B-165144, SEPTEMBER 23, 1968, 48 COMP. GEN. 150

B-165144, SEPTEMBER 23, 1968, 48 COMP. GEN. 150

COMPENSATION - PERIODIC STEP-INCREASES - QUALITY INCREASE EFFECT IN ACCORDANCE WITH THE CIVIL SERVICE COMMISSION INSTRUCTION GIVING EFFECT TO 5 U.S.C. 5335 (A), WHICH PRESCRIBES A WAITING PERIOD OF 156 WEEKS IN STEP 7 BEFORE AN EMPLOYEE MAY BE ADVANCED TO STEP 8 OF HIS GRADE, AND TO SECTION 5336 (B), WHICH PROVIDES THAT A QUALITY INCREASE IS NOT AN EQUIVALENT INCREASE IN PAY WITHIN THE MEANING OF SECTION 5335 (A), AN EMPLOYEE ADVANCED ON JANUARY 2, 1966 TO STEP 6 OF GRADE GS-13, UPON RECEIVING A QUALITY INCREASE ON JULY 3, 1966 TO STEP 7, NOT HAVING RECEIVED AN EQUIVALENT INCREASE DOES NOT START A NEW WAITING PERIOD TO QUALIFY FOR STEP 8. HOWEVER, THE EMPLOYEE IS REQUIRED TO SERVE, NOT THE 104 WEEKS WAITING PERIOD PRESCRIBED FOR STEP 6, BUT THE 156 WEEKS PRESCRIBED FOR STEP 7, WHICH PERIOD RUNS FROM JANUARY 2, 1966, THE DATE OF HIS ADVANCEMENT TO STEP 6.

TO LAMAR F. GRAVES, DEPARTMENT OF THE ARMY, SEPT. 23, 1968:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1968, REQUESTING RECONSIDERATION OF OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

THE RECORDS SHOW THAT YOU WERE ADVANCED TO STEP 6 OF GRADE GS-13 ON JANUARY 2, 1966, AND THAT YOU RECEIVED A QUALITY INCREASE TO STEP 7 OF GRADE GS-13 EFFECTIVE JULY 3, 1966. YOU BELIEVE YOU SHOULD HAVE BEEN ADVANCED TO STEP 8 OF GRADE GS-13 FOLLOWING THE COMPLETION OF 104 CALENDAR WEEKS OF SERVICE SINCE JANUARY 2, 1966, ON THE GROUND THAT 5 U.S.C. 5336 PROVIDES THAT A QUALITY INCREASE IS IN ADDITION TO STEP INCREASES UNDER 5 U.S.C. 5335 AND IS NOT AN EQUIVALENT INCREASE IN PAY WITHIN THE MEANING OF THAT SECTION. YOU CONTEND THAT THE CIVIL SERVICE COMMISSION INSTRUCTION IN SUBCHAPTER 4, PARAGRAPH 4-12E, OF CHAPTER 531, FEDERAL PERSONNEL MANUAL, REQUIRING YOU TO SERVE AN ADDITIONAL 52 WEEKS BEFORE BEING ADVANCED TO STEP 8 BECAUSE THE QUALITY INCREASE PLACED YOU IN STEP 7, IS AN ERRONEOUS INTERPRETATION OF THE LAW.

THE REQUIRED WAITING PERIODS FOR STEP INCREASE PURPOSES ARE SET FORTH IN 5 U.S.C. 5335 (A) AS FOLLOWS:

AN EMPLOYEE PAID ON AN ANNUAL BASIS, AND OCCUPYING A PERMANENT POSITION WITHIN THE SCOPE OF THE GENERAL SCHEDULE, WHO HAS NOT REACHED THE MAXIMUM RATE OF PAY FOR THE GRADE IN WHICH HIS POSITION IS PLACED, SHALL BE ADVANCED IN PAY SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF---

(1) EACH 52 CALENDAR WEEKS OF SERVICE IN PAY RATES 1, 2, AND 3;

(2) EACH 104 CALENDAR WEEKS OF SERVICE IN PAY RATES 4, 5, AND 6; OR

(3) EACH 156 CALENDAR WEEKS OF SERVICE IN PAY RATES 7, 8, AND 9; SUBJECT TO THE FOLLOWING CONDITIONS:

(A) THE EMPLOYEE DID NOT RECEIVE AN EQUIVALENT INCREASE IN PAY FROM ANY CAUSE DURING THAT PERIOD; AND

(B) THE WORK OF THE EMPLOYEE, EXCEPT A HEARING EXAMINER APPOINTED UNDER SECTION 3105 OF THIS TITLE, IS OF AN ACCEPTABLE LEVEL OF COMPETENCE AS DETERMINED BY THE HEAD OF THE AGENCY.

