B-173219, APR 3, 1972

B-173219: Apr 3, 1972

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PROVIDES THAT AN EMPLOYEE WHO IS REASSIGNED OR TRANSFERRED MAY BE PAID AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE. THE NEW RATE IS LEFT TO THE ADMINISTRATIVE DISCRETION OF THE HIRING AGENCY AND IS BASED ON SEVERAL CONSIDERATIONS. THE SALARY RATES OF THE THREE CLAIMANTS INVOLVED WERE REASONABLY FIXED IN ACCORDANCE WITH AGENCY POLICY. LEO MOLINA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2. CONCERNING CERTAIN SALARY ADJUSTMENTS WHICH WERE MADE AFFECTING THEM. THE PERTINENT FACTS AND CIRCUMSTANCES INVOLVED IN EACH OF THE CLAIMS ARE. MEYERS WAS EMPLOYED AS A LABORER. THE LATTER POSITION WAS ADVERTISED AT GRADE GS-3. WAS OFFERED THE JOB AT THAT SALARY RATE.

B-173219, APR 3, 1972

CIVILIAN EMPLOYEES - REASSIGNMENT - DETERMINATIONS OF SALARY RATES WITH REGARD TO THE CLAIMS OF DENNIS E. MEYERS AND TIMOTHY A. FREDERICK, EMPLOYEES OF THE NAVAL WEAPONS CENTER, CHINA LAKE, CALIF., AND THERESA RAASCH, AN EMPLOYEE OF THE NAVAL PLANT REPRESENTATIVE OFFICE, POMONA, CALIF., CONCERNING SALARY ADJUSTMENTS. THE CONTROLLING REGULATION, 5 CFR 531.203(C), PROVIDES THAT AN EMPLOYEE WHO IS REASSIGNED OR TRANSFERRED MAY BE PAID AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE. THE NEW RATE IS LEFT TO THE ADMINISTRATIVE DISCRETION OF THE HIRING AGENCY AND IS BASED ON SEVERAL CONSIDERATIONS, SUCH AS THE NEEDS OF THE ACTIVITY, THE QUALITY OF THE EMPLOYEE, AND THE AVAILABILITY OF FUNDS. IN THE INSTANT CASE, THE SALARY RATES OF THE THREE CLAIMANTS INVOLVED WERE REASONABLY FIXED IN ACCORDANCE WITH AGENCY POLICY, PROPERLY IMPLEMENTING THE AFOREMENTIONED CIVIL SERVICE REGULATIONS.

TO MR. LEO MOLINA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1971 (REFERENCE NR/1M L#2573), AND ENCLOSURES, REGARDING THE CLAIMS OF MR. DENNIS E. MEYERS AND MR. TIMOTHY A. FREDERICK, EMPLOYEES OF THE NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA, AND MRS. THERESA RAASCH, AN EMPLOYEE OF THE NAVAL PLANT REPRESENTATIVE OFFICE, POMONA, CALIFORNIA, CONCERNING CERTAIN SALARY ADJUSTMENTS WHICH WERE MADE AFFECTING THEM.

A REPORT HAS BEEN RECEIVED FROM THE NAVY DEPARTMENT. THE PERTINENT FACTS AND CIRCUMSTANCES INVOLVED IN EACH OF THE CLAIMS ARE, IN ESSENCE, AS FOLLOWS:

