B-234876.2, Feb 16, 1990

B-234876.2, Feb 16, 1990

DIGEST: Employee claims entitlement to a pay adjustment under 5 U.S.C. Sec. 5333(b) and agency regulations, contending that applicable provision of those regulations (Civilian Manpower Management Instruction 531.S3, para. S3-2c(1)), which uses the word "will" establishes a mandatory agency policy. The claim is denied. The word "will" used in the phrase "will be adjusted when justified," does not mandate a pay adjustment. The words "when justified" modify the word "will" and establish that the agency policy is discretionary. Since we find no error or abuse of discretion in agency's action, there is no basis to adjust the employee's pay rate.

Elgie B. Richards - Pay Adjustment for Supervisors Reconsideration:

This decision is in response to correspondence from Mr. Elgie B. Richards requesting reconsideration of decision B-234876, Aug. 9, 1989, rendered in his case. That decision sustained our Claims Group settlements Z-2863812, Jan. 21 and Apr. 14, 1988, which denied his claim for salary adjustment under 5 U.S.C. Sec. 5333(b) based on his supervision of higher paid Wage Grade employees. We sustain the earlier decision for the following reasons.

Mr. Richards was initially employed as a shipping supervisor, grade GS-9, at the Naval Air Station North Island, San Diego, California, on September 28, 1978. On December 16, 1979, he was promoted to Traffic Branch Manager, Aviation Department, grade GS-11, step 1, supervising approximately 109 General Schedule and Wage Grade employees, at least two of whom earned a basic rate of pay greater than Mr. Richards. Because of this pay inversion, Mr. Richards requested a pay adjustment to step 9 of his grade on several occasions in 1980. His request was denied. /1/

On October 1, 1980, the function of the Aviation Department was transferred from the Naval Air Station to the Naval Supply Center, San Diego, and Mr. Richards's position was retitled Material Distribution Branch Manager, also a grade GS-11 position. According to Mr. Richards, he supervised approximately 125 General Schedule and Wage Grade employees, four of whom earned a basic rate of pay greater than his.

Although Mr. Richards had been previously denied a pay adjustment, he states that prior to October 1, 1980, he was informed that following the transfer of function, he would be granted the salary adjustment. The necessary SF-52 was prepared and forwarded for approval on June 9, 1981, but was not approved.

Mr. Richards contends that a proper reading of the Navy's Civilian Manpower Management Instruction 531.S3, para. S3-2c(1), which uses the word "will" with respect to granting pay adjustments to employees who supervise Wage Grade employees, establishes a mandatory agency policy in that regard.

OPINION

Under the authority of 5 U.S.C. Sec. 5333(b), a General Schedule employee may be paid at a step rate above that to which the employee is otherwise entitled when the employee supervises prevailing rate employees whose rate of basic pay is greater. The implementing regulations provide that, in determining whether to use this authority, an agency shall consider the relative rate-ranges of the supervisor and the employee and the equities among supervisors in the same organization. 5 C.F.R. section 531.303 (1988). Section 531.305 provides the method of adjusting the rate "when an agency decides to adjust" the supervisor's pay.

Clearly, under the statute and the regulations, a supervisor is not entitled to a pay adjustment based solely on a finding that he supervises prevailing rate employees whose pay rates exceed the supervisor's rate of pay. The decision to grant an employee a pay adjustment under 5 U.S.C. Sec. 5333(b) is based on additional factors and is within the discretion of the agency. James L. Davis, B-212581, May 16, 1984, and decisions cited.

The language in the Civilian Manpower Management Instruction 531.S3 2C(1), referred to by Mr. Richards, states that pay for supervisors "will be adjusted when justified." Contrary to Mr. Richards's contention that, because the word "will" is used, pay adjustments are mandatory, the word "will" does not by itself require a pay increase. That work is modified by the words "when justified" which establish agency discretion in the matter.

We find no error or abuse of discretion in the determinations made by appropriate agency officials in not granting a pay increase here. Accordingly, we find no basis to adjust Mr. Richards's pay rate, and the prior denial of his claim is sustained.

/1/ Navy Reference: Code 431(YHW) 7240 (R) Cl. Vou. 189343, 23 Jan 1986.