B-20841, OCTOBER 13, 1941, 21 COMP. GEN. 326

B-20841, OCTOBER 13, 1941, 21 COMP. GEN. 326

COMPENSATION - WITHIN-GRADE PROMOTIONS - ELIGIBILITY; ETC. A RESTORATION IN SALARY, DURING THE 30-MONTH PERIOD ANTEDATING OCTOBER 1, 1941, OF AN EMPLOYEE IN A GRADE WITH SALARY INCREMENTS OF $200, ALTHOUGH THE RESTORATION IS TO A RATE PAID PREVIOUS TO SUCH PERIOD, IS TO BE CONSIDERED AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN GRADE SALARY ADVANCEMENTS, AND THE DATE OF SUCH RESTORATION IS THE DATE FROM WHICH THE 30-MONTH PERIOD IS TO BE COMPUTED FOR PURPOSES OF DETERMINING WHEN THE EMPLOYEE IS ENTITLED TO AN INCREASE IN COMPENSATION UNDER THE ACT. EVEN THOUGH THE EFFECT OF AN EMPLOYEE'S ONE-STEP WITHIN-GRADE SALARY ADVANCEMENT ON OCTOBER 1, 1941, IS TO RESTORE THE SALARY RATE RECEIVED PRIOR TO A REDUCTION FOR DISCIPLINARY REASONS, THE RESTORATION IS TO BE REGARDED AS A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE TERMS AND CONDITIONS OF THE ACT OF AUGUST 1, 1941. WHERE AN EMPLOYEE HAS BEEN REDUCED IN SALARY FOR DISCIPLINARY REASONS BUT WHOSE EFFICIENCY RATING AND PERIOD OF SERVICE PRIOR TO OCTOBER 1, 1941, ARE SUCH AS NOT TO BAR A PROMOTION UNDER THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICERS, UNDER THE PROVISIONS OF SAID ACT, TO WITHHOLD FOR SUCH PERIOD AS IS DEEMED PROPER OR NECESSARY THE ADMINISTRATIVE CERTIFICATE AS TO "OTHERWISE SATISFACTORY CONDUCT" WHICH IS FIXED BY SAID ACT AS ONE OF THE CONDITIONS NECESSARY FOR A SALARY ADVANCEMENT THEREUNDER. WHERE A DEPARTMENTAL EMPLOYEE WAS DETAILED WITHOUT CHANGE IN COMPENSATION TO A POSITION IN THE FIELD SERVICE FOR A TRIAL PERIOD OF 6 MONTHS, AND PRIOR TO THE EXPIRATION OF 6 MONTHS THE EMPLOYEE HAS COMPLIED WITH ALL CONDITIONS NECESSARY FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, THE ADMINISTRATIVE POLICY OF NOT GRANTING SALARY INCREASES TO EMPLOYEES DURING SUCH TRIAL PERIOD MUST YIELD TO THE MANDATORY SALARY-ADVANCEMENT REQUIREMENTS OF THE ACT. AN EMPLOYEE WHO HAS BEEN GIVEN A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, WHILE STILL SERVING A "TRIAL PERIOD" IN A NEW POSITION, AND WHO FAILS TO MEET THE REQUIREMENTS OF SUCH NEW POSITION MAY BE TRANSFERRED TO DUTIES ALLOCATED IN A HIGHER OR LOWER GRADE, IN WHICH EVENT HIS INITIAL SALARY RATE WOULD BE CONTROLLED BY RULES STATED IN PRIOR DECISIONS OF THE COMPTROLLER GENERAL.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 13, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 29, 1941, AS FOLLOWS:

THE FOLLOWING QUESTIONS HAVE ARISEN IN CONNECTION WITH THE APPLICATION TO POST-OFFICE INSPECTORS OF THE ACT OF AUGUST 1, 1941 ( PUBLIC LAW 200, 77TH CONG.). POST-OFFICE INSPECTORS ARE COMPENSATED UNDER 39 U.S.C. 693A UNDER A CLASSIFICATION SYSTEM AND SALARY RATES PATTERNED AFTER THE CLASSIFICATION ACT OF 1923.

