B-201037, FEB 2, 1981

B-201037: Feb 2, 1981

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WAS TRANSFERRED AND PROMOTED TO GS-13. WHEN EMPLOYEE FAILED TO MEET TRAINING REQUIREMENTS AND WAS VOLUNTARILY DEMOTED BACK TO GS-12. AGENCY'S NONDISCRETIONARY SALARY SETTING ORDERS (WHICH HAVE CONTROLLING LEGAL EFFECT) REQUIRED THAT CORRECT DATE OF COMMENCING WAITING PERIOD FOR ADVANCEMENT TO GS-12. EMPLOYEE'S CLAIM AS TO BEGINNING OF WAITING PERIOD IS CORRECT. THE UNDISPUTED FACTS ON WHICH HIS CLAIM IS BASED SHOW THAT MR. WAS ON JANUARY 29. HE WAS DEMOTED TO GS-12. STEP 5 (HIS PAY GRADE PRIOR TO THE DENVER PROMOTION) AND WAS TRANSFERRED AS REQUESTED. THIS WAS BASED ON HIS WITHIN-GRADE INCREASE TO GS-13. WHICH WAS THE ORIGINAL EFFECTIVE DATE FOR HIS ADVANCEMENT TO GS-12. HIS SALARY SHALL BE REDUCED AS FOLLOWS: "(A) IF THE EMPLOYEE RETURNS TO THE GRADE FROM WHICH HE/SHE WAS PROMOTED.

B-201037, FEB 2, 1981

DIGEST: FAA EMPLOYEE, A GS-12, STEP 5, AIR TRAFFIC CONTROL SPECIALIST, WAS TRANSFERRED AND PROMOTED TO GS-13, STEP 2, IN CONNECTION WITH DEVELOPMENTAL TRAINING ASSIGNMENT AND SUBSEQUENTLY RECEIVED WITHIN GRADE INCREASE TO GS-13, STEP 3. WHEN EMPLOYEE FAILED TO MEET TRAINING REQUIREMENTS AND WAS VOLUNTARILY DEMOTED BACK TO GS-12, STEP 5 POSITION, AGENCY'S NONDISCRETIONARY SALARY SETTING ORDERS (WHICH HAVE CONTROLLING LEGAL EFFECT) REQUIRED THAT CORRECT DATE OF COMMENCING WAITING PERIOD FOR ADVANCEMENT TO GS-12, STEP 6, BE SET AT ORIGINAL EFFECTIVE DATE OF EMPLOYEE'S ADVANCEMENT TO GS-12, STEP 5, PRIOR TO HIS PROMOTION AND TRANSFER TO DEVELOPMENTAL TRAINING POSITION. EMPLOYEE'S CLAIM AS TO BEGINNING OF WAITING PERIOD IS CORRECT.

DOUGLAS RUGER - PERIODIC STEP INCREASE - WAITING PERIOD:

MR. DOUGLAS RUGER, THROUGH HIS AUTHORIZED REPRESENTATIVE, THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, PRESENTS A CLAIM CONCERNING THE WAITING PERIOD FOR A WITHIN-GRADE INCREASE AND THE PROPER TIMING FOR THE GRANTING OF SUCH AN INCREASE IN CONNECTION WITH HIS EMPLOYMENT WITH THE FEDERAL AVIATION ADMINISTRATION AT THE COLORADO SPRINGS AIR TRAFFIC CONTROL TOWER, COLORADO SPRINGS, COLORADO.

