B-173846, SEP 8, 1971

B-173846: Sep 8, 1971

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THROUGH ERROR CLAIMANT WAS PLACED IN POSITION STEP 3 OF GRADE WG-12 INSTEAD OF STEP 2. THE ERROR WAS CORRECTED AND CLAIMANT ALLEGES THAT THIS ACTION WAS ERRONEOUS UNDER HIGHER RATE RULE. THIS BELIEF OF CLAIMANT IS NOT JUSTIFIED. CLAIM IS DENIED. THE PAPERS SUBMITTED WITH YOUR LETTER STATE THAT AN ERROR WAS MADE IN PLACING YOUR POSITION IN STEP 3 OF GRADE WG-12 INSTEAD OF STEP 2. THAT ERROR IS SHOWN TO BE CORRECTED. WAS NOT APPLICABLE IN YOUR CASE. WE POINT OUT THAT FPM SUPPLEMENT 990-2 (SUBCHAPTER S2) IS CONCERNED ONLY WITH DETERMINING THE BASIC RATES OF PAY OF EMPLOYEES SUBJECT TO THE GENERAL SCHEDULE. IT IS THEREFORE NOT APPLICABLE TO YOUR POSITION AS A WAGE BOARD EMPLOYEE. WILL HOWEVER REVIEW THE ADMINISTRATIVE ACTION IN VIEW OF YOUR EXPRESSED DISSATISFACTION.

B-173846, SEP 8, 1971

CIVILIAN EMPLOYEE - WAGE SCALE - CLAIM UNDER HIGHER RATE RULE DECISION CONCERNING PROPRIETY OF RATE OF PAY FOR MR. RICHARD W. LUCAS, JR., EMPLOYEE OF THE DEPARTMENT OF THE NAVY, SET INCIDENT TO THE CONVERSION OF HIS POSITION TO THE COORDINATED FEDERAL WAGE SCALE. THROUGH ERROR CLAIMANT WAS PLACED IN POSITION STEP 3 OF GRADE WG-12 INSTEAD OF STEP 2. THE ERROR WAS CORRECTED AND CLAIMANT ALLEGES THAT THIS ACTION WAS ERRONEOUS UNDER HIGHER RATE RULE, FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2(2). THIS BELIEF OF CLAIMANT IS NOT JUSTIFIED, AS FPM 990 -2(2) APPLIES ONLY TO GENERAL SCHEDULE EMPLOYEES. THEREFORE, CLAIM IS DENIED.

TO MR. RICHARD W. LUCAS, JR.:

WE REFER FURTHER TO YOUR LETTER OF JULY 29, 1971, WITH ENCLOSURES, CONCERNING THE PROPRIETY OF YOUR RATE OF PAY SET INCIDENT TO THE CONVERSION OF YOUR POSITION TO THE COORDINATED FEDERAL WAGE SYSTEM.

THE PAPERS SUBMITTED WITH YOUR LETTER STATE THAT AN ERROR WAS MADE IN PLACING YOUR POSITION IN STEP 3 OF GRADE WG-12 INSTEAD OF STEP 2, EFFECTIVE MARCH 22, 1970, IN THE CONVERSION AND GRADING ACTIONS OF YOUR POSITION INCIDENT TO CHANGING YOUR POSITION TO THE COORDINATED FEDERAL WAGE SYSTEM. THAT ERROR IS SHOWN TO BE CORRECTED. YOU REQUEST THAT YOU BE AWARDED YOUR HIGHEST RATE OF PAY - THE RATE SET IN ERROR.

YOU STATE THAT YOU CANNOT ACCEPT THE RULING OF THE NAVY DEPARTMENT IN ITS LETTER OF JUNE 22, 1971, STATING THE FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1, SUBCHAPTER S8-3J(2), WAS NOT APPLICABLE IN YOUR CASE, AND YOU SPECIFICALLY REFER TO "FPM SUPPLEMENT 990-2(2), HIGHER RATE" AND TO 30 COMP. GEN. 492 (1951).

WE POINT OUT THAT FPM SUPPLEMENT 990-2 (SUBCHAPTER S2) IS CONCERNED ONLY WITH DETERMINING THE BASIC RATES OF PAY OF EMPLOYEES SUBJECT TO THE GENERAL SCHEDULE. IT IS THEREFORE NOT APPLICABLE TO YOUR POSITION AS A WAGE BOARD EMPLOYEE. SIMILARLY, THE DECISION CITED BY YOU, 30 COMP. GEN. 492, MODIFIED BY DECISION B-172302, JULY 13, 1971, DID NOT CONCERN AN EMPLOYEE UNDER THE PREVAILING RATE OR WAGE BOARD SYSTEM.

