B-159402, JUL. 5, 1966

B-159402: Jul 5, 1966

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WHILE YOU WERE EMPLOYED WITH THE DEPARTMENT OF THE AIR FORCE IN MANILA. YOU WERE PROMOTED FROM GRADE F-GS- 4. THE FIVE STEP WAGE SCHEDULE FOR NON MANUAL FILIPINO EMPLOYEES (APPLICABLE TO YOU) WAS CONVERTED TO A FOUR STEP WAGE SCHEDULE. A NOTATION WAS MADE IN YOUR OFFICIAL PERSONNEL FOLDER THAT YOU WERE CHANGED FROM STEP 3 TO STEP 2 OF GRADE F-GS-4. YOU WERE REDUCED TO A LOWER GRADE. THE PERSONNEL ACTION FORM EFFECTING THIS REDUCTION PROPERLY SHOWS THAT YOU WERE REDUCED FROM GRADE F -GS-4. STEP 4) WAS ADJUSTED TO $0.68 PER HOUR. SUBSEQUENTLY THE POSITION DESIGNATION F-GS-3 WAS CONVERTED TO LGS-3. YOU WERE PROMOTED FROM GRADE LGS (FORMERLY F-GS) 3. CONTAINS A STATEMENT IN THE "REMARKS" SECTION THAT THE PAY ADJUSTMENT IS AUTHORIZED IN ACCORDANCE WITH SECTION 25.103 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS.

B-159402, JUL. 5, 1966

TO MR. BANAAG S. NOVICIO:

THIS REFERS TO YOUR LETTER OF MAY 25, 1966, AND ENCLOSURES, REQUESTING REVIEW OF OUR SETTLEMENT OF JANUARY 24, 1966, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE ADJUSTMENT IN COMPENSATION BECAUSE OF ERRORS ALLEGEDLY COMMITTED IN ESTABLISHING YOUR SALARY RATE.

YOU ALLEGE THAT THE FIRST ERROR OCCURRED ON JULY 12, 1953, WHILE YOU WERE EMPLOYED WITH THE DEPARTMENT OF THE AIR FORCE IN MANILA, PHILIPPINES. THE RECORD SHOWS THAT ON NOVEMBER 18, 1951, YOU WERE PROMOTED FROM GRADE F-GS- 4, STEP 2 ($0.61 PER HOUR), TO GRADE F-GS-4, STEP 3 ($0.64 PER HOUR). ACCORDANCE WITH ARMY-AIR FORCE WAGE BOARD LETTER DATED OCTOBER 12, 1951, THE FIVE STEP WAGE SCHEDULE FOR NON MANUAL FILIPINO EMPLOYEES (APPLICABLE TO YOU) WAS CONVERTED TO A FOUR STEP WAGE SCHEDULE, EFFECTIVE DECEMBER 2, 1951. UNDER THE NEW SCHEDULE STEP 3 BECAME STEP 2 WITH NO CHANGE IN COMPENSATION RATE. A NOTATION WAS MADE IN YOUR OFFICIAL PERSONNEL FOLDER THAT YOU WERE CHANGED FROM STEP 3 TO STEP 2 OF GRADE F-GS-4, BUT YOUR SALARY RATE REMAINED THE SAME ($0.64 PER HOUR).

ON JULY 2, 1952, AFTER THE EFFECTIVE DATE OF THE CHANGE IN YOUR WAGE SCHEDULE, YOU WERE REDUCED TO A LOWER GRADE. THE PERSONNEL ACTION FORM EFFECTING THIS REDUCTION PROPERLY SHOWS THAT YOU WERE REDUCED FROM GRADE F -GS-4, STEP 2 ($0.64 PER HOUR), TO GRADE F-GS-3, STEP 4 ($0.6050 PER HOUR). ON JANUARY 4, 1953, THE PAY FOR YOUR STEP (F-GS 3, STEP 4) WAS ADJUSTED TO $0.68 PER HOUR. SUBSEQUENTLY THE POSITION DESIGNATION F-GS-3 WAS CONVERTED TO LGS-3.