THE UNDISPUTED FACTS ON WHICH HIS CLAIM IS BASED SHOW THAT MR. RUGER, A GS-12, STEP 5, AIR TRAFFIC CONTROL SPECIALIST, WAS ON JANUARY 29, 1978, TRANSFERRED AND PROMOTED TO A GS-13, STEP 2, DEVELOPMENTAL AIR TRAFFIC CONTROL SPECIALIST AT DENVER AIR TRAFFIC CONTROL TOWER. ON JANUARY 28, 1979, HE RECEIVED A WITHIN-GRADE INCREASE TO GS-13, STEP 3. AS A RESULT OF HIS TRAINING FAILURE AND WITHDRAWAL FROM THE DENVER TRAINING PROGRAM, MR. RUGER REQUESTED A TRANSFER BACK TO COLORADO SPRINGS AIR TRAFFIC CONTROL TOWER. ON FEBRUARY 25, 1979, HE WAS DEMOTED TO GS-12, STEP 5 (HIS PAY GRADE PRIOR TO THE DENVER PROMOTION) AND WAS TRANSFERRED AS REQUESTED.

THE CLAIM ARISES FROM THE FACT THAT FAA HAS SET JANUARY 28, 1979, AS THE DATE THAT MR. RUGER'S WAITING PERIOD BEGAN FOR ADVANCEMENT OF HIS PAY RATE TO GS-12, STEP 6. THIS WAS BASED ON HIS WITHIN-GRADE INCREASE TO GS-13, STEP 3, WHICH THE FAA CONSIDERS AN EQUIVALENT INCREASE AS OUTLINED IN THE FEDERAL PERSONNEL MANUAL, CHAPTER 531, SUBCHAPTER 4-8. MR. RUGER BELIEVES THAT HIS WAITING PERIOD FOR HIS GS-12, STEP 6, WITHIN-GRADE INCREASE SHOULD BEGIN ON SEPTEMBER 9, 1977, WHICH WAS THE ORIGINAL EFFECTIVE DATE FOR HIS ADVANCEMENT TO GS-12, STEP 5, PRIOR TO HIS TRANSFER TO DENVER AIR TRAFFIC CONTROL TOWER. HE BASES THIS CLAIM ON THE PAY SETTING PROCEDURE OUTLINED IN FAA ORDER PT P 3550.1A, CHAPTER 2, PARAGRAPH 12(E)(2)(A), "PAY UNDER THE CLASSIFICATION ACT SYSTEM" WHICH PROVIDES THAT WHEN AN EMPLOYEE IN A "TRAINEE POSITION" - SUCH AS MR. RUGER IN THIS CASE - REQUESTS A DEMOTION, HIS SALARY SHALL BE REDUCED AS FOLLOWS:

"(A) IF THE EMPLOYEE RETURNS TO THE GRADE FROM WHICH HE/SHE WAS PROMOTED, SET HIS/HER SALARY WHERE IT WOULD HAVE BEEN SET HAD HE/SHE NOT BEEN PROMOTED, TAKING INTO ACCOUNT ANY WITHIN-GRADE INCREASES TO WHICH HE/SHE WOULD HAVE BECOME ENTITLED HAD HE/SHE REMAINED AT THE LOWER GRADE."

GENERALLY, SUBCHAPTER S4-8(B) OF BOOK 531 OF FPM SUPPLEMENT 990-1 DESCRIBES AN EQUIVALENT INCREASE AS AN INCREASE OR INCREASES IN AN EMPLOYEE'S RATE OF BASIC PAY EQUAL TO OR GREATER THAN THE AMOUNT OF THE WITHIN-GRADE INCREASE FOR THE GRADE IN WHICH THE EMPLOYEE IS SERVING. A CASE WHERE THIS AUTHORITY STANDING ALONE WAS CONTROLLING, WE HELD THAT WHEN AN EMPLOYEE WAS PROMOTED FROM GRADE GS-11, STEP 9, TO GS-12, STEP 5, IN NOVEMBER 1975, HIS INCREASE IN PAY BY THAT PROMOTION CONSTITUTED AN EQUIVALENT INCREASE AND, THUS, WOULD BE THE INCEPTION DATE FOR A NEW WAITING PERIOD. THE FACT THAT THE EMPLOYEE WAS LATER DEMOTED AND RETURNED TO HIS FORMER GRADE AND STEP DID NOT NEGATE THE NEW WAITING PERIOD SINCE AT THE TIME THE PROMOTION WAS PROPER AND HE RECEIVED THE BENEFITS THEREUNDER. 57 COMP.GEN. 646 (1978).

