B-196626, JAN 27, 1981

B-196626: Jan 27, 1981

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WAS RECLASSIFIED AND CONVERTED FROM GENERAL INTERMEDIATE LITHOGRAPHER UNDER PREVAILING RATE SYSTEM. EMPLOYEE'S CLAIM FOR RETROACTIVE RECLASSIFICATION OF POSITION WITH BACK PAY FROM DATE OF ORIGINAL CONVERSION IS DISALLOWED. LANGSTON - RETROACTIVE RECLASSIFICATION OF POSITION: THIS ACTION IS IN RESPONSE TO AN APPEAL BY MR. ARE AS FOLLOWS: MR. LANGSTON WAS EMPLOYED AS A GENERAL INTERMEDIATE LITHOGRAPHER. LANGSTON'S ANNUAL SALARY WAS $13. WERE NOT RECLASSIFIED AND CONTINUED TO RECEIVE PAY UNDER THE PREVAILING RATE SYSTEM. HE FEELS THAT HE AND OTHER LITHOGRAPHIC WORKERS IN THE GEOLOGICAL SURVEY HAVE BEEN DENIED EQUAL PAY FOR EQUAL WORK. IS VESTED BY LAW. IN THE AGENCIES WHERE THE POSITIONS ARE LOCATED AND THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF PERSONNEL MANAGEMENT).

B-196626, JAN 27, 1981

DIGEST: THE POSITION OF THE CLAIMANT, SIMILARLY TO THOSE OF APPROXIMATELY 75 OTHER EMPLOYEES OF DEPARTMENT OF INTERIOR, WAS RECLASSIFIED AND CONVERTED FROM GENERAL INTERMEDIATE LITHOGRAPHER UNDER PREVAILING RATE SYSTEM, TO CARTOGRAPHIC TECHNICAN UNDER GENERAL SCHEDULE. EMPLOYEES SUCCESSFULLY APPEALED CONVERSION TO CIVIL SERVICE COMMISSION WHICH DIRECTED AGENCY TO CONVERT THE EMPLOYEES BACK TO PREVAILING RATE SYSTEM. CERTIFICATE SET EFFECTIVE DATE AS NOT EARLIER THAN DATE OF RECEIPT OF APPEAL DECISION OR LATER THAN FOURTH PAY PERIOD FOLLOWING DATE OF RECEIPT OF DECISION. AGENCY CORRECTLY IMPLEMENTED THE COMMISSION'S ORDER. EMPLOYEE'S CLAIM FOR RETROACTIVE RECLASSIFICATION OF POSITION WITH BACK PAY FROM DATE OF ORIGINAL CONVERSION IS DISALLOWED.

CAESAR A. LANGSTON - RETROACTIVE RECLASSIFICATION OF POSITION:

THIS ACTION IS IN RESPONSE TO AN APPEAL BY MR. CAESAR A. LANGSTON, AN EMPLOYEE OF THE GEOLOGICAL SURVEY, UNITED STATES DEPARTMENT OF THE INTERIOR, FROM THE SETTLEMENT ACTION DATED JULY 17, 1979, ISSUED BY OUR CLAIMS DIVISION, WHICH DISALLOWED MR. LANGSTON'S CLAIM FOR RETROACTIVE RECLASSIFICATION OF HIS POSITION FROM CARTOGRAPHIC TECHNICIAN, UNDER THE GENERAL SCHEDULE, TO GENERAL INTERMEDIATE LITOGRAPHER, UNDER THE PREVAILING WAGE SYSTEM, DURING THE PERIOD JULY 1, 1976, TO DECEMBER 31, 1977.

THE FACTS AND CIRCUMSTANCES INVOLVED IN THE CLAIM, BRIEFLY STATED, ARE AS FOLLOWS: MR. LANGSTON WAS EMPLOYED AS A GENERAL INTERMEDIATE LITHOGRAPHER, STEP 2, AT AN HOURLY WAGE OF $6.71 ($13,956.80 ANNUALLY). ON JUNE 20, 1976, THE GEOLOGICAL SURVEY, AFTER CONSULTING WITH AND OBTAINING THE WRITTEN APPROVAL OF THE UNITED STATES CIVIL SERVICE COMMISSION (CSC) (NOW OFFICE OF PERSONNEL MANAGEMENT) (OPM), CONVERTED APPROXIMATELY 75 LITHOGRAPHER POSITIONS IN THREE MAPPING CENTERS, INCLUDING MR. LANGSTON'S POSITION, LOCATED IN THE ROCKY MOUNTAIN MAPPING CENTER, FROM THE PREVAILING WAGE SYSTEM TO THE GENERAL SCHEDULE. UPON CONVERSION TO THE GENERAL SCHEDULE, MR. LANGSTON'S ANNUAL SALARY WAS $13,990, AS A CARTOGRAPHIC TECHNICIAN, GS-1371-7, STEP 9.

