B-9273, APRIL 8, 1940, 19 COMP. GEN. 845

B-9273, APRIL 8, 1940, 19 COMP. GEN. 845

COMPENSATION - TRANSFERS - UNCLASSIFIED TO CLASSIFIED POSITIONS RULE 4, SECTION 6, OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, AUTHORIZING INITIAL ADJUSTMENTS OF SALARY RATES, AT THE TIME THE ACT WENT INTO EFFECT, BY MAKING INCREASES TO RATES NEXT ABOVE THE UNCLASSIFIED RATES BEING PAID, IS NOT FOR APPLICATION AT THE PRESENT TIME IN FIXING INITIAL SALARY RATES UPON TRANSFER OR REAPPOINTMENT OF EMPLOYEES FROM UNCLASSIFIED TO CLASSIFIED POSITIONS. WHERE AN EMPLOYEE'S SALARY RATE IN AN UNCLASSIFIED POSITION IS NOT ONE OF THE ESTABLISHED RATES FOR A CLASSIFIED POSITION TO WHICH HE IS TRANSFERRED, HIS INITIAL SALARY RATE IN THE CLASSIFIED POSITION SHOULD NOT EXCEED THE ESTABLISHED RATE NEXT BELOW THE RATE PAID BEFORE THE TRANSFER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, APRIL 8, 1940:

I HAVE YOUR LETTER OF MARCH 23, 1940, AS FOLLOWS:

EFFECTIVE JANUARY 13, 1940, MR. FRANK M. O-HEARN WAS APPOINTED IN THE DEPARTMENT OF THE INTERIOR UNDER CIVILIAN CONSERVATION CORPS FUNDS AS A FOREMAN AT $2,040 PER ANNUM IN FIELD CLASSIFICATION GRADE 8, THE SALARY RANGE OF WHICH IS FROM $1,860 TO $2,300, AND IS THE EQUIVALENT OF GRADE CU -7 OF THE CLASSIFICATION ACT. MR. O-HEARN, IMMEDIATELY PRECEDING HIS ENTRANCE ON DUTY IN THIS DEPARTMENT, WAS EMPLOYED BY THE WORK PROJECTS ADMINISTRATION AS A PROJECT FOREMAN AT A RATE EQUIVALENT TO $2,000 PER ANNUM. HIS EMPLOYMENT IN THAT CAPACITY TERMINATED AT THE CLOSE OF JANUARY 12, AND HIS ENTRANCE ON DUTY IN THIS DEPARTMENT WAS CONSIDERED AS A TRANSFER. HIS EMPLOYMENT IN W.P.A. WAS NOT SUBJECT TO CLASSIFICATION PROCEDURES, AND A SALARY GRADE WAS NOT ASSIGNED TO HIS POSITION.

THE SERVICES OF MR. O-HEARN WERE SOUGHT BY THE DEPARTMENT OF THE INTERIOR, AND THE CONCURRENCE OF THE W.P.A. TO HIS TRANSFER WAS OBTAINED PRIOR TO THE DATE OF HIS ENTRANCE ON DUTY IN THIS DEPARTMENT, AS EVIDENCED BY A TELEGRAM OF DECEMBER 26 FROM THE NEW YORK STATE W.P.A. ADMINISTRATOR, LESTER W. HERZOG, WHICH READS: "XREURTEL THIS ADMINISTRATION AGREEABLE TO TRANSFER OF FRANK O-HEARN.' THE INQUIRY FROM THE DEPARTMENT REGARDING THE DESIRED TRANSFER CONTAINED THE RATE PROPOSED TO BE PAID TO MR. O-HEARN AS IT WAS FELT THAT IN FAIRNESS TO HIM HE SHOULD SUFFER NO SALARY LOSS BY REASON OF HIS TRANSFER, PARTICULARLY SINCE THE RATE OF $2,040 PER ANNUM WAS CONSIDERED THE PROPER MEASURE OF COMPENSATION FOR THE DUTIES HE WAS TO PERFORM.

THIS DEPARTMENT HAS FOLLOWED THE PRACTICE IN CLASSIFYING POSITIONS OF USING CLASSIFICATION ACT GRADES WITH ONLY A RELATIVELY FEW EXCEPTIONS. CIVILIAN CONSERVATION CORPS PERSONNEL SUBJECT TO CLASSIFICATION AT THE PRESENT TIME ARE ALL CLASSIFIED IN CLASSIFICATION ACT GRADES. IN APPLYING THE PRINCIPLES OF THE ACT THE RULES OF THE ACT HAVE BEEN FOLLOWED, ONE OF WHICH IS PARAGRAPH 4 OF SECTION 6, WHICH READS: "IF THE EMPLOYEE IS RECEIVING COMPENSATION WITHIN THE RANGE OF SALARY PRESCRIBED FOR THE APPROPRIATE GRADE, BUT NOT AT ONE OF THE RATES FIXED THEREIN, THE COMPENSATION SHALL BE INCREASED TO THE NEXT HIGHER RATE.' IN FIXING THE RATE FOR MR. O HEARN'S POSITION THIS PRINCIPLE OF THE ACT WAS FOLLOWED.