MR. DENNIS E. MEYERS

MR. MEYERS WAS EMPLOYED AS A LABORER, WB 35002-2/03, BY THE NAVAL WEAPONS CENTER FROM OCTOBER 1967 AT THE SALARY RATE OF $3.29 PER HOUR. ON MAY 27, 1970, HE APPLIED FOR A POSITION AS A POLICEMAN AT GRADE GS 3, STEP 5. THE LATTER POSITION WAS ADVERTISED AT GRADE GS-3, 4, OR 5. THE AGENCY REPORTS THAT MR. MEYERS QUALIFIED AT GS-3, STEP 5, AND WAS OFFERED THE JOB AT THAT SALARY RATE. THE ACTIVITY STATED THAT THE GRADE AND STEP RATE OFFERED WERE BASED UPON NAVAL ORDNANCE TEST STATION (NOTS) INSTRUCTION 12552.3 DATED APRIL 27, 1967. MR. MEYERS INITIALLY DECLINED THE OFFER. HOWEVER, ON THE DAY FOLLOWING THE DECLINATION, MR. MEYERS CHANGED HIS MIND AND ACCEPTED THE POSITION OFFERED AT THE GS-3, STEP 5 RATE.

THE RECORD INDICATES THAT MR. MEYERS DISCUSSED THE MATTER WITH MR. PHIL HOUSE, PERSONNEL MANAGEMENT SPECIALIST, SECURITY DEPARTMENT, WHO STATED THAT IT WAS THE DECISION OF HIS DEPARTMENT TO OFFER HIM STEP 5 OF GS-3 AS IT WAS CONSIDERED THE MAXIMUM STEP NECESSARY TO MEET MANAGEMENT OBJECTIVES. IT WAS EXPLAINED THAT IN MAKING SUCH DECISION SEVERAL FACTORS, INCLUDING THE MORALE OF OTHER PERSONNEL, NEEDS OF THE DEPARTMENT, AND QUALITY, WERE TAKEN INTO CONSIDERATION. THE CLAIMANT WAS ALSO INFORMED THAT SINCE HIS CHANGE TO LOWER GRADE WAS VOLUNTARY ON HIS PART, HE DID NOT HAVE APPEAL RIGHTS UNDER ADVERSE ACTION REGULATIONS.

THE REPORT FROM THE DEPARTMENT OF THE NAVY ALSO STATED THAT IT WAS THE INTENT OF THE ACTIVITY TO GIVE MR. MEYERS THE BENEFIT OF HIS HIGHEST PREVIOUS RATE WHEN HE WAS SUBSEQUENTLY PROMOTED TO GRADE GS-4 BUT THAT THE ACTIVITY ERRED IN COMPUTING HIS HIGHEST PREVIOUS RATE. IT WAS REPORTED THAT THE ERROR WAS FURTHER COMPOUNDED BY THE GENERAL SCHEDULE PAY RAISE EFFECTIVE JANUARY 10, 1971. THE REPORT INDICATES THAT THE ACTIVITY WAS IN THE PROCESS OF CORRECTING THE ERROR AND WOULD ISSUE A STANDARD FORM 50 PLACING MR. MEYERS IN STEP 8 OF GRADE GS-4, AT THE RATE OF $7,651 PER ANNUM, RETROACTIVE TO JANUARY 10, 1971.

MR. TIMOTHY A. FREDERICK

BASED UPON THE REPORT RECEIVED FROM THE NAVY DEPARTMENT, THE CIRCUMSTANCES SURROUNDING THE CHANGE OF POSITION AND SALARY OF MR. FREDERICK ARE SIMILAR TO THOSE INVOLVING MR. MEYERS. HE, AS DID MR. MEYERS, REQUESTED A CHANGE OF JOB POSITION FROM LABORER TO POLICEMAN AND WAS HIRED UNDER THE SAME LOCAL MERIT-POSITION ADVERTISEMENT AS MR. MEYERS. MR. FREDERICK WAS OFFERED AND ACCEPTED THE POSITION WITH THE SECURITY DEPARTMENT AT GRADE GS-4, STEP 5, EFFECTIVE JUNE 14, 1970.