EFFECTIVE JULY 12, 1953, YOU WERE PROMOTED FROM GRADE LGS (FORMERLY F-GS) 3, STEP 4 (1.36 PESOS OR $0.68 PER HOUR), TO GRADE LGS-4, STEP 2 (1.48 PESOS OR $0.74 PER HOUR). THE PERSONNEL ACTION FORM, DATED JULY 9, 1953, EFFECTING YOUR PROMOTION, CONTAINS A STATEMENT IN THE "REMARKS" SECTION THAT THE PAY ADJUSTMENT IS AUTHORIZED IN ACCORDANCE WITH SECTION 25.103 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. SINCE THAT SECTION OF THE PAY REGULATIONS CONCERNS THE APPLICATION OF THE HIGHEST PREVIOUS RATE RULE, IT IS APPARENT THAT YOUR ADMINISTRATIVE OFFICE INTENDED TO GIVE YOU THE BENEFIT OF THE HIGHEST SALARY RATE PREVIOUSLY EARNED BY YOU. THEREFORE, YOUR SALARY RATE WAS FIXED AT STEP 2 OF GRADE LGS-4, WHICH CONSTITUTED THE HIGHEST SALARY RATE PREVIOUSLY EARNED BY YOU. HOWEVER, YOU CONTEND THAT SINCE YOU ONCE OCCUPIED STEP 3 OF GRADE F-GS-4 UNDER THE WAGE SCHEDULE IN EFFECT PRIOR TO DECEMBER 2, 1951, YOUR SALARY SHOULD HAVE BEEN FIXED AT STEP 3 OF GRADE LGS-4 UPON YOUR PROMOTION IN JULY 1953.

THE HIGHEST SALARY RATE PREVIOUSLY ATTAINED BY YOU PRIOR TO JULY 12, 1953, WAS THE RATE FIXED FOR STEP 3 OF GRADE F-GS-4 ($0.64 PER HOUR) WHICH WAS CONVERTED TO STEP 2 OF GRADE F-GS-4 ($0.64 PER HOUR) ON DECEMBER 2, 1951. YOU NEVER OCCUPIED STEP 3 OF GRADE F-GS-4 UNDER THE REVISED WAGE SCHEDULE AND THE PAY RATE FIXED FOR THAT STEP OF THE REVISED SCHEDULE WAS NEVER APPLICABLE IN YOUR CASE. WE HAVE HELD THAT THE HIGHEST PREVIOUS RATE RULE REFERS TO THE SALARY RATE PREVIOUSLY ATTAINED RATHER THAN TO THE RELATIVE SALARY STEP WITHIN A GRADE. 34 COMP. GEN. 691. THEREFORE, IN FIXING YOUR SALARY RATE UPON YOUR REPROMOTION TO GRADE 4 ON JULY 12, 1953, IT WAS PROPER FOR YOUR ADMINISTRATIVE OFFICE TO LOOK TO THE HIGHEST SALARY RATE PREVIOUSLY ATTAINED BY YOU UNDER THE CURRENT WAGE SCHEDULE, THAT IS, STEP 2 OF GRADE LGS-4.

YOU ALSO ALLEGE THAT AN ERROR WAS COMMITTED IN ESTABLISHING YOUR INITIAL SALARY RATE UPON YOUR TRANSFER FROM THE DEPARTMENT OF THE AIR FORCE TO THE AMERICAN EMBASSY IN MANILA, DEPARTMENT OF STATE, ON NOVEMBER 21, 1955.

IMMEDIATELY PRIOR TO YOUR TRANSFER YOU WERE BEING PAID COMPENSATION AT THE RATE OF GRADE LGS-4, STEP 4 (3,328 PESOS PER ANNUM). THE DEPARTMENT OF STATE FIXED YOUR SALARY AT GRADE FSL-10A (2,580 PESOS PER ANNUM) WHICH WAS THE MINIMUM STEP OF THE GRADE. YOU CONTEND THAT YOU SHOULD HAVE BEEN GIVEN THE BENEFIT OF YOUR HIGHEST PREVIOUS RATE EARNED WITH THE DEPARTMENT OF THE AIR FORCE.

IN SUPPORT OF YOUR CONTENTION YOU CITE SECTION 1105 OF THE FOREIGN SERVICE ACT OF AUGUST 13, 1946. THAT SECTION CONCERNED THE INITIAL CLASSIFICATION OF POSITIONS FOR FOREIGN SERVICE STAFF OFFICERS AND EMPLOYEES WHOSE COMPENSATION SCHEDULE WAS PRESCRIBED BY THAT ACT. IT DID NOT PERTAIN TO ALIEN CLERKS AND EMPLOYEES WHOSE COMPENSATION IS ADMINISTRATIVELY FIXED. MOREOVER, SUCH SECTION HAD NO BEARING ON THE ESTABLISHMENT OF INITIAL RATES OF COMPENSATION OF APPOINTEES THEREAFTER APPOINTED TO POSITIONS UNDER THE STAFF OFFICER AND EMPLOYEE SCHEDULE. THE REGULATION APPLICABLE TO YOUR APPOINTMENT WITH THE FOREIGN SERVICE IS SECTION 912.53 OF VOLUME 1, FOREIGN SERVICE MANUAL, PART IV (DATED APRIL 22, 1952). SECTION 912.53 PROVIDES AS FOLLOWS:

