B-191352, SEP 13, 1978

B-191352, SEP 13, 1978

DIGEST: NAVAL SHIPYARD EMPLOYEE RECEIVED TWO SUCCESSIVE PROMOTIONS WHICH RESULTED IN HIS PAY BEING ADJUSTED WITH EACH PROMOTION. EMPLOYEE CLAIMS HIS PAY RATE SHOULD HAVE BEEN SET AT HIS HIGHEST PREVIOUS RATE IN ACCORDANCE WITH SHIPYARD "REPROMOTION" REGULATION. THAT REGULATION WAS NOT APPLICABLE SINCE EMPLOYEE WAS NOT DEMOTED AND LATER PROMOTED TO FORMER POSITION AS CONTEMPLATED BY "REPROMOTION" REGULATION. EMPLOYEE'S RATE WAS PROPERLY ADJUSTED UNDER SHIPYARD "PROMOTION" REGULATION WHEN HE WAS PROMOTED FROM GENERAL SCHEDULE TO WAGE SCHEDULE.

PAUL J. THIBEAULT - PROMOTION FROM GENERAL SCHEDULE POSITION TO WAGE SCHEDULE POSITION:

THIS ACTION CONCERNS THE CLAIM FILED BY MR. PAUL J. THIBEAULT, AN EMPLOYEE OF THE PORTSMOUTH NAVAL SHIPYARD IN PORTSMOUTH, NEW HAMPSHIRE, FOR A PAY ADJUSTMENT IN CONNECTION WITH HIS PROMOTION FROM PRODUCTION CONTROLLER, A GENERAL SCHEDULE POSITION, TO SHIP SCHEDULER, A PREVAILING RATE (WAGE SCHEDULE) POSITION. AT ISSUE IS WHETHER OR NOT SHIPYARD PROPERLY APPLIED THE PROVISION OF ITS REGULATION FOR SETTING PAY RATES UPON PROMOTION.

MR. THIBEAULT WAS PROMOTED FROM SHIP SCHEDULER (ELECTRICIAN) WD-08, STEP 5, $6.49 PER HOUR, TO PRODUCTION CONTROLLER GS-09, STEP 6, $6.51 PER HOUR, EFFECTIVE SEPTEMBER 30, 1973. SUBSEQUENTLY, EFFECTIVE JANUARY 18, 1976, HE WAS PROMOTED FROM PRODUCTION CONTROLLER GS-09, STEP 7, $7.78 PER HOUR, TO SHIP SCHEDULER (ELECTRICIAN) WD-08, STEP 3, $8.25 PER HOUR. AS A RESULT OF A RECLASSIFICATION ACTION ON JANUARY 18, 1976, THE DUTIES OF SHIP SCHEDULER WERE REDEFINED AND THE NEED FOR PRODUCTION CONTROLLERS WAS ELIMINATED IN THE SHIP SCHEDULING AREA.

MR. THIBEAULT STATES THAT HIS PROGRESSION WAS VIA MERIT PROMOTION. BELIEVES THAT UPON PROMOTION TO SHIP SCHEDULER IN JANUARY 1976, HIS PAY RATE SHOULD HAVE BEEN SET AT WD-08, STEP 5, INSTEAD OF WD-08, STEP 3. CLAIMS THAT THE ACTIVITY DISREGARDED PORTSMOUTH NAVAL SHIPYARD INSTRUCTION (PNSI) 12552.4A IN DETERMINING HIS PAY LEVEL. MR. THIBEAULT'S PAY RATE WAS SET UNDER THE PROVISION OF THE REGULATION PERTAINING TO SETTING RATES UPON PROMOTIONS AND MR. THIBEAULT BELIEVES THE RATE SHOULD HAVE BEEN SET UNDER THE PROVISION DEALING WITH REPROMOTIONS.