CASE NO. 1. THIS INSPECTOR WAS PROMOTED ON JANUARY 1, 1925, FROM $3,700 TO $4,000 PER ANNUM. HE WAS REDUCED ON APRIL 1, 1937, IN GRADE 5, FROM $4,000 TO $3,800 AND WAS RESTORED TO $4,000 ON APRIL 16, 1939. (A) IS HE ELIGIBLE FOR SALARY ADVANCE ON OCTOBER 1, 1941, ON THE THEORY THAT HIS LAST EQUIVALENT INCREASE WAS ON JANUARY 1, 1925; OR (B) WILL IT BE NECESSARY TO DEFER HIS ADVANCEMENT UNTIL JANUARY 1, 1942, ON THE THEORY THAT THE RESTORATION ON APRIL 16, 1939, WAS IN FACT AN EQUIVALENT SALARY INCREASE?

CASE NO. 2. THIS INSPECTOR WAS LAST ADVANCED FROM $3,800 TO $3,900 IN GRADE 4, DECEMBER 16, 1939. ON OCTOBER 16, 1940, HE WAS REDUCED TO $3,800 FOR DISCIPLINARY REASONS. HIS LAST EFFICIENCY RATING WOULD NOT BAR A PROMOTION UNDER THE ACT OF AUGUST 1, 1941, AND IF THE ANSWER TO (A) ABOVE IS IN THE AFFIRMATIVE, HE WILL BE ELIGIBLE FOR A ONE-STEP SALARY INCREASE OF $100 ON OCTOBER 1, 1941. IN SUCH CASES, HAS THE DEPARTMENT ANY DISCRETION TO WITHHOLD SUCH PROMOTION ON THE GROUND THAT IT WOULD NULLIFY THE DISCIPLINARY ACTION TAKEN? IF NOT, WOULD RESTORATION TO $3,900 BE CONSIDERED AS A PROMOTION UNDER THE ACT, OR WOULD THE DEPARTMENT BE OBLIGATED TO ADVANCE THIS INSPECTOR TO THE NEXT SALARY RATE ABOVE $3,900, WHICH WAS THE RATE TO WHICH HE WAS LAST PROMOTED.

CASE NO. 3. THIS INDIVIDUAL WAS ADVANCED IN THE DEPARTMENTAL SERVICE IN GRADE 7, CLERICAL, ADMINISTRATIVE, AND FISCAL SERVICE, FROM $2,700 TO $2,800 ON MARCH 1, 1940. HE WAS TRANSFERRED WITHOUT CHANGE OF COMPENSATION FROM THE DEPARTMENTAL SERVICE TO THE FIELD SERVICE IN GRADE 1 OF THE POST OFFICE INSPECTION SERVICE ON APRIL 15, 1941. APPOINTMENT TO THE POSITION OF POST-OFFICE INSPECTOR IS A TRANSFER WITHIN THE POSTAL ESTABLISHMENT. UNDER AN ORDER OF THE POSTMASTER GENERAL THE FIRST 6 MONTHS OF SERVICE AS POST-OFFICE INSPECTOR IS CONSIDERED A TRIAL PERIOD AND THE DEPARTMENT UNDERTAKES TO RESTORE THE APPOINTEE TO HIS FORMER POSITION OR A COMPARABLE ONE IF DURING THIS TRIAL PERIOD HE DOES NOT DEMONSTRATE SUFFICIENT APTITUDE. THIS TRIAL PERIOD IS NOT CONSIDERED A PROBATION WITHIN THE MEANING OF THE CIVIL SERVICE RULES. THE TRIAL PERIOD OF THIS INDIVIDUAL WILL EXPIRE OCTOBER 15, 1941. PREVIOUS TO THE ENACTMENT OF THE ACT OF AUGUST 1, 1941, IT HAS BEEN AN ADMINISTRATIVE PRACTICE OF THE DEPARTMENT NOT TO GRANT WITHIN-GRADE SALARY INCREASES DURING THE TRIAL PERIOD. IN VIEW OF THE ACT OF AUGUST 1, 1941, AND THE FACT THE TRIAL PERIOD IS NOT A PROBATION UNDER THE CIVIL-SERVICE RULES, IT APPEARS THAT IT WILL BE NECESSARY TO CONSIDER THE 18-MONTH INTERVAL AS RUNNING FROM MARCH 1, 1940, TO SEPTEMBER 1, 1941, NECESSITATING A ONE-STEP SALARY INCREMENT UNDER THE ACT OF AUGUST 1, 1941. IS THIS A NECESSARY CONCLUSION; IF NOT, A SECOND QUESTION ARISES. THE TRIAL PERIOD EXPIRES OCTOBER 15, 1941. IF THE TRIAL PERIOD IS COMPLETED SUCCESSFULLY, WILL IT BE POSSIBLE TO THEN GRANT THE $100 INCREASE REQUIRED BY THE ACT OF AUGUST 1, 1941, RETROACTIVELY TO OCTOBER 1, 1941?

