B-182230, OCT 3, 1975

B-182230, OCT 3, 1975

WAGE BOARD EMPLOYEE WAS SEPARATED FROM WG-6, STEP 3 POSITION IN REDUCTION IN FORCE. ABOUT 3 WEEKS THEREAFTER HE WAS GIVEN TEMPORARY 120-DAY APPOINTMENT TO WG-3, STEP 3 POSITION. THE TEMPORARY APPOINTMENT WAS LATER CONVERTED TO THE EMPLOYEE'S FORMER WG-6, STEP 3 POSITION. THE EMPLOYEE MAY HAVE WAITING TIME SPENT IN STEP 3 OF WG-6 PRIOR TO SEPARATION CREDITED FOR PURPOSE OF DETERMINING ELIGIBILITY FOR ADVANCEMENT TO STEP 4 SINCE REAPPOINTMENT TO FORMER POSITION PRIOR TO EXPIRATION OF TEMPORARY LIMITED APPOINTMENT DOES NOT CONSTITUTE "EQUIVALENT INCREASE" UNDER PROVISIONS OF FPM SUPPLEMENT 532-1.

ROBERT J. NILL - WITHIN-GRADE STEP INCREASE:

A DEPARTMENT OF THE AIR FORCE EMPLOYEE, ROBERT J. NILL, REQUESTS RECONSIDERATION OF THE DENIAL OF HIS CLAIM BY OUR TRANSPORTATION AND CLAIMS DIVISION'S SETTLEMENT CERTIFICATE NO. Z-2557293, DATED JULY 31, 1974.

THE SETTLEMENT CERTIFICATE DISALLOWED MR. NILL'S CLAIM FOR A RETROACTIVE WITHIN-GRADE STEP INCREASE AND BACK PAY BECAUSE MR. NILL HAD RECEIVED AN "EQUIVALENT INCREASE" IN PAY AND, THEREFORE, HAD NOT BECOME ENTITLED TO THE STEP INCREASE.

THE FACTS UPON WHICH THE DISALLOWANCE WAS BASED ARE NOT IN DISPUTE AND MAY BE SUMMARIZED AS FOLLOWS. PRIOR TO SEPARATION INCIDENT TO A REDUCTION IN FORCE ON JUNE 20, 1972, THE EMPLOYEE, MR. NILL, HAD BEEN EMPLOYED AS A TOOLS AND PARTS ATTENDANT, WG-6, STEP 3, AT WRIGHT PATTERSON AIR FORCE BASE. EFFECTIVE JULY 6, 1972, HE WAS REHIRED UNDER A TEMPORARY APPOINTMENT AS A LABORER, WG-3, STEP 3, FOR A PERIOD NOT TO EXCEED NOVEMBER 2, 1972. BEFORE THE PERIOD EXPIRED, ON SEPTEMBER 3, 1972, HIS TEMPORARY APPOINTMENT WAS CONVERTED BY REINSTATEMENT TO A CAREER APPOINTMENT AS TOOLS AND PARTS ATTENDANT WG-6, STEP 3. SUBSEQUENTLY IN MAY 1973 MR. NILL'S POSITION WAS CONVERTED TO A NEW 5 STEP REGULAR SCHEDULE POSITION. HOWEVER, MR. NILL WAS NOT GIVEN A WITHIN-GRADE STEP INCREASE TO WG-6, STEP 4, BECAUSE OF THE AIR FORCE'S DETERMINATION THAT THE APPLICABLE WAITING PERIOD FOR THE EMPLOYEE COMMENCED ON SEPTEMBER 3, 1972, THE DATE OF HIS REINSTATEMENT BY CAREER APPOINTMENT TO HIS FORMER POSITION. HIS APPEALS TO THE CIVIL SERVICE COMMISSION (CSC) AND TO OUR TRANSPORTATION AND CLAIMS DIVISION WERE MET WITH VIRTUALLY THE SAME RESPONSE, THE OPINION OF BOTH BEING THAT MR. NILL HAD RECEIVED AN "EQUIVALENT INCREASE" IN PAY ON SEPTEMBER 3, 1972, THE DATE OF HIS CONVERSION TO A CAREER APPOINTMENT, AND, THEREFORE, A NEW WAITING PERIOD OF 104 WEEKS FOR WITHIN-GRADE ADVANCEMENT TO STEP 4 HAD BEGUN ON THAT DATE.

