B-172706.02, DEC 3, 1974

B-172706.02, DEC 3, 1974

NO ACTION BY THIS OFFICE WOULD BE WARRANTED WHERE THE BASIC RATE OF PAY INCIDENT TO A CHANGE OF POSITION FROM THE PREVAILING RATE SYSTEM TO THE GENERAL SCHEDULE EFFECTIVE NOVEMBER 11, 1973, IS SET IN ACCORDANCE WITH THE APPLICABLE REGULATIONS, NOTWITHSTANDING THE FACT THAT HAD THE CONVERSION ACTION TAKEN PLACE PRIOR TO OCTOBER 14, 1973, THE EFFECTIVE DATE OF A STATUTORY PAY INCREASE APPLICABLE TO POSITIONS OF THE GENERAL SCHEDULE, THE EMPLOYEE WOULD HAVE BEEN PLACED IN STEP 10 OF GS-7 INSTEAD OF STEP 8.

MR. BENJAMIN LEIBMAN - CONVERSION IN PAY SYSTEMS - PAY RATE:

THIS ACTION IS A RECONSIDERATION OF THE DETERMINATION OF THE DEPARTMENT OF THE AIR FORCE ON THE CLAIM OF MR. BENJAMIN LEIBMAN AS TO HIS PAY RATE UPON THE CONVERSION OF HIS POSITION FROM THE PREVAILING RATE SYSTEM TO THE GENERAL SCHEDULE.

FROM THE INFORMATION FURNISHED TO US, IT APPEARS THAT MR. LEIBMAN WAS NOTIFIED ON OCTOBER 31, 1973, THAT HE, TOGETHER WITH HIS POSITION, WAS TO BE CONVERTED FROM A PREVAILING RATE CLASSIFICATION OF WS-3, STEP 5, $5.90 AN HOUR TO GS-7, STEP 8, $5.91 AN HOUR, EFFECTIVE NOVEMBER 11, 1973.

IT IS POINTED OUT THAT HAD THE CONVERSION ACTION TAKEN PLACE PRIOR TO OCTOBER 14, 1973, THE EFFECTIVE DATE IN MR. LEIBMAN'S CASE OF EXECUTIVE ORDER 11739 WHICH EFFECTED A STATUTORY INCREASE FOR POSITIONS IN THE GENERAL SCHEDULE, MR. LEIBMAN'S STEP RATE WITHIN GS-7 WOULD HAVE BEEN STEP RATE 10 RATHER THAN 8 SINCE PRIOR TO THE STATUTORY RAISE, STEP 10 WAS $5.91 AN HOUR. THE $5.91 AN HOUR FOR STEP RATE 10 WAS INCREASED TO $6.23 AN HOUR BY THE STATUTORY INCREASE. FURTHER, IT IS STATED THAT THE PERSONNEL ACTION DOCUMENTED THE CONVERSION ACTION AS A PROMOTION WHICH IS NOT APPEALABLE TO THE CIVIL SERVICE COMMISSION UNDER ITS REGULATIONS. SEE 5 C.F.R. SEC. 752.201 (1973). IT IS STATED THAT MR. LEIBMAN IN EFFECT HAS LOST SOME $500 IN WAGES AS OF SEPTEMBER 16, 1974, AS A RESULT OF THE PROMOTION. IT IS URGED THAT UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5334(B) MR. LEIBMAN SHOULD HAVE RECEIVED AT LEAST A TWO STEP INCREASE INCIDENT TO THE PROMOTION.

CIVIL SERVICE REGULATION, 5 C.F.R. SEC. 531.204(A), STATES:

"(A) PROMOTIONS AND TRANSFERS. (1) THE REQUIREMENTS OF SECTION 5334(B) OF TITLE 5, UNITED STATES CODE, APPLY ONLY (I) TO A TRANSFER FROM ONE GENERAL SCHEDULE POSITION TO A HIGHER GENERAL SCHEDULE POSITION, AND (II) TO A PROMOTION FROM ONE GENERAL SCHEDULE GRADE TO A HIGHER GENERAL SCHEDULE GRADE."

THUS, SINCE MR. LEIBMAN WAS CONVERTED TOGETHER WITH HIS POSITION FROM THE PREVAILING RATE SYSTEM TO THE GENERAL SCHEDULE, SECTION 5334(B) WOULD NOT APPLY.

PART 539, 5 C.F.R., SETS FORTH THE REGULATIONS FOR POSITION CONVERSION ACTIONS WHERE AN EMPLOYEE IS BROUGHT INTO A POSITION SUBJECT TO THE GENERAL SCHEDULE FROM A POSITION NOT UNDER THE GENERAL SCHEDULE. IN SUCH CASES THE RATE OF BASIC PAY IS DETERMINED UNDER THE RULES STATED IN SEC. 539.203. SUBSECTION (C) OF SEC. 539.203 READS:

"(C) WHEN THE EMPLOYEE IS RECEIVING A RATE OF BASIC PAY THAT FALLS BETWEEN TWO RATES OF THE GRADE IN WHICH HIS POSITION IS PLACED, HIS PAY SHALL BE FIXED AT THE HIGHER OF THE TWO RATES."

THE RECORD BEFORE US INDICATES THAT MR. LEIBMAN'S PAY RATE IN GRADE GS-7 WAS SET IN ACCORDANCE WITH SEC. 539.203(C).

WITH RESPECT TO DETERMINING THAT THE CONVERSION ACTION WAS ALSO TECHNICALLY A PROMOTION, SEC. 531.202(H)(2) DEFINES A PROMOTION TO MEAN A CHANGE OF AN EMPLOYEE WHILE CONTINUOUSLY EMPLOYED, FROM A LOWER RATE PAID UNDER AUTHORITY OTHER THAN SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, UNITED STATES CODE, TO A HIGHER RATE WITHIN A GENERAL SCHEDULE GRADE.

THE AUTHORITY FOR CLASSIFICATION OF POSITIONS SUBJECT TO THE GENERAL SCHEDULE AND THOSE UNDER PREVAILING RATE CLASSIFICATION RESTS WITH THE AGENCIES INVOLVED AND THE CIVIL SERVICE COMMISSION. IN GENERAL SEE CHAPTERS 51 AND 53, TITLE 5, UNITED STATES CODE.

ALTHOUGH THE TIMING OF THE CONVERSION ACTION IN MR. LEIBMAN'S CASE IN TERMS OF HIS CURRENT RATE OF PAY, MAY HAVE PROVED TO BE UNFORTUNATE, THE RECORD DOES NOT INDICATE ANY VIOLATIONS OF LAW OR REGULATION. SINCE THE RECORD SHOWS THAT THE BASIC RATE OF PAY FOR MR. LEIBMAN INCIDENT TO THE CHANGE IN PAY SYSTEMS WAS SET IN ACCORDANCE WITH THE APPLICABLE REGULATIONS, NO ACTION BY THIS OFFICE ON THE MATTER WOULD BE WARRANTED.