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B-156058, APR 6, 1973, 52 COMP GEN 671

B-156058 Apr 06, 1973
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COMPENSATION - SIMULTANEOUS BENEFITS RULE - WAGE BOARD POSITION CONVERSION AND GENERAL SCHEDULE RATE INCREASE THE SIMULTANEOUS BENEFITS RULE IN SECTION 531.203(F) OF THE CIVIL SERVICE COMMISSION REGULATIONS (CSCR) IS NOT FOR APPLICATION TO A WAGE BOARD EMPLOYEE WHO CAME UNDER THE GENERAL SCHEDULE (GS) ON JANUARY 9. WHETHER THE EMPLOYEE TRANSFERRED TO GS OR HE WAS BROUGHT UNDER GS BY POSITION CONVERSION. GEN. 518 APPLIES AND THE USE OF THE HIGHEST PREVIOUS RATE RULE (CSCR 531.203(D)(4)) WILL PROVIDE THE MAXIMUM BENEFIT TO THE EMPLOYEE. THE NEW RATES ARE THE BASIS FOR FIXING THE GS SALARY RATE OF THE EMPLOYEE. 1973: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17. THE SPECIFIC SITUATION PRESENTED IS THAT OF FIXING AN EMPLOYEE'S SALARY RATE UPON PROMOTION FROM A WAGE BOARD POSITION TO A POSITION UNDER THE GENERAL SCHEDULE ON JANUARY 9.

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B-156058, APR 6, 1973, 52 COMP GEN 671

COMPENSATION - SIMULTANEOUS BENEFITS RULE - WAGE BOARD POSITION CONVERSION AND GENERAL SCHEDULE RATE INCREASE THE SIMULTANEOUS BENEFITS RULE IN SECTION 531.203(F) OF THE CIVIL SERVICE COMMISSION REGULATIONS (CSCR) IS NOT FOR APPLICATION TO A WAGE BOARD EMPLOYEE WHO CAME UNDER THE GENERAL SCHEDULE (GS) ON JANUARY 9, 1972, THE DATE INCREASES IN GS RATES BECAME EFFECTIVE, WHETHER THE EMPLOYEE TRANSFERRED TO GS OR HE WAS BROUGHT UNDER GS BY POSITION CONVERSION. TRANSFERRED, IN THE ABSENCE OF A CONTRARY AGENCY REGULATION OR POLICY, 44 COMP. GEN. 518 APPLIES AND THE USE OF THE HIGHEST PREVIOUS RATE RULE (CSCR 531.203(D)(4)) WILL PROVIDE THE MAXIMUM BENEFIT TO THE EMPLOYEE. IF A POSITION CONVERSION, BOTH UNDER CSCR 539.203, AS WELL AS AGENCY REGULATIONS WHICH REQUIRE SIMILAR TREATMENT IN A TRANSFER OR PROMOTION, THE GS RATE INCREASES OPERATING ON GS RATES THE DAY IMMEDIATELY PRECEEDING THE EFFECTIVE DATE OF THE INCREASE, THE NEW RATES ARE THE BASIS FOR FIXING THE GS SALARY RATE OF THE EMPLOYEE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 6, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1972, REQUESTING OUR DECISION CONCERNING THE APPLICATION OF 5 CFR 531.203(F) WHICH PROVIDES FOR THE PROCESSING OF SIMULTANEOUS PERSONNEL OR PAY CHANGES IN THE ORDER WHICH GIVES THE EMPLOYEE THE MAXIMUM BENEFIT.

THE SPECIFIC SITUATION PRESENTED IS THAT OF FIXING AN EMPLOYEE'S SALARY RATE UPON PROMOTION FROM A WAGE BOARD POSITION TO A POSITION UNDER THE GENERAL SCHEDULE ON JANUARY 9, 1972, THE SAME DATE THAT INCREASES IN THE GENERAL SCHEDULE BECAME EFFECTIVE AT THE EMPLOYING AGENCY HERE CONCERNED. SEE EXECUTIVE ORDER 11637, DECEMBER 22, 1971, AND THE CONVERSION RULES CONTAINED IN FEDERAL PERSONNEL MANUAL LETTER 531-42, DATED DECEMBER 27, 1971.

YOU SAY THERE HAS BEEN PRESENTED TO THE COMMISSION THE CASE OF A GOVERNMENT EMPLOYEE WHO WAS PROMOTED FROM WAGE GRADE 12 TO GRADE GS-7 ON JANUARY 9, 1972, THE SAME DATE THE INCREASE IN THE GENERAL SCHEDULE BECAME EFFECTIVE. THE EMPLOYEE'S WAGE RATE WAS $10,500 PER ANNUM, WHICH FELL BETWEEN STEPS 5 AND 6 ON THE NEW SCHEDULE AND BETWEEN STEPS 7 AND 8 ON THE OLD SCHEDULE. THE AGENCY WHERE THE EMPLOYEE WORKED PLACED THE EMPLOYEE IN STEP 6 OF GRADE GS-7 IN THE NEW SCHEDULE WITH A SALARY OF $10,563 PER ANNUM. IF THE OLD SCHEDULE HAD BEEN USED, THE EMPLOYEE WOULD HAVE BEEN ENTITLED TO STEP 8($10,584 PER ANNUM) AND WOULD THEN HAVE BEEN CONVERTED TO THE CORRESPONDING STEP 8($11,167 PER ANNUM) UNDER THE NEW SCHEDULE.