THE SHIPYARD ISSUED PNSI 12552.4A ON MARCH 2, 1972, TO IMPLEMENT FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENTS 990-2 AND 532-1 AND CIVILIAN MANPOWER MANAGEMENT INSTRUCTIONS (CMI) 531.S2 AND 532.8. IT SETS FORTH THE SHIPYARD'S POLICY FOR SETTING PAY RATES WHEN EMPLOYEES ARE APPOINTED, REEMPLOYED, OR CHANGED FROM ONE POSITION TO ANOTHER. SUBPARAGRAPH 1B(2) OF ENCLOSURE (1) OF PNSI 12552.4A, WHICH IS IN ACCORD WITH FPM SUPPLEMENT 532-1, S8-3D (JUNE 30, 1975), READS IN PERTINENT PART AS TO "PROMOTIONS:"

"WHEN AN EMPLOYEE IS PROMOTED TO A WAGE SCHEDULE POSITION, HIS PAY WILL BE FIXED AT THE LOWEST STEP OF THE NEW POSITION THAT WILL RESULT IN AN INCREASE AT LEAST EQUAL TO ONE STEP INCREASE IN THE POSITION FROM WHICH BEING PROMOTED. WHEN SUCH AN INCREASE IS IN EXCESS OF MAXIMUM SCHEDULED STEP OF THE POSITION TO WHICH PROMOTED, HE WILL BE GIVEN THE MAXIMUM SCHEDULED STEP OR HIS PRESENT SALARY RATE, WHICHEVER IS HIGHER ***."

THE "REPROMOTIONS" PROVISIONS OF PNSI 12552.4A SUBPARAGRAPH 1B(3) OF ENCLOSURE (1) PROVIDES IN PERTINENT PART:

"WHEN AN EMPLOYEE IS REPROMOTED TO A POSITION WHICH HE FORMERLY HELD, OR TO ANOTHER POSITION IN THE SAME LINE OF WORK OR PROGRESSION, HIS PAY STEP WILL BE FIXED AT A STEP ABOVE THE MINIMUM PRESCRIBED ABOVE BASED ON HIS 'HIGHEST PREVIOUS RATE' *** THE 'HIGHEST PREVIOUS RATE' WILL NOT BE USED WHEN IT WAS EARNED IN A POSITION FROM WHICH THE EMPLOYEE WAS DEMOTED OR SEPARATED AT HIS OWN REQUEST OR FOR PERSONAL CAUSE."

ON THE DATE OF MR. THIBEAULT'S PROMOTION TO SHIP SCHEDULER IN JANUARY 1976, HIS PAY LEVEL WAS GS-09, STEP 7, $7.78 PER HOUR. HE WAS THUS ENTITLED, UNDER THE "PROMOTIONS" PROVISION QUOTED ABOVE, TO AN INCREASE TO AT LEAST $7.99 PER HOUR, THE RATE FOR GS-09, STEP 8. ACCORDINGLY, MR. THIBEAULT'S PAY LEVEL WAS SET AT WD-08, STEP 3, $8.25 PER HOUR.

THE TERM "REPROMOTION" IS NOT DEFINED IN PNSI 12552.4. HOWEVER, THAT TERM IS GENERALLY USED WHEN AN EMPLOYEE IS DEMOTED AND LATER PROMOTED TO HIS FORMER GRADE. SEE 43 COM. GEN. 507 (1964). THIS MEANING IS APPARENTLY THE ONE USED IN THE REPROMOTION REGULATION AT ISSUE SINCE ITS LAST SENTENCE MAKES THE "HIGHEST PREVIOUS RATE" INAPPLICABLE WHEN THE EMPLOYEE WAS DEMOTED OR SEPARATED AT HIS OWN REQUEST. IN THIS CONNECTION, THE RECORD SHOWS THAT MR. THIBEAULT'S HOURLY RATE WAS INCREASED FROM $6.49 TO $6.51, WHEN HE WAS PROMOTED FROM WD-08 TO GS-09 IN 1973. THEREFORE, IT IS CLEAR THAT HE WAS NOT DEMOTED AND LATER PROMOTED WITHIN THE CONTEMPLATION OF SUBPARAGRAPH 1B(3) RELATING TO REPROMOTIONS. ACCORDINGLY, HIS PAY RATE WAS SET PROPERLY UNDER THE REGULATION COVERING PROMOTIONS FROM GENERAL SCHEDULE POSITIONS TO WAGE GRADE POSITIONS.

IN VIEW OF THE FOREGOING, MR. THIBEAULT IS NOT ENTITLED TO A PAY ADJUSTMENT FROM WD-08, STEP 3, TO WD-08, STEP 5, EFFECTIVE JANUARY 18, 1976.