IN FEBRUARY 1977, LOCAL 276, GRAPHIC ARTS INTERNATIONAL UNION, AFL CIO, AS THE RECOGNIZED COLLECTIVE BARGAINING REPRESENTATIVE OF THE AFFECTED EMPLOYEES IN THE ROCKY MOUNTAIN MAPPING CENTER, INCLUDING THE CLAIMANT HERE, FILED A CLASSIFICATION APPEAL AGAINST THE GEOLOGICAL SURVEY WITH THE COMMISSION. BY LETTER DATED NOVEMBER 14, 1977, THE DENVER REGIONAL OFFICE OF THE COMMISSION RENDERED A DECISION IN FAVOR OF THE EMPLOYEES AND ORDERED THAT THEIR POSITIONS BE RETURNED TO THE PREVAILING RATE SYSTEM.

IN CONJUNCTION WITH ITS DECISION, THE DENVER OFFICE ISSUED A CERTIFICATE MAKING THE DECISION BINDING UPON ALL ADMINISTRATIVE, CERTIFYING, PAYROLL, DISBURSING, AND ACCOUNTING OFFICERS OF THE GOVERNMENT UNDER 5 U.S.C. SECS. 5112 AND 5346 (1976) AND ORDERING THAT THE DECISION BE MADE EFFECTIVE NO EARLIER THAN THE DATE OF RECEIPT OF THE CERTIFICATE AND NO LATER THAN THE BEGINNING OF THE FOURTH PAY PERIOD AFTER ITS RECEIPT.

ON NOVEMBER 23, 1977, THE GEOLOGICAL SURVEY REQUESTED THE COMMISSION TO RECONSIDER THE DECISION OF ITS DENVER REGION. BY LETTER DATED AUGUST 21, 1978, THE COMMISSION'S CLASSIFICATION APPEALS OFFICE, WASHINGTON, D. C., AFFIRMED THE DENVER REGION'S DECISION AND ORDERED THAT IT BE IMPLEMENTED. IN ACCORDANCE WITH THE TERMS OF THE CERTIFICATE, THE GEOLOGICAL SURVEY CONVERTED THE POSITIONS UNDER CONSIDERATION TO THE PREVAILING RATE SYSTEM EFFECTIVE JANUARY 1, 1978, THE LATEST DATE PERMITTED.

MR. LANGSTON REPORTS THAT LITHOGRAPHIC WORKERS OF THE PARK SERVICE, DENVER, COLORADO, ALSO UNDER THE DEPARTMENT OF THE INTERIOR, WERE NOT RECLASSIFIED AND CONTINUED TO RECEIVE PAY UNDER THE PREVAILING RATE SYSTEM. HE FEELS THAT HE AND OTHER LITHOGRAPHIC WORKERS IN THE GEOLOGICAL SURVEY HAVE BEEN DENIED EQUAL PAY FOR EQUAL WORK. MR. LANGSTON STATES THAT HE LOST APPROXIMATELY $1,000 WHILE ERRONEOUSLY CLASSIFIED UNDER THE GENERAL SCHEDULE FROM JULY 1, 1976, THROUGH DECEMBER 31, 1977.

THE AUTHORITY TO CLASSIFY BOTH GENERAL SCHEDULE AND PREVAILING RATE POSITIONS, INCLUDING THE AUTHORITY TO DETERMINE INTO WHICH OF THESE CATEGORIES POSITIONS FALL, IS VESTED BY LAW, NOT IN THE GENERAL ACCOUNTING OFFICE, BUT IN THE AGENCIES WHERE THE POSITIONS ARE LOCATED AND THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF PERSONNEL MANAGEMENT). SEE SECTIONS 5103, 5107, 5110, 5112, 5115, AND 5346 OF TITLE 5, U.S.C. AND THE IMPLEMENTING REGULATIONS IN PARTS 511 AND 532 OF TITLE 5, CODE OF FEDERAL REGULATIONS. UNDER THESE LAWS AND REGULATIONS, AN AGENCY IS REQUIRED TO INITIALLY CLASSIFY POSITIONS UNDER ITS JURISDICTION AND TO CHANGE THE CLASSIFICATION WHEN CIRCUMSTANCES WARRANT. THESE ACTIONS BY AN AGENCY ARE THE BASIS FOR PAY AND PERSONNEL TRANSACTIONS UNTIL CHANGED BY CERTIFICATE ISSUED BY OPM. 5 U.S.C. SECS. 5107 AND 5346.