IT HAS BEEN SUGGESTED THAT THE PROPER RATE OF PAY FOR MR. O-HEARN SHOULD HAVE BEEN $1,980, WHICH IS ONE OF THE RATES OF THE GRADE TO WHICH HIS POSITION HAS BEEN ALLOCATED. HOWEVER, THE DEPARTMENT FELT THAT IN A PROPER APPLICATION OF CLASSIFICATION ACT PRINCIPLES AND RULES IT WAS MANDATORY THAT THE TRANSFER BE MADE AT THE RATE OF $2,040 PER ANNUM IN ACCORDANCE WITH PARAGRAPH 4 OF SECTION 6 OF THE CLASSIFICATION ACT.

THE ABOVE IS BEING BROUGHT TO YOUR ATTENTION AND AN EARLY RULING REQUESTED FOR THE REASON THAT THE SALARY RATE OF $2,040 PER ANNUM HAS BEEN QUESTIONED BY THE FINANCE OFFICER WHO IS WITHHOLDING FULL PAYMENT OF SALARY TO MR. O-HEARN AT THAT RATE.

IN DECISION OF FEBRUARY 28, 1940, B-8618, 19 COMP. GEN. 763, THERE WERE CONSIDERED TWO CASES, ONE OF WHICH WAS THAT OF AN EMPLOYEE TRANSFERRED FROM THE POSITION OF SUBSTITUTE GARAGEMAN-DRIVER IN THE POSTAL SERVICE WITH A SALARY RATE EQUIVALENT TO $1,346.40 PER ANNUM, WHICH DOES NOT COINCIDE WITH A RATE PRESCRIBED BY THE CLASSIFICATION ACT, TO A CLASSIFIED POSITION IN GRADE CU-2 WITH THE SALARY RANGE FROM $1,080 TO $1,380 PER ANNUM. WITH RESPECT TO THAT CASE THE DECISION HELD THAT THE INITIAL SALARY RATE IN THE CLASSIFIED POSITION MUST BE $1,320 PER ANNUM, THE SALARY RATE NEXT LOWER IN THE GRADE THAN THE RATE RECEIVED IN THE UNCLASSIFIED POSITION, SAID DECISION STATING IN PERTINENT PART, AS FOLLOWS:

* * * IT HAS BEEN HELD IN EFFECT THAT A TRANSFER FROM A POSITION WHICH HAS NOT BEEN CLASSIFIED UNDER THE CLASSIFICATION ACT OF 1923 TO A POSITION WHICH FALLS WITHIN THE PURVIEW OF THE ACT IS NOT TO BE REGARDED AS A NEW APPOINTMENT REQUIRING THE INITIAL SALARY RATE FOR THE POSITION TO WHICH TRANSFERRED TO BE FIXED AT THE MINIMUM RATE OF THE GRADE IN WHICH THE POSITION HAD BEEN ALLOCATED, BUT THAT ONE OF THE SALARY RATES ABOVE THE MINIMUM PRESCRIBED FOR THE GRADE, NOT TO EXCEED THE SALARY RATE PAID IN THE UNCLASSIFIED POSITION PRIOR TO TRANSFER, MAY BE FIXED INITIALLY. COMP. GEN. 102; ID. 797; 16 ID. 994; 17 ID. 1061; 19 ID. 20. COMPARE 18 ID. 223.

RULE 4, UNDER SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT, 42 STAT. 1490, QUOTED IN YOUR LETTER, IS REGARDED AS BEING INTENDED FOR APPLICATION ONLY IN THE INITIAL ADJUSTMENT OF SALARY RATES AT THE TIME THE CLASSIFICATION ACT WENT INTO EFFECT, AND NOT FOR APPLICATION AT THE PRESENT TIME IN FIXING INITIAL SALARY RATES UPON TRANSFER OR REAPPOINTMENT OF EMPLOYEES FROM UNCLASSIFIED TO CLASSIFIED POSITIONS.

ON THE BASIS OF THE FACTS PRESENTED IN YOUR LETTER, THE RULE STATED IN THE DECISION OF FEBRUARY 28, 1940, APPEARS FOR APPLICATION HERE IN VIEW OF WHICH THE INITIAL SALARY RATE OF MR. O-HEARN SHOULD HAVE BEEN $1,980 PER ANNUM.