B-181394, DEC 4, 1974

B-181394, DEC 4, 1974

PAY OF EMPLOYEE, WHO INITIATES TRANSFER TO CLASSIFICATION ACT POSITION SUBJECT TO GENERAL SCHEDULE FROM FORMER PREVAILING RATE POSITION IS SET IN ACCORDANCE WITH HIGHEST PREVIOUS RATE RULE UNDER CIVIL SERVICE REGULATIONS AND AGENCY REGULATIONS CONSISTENT THEREWITH NOTWITHSTANDING AGENCY ADVICE TO EMPLOYEE THAT HE WOULD RECEIVE A PAY STEP ABOVE HIS EXISTING RATE.

NEWTON B. WHITEHEAD - HIGHEST PREVIOUS RATE - TRANSFER BETWEEN PAY SYSTEMS:

BY LETTER DATED MAY 9, 1974, MR. NEWTON B. WHITEHEAD IN EFFECT ASKS FOR RECONSIDERATION OF HIS CLAIM FOR PAY ADJUSTMENT WHICH WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION IN ITS SETTLEMENT CERTIFICATE DATED APRIL 2, 1974. THE FACTS IN THIS MATTER ARE AS FOLLOWS.

IN JUNE 1971, WHILE EMPLOYED AT FORT BLISS, TEXAS, AS A WIRE COMMUNICATIONS CABLE SPLICER INSPECTOR FOREMAN, WS-2501-11, STEP 5, MR. WHITEHEAD APPLIED, AND WAS SELECTED, FOR AN ELECTRONICS TECHNICIAN POSITION IN GRADE GS-09, AT FORT SAM HOUSTON, TEXAS. THE APPLICATION WAS MADE BY MR. WHITEHEAD AFTER BEING INFORMED THAT HE WOULD BE PLACED IN THE NEW POSITION AT A PAY STEP ABOVE HIS THEN EXISTING RATE. UPON ARRIVAL AT FORT SAM HOUSTON, AND AFTER HIS PAY RATE WAS CORRECTED DUE TO AN ERROR AS TO HIS HOURLY RATE IN THE WS-11 POSITION, MR. WHITEHEAD'S PAY RATE WAS ESTABLISHED AT GS-09, STEP 07. THE PAY RATE CHANGE RESULTED IN AN $0.80 PER YEAR INCREASE ABOVE THE WS 11/05 RATE. THE SETTLEMENT CERTIFICATE CONTAINS A TYPOGRAPHICAL ERROR IN THE FOURTH LINE OF THE SECOND PARAGRAPH IN THAT THE ANNUAL PAY RATE IS STATED AS $12,653.20 RATHER THAN $12,563.20. BY WAY OF EXPLANATION, THE PAY RATE IN WS-11, STEP 5, FOR MR. WHITEHEAD WAS $6.04 AN HOUR WHICH ON AN ANNUAL BASIS IS $12,563.20 (2080 HOURS X 6.04) WHEREAS THE ANNUAL RATE FOR GS-9, STEP 7, WAS $12,564 A YEAR. SINCE, HOWEVER, THE OFFICIAL PAY SALARY TABLE WHICH ACCORDS WITH 5 U.S.C. 5504 FOR GENERAL SCHEDULE POSITIONS - IN THIS CASE SALARY TABLE NO. 56 - PROVIDES THAT HOURLY RATES ARE DERIVED BY DIVIDING THE ANNUAL RATE BY 2080 HOURS WITH THE RESULT ADJUSTED TO THE NEAREST CENT, MR. WHITEHEAD'S BIWEEKLY PAY WAS IN THE SAME AMOUNT AS HIS PREVIOUS POSITION. THEREFORE, MR. WHITEHEAD CONTENDS THAT HE WAS DENIED A SALARY INCREASE CONCURRENT WITH HIS TRANSFER OF POSITIONS.

MR. WHITEHEAD ALSO ALLEGES THAT THE SETTLEMENT CERTIFICATE CONTAINS A DIRECT CONTRADICTION AS TO HOW THE DETERMINATION OF RATE OF PAY OF AN EMPLOYEE MAKING A CHANGE FROM A WAGE BOARD POSITION TO A GENERAL SCHEDULE POSITION SHOULD BE MADE.

PARAGRAPH 4 OF THE SETTLEMENT CERTIFICATE CITING 5 CODE OF FEDERAL REGULATIONS 531.203(D)(4)(I), STATES THE GENERAL RULE FOR COMPUTATION OF THE HIGHEST PREVIOUS RATE WHEN IT WAS EARNED IN A POSITION NOT SUBJECT TO THE GENERAL SCHEDULE. THE HIGHEST PREVIOUS RATE RULE IS SET FORTH IN 5 CODE OF FEDERAL REGULATIONS 531.203(C) AND IN PERTINENT PART PROVIDES THAT WHEN AN EMPLOYEE HAS A POSITION OR APPOINTMENT CHANGE THE AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; HOWEVER, IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE, THE AGENCY MAY PAY HIM AT THE HIGHER RATE. ADDITIONALLY, THE AGENCY'S SPECIFIC RULE APPLICABLE AT THE TIME OF THIS DETERMINATION IS CITED. THIS SECOND CITATION, ARMY CIVILIAN PERSONNEL REGULATION P3, BASIC PAY RATES, SECTION 4, PARAGRAPH 4-3A(1), APPLIED WHEN THE CHANGE TO A CLASSIFICATION ACT POSITION IS BASED ON AN EMPLOYEE'S APPLICATION OR REQUEST.

THE AGENCY REGULATION STATES IN PERTINENT PART THAT:

"*** PAY MAY BE FIXED AT THE MINIMUM STEP RATE OF THE NEW GRADE OR AT ANY OTHER STEP RATE OF THE NEW GRADE WHICH DOES NOT EXCEED HIS LAST EARNED RATE. WHEN APPROPRIATE, THE HIGHEST PREVIOUS RATE RULE MAY BE UTILIZED."

SINCE MR. WHITEHEAD'S PAY RATE WAS SET IN ACCORDANCE WITH THE REGULATIONS CITED ABOVE, WE MUST SUSTAIN THE DISALLOWANCE OF HIS CLAIM.