"APPOINTMENT RATE

"EACH LOCAL EMPLOYEE WILL BE APPOINTED AT A LOCAL CURRENCY SALARY RATE WITHIN THE CLASS TO WHICH HIS POSITION IS ALLOCATED IN THE POST'S LOCAL SALARY SCHEDULE. ORDINARILY, IT IS THE BEST PRACTICE TO APPOINT NEW EMPLOYEES AT THE ENTRANCE RATE (MINIMUM SALARY RATE) OF THE PROPER CLASS IN ORDER TO AVOID INEQUITIES TO EMPLOYEES WITH LONGER SERVICE AND PROVIDE THE MAXIMUM USE OF THE CLASS SALARY RANGE FOR PERIODIC WITHIN CLASS SALARY PROMOTIONS DURING EMPLOYEE TENURE. A LOCAL EMPLOYEE MAY BE APPOINTED AT AN INTERMEDIATE STEP RATE OF A CLASS INSTEAD OF THE MINIMUM SALARY RATE, WHEN HE HAS HAD LONG EXPERIENCE IN THE TYPE OF WORK REQUIRED OR POSSESSES OTHER EXCEPTIONAL QUALIFICATIONS. LOCAL EMPLOYMENT PRACTICES AND PREVIOUS EARNINGS OF THE APPOINTEE MAY SERVE AS A GUIDE FOR THE FOREIGN SERVICE POST IN THIS MATTER.'

UNDER THAT REGULATION APPOINTING OFFICERS AT FOREIGN SERVICE POSTS MAY CONSIDER THE PREVIOUS EARNINGS OF LOCAL EMPLOYEES WHEN ESTABLISHING INITIAL SALARY RATES, BUT THEY ARE NOT REQUIRED TO DO SO. THE LANGUAGE OF THE REGULATION CLEARLY IS PERMISSIVE.

THE RULE IS WELL ESTABLISHED THAT IN THE ABSENCE OF A SHOWING OF A BONA FIDE ERROR AT THE TIME THE INITIAL SALARY RATE IS FIXED IN THE NEW POSITION OR GRADE WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, REPROMOTED OR DEMOTED, THERE IS NO AUTHORITY TO CHANGE SUCH INITIAL RATE EITHER RETROACTIVELY OR PROSPECTIVELY. WE HAVE PERMITTED ADJUSTMENTS IN SUCH RATES IN CERTAIN CASES WHEN BONA FIDE ERRORS OCCURRED IN FAILURES TO CARRY OUT WRITTEN ADMINISTRATIVE POLICY OF A NONDISCRETIONARY NATURE OR IN COMPLYING WITH ADMINISTRATIVE REGULATIONS HAVING MANDATORY EFFECT. 31 COMP. GEN. 15; 34 ID. 380; 39 ID. 550.

AS POINTED OUT ABOVE, THE APPLICABLE REGULATION (SECTION 912.53) WAS MERELY PERMISSIVE. FURTHERMORE, YOUR ADMINISTRATIVE OFFICE HAS REPORTED THAT AT THE TIME OF YOUR APPOINTMENT THERE EXISTED NO ESTABLISHED POLICY TO RECOGNIZE THE HIGHEST PREVIOUS RATE WHEN APPOINTING LOCAL EMPLOYEES. IN FACT OUR RECORDS INDICATE THAT AT THE TIME OF YOUR EMPLOYMENT WITH THE EMBASSY IT WAS MUTUALLY UNDERSTOOD THAT YOU WERE ACCEPTING SUCH EMPLOYMENT AT A CUT IN SALARY. THUS, IT CANNOT BE ESTABLISHED THAT AN ERROR WAS MADE IN FIXING YOUR SALARY RATE UPON YOUR TRANSFER TO THAT POSITION AND THERE IS NO LEGAL BASIS TO RETROACTIVELY ADJUST YOUR SALARY RATE.