B-173815, APR 3, 1973

B-173815: Apr 3, 1973

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SINCE THERE WAS NO MANDATORY PROVISION REQUIRING APPOINTMENT OF MR. HIS APPOINTMENT WAS MADE IN ACCORDANCE WITH THE PROVISIONS OF AFM 40-1. THERE IS NO BASIS FOR HOLDING THAT AN ERROR OCCURRED IN THE RATE DETERMINATION. YOU WERE TRANSFERRED FROM A DEPARTMENT OF THE NAVY WAGE BOARD POSITION WITH A RATE OF PAY OF $2.41 AN HOUR TO THE FIRST STEP RATE OF A GS-9 POSITION IN THE DEPARTMENT OF THE AIR FORCE. SINCE THE GS-9 POSITION IN THE DEPARTMENT OF THE AIR FORCE WAS SIMILAR IN NATURE TO THE GS-9 POSITION PREVIOUSLY HELD IN THE DEPARTMENT OF THE NAVY. THE NORMAL PRACTICE WITHIN THE AIR FORCE WILL BE AS FOLLOWS: (2) PROMOTION OR REPROMOTION. THE PAY OF AN EMPLOYEE WHO IS PROMOTED OR REPROMOTED FROM A CLASSIFICATION ACT POSITION IN THE AIR FORCE.

B-173815, APR 3, 1973

CIVILIAN EMPLOYEE - RATE DETERMINATIONS - WAGE BOARD TO GENERAL SCHEDULE - CHANGE OF AGENCIES DECISION REGARDING THE SETTING OF THE SALARY OF PAUL F. BROWN INCIDENT TO A TRANSFER TO A GENERAL SCHEDULE POSITION IN THE DEPARTMENT OF THE AIR FORCE FROM A WAGE BOARD POSITION IN THE DEPARTMENT OF THE NAVY. SINCE THERE WAS NO MANDATORY PROVISION REQUIRING APPOINTMENT OF MR. BROWN TO A RATE HIGHER THAN THE FIRST STEP OF GS-9, AND HIS APPOINTMENT WAS MADE IN ACCORDANCE WITH THE PROVISIONS OF AFM 40-1, AF PG. 6, PARA. 4A(2), ISSUED BY TS 120, 16 DECEMBER 1957, THERE IS NO BASIS FOR HOLDING THAT AN ERROR OCCURRED IN THE RATE DETERMINATION.

TO MR. PAUL F. BROWN:

WE REFER FURTHER TO YOUR LETTER OF OCTOBER 17, 1972, CONCERNING THE SETTING OF YOUR SALARY RATE ON APRIL 3, 1960, INCIDENT TO A TRANSFER TO A GENERAL SCHEDULE POSITION IN THE DEPARTMENT OF THE AIR FORCE FROM A WAGE BOARD POSITION IN THE DEPARTMENT OF THE NAVY.

THE DATA SUBMITTED WITH YOUR LETTER SHOWS THAT ON APRIL 3, 1960, YOU WERE TRANSFERRED FROM A DEPARTMENT OF THE NAVY WAGE BOARD POSITION WITH A RATE OF PAY OF $2.41 AN HOUR TO THE FIRST STEP RATE OF A GS-9 POSITION IN THE DEPARTMENT OF THE AIR FORCE. IT APPEARS THAT EFFECTIVE NOVEMBER 30, 1959, YOU HAD BEEN DOWNGRADED FROM A GS-9, STEP RATE 3, TO THE WAGE BOARD POSITION AS PART OF REDUCTION IN FORCE WITHIN THE DEPARTMENT OF THE NAVY. SINCE THE GS-9 POSITION IN THE DEPARTMENT OF THE AIR FORCE WAS SIMILAR IN NATURE TO THE GS-9 POSITION PREVIOUSLY HELD IN THE DEPARTMENT OF THE NAVY, YOU SEEK AN ANSWER AS TO YOUR ENTITLEMENT TO BEING PLACED AT THE TIME OF YOUR TRANSFER TO YOUR FORMER STEP RATE.

SPECIFICALLY YOU REFER TO CERTAIN OF THE PROVISIONS OF THE AIR FORCE CIVILIAN PERSONNEL MANUAL APPEARING IN PARAGRAPH 4A(2) OF AFM 40-1, AF P9.6, TS 120 OF DECEMBER 16, 1957. PARAGRAPHS 4A(2) AND (3) FROM THE MANUAL CITED READ:

A. NORMAL PRACTICE. EXCEPT AS PROVIDED IN B BELOW, THE NORMAL PRACTICE WITHIN THE AIR FORCE WILL BE AS FOLLOWS:

(2) PROMOTION OR REPROMOTION. THE PAY OF AN EMPLOYEE WHO IS PROMOTED OR REPROMOTED FROM A CLASSIFICATION ACT POSITION IN THE AIR FORCE, OR WHO IS TRANSFERRED FROM A CLASSIFICATION ACT POSITION IN ANOTHER FEDERAL AGENCY WITH A PROMOTION, WILL BE ESTABLISHED IN ACCORDANCE WITH THE MANDATORY PROVISIONS OF SECTION 25.104(A) OF THE CIVIL SERVICE REGULATIONS, BASED UPON THE EXISTING RATE OF PAY IN HIS CURRENT POSITION. WHEN AN EMPLOYEE IS CHANGED FROM A WAGE BOARD TO A CLASSIFICATION ACT POSITION, HIS RATE OF PAY WILL BE ESTABLISHED AT THE LOWEST STEP RATE OF THE GRADE WHICH EQUALS OR EXCEEDS HIS EXISTING RATE. ALTHOUGH THIS ACTION IS TERMED A "PROMOTION" WHEN IT RESULTS IN AN INCREASE IN THE EMPLOYEE'S RATE OF PAY, IT DOES NOT ENTITLE HIM TO AN EQUIVALENT INCREASE IN COMPENSATION. IF AN EMPLOYEE WHO WAS CHANGED TO LOWER GRADE IN LIEU OF SEPARATION FOR REDUCTION IN FORCE OR DISPLACEMENT, OR WHO WAS REEMPLOYED AT A LOWER GRADE WITHIN ONE YEAR FOLLOWING SEPARATION (FROM THE AIR FORCE) FOR REDUCTION IN FORCE OR DISPLACEMENT, IS REPROMOTED TO HIS FORMER GRADE OR TO AN INTERMEDIATE GRADE HIGHER THAN HIS CURRENT GRADE, HIS PAY WILL BE ESTABLISHED AT THE HIGHEST STEP RATE WHICH DOES NOT EXCEED THE RATE FROM WHICH HE WAS PREVIOUSLY REDUCED UNLESS HE IS ENTITLED TO A HIGHER RATE UNDER OTHER PROVISIONS OF THIS PARAGRAPH.

(3) REASSIGNMENT OR TRANSFER FROM ANOTHER AGENCY. THE PAY OF AN EMPLOYEE WHO IS REASSIGNED TO ANOTHER POSITION OR TRANSFERRED FROM ANOTHER AGENCY WITHOUT PROMOTION WILL BE SET SO AS TO RETAIN HIS EXISTING RATE OF PAY. IF THE EXISTING RATE FALLS BETWEEN TWO STEP RATES, THE HIGHER OF THE TWO WILL BE APPLIED.

YOU STATE THAT YOU BELIEVE THE 4TH SENTENCE OF PARAGRAPH 4A(2) QUOTED ABOVE SHOULD HAVE BEEN USED IN DETERMINING YOUR RATE OF PAY UPON YOUR TRANSFER TO THE DEPARTMENT OF THE AIR FORCE ON APRIL 3, 1960.

IN RESPONSE TO OUR REQUEST, YOUR AGENCY HAS REPORTED ON THE RATE DETERMINATION MADE IN YOUR CASE. THE REPORT POINTS OUT THAT, NOTWITHSTANDING THE ESTABLISHMENT OF THE DEPARTMENT OF DEFENSE AS SINGLE AGENCY, DEPARTMENT OF THE AIR FORCE DIRECTIVES AND REGULATIONS WERE BASICALLY DESIGNED TO COVER AIR FORCE EMPLOYEES, PRACTICES, AND WORK SITUATIONS. EXCEPTIONS TO SUCH PRACTICE ARE GENERALLY MADE SPECIFIC, FOR EXAMPLE, SEE AFR 40-530, MAY 17, 1971, WHERE THE DEPARTMENT OF DEFENSE IS TREATED AS A SINGLE AGENCY FOR CERTAIN PERSONNEL ACTIONS. THE REPORT STATES THAT IN THE PAST WHEN CIVIL SERVICE REGULATIONS ALLOWED DISCRETION OR OPTIONS TO AN AGENCY, THE AIR FORCE AND THE NAVY DEVELOPED GUIDELINES AS TWO INDEPENDENT AGENCIES. ACCORDINGLY, THE REPORT STATES THAT IF THE AFM DOES NOT SPEAK OF NAVY EMPLOYMENT OR "OTHER AGENCY" EMPLOYMENT, SUCH OUTSIDE EMPLOYMENT IS NOT COVERED.

TO PRECLUDE ANY MISUNDERSTANDING THE FOLLOWING EXCERPTS ARE QUOTED FROM THE REPORT:

2. AFM 40-1, AF P9.6, PARAGRAPH 4A(2), ISSUED BY TS120, 16 DECEMBER 1957, PROVIDED FOR A VARIETY OF SITUATIONS INVOLVING PROMOTION OR REPROMOTION.

A. THE FIRST SENTENCE SPOKE OF A CHANGE BETWEEN TWO CLASSIFICATION ACT POSITIONS. THE REFERENCE TO TRANSFER BETWEEN FEDERAL AGENCIES WAS NECESSARY TO COMPLY WITH CERTAIN MANDATORY PROVISIONS OF THE CSR, SPECIFICALLY PART 25, SUBPART B - GENERAL COMPENSATION RULES, SECTION 25.104(A), 10 DECEMBER 1957 (TS584), AND NOT REVISED UNTIL 28 JULY 1960 (TS677). HOWEVER, THAT SECTION DID NOT RELATE TO EMPLOYEES WHO CHANGED FROM WAGE BOARD TO CLASSIFICATION ACT.