TITLE 39, SECTION 693A, U.S. CODE, PROVIDES AS FOLLOWS:

THE POSTMASTER GENERAL IS AUTHORIZED AND DIRECTED TO ADJUST THE COMPENSATION OF POST-OFFICE INSPECTORS AND INSPECTORS IN CHARGE IN THE POST-OFFICE INSPECTION SERVICE TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED (5:661 TO 663, 664 TO 673, 674), FOR POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA. ANY APPROPRIATION NOW OR HEREAFTER AVAILABLE FOR THE PAYMENT OF THE COMPENSATION OF POST OFFICE INSPECTORS AND INSPECTORS IN CHARGE SHALL BE AVAILABLE FOR PAYMENT OF COMPENSATION IN ACCORDANCE WITH THE RATES ADJUSTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT (SECTION) ( AUG. 7, 1935, C. 450, 49 STAT. 538).

SECTION 2 OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, CONTAINS THE FOLLOWING PERTINENT PROVISIONS:

(B) ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT QUARTER, FOLLOWING THE COMPLETION OF: (1) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $60 OR $100, OR (2) EACH THIRTY MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR $250, SUBJECT TO THE FOLLOWING CONDITIONS:

(1) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION;

(E) EMPLOYEES ELIGIBLE UNDER SUBSECTION (B) FOR COMPENSATION ADVANCEMENT BY REASON OF SERVICE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS AMENDMENT SHALL BE ADVANCED TO THE NEXT HIGHER RATE OF COMPENSATION WITHIN THE GRADE TO WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED AT THE BEGINNING OF THE NEXT QUARTER IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS AMENDMENT.

(G) THE PRESIDENT IS HEREBY AUTHORIZED TO ISSUE SUCH REGULATIONS AS MAY BE NECESSARY FOR THE ADMINISTRATION OF THIS SECTION.

EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, ISSUED PURSUANT TO THE STATUTE, SUPRA, PROVIDES, IN PART, AS FOLLOWS:

SECTION 1. IN THE ADMINISTRATION OF THE SAID SECTION 7, THE FOLLOWING DEFINITIONS OF TERMS USED THEREIN SHALL APPLY:

(D) "EQUIVALENT INCREASE IN COMPENSATION" SHALL MEAN ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

IN DECISION OF OCTOBER 2, 1941, B-20500, 21 COMP. GEN. 285, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

