B-165112, OCTOBER 8, 1968, 48 COMP. GEN. 190

B-165112, OCTOBER 8, 1968, 48 COMP. GEN. 190

COMPENSATION - RATES - SPECIAL - TO COMPETE WITH PRIVATE INDUSTRY THE AUTHORITY IN 5 U.S.C. 5303 (A) TO RAISE THE MINIMUM RATE OF A GRADE IN ORDER TO COMPETE WITH PRIVATE INDUSTRY PERMITS AN INCREASE IN ANY OR ALL OF THE ADDITIONAL STEPS OF A GRADE IN VIEW OF THE PERMISSIVE LANGUAGE OF THE SECTION, WHICH PROVIDES THAT THE PRESIDENT OR HIS DESIGNEE "MAY MAKE CORRESPONDING INCREASES IN ALL STEP RATES OF THE SALARY RANGE FOR EACH SUCH GRADE" FOR PURPOSES OF RECRUITMENT OR RETENTION OF WELL- QUALIFIED PERSONS IN POSITIONS PAID UNDER SECTION 5332. THE ,CORRESPONDING INCREASE" AUTHORIZED IN SECTION 5303 (A) MEANS EACH INCREASE IS LIMITED TO NOT MORE THAN THE AMOUNT OF THE INCREASE IN THE FIRST STEP RATE, THUS PERMITTING THAT THE DIFFERENT STEPS IN A GRADE MAY BE INCREASED BY DIFFERENT AMOUNTS.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 8, 1968:

YOUR LETTER OF AUGUST 21, 1968, REQUESTS OUR DECISION WHETHER, WHEN A SPECIAL MINIMUM RATE IN A GRADE IS ESTABLISHED UNDER 5 U.S.C. 5303, AS AMENDED BY SECTION 207 OF PUBLIC LAW 90-206, FEDERAL SALARY ACT OF 1967, (1) MORE THAN ONE OF THE STEPS IN THE GRADE MAY BE INCREASED WITHOUT INCREASING ALL OF THEM, AND (2) DIFFERENT STEPS IN THE GRADE MAY BE INCREASED BY DIFFERENT AMOUNTS.

SO FAR AS HERE PERTINENT, 5 U.S.C. 5303 (A) READS:

(A) WHEN THE PRESIDENT FINDS THAT THE PAY RATES IN PRIVATE ENTERPRISE FOR ONE OR MORE OCCUPATIINS IN ONE OR MORE AREAS OR LOCATIONS ARE SO SUBSTANTIALLY ABOVE THE PAY RATES OF STATUTORY PAY SCHEDULES AS TO HANDICAP SIGNIFICANTLY THE GOVERNMENT'S RECRUITMENT OR RETENTION OF WELL- QUALIFIED INDIVIDUALS IN POSITIONS PAID UNDER---

(1) SECTION 5332 OF THIS TITLE; HE MAY ESTABLISH FOR THE AREAS OR LOCATIONS HIGHER MINIMUM RATES OF BASIC PAY FOR ONE OR MORE GRADES OR LEVELS, OCCUPATIONAL GROUPS, SERIES, CLASSES, OR SUBDIVISIONS THEREOF, AND MAY MAKE CORRESPONDING INCREASES IN ALL STEP RATES OF THE PAY RANGE FOR EACH SUCH GRADE OR LEVEL. HOWEVER, A MINIMUM RATE SO ESTABLISHED MAY NOT EXCEED THE MAXIMUM PAY RATE PRESCRIBED BY STATUTE FOR THE GRADE OR LEVEL. THE PRESIDENT MAY AUTHORIZE THE EXERCISE OF THE AUTHORITY CONFERRED ON HIM BY THIS SECTION BY THE CIVIL SERVICE COMMISSION OR, IN THE CASE OF INDIVIDUALS NOT SUBJECT TO THE PROVISIONS OF THIS TITLE GOVERNING APPOINTMENT IN THE COMPETITIVE SERVICE, BY SUCH OTHER AGENCY AS HE MAY DESIGNATE.

