESE LATTER EMPLOYEES ARE THEMSELVES CALLED INTO THE ARMED FORCES.

THE DEPARTMENT'S REGULATIONS ON THIS POINT PROVIDE AS FOLLOWS (PARAGRAPH 4-4, CIVILIAN PERSONNEL REGULATION 55):

"SHOULD AN EMPLOYEE, WHO HAS BEEN GIVEN AN INDEFINITE REASSIGNMENT TO A POSITION, SUBJECT TO THE RETURN OF A FURLOUGHED EMPLOYEE, ALSO BE CALLED TO ACTIVE DUTY, THE DEPARTMENT'S POLICY WILL BE TO RETURN THE EMPLOYEE TO HIS FORMER REGULAR POSITION AND FURLOUGH HIM FOR THE DURATION OF HIS MILITARY OR NAVAL SERVICE.'

IN ORDER TO ELIMINATE CONFUSION AND EXCEPTIONS TO ACCOUNT WHEN SUCH EMPLOYEES RETURN TO THEIR CIVILIAN POSITIONS, THE DEPARTMENT WISHES TO AMPLIFY THE ABOVE-QUOTED STATEMENT BY PRESCRIBING THE RATE OF PAY WHICH MAY PROPERLY BE PAID AFTER REDUCTION TO A LOWER GRADE PERMANENT POSITION.

YOUR DECISION IN 9 COMP. GEN. 193 STATES THAT DOWNWARD REALLOCATION OF A POSITION REQUIRES SALARY REDUCTION ONLY TO THE EXTENT NECESSARY TO BRING THE INCUMBENT'S RATE OF COMPENSATION TO ONE OF THE STEPS WITHIN THE SALARY RANGE OF THE GRADE TO WHICH THE POSITION IS ALLOCATED. IT IS RECOGNIZED THAT THIS DECISION IS NOT DIRECTLY IN POINT SINCE THE CURRENT PROBLEM CONCERNS DEMOTION FROM TEMPORARY OR INDEFINITE STATUS AT A HIGHER GRADE. HOWEVER, THE ABOVE-CITED DECISION HAS SERVED AS THE BASIS FOR A GENERAL RULE IN ADMINISTERING THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THERE IS NO SUBSEQUENT DECISION PERTAINING TO THAT ACT WHICH CLARIFIES THE PRESENT PROBLEM.

TWO OTHER DECISIONS OF YOUR OFFICE GIVE AN INDICATION OF POSSIBLE SOLUTION TO THE PRESENT PROBLEM, ALTHOUGH THE CLASSIFICATION ACT OF 1923, AS AMENDED, WAS NOT INVOLVED IN EITHER CASE. IN CONNECTION WITH THE DISTRICT OF COLUMBIA TEACHERS SALARY ACT, APPROVED JUNE 4, 1942, (43 STAT. 367-375) IT WAS HELD THAT A TEACHER HOLDING A PERMANENT POSITION WHO IS PROMOTED TEMPORARILY TO FILL A VACANCY AND RETURNED TO HIS RIGHTFUL POSITION AT THE END OF THE TEMPORARY ASSIGNMENT IS ENTITLED TO RECEIVE ONLY THE BASE RATE OF THE GRADE TO WHICH DEMOTED AND MAY NOT RECEIVE THE HIGHER SALARY RATE EVEN THOUGH IT REPRESENTS ONE OF THE STEPS OF HIS PERMANENT GRADE. (21 COMP. GEN. 436). IF THE RULE OF THAT CASE WERE HELD APPLICABLE TO SIMILAR SITUATIONS ARISING UNDER THE CLASSIFICATION ACT, IT WOULD APPEAR THAT NO COURSE IS OPEN EXCEPT REDUCTION TO THE MINIMUM RATE OF THE LOWER GRADE OR TO SUCH INTERMEDIATE RATE AS MAY HAVE BEEN PAID TO THE EMPLOYEE PRIOR TO HIS TEMPORARY PROMOTION. IN 21 COMP. GEN. 386, HOWEVER, IT WAS INDICATED THAT EMPLOYEES OF THE CENSUS BUREAU MIGHT RECEIVE CREDIT TOWARD WITHIN GRADE SALARY ADVANCEMENT FOR TEMPORARY SERVICE IN UNCLASSIFIED POSITIONS AT A HIGHER RATE OF PAY ALTHOUGH THEY WERE NOT PERMITTED TO RETAIN THE HIGHER UNCLASSIFIED RATE UPON RETRANSFER TO THE PERMANENT ROLL. IF THIS RULE WERE EXTENDED TO TEMPORARY SERVICE IN CLASSIFIED POSITIONS UNDER CONDITIONS DESCRIBED ABOVE, EMPLOYEES REDUCED IN GRADE PRIOR TO FURLOUGH OR UPON RETURN OF THE ORIGINAL INCUMBENT WOULD NOT BE CONSIDERED TO HAVE RECEIVED "AN EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941 (55 STAT. 613) AND WOULD THEREFORE BE ENTITLED TO CREDIT TOWARD WITHIN GRADE SALARY ADVANCEMENT FOR TIME SERVED IN THE HIGHER GRADE.