THE NAVY DEPARTMENT REPORTS THAT UPON HIS SUBSEQUENT PROMOTION TO GRADE GS-5, STEP 10, IT WAS THE INTENT OF THE ACTIVITY TO GIVE MR. FREDERICK THE BENEFIT OF HIS HIGHEST PREVIOUS RATE. HOWEVER, SINCE THE NEW GENERAL SCHEDULE PAY RATES BECAME EFFECTIVE ON JANUARY 10, 1971, THE SAME EFFECTIVE DATE AS MR. FREDERICK'S PROMOTION, THE ACTIVITY ERRED IN RECOMPUTING HIS RATE OF PAY. IT IS REPORTED THAT THE AGENCY IS CORRECTING THE ERROR AND WILL ISSUE A STANDARD FORM 50 PLACING MR. FREDERICK IN GRADE GS-5, STEP 10, AT THE SALARY RATE OF $9,017 PER ANNUM, RETROACTIVE TO JANUARY 10, 1971.

MRS. THERESA RAASCH

MRS. RAASCH WAS EMPLOYED IN THE INDUSTRIAL DIVISION OF THE NAVAL PLANT REPRESENTATIVE OFFICE (NPRO), POMONA, CALIFORNIA, AS A PROPERTY CLERK AT GRADE GS-4, STEP 4. ON SEPTEMBER 14, 1969, SHE ACCEPTED A POSITION WITH THE ARMY LOS ANGELES PROCUREMENT AGENCY, PASADENA, CALIFORNIA, AS A PAYROLL CLERK AT GRADE GS-5, STEP 3.

AS A RESULT OF CLOSING OF THE BASE ON OCTOBER 29, 1969, MRS. RAASCH WAS GIVEN A REDUCTION-IN-FORCE NOTICE BY THE ARMY WITH A TERMINATION DATE OF DECEMBER 2, 1969. THE NOTICE ADVISED THAT SHE COULD REMAIN ON ANNUAL LEAVE UNTIL JANUARY 12, 1970, IF SHE SO DESIRED. SHE REMAINED ON LEAVE UNTIL THE LATTER DATE. SHE WAS THEN PAID SEVERANCE PAY FROM JANUARY 13 TO MARCH 2, 1970. IN MARCH 1970, THE CLAIMANT WAS REEMPLOYED BY NPRO AS A DISPLACED CAREER EMPLOYEE WITH AN EFFECTIVE DATE OF MARCH 31, 1970. SHE WAS OFFERED AND ACCEPTED STEP 4 OF GRADE GS-4 IN LIEU OF THE MINIMUM STEP BECAUSE OF HER PRIOR SERVICE IN THE POSITION. DUE TO A SHORTAGE OF FUNDS, MRS. RAASCH WAS GIVEN A TEMPORARY APPOINTMENT NOT TO EXCEED 90 DAYS. THE TEMPORARY APPOINTMENT WAS RENEWED AND CONTINUED UNTIL NOVEMBER 15, 1970, WHEN SHE WAS GIVEN A PERMANENT APPOINTMENT. HOWEVER, DUE TO THE UNSTABLE FUNDING CONDITIONS OF THE ACTIVITY, HER RATE OF PAY WAS CONTINUED AT GS-4, STEP 4.

WITH RESPECT TO THE CLAIMS OF MESSRS. MEYERS AND FREDERICK, IT IS THEIR BASIC CONTENTION THAT AT THE TIME THEY WERE HIRED AS POLICEMEN THEY SHOULD HAVE BEEN APPOINTED TO SUCH POSITIONS COMMENSURATE WITH THE ANNUAL SALARIES EARNED BY THEM AS LABORERS.

5 U.S.C. 5334 PROVIDES THAT THE RATE OF BASIC PAY TO WHICH AN EMPLOYEE IS ENTITLED IS GOVERNED BY REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION. IN ACCORDANCE THEREWITH, 5 CFR 531.203(C) STATES IN PART:

" *** WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, OR DEMOTED, THE AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE *** . WHEN AN EMPLOYEE'S TYPE OF APPOINTMENT IS CHANGED IN THE SAME POSITION, THE AGENCY MAY CONTINUE TO PAY HIM AT HIS EXISTING RATE OR MAY PAY HIM AT ANY HIGHER RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE *** ."

