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B-181107, NOV 25, 1974

B-181107 Nov 25, 1974
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ADVANCE NOTICE TO PREVAILING RATE EMPLOYEE OF APPLICABILITY OF NEW JOB- GRADING STANDARD TO HIS POSITION IS NOT LEGALLY REQUIRED. NEITHER FACT THAT HE WOULD HAVE RECEIVED HIGHER PAY FROM INTERVENING STEP INCREASE HAD HE NOT FILED JOB-GRADING APPEAL BEFORE NAVY APPLIED NEW STANDARD TO HIS POSITION. NOR FACT THAT HIS ADDITIONAL CLAIM FOR RETROACTIVE PAY AT HIGHER RATE WAS DENIED ON APPEAL. THIS ACTION IS IN RESPONSE TO A REQUEST DATED AUGUST 6. THE FACTS IN THIS CASE ARE MORE FULLY SET FORTH IN THE TWO PREVIOUS ACTIONS ON THIS MATTER. HE LATER FOUND THAT HE WOULD HAVE BEEN BETTER OFF FINANCIALLY IF HE HAD NOT APPEALED OR NOT BEEN SUCCESSFUL SINCE HE WOULD HAVE ACHIEVED ANOTHER STEP INCREASE AT HIS OLD GRADE.

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B-181107, NOV 25, 1974

ADVANCE NOTICE TO PREVAILING RATE EMPLOYEE OF APPLICABILITY OF NEW JOB- GRADING STANDARD TO HIS POSITION IS NOT LEGALLY REQUIRED, AND NEITHER FACT THAT HE WOULD HAVE RECEIVED HIGHER PAY FROM INTERVENING STEP INCREASE HAD HE NOT FILED JOB-GRADING APPEAL BEFORE NAVY APPLIED NEW STANDARD TO HIS POSITION, NOR FACT THAT HIS ADDITIONAL CLAIM FOR RETROACTIVE PAY AT HIGHER RATE WAS DENIED ON APPEAL, JUSTIFIES LEGAL CONCLUSION THAT HE SUFFERED LOSS OF PAY AS RESULT OF UNWARRANTED PERSONNEL ACTION JUSTIFYING RETROACTIVE COMPENSATION UNDER THE BACK PAY ACT OF 1966, 5 U.S.C. SEC. 5596.

THIS ACTION IS IN RESPONSE TO A REQUEST DATED AUGUST 6, 1974, FOR RECONSIDERATION OF DECISION DATED JULY 31, 1974, SUSTAINING THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION ON MAY 8, 1973, DISALLOWING THE CLAIM OF MR. WERNER A. NESTLER FOR RETROACTIVE COMPENSATION AS A PREVAILING RATE EMPLOYEE.

THE FACTS IN THIS CASE ARE MORE FULLY SET FORTH IN THE TWO PREVIOUS ACTIONS ON THIS MATTER. ESSENTIALLY, MR. NESTLER APPEALED THE GRADE OF HIS POSITION AS A TOOLMAKER GENERAL FOREMAN IN THE DEPARTMENT OF THE NAVY AND WON A HIGHER GRADE CLASSIFICATION. HE LATER FOUND THAT HE WOULD HAVE BEEN BETTER OFF FINANCIALLY IF HE HAD NOT APPEALED OR NOT BEEN SUCCESSFUL SINCE HE WOULD HAVE ACHIEVED ANOTHER STEP INCREASE AT HIS OLD GRADE. THEN WHEN THE JOB WAS LATER RECLASSIFIED AT A HIGHER LEVEL ANYWAY, HE WOULD HAVE BEEN PLACED AT A HIGHER STEP. HE NOW FEELS THAT WE SHOULD SET ASIDE HIS JOB-GRADING APPEAL AND RESTORE TO HIM THE SALARY HE WOULD HAVE RECEIVED HAD IT BEEN UNSUCCESSFUL.

OUR DECISION WAS BASED UPON THE FINDINGS THAT HIS PAY RATE AND ITS EFFECTIVE DATE WERE SET IN ACCORDANCE WITH APPLICABLE REGULATIONS AT THE TIME OF THE DECISION ON HIS JOB-GRADING APPEAL; THAT THE REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION (CSC) HAD MADE A DETERMINATION TO THE SAME EFFECT IN REFUSING TO ACCEPT HIS REQUEST TO REVERSE THE FAVORABLE ACTION ON THE JOB-GRADING APPEAL; THAT IT WAS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO SET ASIDE A JOB-GRADING APPEAL WHICH HAD BEEN DETERMINED PROPERLY IN ACCORDANCE WITH PROCEDURES; AND THAT WHEN A POSITION IS RECLASSIFIED TO A HIGHER GRADE AS A RESULT OF AN APPEAL TO THE CSC, THERE IS NO AUTHORITY TO PAY THE HIGHER RATE RETROACTIVELY, ABSENT A STATUTE PROVIDING FOR SUCH PAYMENT, OR EVIDENCE THAT THE LOSS OF PAY RESULTED FROM AN UNWARRANTED PERSONNEL ACTION AS DEFINED BY THE BACK PAY ACT OF 1966, 5 U.S.C. SEC 5596 (1970), AND IMPLEMENTING REGULATIONS IN TITLE 5, CODE OF FEDERAL REGULATIONS, PART 550, SUBPART H.