IN THE LIGHT OF THE ABOVE FACTS AND PRIOR DECISIONS, YOUR DECISION ON THE FOLLOWING POINTS IS RESPECTFULLY REQUESTED:

A. UNDER THE CIRCUMSTANCES OUTLINED ABOVE, MAY AN EMPLOYEE WHO IS REDUCED IN GRADE AFTER PROMOTION DURING THE MILITARY FURLOUGH STATUS OF ANOTHER EMPLOYEE BE PERMITTED TO RETAIN THE SALARY OF THE HIGHER POSITION PROVIDED THAT IT REPRESENTS ONE OF THE SALARY STEPS OF THE LOWER GRADE?

B. MUST HE BE REDUCED TO THE MINIMUM OF HIS PERMANENT GRADE, OR TO THE SALARY RATE HELD PRIOR TO PROMOTION?

C. IF QUESTION A IS ANSWERED IN THE NEGATIVE, MAY THE PERIOD SPENT IN THE HIGHER GRADE BE CREDITED TOWARD WITHIN GRADE SALARY INCREASE IN THE LOWER GRADE?

D. WOULD ANSWERS TO THE ABOVE QUESTIONS BE APPLICABLE TO ALL CASES OF TEMPORARY PROMOTION OR REASSIGNMENT, OR ARE THE PRINCIPLES LIMITED IN EFFECT TO REDUCTIONS PRIOR TO FURLOUGH FOR MILITARY SERVICE?

NO PAYROLL VOUCHERS ACCOMPANY THIS LETTER, BUT YOU ARE ADVISED THAT THE DEPARTMENT HAS MANY THOUSANDS OF EMPLOYEES IN MILITARY FURLOUGH STATUS. NUMBER OF THE EMPLOYEES HAVE BEEN DISCHARGED FROM MILITARY OR NAVAL SERVICE AND ARE RETURNING TO CIVILIAN EMPLOYMENT. THE QUESTIONS PRESENTED ABOVE HAVE BEEN ENCOUNTERED AND THE NUMBER OF CASES WILL INCREASE AS REEMPLOYMENT OF VETERANS INCREASES. AS A MATTER OF ORDERLY ADMINISTRATION, THEREFORE, YOUR DECISION IN THE MATTER IS REQUESTED.

THE PROMOTION OR REASSIGNMENT OF EMPLOYEES ALREADY IN THE SERVICE TO FILL VACANCIES CAUSED BY OTHER EMPLOYEES ENTERING THE ACTIVE MILITARY OR NAVAL SERVICE MAY BE FOR A SHORT, LONG OR INDEFINITE PERIOD. IN VIEW OF SUCH UNCERTAINTIES, AND AS IT IS UNDERSTOOD THAT ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT DO NOT FURLOUGH EMPLOYEES WITHOUT PAY WHEN THEY ENTER THE ACTIVE MILITARY OR NAVAL SERVICE--- SOME AGENCIES SEPARATING THE EMPLOYEES IN SUCH CASES--- THERE IS PERCEIVED NO SOUND REASON WHY SUCH PROMOTIONS OR REASSIGNMENTS MAY NOT BE REGARDED AS BEING UPON THE SAME BASIS AS ANY OTHER PROMOTION OR REASSIGNMENT INVOLVING A GRADE CHANGE FOR THE PURPOSE OF FIXING THE INITIAL SALARY RATES IN THE GRADES TO WHICH SUCH EMPLOYEES ARE RETURNED UPON TERMINATION OF SUCH SERVICES AT THE TIME THE OTHER EMPLOYEES RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE. THAT IS TO SAY, THE GENERAL RULE STATED IN THE DECISIONS OF THIS OFFICE FOR FIXING INITIAL SALARY RATES OF EMPLOYEES UPON DEMOTIONS FROM ONE GRADE TO ANOTHER --- OTHER THAN FOR DISCIPLINARY REASONS--- ARE APPLICABLE IN THE SITUATIONS PRESENTED.

