B-209603, MAY 20, 1983

B-209603, MAY 20, 1983

PRECIS-UNAVAILABLE

ALLEN S. KALT, ESQ. DEPARTMENT OF THE ARMY UNITED STATES ARMY TANK AUTOMOTIVE COMMAND:

THIS IS IN REPLY TO YOUR LETTER DATED OCTOBER 18, 1982, WITH ENCLOSURES, IN WHICH YOU SEEK THE ASSISTANCE OF THIS OFFICE TO CORRECT THAT WHICH YOU CONSIDERED TO BE AN IMPROPER LOSS OF COMPENSATION AND WITHIN-GRADE WAITING TIME. THIS OCCURRED AS A RESULT OF THE CONVERSION OF YOUR POSITION FROM THE GENERAL SCHEDULE SYSTEM TO THE MERIT PAY SYSTEM AND SUBSEQUENT RETURN TO THE GENERAL SCHEDULE SYSTEM.

IN 1981 YOU APPARENTLY OCCUPIED A POSITION WITH THE ARMY TANK AUTOMOTIVE COMMAND AS A GRADE GS-14, STEP 5, AND WERE ELIGIBLE TO RECEIVE THE STEP 6 PAY INCREASE OF THAT GRADE IN DECEMBER OF THAT YEAR. HOWEVER, IN OCTOBER, YOUR POSITION, ALONG WITH A NUMBER OF OTHERS AT THE ARMY TANK-AUTOMOTIVE COMMAND, WAS INVOLUNTARILY CONVERTED TO THE MERIT PAY SYSTEM. CONVERSION, YOU INDICATE HAVING RECEIVED A PAY INCREASE, BUT THAT PAY INCREASE ONLY REFLECTED THE FACT THAT THERE WERE NO DIRECT COMPARABLE COMPENSATION RATES FOR YOU UNDER MERIT PAY, AND WAS MUCH SMALLER THAN YOU WOULD HAVE RECEIVED IN DECEMBER HAD YOUR POSITION NOT BEEN CONVERTED.

IN EARLY MAY 1982, WHILE UNDER THE MERIT PAY SYSTEM, YOU WERE INFORMED THAT THE FEDERAL LABOR RELATIONS AUTHORITY HAD RECENTLY ISSUED A RULING WHICH NARROWLY DEFINED THE TERM "MANAGEMENT OFFICIAL" FOR MERIT PAY SYSTEM PURPOSES, AND A NUMBER OF POSITIONS, INCLUDING YOUR OWN, WERE APPARENTLY NO LONGER QUALIFIED FOR MERIT PAY STATUS. AS A RESULT, ALL AFFECTED POSITIONS WERE REQUIRED TO BE RECONVERTED TO THE GENERAL SCHEDULE SYSTEM EFFECTIVE MAY 30, 1982.

UPON RECONVERSION, SINCE YOUR COMPENSATION UNDER MERIT PAY FELL BETWEEN GENERAL SCHEDULE PAY STEPS 5 AND 6 OF YOUR GRADE, GS-14, YOUR GENERAL SCHEDULE PAY WAS SET AT GRADE 14 STEP 6, EFFECTIVE MAY 30, 1982. FURTHER, YOU WERE ADVISED THAT YOUR WAITING PERIOD FOR THE PAY INCREASE OF STEP 7 OF THAT GRADE BEGAN ON THE SAME DATE.

IT IS YOUR VIEW THAT SUCH ACTION WAS IMPROPER, POINTING OUT THAT AS A RESULT OF YOUR INVOLUNTARY CONVERSION AND RECONVERSION, YOU HAVE BEEN PENALIZED THE ADDITIONAL PAY OF STEP 6 WHICH YOU WOULD HAVE RECEIVED FOR THE PERIOD DECEMBER 1981 THROUGH MAY 1982. ALSO, YOU HAVE LOST THE WAITING PERIOD TIME THAT WOULD HAVE TRANSPIRED HAD YOU NOT BEEN CONVERTED IN THE FIRST INSTANCE.

AN OFFICIAL DECISION IS NOT BEING RENDERED ON THE QUESTION PRESENTED; HOWEVER, THE FOLLOWING MAY BE OF SOME ASSISTANCE TO YOU.

THE LAW GOVERNING MERIT PAY WAS ENACTED BY TITLE V OF THE CIVIL SERVICE REFORM ACT OF 1978, PUBLIC LAW 95-454, APPROVED OCTOBER 13, 1978, 92 STAT. 1180, 5 U.S.C. SECS. 5401-5405. SECTION 5402 OF TITLE 5, U.S.C. PROVIDES IN PART:

"(A) *** THE OFFICE OF PERSONNEL MANAGEMENT SHALL ESTABLISH A MERIT PAY SYSTEM ***.