IT IS TO BE NOTED THAT THE REGULATION IS PERMISSIVE IN NATURE; THAT IS, UPON TRANSFER, THE AGENCY MAY PAY THE EMPLOYEE AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE.

IN IMPLEMENTING THE ABOVE-CITED CIVIL SERVICE REGULATION, THE DEPARTMENT OF THE NAVY PROMULGATED CIVIL MANPOWER MANAGEMENT INSTRUCTION 531.2, SUBCHAPTER 2-4(1), WHICH PROVIDES:

"IT WILL BE THE POLICY OF THE DEPARTMENT OF THE NAVY TO NOT USE A STEP ABOVE THE MINIMUM STEP REQUIRED BY LAW OR REGULATION UNLESS IT IS IN THE INTEREST OF THE GOVERNMENT. WHEREVER A HIGHER RATE IS PERMISSIBLE, ACTIVITY MANAGEMENT WILL REVIEW THE RATE TO BE SET IN LIGHT OF THE NEEDS OF THE ACTIVITY, ASSESSMENT OF THE QUALITY OF THE EMPLOYEE, EQUITY AMONG EMPLOYEES, AND AVAILABILITY OF FUNDS. IN NO CASE WILL THERE BE AN 'AUTOMATIC' PLACEMENT IN THE HIGHEST RATE PERMISSIBLE. ACTIVITIES WILL DEVELOP WRITTEN LOCAL POLICIES ON THE USE OF THE HIGHEST PREVIOUS RATE BASED ON THIS POLICY AND THE PROVISIONS THAT FOLLOW."

SECTION 3B(2) OF NOTS INSTRUCTION 12552.3, APRIL 27, 1967, ISSUED BY THE U.S. NAVAL ORDNANCE TEST STATION, CHINA LAKE, CALIFORNIA, STATES:

"IN CHANGES TO LOWER GRADE BY VOLUNTARY ACTION, THE EMPLOYEE WILL NORMALLY BE GIVEN ANY SCHEDULED STEP OF THE GRADE WHICH DOES NOT EXCEED THE RATE FROM WHICH REDUCED."

IN TRANSFERRING THE TWO EMPLOYEES CONCERNED FROM THEIR POSITIONS AS LABORERS TO POLICEMEN AT A LOWER SALARY, BASED UPON THEIR VOLUNTARY REQUESTS, IT APPEARS THAT THE AGENCY EXERCISED ITS DISCRETIONARY AUTHORITY CONTAINED IN THE ABOVE-CITED INSTRUCTION IN SETTING THEIR SALARIES AT A RATE WHICH DID NOT EXCEED THE RATES FROM WHICH REDUCED.

REGARDING THE CLAIM OF MRS. RAASCH, THE REPORT RECEIVED FROM THE DEPARTMENT OF THE NAVY STATES IN PERTINENT PART:

"THE ACTIVITY HAS HAD, FOR SEVERAL YEARS, A LOCAL HIGHEST PREVIOUS RATE POLICY TO NOT USE A STEP ABOVE THE MINIMUM WHEN APPOINTING INDIVIDUALS UNDER TEMPORARY APPOINTMENTS UNLESS IT IS IN THE INTEREST OF THE GOVERNMENT. IN CONFORMANCE WITH THIS POLICY, MRS. RAASCH WAS OFFERED STEP 4 OF GRADE GS-4 IN LIEU OF THE MINIMUM STEP BECAUSE OF HER FORMER SERVICE IN THE POSITION.

