B-42317, JUNE 9, 1944, 23 COMP. GEN. 941

B-42317, JUNE 9, 1944, 23 COMP. GEN. 941

COMPENSATION - REDUCTION WITHIN GRADES AN EMPLOYEE WHO ACTUALLY HAS RECEIVED A WITHIN-GRADE SALARY ADVANCEMENT IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AFTER HAVING MET ALL OF THE TERMS AND CONDITIONS THEREOF WITH RESPECT TO EFFICIENCY, SERVICE AND CONDUCT, HAS A VESTED RIGHT TO THE INCREASED SALARY CONNECTED WITH SUCH ADVANCEMENT SO LONG AS HE REMAINS IN THE SAME POSITION, AND THERE IS NO AUTHORITY TO REDUCE HIS SALARY IN THE SAME GRADE AND POSITION--- AS DISTINGUISHED FROM A REDUCTION IN GRADE--- FOR DISCIPLINARY REASONS.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JUNE 9, 1944:

I HAVE YOUR LETTER OF MAY 27, 1944, AS FOLLOWS:

REFERENCE IS MADE TO THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200--- 77TH CONGRESS, WHICH PROVIDES FOR AUTOMATIC WITHIN GRADE INCREASES IN SALARY.

WHILE WE ARE COGNIZANT OF YOUR DECISION DATED OCTOBER 13, 1941, B 20841, AND YOUR DECISION DATED OCTOBER 27, 1941, B-20925, THESE DECISIONS DEAL WITH RESTORATIONS WHERE THERE HAS BEEN A REDUCTION FROM A HIGHER GRADE TO A LOWER GRADE.

A QUESTION HAS ARISEN WITH REGARD TO AN EMPLOYEE IN GRADE CAF-8 IN THE CUSTODIAL SERVICE WHO RECEIVED A WITHIN GRADE SALARY INCREASE TO $3,000 PER ANNUM ON JULY 1, 1943. EFFECTIVE OCTOBER 26, 1943, HE WAS REDUCED IN SALARY FOR DISCIPLINARY REASONS TO $2,900 PER ANNUM, WHICH IS THE FIRST STEP IN GRADE CAF-8. IN VIEW OF THE CIRCUMSTANCES, IT WILL BE APPRECIATED IF YOU WILL ADVISE WHETHER RESTORATION TO $3,000 PER ANNUM MAY BE MADE AT ANY TIME THAT IT IS BELIEVED WARRANTED OR WHETHER HE CANNOT BE RESTORED IN COMPENSATION TO $3,000 PER ANNUM UNTIL JANUARY 1, 1945, WHICH IS THE BEGINNING OF THE QUARTER FOLLOWING EIGHTEEN MONTHS OF SERVICE FROM THE DATE OF HIS LAST INCREASE.

IF THE RESTORATION IN SALARY CAN BE MADE PRIOR TO JANUARY 1, 1945, WILL THE NEW EIGHTEEN MONTH PERIOD THEN BEGIN FROM THE DATE OF RESTORATION OR FROM JULY 1, 1943, THE DATE HE ORIGINALLY RECEIVED $3,000 PER ANNUM?

ASSUMING THAT THE EMPLOYEE IN QUESTION MET ALL THE REQUIREMENTS OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, HE ATTAINED EFFECTIVE JULY 1, 1943, A STATUTORY SALARY OF $3,000 PER ANNUM--- THE SECOND SALARY RATE OF GRADE CAF-8--- WHICH WITHIN-GRADE PROMOTION WAS CONDITIONED UPON THE FACTORS OF EFFICIENCY, SERVICE, AND CONDUCT OVER THE 18 MONTHS PRECEDING THAT DATE. 21 COMP. GEN. 285, 369, 722. THE EMPLOYEE HAS A VESTED RIGHT TO $3,000 PER ANNUM SO LONG AS HE REMAINS IN THE SAME POSITION. 21 COMP. GEN. 791. HENCE, IF, AS IS UNDERSTOOD, THE SERVICE AND CONDUCT OF THE EMPLOYEE ON THE BASIS OF WHICH HE WAS REDUCED IN THE SAME GRADE AND POSITION WAS OVER A PERIOD AFTER JULY 1, 1943, THERE WAS NO AUTHORITY IN THE ADMINISTRATIVE OFFICE, FOR DISCIPLINARY REASONS, TO REDUCE HIS SALARY TO $2,900 PER ANNUM --- THE MINIMUM RATE OF GRADE CAF 8. WHILE THIS OFFICE HELD IN DECISION OF OCTOBER 13, 1941, 21 COMP. GEN. 326, CITED BY YOU, THAT AN ADMINISTRATIVE OFFICE HAS AUTHORITY TO WITHHOLD AN AUTOMATIC PROMOTION BECAUSE OF UNSATISFACTORY SERVICE AND CONDUCT DURING THE PERIOD FORMING THE BASIS UPON WHICH THE AUTOMATIC PROMOTION OTHERWISE WOULD HAVE BEEN BASED, THAT IS NOT THE SITUATION HERE PRESENTED. IT MUST BE BORNE IN MIND THAT AFTER AN EMPLOYEE ACTUALLY HAS RECEIVED AN AUTOMATIC PROMOTION OR WITHIN-GRADE SALARY ADVANCEMENT UPON HIS HAVING MET ALL OF THE TERMS AND CONDITIONS OF THE CLASSIFICATION ACT, AS AMENDED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, THERE IS NO AUTHORITY TO TAKE AWAY SUCH ADVANCEMENT FOR DISCIPLINARY REASONS BASED UPON MISCONDUCT OCCURRING WITHIN A SUBSEQUENT PERIOD--- AS APPARENTLY WAS DONE IN THE CASE PRESENTED. COURSE, AN EMPLOYEE WHO OCCUPIES A PERMANENT POSITION UNDER THE CLASSIFICATION ACT MAY BE REDUCED IN GRADE, THAT IS, TO ANOTHER POSITION, FOR DISCIPLINARY REASONS, BUT HIS STATUTORY SALARY RATE IN THE SAME GRADE AND POSITION NOW MAY NOT BE REDUCED FOR DISCIPLINARY REASONS.

ACCORDINGLY, IF THE FACTS BE AS THUS UNDERSTOOD THE EMPLOYEE'S SALARY RATE SHOULD BE RESTORED TO $3,000 PER ANNUM EFFECTIVE OCTOBER 26, 1943.

OF COURSE, THE AUTOMATIC PROMOTION WHICH OTHERWISE WOULD BE DUE JANUARY 1, 1945, MAY BE WITHHELD IF THE ADMINISTRATIVE OFFICE CONCLUDES THAT THE EMPLOYEE'S SERVICE AND CONDUCT DURING ANY OF THE PERIOD JULY 1, 1943, THROUGH DECEMBER 31, 1944, WAS UNSATISFACTORY. 21 COMP. GEN. 326.