SUBSECTION (B) OF 5 U.S.C. 5303 PROVIDES THAT:

(B) WITHIN THE LIMITATIONS OF SUBSECTION (A) OF THIS SECTION, RATES OF BASIC PAY ESTABLISHED UNDER THAT SUBSECTION MAY BE REVISED FROM TIME TO TIME BY THE PRESIDENT OR BY SUCH AGENCY AS HE MAY DESIGNATE. THE ACTIONS AND REVISIONS HAVE THE FORCE AND EFFECT OF STATUTE.

THE ABOVE-QUOTED AUTHORITY TO ADVANCE SALARY SCALES IS A MODIFICATION OF THE FORMER AUTHORITY IN SECTION 803 OF THE CLASSIFICATION ACT, 5 U.S.C. 1132 NOTE, WHICH PERMITTED THE CIVIL SERVICE COMMISSION TO RAISE THE MINIMUM RATE OF THE GRADE--- OR HIRING RATE--- FOR POSITIONS IN SHORTAGE OCCUPATIONS PAID UNDER THAT ACT. UNDER THE FORMER AUTHORITY, THE MINIMUM RATE COULD BE INCREASED AS HIGH AS THE MAXIMUM RATE BUT NO INCREASES WERE PERMITTED FOR OTHER STEP RATES. THUS, WHEN IT BECAME NECESSARY TO ADVANCE THE MINIMUM RATE AT A GIVEN GRADE OF AN OCCUPATION TO THE TOP RATE OF THE GRADE, ONLY A SINGLE SALARY RATE COULD BE PAID TO THOSE IN THE CLASS OF POSITION CONCERNED. NEW EMPLOYEES COULD ENTER AT THE SAME SALARY THAT WAS BEING PAID TO EXPERIENCED, BETTER PERFORMING EMPLOYEES.

WHILE THE ABOVE SUGGESTS THAT UNDESIRABLE RESULTS MIGHT FLOW FROM AN ACTION INCREASING SOME OF THE STEP RATES OF A GRADE WITHOUT INCREASING ALL OF THEM, NEVERTHELESS, SECTION 504 AS ULTIMATELY ENACTED IN PUBLIC LAW 87- 793, 76 STAT. 842 (NOW 5 U.S.C. 5303), PROVIDED, IN PERMISSIVE LANGUAGE, THAT THE PRESIDENT OR HIS DESIGNEE "MAY MAKE CORRESPONDING INCREASES IN ALL STEP RATES OF THE SALARY RANGE FOR EACH SUCH GRADE.' YOU EXPRESS THE VIEW THAT THE STATUTORY LANGUAGE CLEARLY PERMITS AN INCREASE IN THE FIRST RATE ONLY AND THAT IT WOULD SEEM REASONABLE TO INTERPRET THE PERMISIVE LANGUAGE COVERING OTHER STEP RATES AS PERMITTING THAT ANY OR ALL OF THE ADDITIONAL STEPS MAY BE INCREASED. IN VIEW OF THE PERMISSIVE LANGUAGE NOW EMBODIED IN 5 U.S.C. 5303, WE CONCUR IN YOUR INTERPRETATION. QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

SIMILARLY, WE CONSTRUE THE LANGUAGE AS AUTHORIZING BUT NOT DIRECINGTHE PRESIDENT OR HIS DESIGNEE TO MAKE CORRESPONDING (EQUIVALENT, PROPORTIONATE, MATCHING OR COMPARABLE) INCREASES IN ALL STEP RATES OF THE PAY-RANGE FOR EACH SUCH GRADE. WE AGREE WITH YOUR VIEW THAT THE REASONABLE MEANING OF THE PHRASE "CORRESPONDING INCREASES" IS THAT EACH INCREASE IS LIMITED TO NOT MORE THAN THE AMOUNT OF THE INCREASE IN THE FIRST STEP RATE. THUS QUESTION (2), LIKEWISE, IS ANSWERED IN THE AFFIRMATIVE.