THE FOLLOWING DETAILED PERTINENT INSTRUCTION OF THE CIVIL SERVICE COMMISSION CONCERNING THE WAITING PERIOD FOR A WITHIN-GRADE INCREASE OF AN EMPLOYEE WHO HAS RECEIVED A QUALITY INCREASE APPEARS IN BOOK 531 OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2:

S4-12 QUALITY INCREASES

E. RELATION TO REGULAR WITHIN-GRADE INCREASE. QUALITY INCREASES ARE IN ADDITION TO REGULAR WITHIN-GRADE INCREASES AND ARE NOT CONSIDERED TO BE EQUIVALENT INCREASES IN COMPENSATION. THIS MEANS THAT AN EMPLOYEE WHO RECEIVES A QUALITY INCREASE DOES NOT THEREBY START A NEW WAITING PERIOD TO MEET THE TIME REQUIREMENTS FOR A REGULAR WITHIN-GRADE INCREASE. THE FOLLOWING EXAMPLES ILLUSTRATE THIS POINT:

(2) A QUALITY INCREASE IS GIVEN TO AN EMPLOYEE IN THE THIRD RATE OF HIS GRADE WHO HAS COMPLETED 40 WEEKS OF CREDITABLE SERVICE TOWARD AN INCREASE TO THE FOURTH RATE. AFTER THE QUALITY INCREASE PLACES HIM IN THE FOURTH RATE, WHICH IS IN A HIGHER WAITING-PERIOD CATEGORY, HE WILL REQUIRE ONLY 64 WEEKS MORE OF CREDITABLE SERVICE TO COMPLETE THE 104-WEEK WAITING- PERIOD REQUIREMENT FOR ADVANCEMENT TO THE FIFTH RATE.

IT IS A RULE OF STATUTORY CONSTRUCTION THAT THE INTENT OF CONGRESS AS EXPRESSED IN ANY PART OF A STATUTE MUST BE GATHERED FROM THE READING OF THE STATUTE AS A WHOLE. SECTIONS 5335 AND 5336 OF TITLE 5 WERE DERIVED FROM SECTION 603, PUBLIC LAW 87-793, AND MUST BE CONSTRUED TOGETHER. SECTION 5335 (A) REQUIRES A WAITING PERIOD OF 156 WEEKS IN STEP 7 BEFORE AN EMPLOYEE MAY BE ADVANCED TO STEP 8; SECTION 5336 (B) PROVIDES THAT A QUALITY INCREASE IS NOT AN EQUIVALENT INCREASE IN PAY WITHIN THE MEANING OF 5 U.S.C. 5335 (A). THE INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION GIVE EFFECT TO BOTH SECTIONS BY PROVIDING THAT AN EMPLOYEE WHO IS ADVANCED TO STEP 7 BY A QUALITY INCREASE MAY BE ADVANCED TO STEP 8 FOLLOWING 156 WEEKS OF SERVICE AFTER HIS ADVANCEMENT TO STEP 6. THIS APPEARS TO BE IN LINE WITH THE INTENT OF CONGRESS. SEE PAGE 9 OF S.REPT. NO. 2120 ON H.R. 7927, WHICH BECAME PUBLIC LAW 87-793, WHEREIN REFERENCE IS MADE TO QUALITY INCREASES AS BEING "SPEEDED-UP WITHIN-GRADE INCREASES.' ACCORDINGLY, WE FIND NO BASIS FOR DISAGREEING WITH THE VIEW OF THE CIVIL SERVICE COMMISSION WHICH IS SPECIFICALLY CHARGED BY LAW WITH REGULATING IN THE AREA OF QUALITY INCREASES.

WE NOTE THAT SINCE YOU ARE REQUIRED TO SERVE A PERIOD OF 156 WEEKS FOLLOWING YOUR LAST EQUIVALENT INCREASE IN PAY ON JANUARY 2, 1966, YOU WILL NOT BE ELIGIBLE FOR ADVANCEMENT TO STEP 8 UNTIL JANUARY (APPROX.) 1969. HOWEVER, IF YOU HAD NOT RECEIVED A QUALITY INCREASE YOU WOULD NOT HAVE BEEN ELIGIBLE FOR THAT WITHIN-GRADE INCREASE UNTIL JANUARY (APPROX.) 1971.

FOR THE FOREGOING REASONS, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.