HOWEVER, IT IS CLEARLY EVIDENT THAT PARAGRAPH 12(E)(2)(A) OF CHAPTER 2, FAA ORDER PT P 3550.1A SUPPLEMENTS THE FEDERAL PERSONNEL MANUAL PROVISIONS IN ESTABLISHING A NONDISCRETIONARY DUTY ON THE PART OF THE AGENCY TO SET THE SALARY OF AN EMPLOYEE REQUESTING DEMOTION FROM A TRAINEE POSITION WHERE THE SALARY WOULD HAVE BEEN SET HAD THE EMPLOYEE NOT BEEN PROMOTED, AT THE SAME TIME TAKING INTO ACCOUNT ANY WITHIN GRADE INCREASE TO WHICH THE EMPLOYEE WOULD HAVE BECOME ENTITLED HAD HE REMAINED AT THE LOWER GRADE.

IN EVALUATING THE APPLICABILITY AND LEGAL EFFECT OF THE AGENCY'S SUPPLEMENTAL ORDERS WE NOTE FIRST THAT UNDER 5 U.S.C. SEC. 301 (1976), AND AS SPECIFICALLY PROVIDED FOR AT CHAPTER 171 OF THE FEDERAL PERSONNEL MANUAL, AN AGENCY MAY PROMULGATE SUPPLEMENTAL PERSONNEL REGULATIONS AND POLICIES FOR ITS EMPLOYEES WITHIN THE GENERAL FRAMEWORK OF AND CONSISTENT WITH OFFICE OF PERSONNEL MANAGEMENT REGULATIONS. KENNETH FENNER, B-183937, JUNE 23, 1977. AND, IN THIS REGARD, WE HAVE PREVIOUSLY DETERMINED THAT THE FEDERAL AVIATION ADMINISTRATION'S RULES EMBODIED IN PARAGRAPH 12(E)(2)(A) OF CHAPTER 2 OF ORDER PT P 3550.1A REPRESENT AN APPROPRIATE EXERCISE OF ADMINISTRATIVE DISCRETION. ROBERT J. FLYNN, B-195016, OCTOBER 12, 1979.

AS A RESULT WE MUST CONCLUDE THAT THE AGENCY IN MR. RUGER'S CASE IS COMMITTED TO CARRYING OUT THE NONDISCRETIONARY PROVISIONS OF PARAGRAPH 12(E)(2)(A) OF CHAPTER 2, FAA ORDER PT P 3550.1A AND THAT THOSE PROVISIONS CONTROL THE DETERMINATION OF MR. RUGER'S SALARY SETTING ENTITLEMENTS.

ACCORDINGLY, MR. RUGER SHOULD HAVE BEEN PLACED IN THE STEP IN THE LOWER GRADE THAT HE WOULD HAVE BEEN ENTITLED TO HAD HE NOT BEEN PROMOTED - INCLUDING RECOGNITION OF ALL WITHIN-GRADE ENTITLEMENTS HE WOULD HAVE EARNED HAD HE REMAINED IN THE LOWER GRADE. SINCE THE TIME IN GRADE REQUIREMENT (OR WAITING PERIOD) INCIDENT TO A WITHIN-GRADE INCREASE IS A MATERIAL ELEMENT AFFECTING ENTITLEMENT TO THE WITHIN GRADE INCREASE, THE CORRECT DATE FOR MR. RUGER'S WAITING PERIOD FOR ADVANCEMENT TO PAY RATE GS -12, STEP 6, SHOULD BE SET AT SEPTEMBER 9, 1977, WHICH WAS THE ORIGINAL EFFECTIVE DATE FOR HIS ADVANCEMENT TO PAY RATE GS-12, STEP 5, PRIOR TO HIS PROMOTION AND TRANSFER TO THE DEVELOPMENTAL TRAINING POSITION.