SECTION 531.203(F) OF THE COMMISSION'S REGULATIONS PROVIDES:

*** WHEN A POSITION OR APPOINTMENT CHANGE AND ENTITLEMENT TO A HIGHER RATE OF PAY OCCUR AT THE SAME TIME, THE HIGHER RATE OF PAY IS DEEMED AN EMPLOYEE'S EXISTING RATE OF BASIC PAY. IF THE EMPLOYEE IS ENTITLED TO TWO PAY BENEFITS AT THE SAME TIME, THE AGENCY SHALL PROCESS THE CHANGES IN THE ORDER WHICH GIVES THE EMPLOYEE THE MAXIMUM BENEFIT.

YOUR LETTER FAILS TO INDICATE WHETHER THE EMPLOYEE ACTUALLY TRANSFERRED FROM A WAGE BOARD POSITION TO ONE UNDER THE GENERAL SCHEDULE OR WHETHER THE EMPLOYEE TOGETHER WITH HIS POSITION WAS BROUGHT UNDER THE GENERAL SCHEDULE. IF THE FORMER THEN IT APPEARS THAT OUR DECISION 44 COMP. GEN. 518(1965) WOULD BE FOR APPLICATION. AS INDICATED IN THAT DECISION, IN THE ABSENCE OF AN AGENCY REGULATION OR POLICY TO THE CONTRARY THE HIGHEST PREVIOUS RATE RULE AS CONTAINED IN THE COMMISSION'S REGULATIONS, 531.203(D)(4) WOULD PERMIT SELECTION OF A RATE IN THE GENERAL SCHEDULE WHICH GIVES AN EMPLOYEE THE MAXIMUM BENEFIT. THIS OBVIATES ANY CONSIDERATION OF THE SIMULTANEOUS BENEFITS RULE CONTAINED IN SECTION 531.203(F) OF THE REGULATIONS.

WE NOTE THAN WHEN AN EMPLOYEE TOGETHER WITH HIS POSITION IS BROUGHT INTO THE GENERAL SCHEDULE THE MANNER OF FIXING HIS COMPENSATION IN THE GENERAL SCHEDULE IS SPECIFICALLY SET FORTH IN SECTION 539.203 OF THE COMMISSION'S REGULATIONS WHICH PROVIDE IN PERTINENT PART AS FOLLOWS:

SEC. 539.203 RATE OF BASIC PAY IN CONVERSION ACTIONS.

WHEN AN EMPLOYEE OCCUPIES A POSITION NOT SUBJECT TO THE GENERAL SCHEDULE AND THE EMPLOYEE AND HIS POSITION ARE INITIALLY BROUGHT UNDER THE GENERAL SCHEDULE PURSUANT TO A REORGANIZATION PLAN OR OTHER LEGISLATION, AN EXECUTIVE ORDER, A DECISION OF THE COMMISSION UNDER SECTION 5103 OF TITLE 5, U.S.C. OR AN ACTION BY AN AGENCY UNDER AUTHORITY OF SEC. 511.202 OF THIS CHAPTER, THE AGENCY SHALL DETERMINE THE EMPLOYEE'S RATE OF BASIC PAY AS FOLLOWS:

(A) WHEN THE EMPLOYEE IS RECEIVING A RATE OF BASIC PAY BELOW THE MINIMUM RATE OF THE GRADE IN WHICH HIS POSITION IS PLACED, HIS PAY SHALL BE INCREASED TO THE MINIMUM RATE.

(B) WHEN THE EMPLOYEE IS RECEIVING A RATE OF BASIC PAY EQUAL TO A RATE IN THE GRADE IN WHICH HIS POSITION IS PLACED, HIS PAY SHALL BE FIXED AT THAT RATE.

(C) WHEN THE EMPLOYEE IS RECEIVING A RATE OF BASIC PAY THAT FALLS BETWEEN TWO RATES OF THE GRADE IN WHICH HIS POSITION IS PLACED, HIS PAY SHALL BE FIXED AT THE HIGHER OF THE TWO RATES.

UNDER THE ABOVE REGULATIONS AS WELL AS AGENCY REGULATIONS WHICH REQUIRE SIMILAR TREATMENT IN A TRANSFER OR PROMOTION FROM A WAGE BOARD POSITION TO ONE IN THE GENERAL SCHEDULE, WE DO NOT VIEW THE SIMULTANEOUS BENEFITS REGULATIONS AS BEING APPLICABLE. THIS IS SO BECAUSE WHEN THE CONVERSION OR PROMOTION OCCURS ON THE SAME DATE AS A GENERAL INCREASE IN GENERAL SCHEDULE RATES THE ONLY LEGAL GENERAL SCHEDULE RATES ARE THOSE IN EFFECT ON THAT DAY. IN OTHER WORDS THE NEW GENERAL SCHEDULE INCREASES OPERATE ON THE GENERAL SCHEDULE RATES IN EFFECT THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE GENERAL SCHEDULE INCREASES. THESE SITUATIONS ARE SIMILAR TO WHERE A PROMOTION FROM ONE GRADE TO ANOTHER IS EFFECTIVE ON THE SAME DATE AS A GENERAL SCHEDULE INCREASE. SEE 40 COMP. GEN. 184(1960).

IN THE INSTANT CASE ASSUMING THAT THE EMPLOYEE WAS TRANSFERRED FROM A WAGE BOARD POSITION TO A GENERAL SCHEDULE POSITION AND THAT AGENCY REGULATIONS REQUIRED ADJUSTMENT OF HIS EXISTING COMPENSATION TO THE NEAREST GENERAL SCHEDULE RATE (PRECLUDING APPLICATION OF THE EMPLOYEE'S HIGHEST PREVIOUS RATE) THEN THE RATE OF $10,563, FIXED FOR THE EMPLOYEE IN THE GENERAL SCHEDULE, WAS CORRECT.

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