THE FOREGOING EXPLAINS THE DIFFERENCE, AS REQUESTED BY YOU, BETWEEN THE REFERENCED INSTRUCTION AND DECISION AND THE SITUATION IN YOUR CASE. WILL HOWEVER REVIEW THE ADMINISTRATIVE ACTION IN VIEW OF YOUR EXPRESSED DISSATISFACTION.

FPM SUPPLEMENT 532-1, SUBCHAPTER S8-3J(2), PROVIDES:

"HIGHER RATE. WHEN THE INITIAL RATE OF PAY OF AN EMPLOYEE IS FIXED UPON PROMOTION AT A RATE HIGHER THAN THAT AUTHORIZED UNDER AGENCY ADMINISTRATIVE POLICY, BUT WITHIN THE HIGHEST PREVIOUS RATE RULE UNDER THE COORDINATED FEDERAL WAGE SYSTEM REGULATIONS, THE EMPLOYEE'S RATE OF PAY WILL NOT BE CHANGED TO A LOWER RATE OF PAY."

THE NAVY DEPARTMENT LETTER OF JUNE 22 STATES THAT THE FOREGOING WAS NOT APPLICABLE IN YOUR CASE IN THAT THE CIVIL SERVICE COMMISSION REGULATIONS FOR CONVERTING NONSUPERVISORY EMPLOYEES TO THE COORDINATED FEDERAL WAGE SYSTEM DO NOT PROVIDE FOR THE USE OF THE HIGHEST PREVIOUS RATE RULE IN SETTING RATES OF PAY WHEN APPLYING THE NEW JOB GRADING SYSTEM. IT WAS POINTED OUT THAT SUCH REGULATIONS REQUIRED YOUR RATE OF PAY TO BE FIXED AT STEP 2 OF WG-12 UPON YOUR CHANGE TO THE HIGHER GRADE, AND THAT YOUR CHANGE TO WG-12 RESULTED FROM THE APPLICATION OF THE NEW GRADING SYSTEM.

FPM SUPPLEMENT 532-1, SUBCHAPTER S8-3C, STATES:

"POSITION OR APPOINTMENT CHANGE. SUBJECT TO S8-3D, AND TO PAY RETENTION PROVISIONS IN SUBCHAPTER S9, WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, OR CHANGED TO LOWER GRADE, AN AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; HOWEVER, IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE, THE AGENCY MAY PAY HIM AT THE HIGHER RATE. WHEN AN EMPLOYEE'S TYPE OF APPOINTMENT IS CHANGED IN THE SAME JOB, AN 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; HOWEVER, IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE, THE AGENCY MAY PAY HIM AT THE HIGHER RATE."

CONVERSION ACTIONS ARE NOT MENTIONED THEREIN.

THE CHANGES IN YOUR POSITION WERE DUE TO ITS CONVERSION TO THE COORDINATED FEDERAL WAGE SYSTEM AND ARE GOVERNED BY THE PROVISIONS SET FORTH IN SUBCHAPTER S10 OF FPM SUPPLEMENT 532-1. PARAGRAPH "A" OF SUBCHAPTER S10-1 PROVIDES:

"A. THESE POLICIES AND INSTRUCTIONS CONTAIN SPECIFIC DATA ON WHEN AND HOW TO:

"(1) CONVERT TO THE GRADING STRUCTURE OF THE NEW COORDINATED FEDERAL WAGE SYSTEM;

"(2) DETERMINE APPROPRIATE RATE OF PAY;

"(3) APPLY UNITED STATES CIVIL SERVICE COMMISSION JOB-GRADING STANDARDS; AND

"(4) EFFECT ALL REQUIRED PERSONNEL ACTIONS.

"B. ALL AGENCIES WILL FOLLOW THESE POLICIES AND INSTRUCTIONS IN CONVERTING TO THE NEW COORDINATED FEDERAL WAGE SYSTEM.

"C. NO EMPLOYEE IS TO SUFFER A REDUCTION IN PAY AS A DIRECT RESULT OF A CONVERSION ACTION UNDER THE COORDINATED FEDERAL WAGE SYSTEM."

WE FIND NO PROVISION FOR THE APPLICATION OF THE HIGHEST PREVIOUS RATE RULE AS SET FORTH IN SUBCHAPTER S8-3 TO CONVERSION ACTIONS REGULATED UNDER SUBCHAPTER S10.

IN VIEW OF THE FOREGOING, THE ADMINISTRATIVE ACTION APPEARS CORRECT AND IS SUSTAINED.