"DEPARTMENT OF DEFENSE INSTRUCTION 1400.21 OF 22 APRIL 1970 CONCERNING SALARY AND PAY PROVIDES: ' ... AN EMPLOYEE OF THE DOD WHO IS SEPARATED OR IS SCHEDULED FOR SEPARATION BY REDUCTION-IN-FORCE OR FAILURE TO ACCOMPANY A FUNCTION, WHO IS PLACED THROUGH THE CENTRALIZED REFERRAL SYSTEM OR BY REASSIGNMENT OR TRANSFER, OR REEMPLOYMENT PRIORITY LIST, WILL HAVE HIS PAY FIXED IN THE NEW GRADE AT A STEP RATE WHICH PRESERVES TO HIM, SO FAR AS POSSIBLE, HIS LAST EARNED RATE ... .' THIS PROVISION IS CONTAINED IN THE NAVY'S CIVILIAN MANPOWER MANAGEMENT INSTRUCTION 531.S2-4. MRS. RAASCH WAS REEMPLOYED FROM THE CIVIL SERVICE COMMISSION'S DISPLACED CAREER EMPLOYEES LIST. THEREFORE, THE INSTRUCTION WAS NOT APPLICABLE IN SETTING HER RATE OF PAY UPON REEMPLOYMENT.

"IT IS ALSO THE LOCAL POLICY OF THE ACTIVITY TO CONSIDER ADJUSTING A TEMPORARY EMPLOYEE'S SALARY BASED ON A HIGHEST PREVIOUS RATE WHEN THE EMPLOYEE'S APPOINTMENT IS CHANGED TO CAREER OR CAREER-CONDITIONAL. ACCORDINGLY, CONSIDERATION WAS GIVEN TO ADJUSTING MRS. RAASCH'S SALARY WHEN SHE WAS CONVERTED TO REINSTATEMENT-CAREER ON 15 NOVEMBER 1970. HOWEVER, THE ACTIVITY DETERMINED TO CONTINUE MRS. RAASCH'S SAME RATE OF PAY BECAUSE OF THE UNSTABLE FUNDING CONDITIONS OF THE ACTIVITY *** ."

5 CFR 531.202(K) DEFINES "REEMPLOYMENT" AS:

" *** AN EMPLOYMENT, INCLUDING REINSTATEMENT OR ANOTHER TYPE OF APPOINTMENT, AFTER A BREAK IN SERVICE OF AT LEAST 1 FULL WORKDAY."

BASED UPON THE FOREGOING LAW AND REGULATIONS, IT IS CLEAR THAT THE DEPARTMENT OF THE NAVY IN GIVING MRS. RAASCH A TEMPORARY APPOINTMENT TO HER OLD POSITION HAD THE AUTHORITY TO REEMPLOY HER AT STEP 4 OF GRADE GS-4 BASED UPON HER FORMER SERVICE WITH THE AGENCY. HOWEVER, THE BASIC CONTENTION OF MRS. RAASCH IS THAT AT THE TIME SHE WAS GIVEN THE PERMANENT APPOINTMENT BY NPRO ON NOVEMBER 15, 1970, SHE SHOULD HAVE BEEN APPOINTED AT A HIGHER SALARY RATE BASED UPON HER HAVING WORKED AT GS-5, STEP 3, WITH THE ARMY PROCUREMENT AGENCY. THE REPORT SHOWS THAT CONSIDERATION WAS IN FACT GIVEN TO ADJUSTING THE CLAIMANT'S SALARY, BUT DUE TO UNSTABLE FUNDING CONDITIONS OF THE ACTIVITY, IT WAS DETERMINED TO CONTINUE HER AT THE SAME RATE OF PAY EARNED BY HER AS A TEMPORARY EMPLOYEE. THE EXERCISE OF SUCH DISCRETIONARY AUTHORITY IS AUTHORIZED BY SUBSECTION (C), SECTION 531.203, OF THE CIVIL SERVICE REGULATIONS CITED ABOVE.

IN VIEW OF THE ABOVE IT IS OUR OPINION THAT THE ACTIONS OF THE DEPARTMENT OF THE NAVY IN ESTABLISHING THE SALARY RATES OF THE THREE CLAIMANTS INVOLVED WERE IN ACCORDANCE WITH ITS REGULATIONS AS WELL AS THOSE OF THE CIVIL SERVICE COMMISSION.