"(C)(2) ANY EMPLOYEE WHOSE POSITION IS BROUGHT UNDER THE MERIT PAY SYSTEM SHALL, SO LONG AS THE EMPLOYEE CONTINUES TO OCCUPY THE POSITION, BE ENTITLED TO RECEIVE BASIC PAY AT A RATE OF BASIC PAY NOT LESS THAN THE RATE THE EMPLOYEE WAS RECEIVING WHEN THE POSITION WAS BROUGHT UNDER THE MERIT PAY SYSTEM ***."

PURSUANT TO THOSE PROVISIONS AND REGULATIONS ISSUED BY THE OFFICE OF PERSONNEL MANAGEMENT YOUR EMPLOYING AGENCY ESTABLISHED YOUR PAY UPON CONVERSION TO THE MERIT PAY SYSTEM. HOWEVER, PRIOR TO THE CONVERSION OF GENERAL SCHEDULE POSITIONS TO THE MERIT PAY SYSTEM, IT WAS DISCOVERED BY THE OFFICE OF PERSONNEL MANAGEMENT THAT WHILE THERE WERE RULES GOVERNING PAY DETERMINATIONS UPON CONVERSIONS TO THE MERIT PAY SYSTEM, (5 C.F.R. SEC. 531.204(C)), A RULE HAD NOT BEEN ADOPTED GOVERNING PAY DETERMINATIONS UPON CONVERSION TO THE GENERAL SCHEDULE SYSTEM FROM THE MERIT PAY SYSTEM. ON AUGUST 14, 1981, A PROPOSED REGULATION GOVERNING THESE MATTERS WAS PUBLISHED IN THE FEDERAL REGISTER (46 FED.REG. 41077). THAT RULE BECAME FINAL ON AUGUST 12, 1982 (47 FEG.REG. 30229), AND BECAME 5 CFR SEC. 531.204(D) (1983).

THAT NEW SECTION PROVIDES:

"(D) *** WHEN AN EMPLOYEE LOSES HIS OR HER MERIT PAY STATUS AS A RESULT OF A PROSPECTIVELY EFFECTIVE CHANGE IN THE AGENCY'S MERIT PAY COVERAGE DETERMINATION, THE EMPLOYEE SHALL BE ENTITLED TO BASIC PAY AT THE LOWEST RATE OF THE GRADE OF HIS OR HER POSITION THAT IS EQUAL TO OR GREATER THAN HIS OR HER EXISTING RATE OF BASIC PAY."

PENDING FINAL APPROVAL OF THIS NEW REGULATION, YOUR AGENCY ADOPTED IT FOR ITS OWN USE. SUBSEQUENT TO THAT ADOPTION, THE FEDERAL LABOR RELATIONS AUTHORITY ISSUED ITS OWN RULING AS TO THAT WHICH CONSTITUTED "MANAGEMENT OFFICIAL" FOR MERIT PAY PURPOSES, MAKING THAT RULING PROSPECTIVE IN EFFECT. AS A RESULT, WHEN YOUR POSITION WAS THEREAFTER CONVERTED TO THE GENERAL SCHEDULE SYSTEM, SINCE YOUR THEN RATE OF PAY FELL BETWEEN STEPS 5 AND 6 OF GRADE GS 14, YOU WERE ADVANCED TO STEP 6 OF THAT GRADE AND YOU BEGAN YOUR NEW WAITING PERIOD EFFECTIVE THAT DATE.

YOU HAVE NOT PROVIDED ANY EVIDENCE THAT YOUR AGENCY WAS NOT AUTHORIZED TO FORMULATE AND ADOPT THEIR OWN POLICY IN THE ABSENCE OF OFFICE OF PERSONNEL MANAGEMENT REGULATIONS ON SUCH MATTERS, OR THAT SUCH POLICY THAT THEY DID ADOPT IS INCONSISTENT WITH GOVERNING LAW AND REGULATIONS. IN THIS REGARD, WE ARE NOT AWARE OF ANY LAW OR REGULATION WHICH REQUIRES THAT AN INDIVIDUAL WHO IS RECONVERTED TO THE GENERAL SCHEDULE SYSTEM FROM THE MERIT PAY SYSTEM, IS ENTITLED TO RETROACTIVE RESTORATION TO THE HIGHEST GRADE AND WITHIN-GRADE STEP HE OR SHE WOULD HAVE ATTAINED, SO AS TO PERMIT ADDITIONAL PAY AND CREDIT FOR WAITING PERIOD TIME ALREADY ELAPSED. FACT, THE REGULATIONS PROVIDE OTHERWISE. SEE COMMENTS TO 47 FED.REG. 30229 (1982).