TRANSFERS, PROMOTIONS, AND DEMOTIONS ARE NOT REGARDED AS NEW APPOINTMENTS SUCH AS ARE REQUIRED TO BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE. 20 COMP. GEN. 626; 22 ID. 925. THE GENERAL RULE FOR DETERMINING THE SALARY RATE INITIALLY APPLICABLE WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR DEMOTED BETWEEN CLASSIFICATION ACT POSITIONS IS THAT THE EMPLOYEE MAY BE PAID INITIALLY IN THE GRADE TO WHICH TRANSFERRED, PROMOTED, OR DEMOTED, (A) WITHOUT LOSS OF SALARY RATE PAID THE EMPLOYEE IN HIS FORMER POSITION, INCLUDING ANY PERIODIC OR MERITORIOUS SALARY ADVANCEMENT, PROVIDING HIS FORMER SALARY RATE, ALSO, IS A STANDARD RATE IN THE NEW GRADE, OR (B) WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PRESCRIBED FOR THE GRADE TO WHICH TRANSFERRED, PROMOTED, OR REDUCED. SEE 20 COMP. GEN. 579; 21 ID. 791, 796; 22 ID. 489, AND THE DECISIONS THEREIN CITED.

HENCE, THE RULE STATED IN THE DECISION OF NOVEMBER 8, 1941, 21 COMP. GEN. 436, INVOLVING THE CASE OF A TEACHER OF THE DISTRICT OF COLUMBIA, GIVEN A TEMPORARY ASSIGNMENT TO A HIGHER GRADE, TO WHICH YOU REFER, IS NOT REGARDED AS APPLICABLE HERE--- THE RULING IN THAT CASE HAVING BEEN NECESSITATED BY THE PROVISIONS OF THE DISTRICT OF COLUMBIA TEACHERS SALARY ACT, APPROVED JUNE 4, 1924, 43 STAT. 367. THE DECISION OF OCTOBER 28, 1941, 21 COMP. GEN. 386, INVOLVING CENSUS EMPLOYEES, TO WHICH YOU REFER, WAS MODIFIED BY THE DECISION OF JUNE 11, 1943, (B 21205), 22 COMP. GEN. 1092, SO AS TO APPLY THE GENERAL RULES TO THE SITUATION THERE PRESENTED, THE DECISION HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE SALARY RATE OF NONCLASSIFIED TEMPORARY CENSUS EMPLOYEES RESTORED BY RETRANSFER UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 18, 1929, TO THEIR FORMER CLASSIFIED POSITIONS ON THE CENSUS BUREAU PERMANENT ROLL MAY BE FIXED INITIALLY, UPON RETRANSFER, AT ANY RATE WITHIN THEIR RESPECTIVE CLASSIFIED GRADES NOT TO EXCEED THE RATE PREVIOUSLY PAID IN THEIR UNCLASSIFIED POSITIONS. 21 COMP. GEN. 386, MODIFIED.

WHERE THE PERMANENT CLASSIFIED POSITION, FROM WHICH A CENSUS EMPLOYEE WAS TRANSFERRED UNDER SECTION 3 OF THE ACT OF JUNE 18, 1929, TO A TEMPORARY UNCLASSIFIED POSITION DURING THE DECENNIAL CENSUS PERIOD, HAS BEEN REALLOCATED PRIOR TO RETRANSFER, PURSUANT TO SAID SECTION, OF THE EMPLOYEE TO HIS FORMER PERMANENT POSITION, THE EMPLOYEE'S SALARY RATE MAY BE FIXED INITIALLY, UPON RETRANSFER, AT ANY RATE WITHIN THE GRADE AS REALLOCATED, NOT TO EXCEED THE RATE PREVIOUSLY PAID IN THE UNCLASSIFIED POSITION.

ACCORDINGLY, IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, QUESTION A IS ANSWERED IN THE AFFIRMATIVE, AND QUESTION B IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION C. QUESTION D IS STATED TOO BROADLY TO PERMIT OF A SPECIFIC ANSWER.

THE RULE STATED HEREIN IS TO BE REGARDED AS LIMITED TO THE CLASS OF EMPLOYEES REPRESENTED BY THE CASE PRESENTED IN THE FIRST PARAGRAPH OF YOUR LETTER.