B. THE SECOND AND THIRD SENTENCES COVERED A CHANGE FROM WAGE BOARD TO CLASSIFICATION ACT AND PROVIDED THAT AN EMPLOYEE'S "RATE OF PAY WILL BE ESTABLISHED AT THE LOWEST STEP RATE OF THE GRADE WHICH EQUALS OR EXCEEDS HIS EXISTING RATE." THIS WAS WRITTEN TO COVER AIR FORCE EMPLOYEES (SEE PARAGRAPH 1, ABOVE), BUT IT CAN BE RELATED TO MR. BROWN. HE WAS IN A WAGE BOARD POSITION IN THE DEPARTMENT OF THE NAVY EARNING $2.41 PER HOUR WHEN HE TRANSFERRED TO THE AIR FORCE AS A GS-9. THE STEP 1 RATE OF GS-9 EXCEEDED $2.41 AND, THEREFORE, WOULD HAVE BEEN THE CORRECT RATE FOR THAT ACTION UNDER THOSE TWO SENTENCES.

C. THE FOURTH SENTENCE WAS REVISED BY TS122, 31 JULY 1958, TO EMPHASIZE THE RESTRICTION TO AIR FORCE EMPLOYEES AND EMPLOYMENT. WITHOUT THE REVISION, SOMEONE NOT FAMILIAR WITH THE BASIC CONCEPT OF AIR FORCE DIRECTIVES COULD HAVE INTERPRETED THE SENTENCE IN A BROADER SENSE (EXAMPLE: TO INCLUDE EMPLOYEES SEPARATED FROM THE NAVY); VIZ., "IF AN EMPLOYEE ... WHO WAS REEMPLOYED AT A LOWER GRADE WITHIN ONE YEAR FOLLOWING SEPARATION FOR REDUCTION IN FORCE ... IS PROMOTED ... HIS PAY WILL BE ESTABLISHED ... (IAW) ... THE RATE FROM WHICH ... REDUCED ..." WITH THE REVISION, SUCH AN INTERPRETATION IS PRECLUDED; VIZ., "... FOLLOWING SEPARATION FROM THE AIR FORCE FOR REDUCTION IN FORCE ... HIS PAY WILL BE ESTABLISHED ..." AT THE HIGHER RATE. THIS MEANS, IN SUMMARY, IF AN EMPLOYEE WAS SEPARATED FROM THE AIR FORCE, HE GETS THE BENEFIT OF HIS HIGHEST PREVIOUS RATE AS DEFINED. IF HE WAS SEPARATED FROM SOME OTHER AGENCY (FOR EXAMPLE, THE DEPARTMENT OF THE NAVY), THE SAME MANDATORY RULE DOES NOT APPLY.

5. IN ADDITION TO THE CSR QUOTED IN 2, ABOVE, OTHER SECTIONS OF PART 25, SUBPART B, RELATE TO THIS CASE.

A. SECTION 25.102, PARAGRAPH (C), 21 SEPTEMBER 1959 (TS643), AND NOT REVISED UNTIL 28 JULY 1960 (TS677), DEFINED "TRANSFER" TO MEAN A "CHANGE OF POSITION BY AN EMPLOYEE FROM ONE AGENCY TO ANOTHER WITHOUT A BREAK IN SERVICE OF A FULL WORKDAY."

B. SECTION 25.103, PARAGRAPH (B)(1), 9 JANUARY 1959 (TS624), AND NOT REVISED UNTIL 28 JULY 1960 BY TS677, PROVIDED THAT "AN EMPLOYEE WHO IS ... TRANSFERRED ... MAY BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED THE EMPLOYEE'S HIGHEST PREVIOUS RATE. THE SAME DISCRETIONARY RULE APPLIED TO AN EMPLOYEE WHO WAS REEMPLOYED OR REPROMOTED. THE ONLY EXCEPTIONS WERE EMPLOYEES COVERED BY SECTION 25.104(A) (SEE 2A, ABOVE) AND THOSE WHOSE POSITIONS WERE INITIALLY CONVERTED TO GS WITHOUT CHANGE IN DUTIES PER SECTION 25.103(D).

C. MR. BROWN'S CHANGE FROM THE NAVY TO THE AIR FORCE WAS A "TRANSFER" AS DEFINED IN PARAGRAPH A, AND THE ACTION TO SET HIS RATE OF PAY AT STEP 1 OF GS-9 WAS WITHIN THE DISCRETIONARY PROVISION QUOTED IN PARAGRAPH B.

THE REPORT CONCLUDES THAT AT THE TIME OF YOUR TRANSFER THERE WAS NEITHER A CIVIL SERVICE NOR AIR FORCE REQUIREMENT THAT MADE IT MANDATORY TO SET YOUR PAY RATE ABOVE THE FIRST STEP OF GS-9.

ON THE RECORD SET FORTH ABOVE WE SEE NO BASIS FOR HOLDING THAT AN ERROR OCCURRED IN THE RATE DETERMINATION IN YOUR CASE.