IT APPEARS CLEAR FROM THE TERMS OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923 AS AMENDED BY SECTION 2 OF THE ACT HERE INVOLVED, AND FROM THE ABOVE- QUOTED PROVISION OF THE EXECUTIVE ORDER, THAT ELIGIBILITY FOR PROMOTION AS OF OCTOBER 1, 1941--- WHEN THE FIRST INCREASES UNDER THE ACT BECOME EFFECTIVE--- IS FOR DETERMINATION ON THE BASIS OF SERVICE RENDERED DURING THE LAST PRECEDING 18 OR 30 MONTHS, AS THE CASE MAY BE, AND THAT THE INCREASE SHALL BE ON THE BASIS OF THE RATE OF COMPENSATION APPLICABLE TO THE PARTICULAR GRADE IN WHICH THE EMPLOYEE IS SERVING AT THE TIME HE BECOMES ELIGIBLE FOR THE INCREASE. * * *

THE FACTS OF THE CASE PRESENTED ON WHICH THAT DECISION WAS BASED SHOWED AN INCREASE IN COMPENSATION, A REDUCTION IN COMPENSATION, AND A RESTORATION IN COMPENSATION TO THE RATE PREVIOUSLY PAID. THE DECISION HELD THAT THE RESTORATION IN SALARY WAS AN "EQUIVALENT INCREASE IN OMPENSATION" WITHIN THE MEANING OF THE STATUTE AND REGULATIONS AND THAT THE 18 MONTHS' PERIOD MUST BE COMPUTED FROM THE DATE OF THE RESTORATION IN COMPENSATION.

REFERRING TO CASE 1, THE BUDGET, 1942, PAGE 888, SHOWS THAT FIELD GRADE 5 OF POST-OFFICE INSPECTORS ADMINISTRATIVELY ADOPTED PURSUANT TO 39 U.S.C. 693A, CORRESPONDS TO CLASSIFICATION ACT GRADE CAF-11 WITH SALARY STEPS OF $200 EACH. ON THE BASIS OF THE RULES STATED IN THE DECISION OF OCTOBER 2, 1941, SUPRA, THE INCREASE OF COMPENSATION OF THE INSPECTOR ON JANUARY 1, 1925, MORE THAN 30 MONTHS PRIOR TO OCTOBER 1, 1941, MUST BE ELIMINATED ENTIRELY FROM CONSIDERATION. THE 30 MONTHS' PERIOD FOR CONSIDERATION UNDER THE ACT OF AUGUST 1, 1941, BEGAN TO RUN APRIL 16, 1939, THE DATE OF RESTORATION TO $4,000 PER ANNUM. IF OTHERWISE QUALIFIED AS TO EFFICIENCY AND SERVICE AND CONDUCT UNDER THE TERMS OF THE STATUTE AND REGULATIONS, THIS INSPECTOR WILL BE ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT ON JANUARY 1, 1942, THE BEGINNING OF THE NEXT QUARTER AFTER OCTOBER 15, 1941, THE EXPIRATION OF 30 MONTHS FROM APRIL 16, 1939.

REFERRING TO CASE 2, THE BUDGET, 1942, PAGE 888, SHOWS THAT FIELD GRADE 4 OF POST-OFFICE INSPECTORS ADMINISTRATIVELY ADOPTED PURSUANT TO 39 U.S.C. 693A, CORRESPONDS TO CLASSIFICATION ACT GRADE CAF-10 WITH SALARY STEPS OF $100 EACH. ON THE BASIS OF THE RULES STATED IN THE DECISION OF OCTOBER 2, 1941, SUPRA, THE 18 MONTHS' PERIOD FOR CONSIDERATION UNDER THE ACT OF AUGUST 1, 1941, RUNS FROM APRIL 1, 1940, TO OCTOBER 1, 1941. DURING THAT PERIOD THE INSPECTOR RECEIVED NO INCREASE IN COMPENSATION. ACCORDINGLY, SO FAR AS THE PERIOD OF TIME IS CONCERNED, HE WOULD BE ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT OF ONE STEP OF $100, FROM $3,800 TO $3,900 PER ANNUM AS OF OCTOBER 1, 1941. (SEE, HOWEVER, THE LAST PARAGRAPH OF BUDGET CIRCULAR NO. 381, DATED SEPTEMBER 27, 1941.) THAT IS, THE RESTORATION TO $3,900 PER ANNUM IS TO BE REGARDED AS A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE TERMS AND CONDITIONS OF THE ACT OF AUGUST 1, 1941. ONE OF THE CONDITIONS FIXED BY THE ACT OF AUGUST 1, 1941, TO ENTITLE AN EMPLOYEE TO A PERIODIC WITHIN-GRADE SALARY ADVANCEMENT IS STATED IN SECTION 2 (B) (4), AS FOLLOWS:

(4) THAT THE SERVICE AND CONDUCT OF SUCH EMPLOYEE ARE CERTIFIED BY THE HEAD OF THE DEPARTMENT OR AGENCY OR SUCH OFFICIAL AS HE MAY DESIGNATE AS BEING OTHERWISE SATISFACTORY.

THUS, IF THE SERVICE AND CONDUCT OF THE INSPECTOR HAVE NOT BEEN SATISFACTORY, IT IS WITHIN THE DISCRETION OF THE POST OFFICE DEPARTMENT TO WITHHOLD THE ADMINISTRATIVE CERTIFICATE REQUIRED BY SECTION 2 (B) (4) OF THE STATUTE AS A DISCIPLINARY MEASURE FOR SUCH TIME BEYOND THE PROMOTABLE PERIOD AS MAY BE DEEMED PROPER OR NECESSARY.

RELATIVE TO CASE 3, ATTENTION IS INVITED TO SECTION 2 (A) OF THE PRESIDENT'S REGULATIONS ( EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941), READING AS FOLLOWS:

IN COMPUTING THE PERIODS OF SERVICE REQUIRED BY THE SAID SECTION 7 FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

(A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH, EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR CORPORATION OF THE FEDERAL GOVERNMENT OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA

ACCORDINGLY, THE 18 MONTHS' PERIOD IN THIS CASE RAN FROM APRIL 1, 1940, TO OCTOBER 1, 1941, INCLUDING SERVICE BOTH IN THE DEPARTMENTAL AND FIELD SERVICE OF THE POST OFFICE DEPARTMENT DURING WHICH PERIOD THE EMPLOYEE RECEIVED NO INCREASE IN COMPENSATION. IF HIS EFFICIENCY RATING AND SERVICE AND CONDUCT OTHERWISE QUALIFY HIM UNDER THE STATUTE AND REGULATIONS, THIS EMPLOYEE IS ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT AS OF OCTOBER 1, 1941. THE POLICY OF THE POST OFFICE DEPARTMENT WITHHOLDING INCREASES IN COMPENSATION DURING THE TRIAL PERIOD OF 6 MONTHS AS A POST-OFFICE INSPECTOR MENTIONED IN THIS CASE MUST YIELD TO THE TERMS OF THE NEW STATUTE AND REGULATIONS. IN EFFECT, THIS EMPLOYEE REMAINS ON DETAIL FROM HIS DEPARTMENTAL POSITION DURING THE 6 MONTHS' TRIAL PERIOD AS A POST-OFFICE INSPECTOR AND HE IS ENTITLED TO A WITHIN- GRADE SALARY ADVANCEMENT BASED UPON HIS EFFICIENCY AS OF APRIL 15, 1941, UNDER THE CIVIL SERVICE RULES, AS A DEPARTMENTAL EMPLOYEE, PROVIDED HIS SERVICE AND CONDUCT ARE OTHERWISE SATISFACTORY. IF THE EMPLOYEE FAILS TO MEET THE REQUIREMENTS OF A POST-OFFICE INSPECTOR, THERE IS NOTHING IN THE STATUTE OR OTHERWISE TO PREVENT HIS TRANSFER TO OTHER DUTIES ALLOCATED IN A HIGHER OR LOWER GRADE, IN WHICH EVENT HIS INITIAL SALARY RATE WOULD BE CONTROLLED BY OTHER RULES STATED IN THE DECISIONS OF THIS OFFICE.