ALTHOUGH DECISIONS OF THIS OFFICE ARE OPEN TO RECONSIDERATION, WE FIND NO BASIS ADVANCED IN THE CLAIMANT'S REQUEST FOR RECONSIDERATION- EITHER WITH RESPECT TO THE FACTS IN THIS CASE OR TO THE LAW APPLICABLE THERETO--WHICH WOULD WARRANT MODIFICATION OF OUR PRIOR DECISIONS IN THIS MATTER.

NEITHER THE FACT THAT THE CLAIMANT'S PAY RATE WAS NOT INCREASED AS THE RESULT OF THE JOB-GRADING APPEAL (THE PAY RATE FOR THE APPROPRIATE STEP IN THE NEW GRADE HAD BEEN ESTABLISHED AT THE SAME LEVEL AS THE PAY RATE FOR THE CLAIMANT'S STEP IN HIS FORMER GRADE IN ACCORDANCE WITH APPLICABLE REGULATIONS), NOR THE FACT THAT HAD THE CLAIMANT NOT FILED AN APPEAL, BUT HAD WAITED UNTIL THE GENERAL APPLICATION OF THE NEW CSC JOB. GRADING STANDARD FOR SUPERVISORS, HE WOULD HAVE BEEN ENTITLED TO A HIGHER PAY RATE DUE TO AN INTERVENING STEP INCREASE IN THE LOWER GRADE, WARRANTS THE LEGAL CONCLUSION THAT HE SUFFERED A LOSS OF PAY AS A RESULT OF AN UNWARRANTED PERSONNEL ACTION ENTITLING HIM TO RETROACTIVE BENEFITS UNDER THE BACK PAY ACT OF 1966, SUPRA. AS WE HAVE PERVIOUSLY INDICATED, THE RESULT OF THE ACTION TAKEN ON MR. NESTLER'S JOB-GRADING APPEAL WAS DISAPPOINTING FINANCIALLY BUT THE ACTION WAS IN NO WAY "UNWARRANTED."

THE CLAIMANT ALSO EXPRESSES THE VIEW THAT HE SHOULD HAVE BEEN ADVISED "WITHIN 60 DAYS IF NECESSARY" THAT HIS POSITION WOULD BE UPGRADED WITHOUT APPEAL, AND MAKES REFERENCE TO SUBCHAPTER S7-3B OF FPM SUPPLEMENT 532-1. THIS PROVISION REFERS TO SITUATIONS WHERE A DEPARTMENT MAKES A JOB-GRADING DECISION THAT WILL LEAD TO A GENERAL LOSS IN GRADE OR PAY, AND REQUIRES IN SUCH CIRCUMSTANCES THAT PROMPT NOTICE OF SUCH ACTION BE GIVEN TO THE EMPLOYEES AFFECTED IN WRITING WITH ADVICE AS TO THE TIME LIMITS FOR THEIR RIGHT OF APPEAL TO THE AGENCY CONCERNED AND TO THE COMMISSION, IN ORDER TO PRESERVE THEIR RIGHTS TO RETROACTIVE ADJUSTMENT. IT HAS NO APPLICATION, HOWEVER, TO MR. NESTLER'S CASE SINCE THERE WAS NO JOB-GRADING DECISION BY HIS DEPARTMENT THAT WOULD LEAD TO A GENERAL LOSS IN GRADE OR PAY.

FURTHERMORE, WE ARE NOT AWARE OF ANY OTHER LAW WHICH REQUIRES A 60 DAY OR ANY OTHER ADVANCE NOTICE TO PREVAILING RATE EMPLOYEES WITH RESPECT TO THE APPLICATION OF NEW JOB-GRADING STANDARDS BY THE AGENCY INVOLVED.

WITH REFERENCE TO THE CLAIMANT'S QUESTION OF WHY SUBCHAPTER S7-3A(3) OF FPM SUPPLEMENT 532-1, WHICH PERTAINS TO THE EFFECTIVE DATE FOR A CHANGE IN GRADE WHEN A FINAL DECISION ON A JOB-GRADING APPEAL UNDER AGENCY APPEAL PROCEDURES UPHOLDS THE EMPLOYEE'S APPLICATION, IS DIFFERENT FROM THE PROVISION IN FPM SUPPLEMENT 511-23, SEC 7-2, WHICH ALSO PERTAINS TO THE EFFECTIVE DATE OF APPEAL DECISIONS, WE WISH TO POINT OUT THE FACT THAT THE CLAIMANT ERRONEOUSLY CITED THE LATTER PROVISION AS BEING CONTAINED IN THE SUPPLEMENT WHEN IT IS IN FACT PUBLISHED IN THE FPM ITSELF (AS REVISED JULY 1969), AS INDICATED AT THE BOTTOM OF THE PAGE OF THE COPY ENCLOSED WITH THE CLAIMANT'S LETTER. THE LATTER PROVISION HAS NO APPLICATION TO PREVAILING RATE EMPLOYEES, AND PERTAINS ONLY TO POSITION CLASSIFICATION ACTIONS OR DECISIONS WITH RESPECT TO GENERAL SCHEDULE EMPLOYEES.

ACCORDINGLY SINCE WE FIND NO LEGAL BASIS FOR ALLOWING MR. NESTLER'S CLAIM, THE SETTLEMENT OF MAY 8, 1973, AND THE DECISION OF JULY 31, 1974 ARE AFFIRMED.

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