WHEN AN EMPLOYEE SUCCESSFULLY APPEALS HIS AGENCY'S CLASSIFICATION OF HIS POSITION TO CSC (OPM), THE COMMISSION CERTIFIES ITS DECISION TO THE AGENCY AND PRESCRIBES THE EFFECTIVE DATE IN ACCORDANCE WITH THE GOVERNING REGULATIONS. THE AGENCY IS REQUIRED TO ACT IN ACCORDANCE WITH THE CERTIFICATE, AND THE CERTIFICATE IS BINDING ON ALL ADMINISTRATIVE, CERTIFYING, PAYROLL, DISBURSING, AND ACCOUNTING OFFICIALS, INCLUDING THE GENERAL ACCOUNTING OFFICE. 5 U.S.C. SECS. 5112 AND 5346; 5 C.F.R. 511.702, 511.703, AND 532.703; GWENN HERRING, B-188120, FEBRUARY 21, 1975.

IN THIS CASE, CSC APPEARS TO HAVE CORRECTLY APPLIED THE GOVERNING REGULATION, 5 C.F.R. 511.702, WHICH PROVIDES THAT THE EFFECTIVE DATE OF A CHANGE IN THE CLASSIFICATION OF A GENERAL SCHEDULE POSITION RESULTING FROM AN APPEAL TO CSC (OPM) SHALL BE NOT EARLIER THAN THE DATE OF RECEIPT OF THE DECISION ON THE APPEAL AND NOT LATER THAN THE BEGINNING OF THE FOURTH PAY PERIOD FOLLOWING THE DATE OF RECEIPT OF THE DECISION UNLESS A SUBSEQUENT DATE IS SPECIFIED IN THE DECISION. WHILE 5 C.F.R. 511.703 PROVIDES THAT UPON TIMELY APPEAL, A CLASSIFICATION DECISION REVERSING A DOWNGRADING OR OTHER CLASSIFICATION ACTION RESULTING IN A REDUCTION OF PAY MAY BE MADE RETROACTIVE, THIS HAS NO APPLICATION HERE. MR. LANGSTON WAS NOT DOWNGRADED AND DID NOT SUFFER A REDUCTION OF PAY AT THE TIME HIS POSITION WAS REMOVED FROM THE PREVAILING RATE SYSTEM AND PLACED UNDER THE GENERAL SCHEDULE. 55 COMP.GEN. 515 (1975).

THE GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO WAIVE OR MODIFY THE APPLICATION OF THE FOREGOING PROVISIONS OF LAW AND REGULATIONS OR DECISIONS OF CSC (OPM) RENDERED PURSUANT THERETO. MOREOVER, IN UNITED STATES V. TESTAN, 424 U.S. 392 (1976), THE SUPREME COURT OF THE UNITED STATES HAS HELD THAT NEITHER THE CLASSIFICATION STATUTES, 5 U.S.C. SECS. 5101-5115 (1976), NOR THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (1976), CREATES A SUBSTANTIVE RIGHT TO BACK PAY BY AN EMPLOYEE AGAINST THE UNITED STATES DURING A PERIOD OF CLAIMED WRONGFUL CLASSIFICATION. ROBERT D. WARREN, B-197474, JUNE 9, 1980.

ACCORDINGLY, WE CAN FIND NO LEGAL BASIS FOR MAKING THE RECLASSIFICATION AND CONVERSION OF MR. LANGSTON'S POSITION FROM THE GENERAL SCHEDULE TO THE PREVAILING RATE SYSTEM RETROACTIVE TO JULY 1, 1976, OR FOR GRANTING HIM BACK PAY FROM THAT DATE THROUGH DECEMBER 31, 1977. THE SETTLEMENT ACTION OF OUR CLAIMS DIVISION DENYING HIS CLAIM IS THEREFORE SUSTAINED.