THE PRINCIPAL ARGUMENT OFFERED BY MR. NILL IN PURSUING HIS CLAIM AND IN SEEKING OUR FURTHER CONSIDERATION IS THAT THE REGULATIONS IN SUBCHAPTER S8 -5 OF FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 532-1, GOVERNING THE ENTITLEMENTS OF WAGE BOARD EMPLOYEES TO WITHIN-GRADE STEP INCREASES, DO NOT PROVIDE FOR THE COMMENCEMENT OF A NEW WAITING PERIOD IN THE CASE OF AN EMPLOYEE WHO, LIKE HIMSELF, WAS SEPARATED IN A REDUCTION IN FORCE, GIVEN A TEMPORARY APPOINTMENT, AND REPROMOTED TO HIS FORMER GRADE AND STEP WITHIN A PERIOD OF LESS THAN 52 CALENDAR WEEKS.

WE AGREE WITH MR. NILL'S ARGUMENT AND OVERRULE THE DENIAL OF HIS CLAIM BY OUR TRANSPORTATION AND CLAIMS DIVISION FOR THE REASONS STATED BELOW.

THE PERTINENT LANGUAGE OF FPM SUPPLEMENT 532-1, SEC. S8-5B (JANUARY 16, 1973), IS AS FOLLOWS:

"(3) START OF WAITING PERIOD. A WAITING PERIOD STARTS:

"- AFTER A BREAK IN SERVICE OR A NONPAY STATUS IN EXCESS OF 52 CALENDAR WEEKS; OR

"- UPON RECEIVING AN EQUIVALENT INCREASE."

THERE IS NO DISPUTE AS TO THE FACT THAT MR. NILL DID NOT HAVE A BREAK IN SERVICE OF MORE THAN 52 WEEKS SO AS TO REQUIRE THE START OF A NEW WAITING PERIOD. THE BASIS FOR THE DENIAL OF HIS CLAIM BY THE AIR FORCE, THE CSC AND OUR TRANSPORTATION AND CLAIMS DIVISION IS THAT MR. NILL RECEIVED AN "EQUIVALENT INCREASE" ON SEPTEMBER 3, 1972, WHEN HE WAS RESTORED TO HIS POSITION AT WG-6, STEP 3, FROM WHICH HE HAD BEEN SEPARATED ON JUNE 20, 1972.

FPM SUPPLEMENT 532-1, SEC. S8-5F (JANUARY 16, 1973) PROVIDES THE FOLLOWING:

"F. INCREASES IN PAY NOT TO BE COUNTED AS AN EQUIVALENT INCREASE. (1) THE FOLLOWING ARE NOT COUNTED AS EQUIVALENT INCREASES:

"- REPROMOTION TO A FORMER GRADE OF ANY EMPLOYEE WHOSE EARLIER CHANGE TO LOWER GRADE WAS NOT FOR CAUSE AND WAS NOT AT THE EMPLOYEE'S REQUEST."

THIS PROVISION IS CONTROLLING BECAUSE A REDUCTION IN GRADE INCIDENT TO A REDUCTION IN FORCE IS NEITHER "FOR CAUSE" NOR "AT THE EMPLOYEE'S REQUEST." SEE FPM CH. 335 SEC. 4-3C(3) (MARCH 9, 1971).

UNDER SEC. S8-5B(3), SUPRA, A WAGE BOARD EMPLOYEE, SEPARATED IN A REDUCTION IN FORCE AND REHIRED WITHIN 52 WEEKS AT HIS PREVIOUS GRADE AND STEP, WOULD BE ENTITLED TO CREDIT TIME PREVIOUSLY SPENT AT THAT STEP OF HIS GRADE IN DETERMINING HIS ELIGIBILITY TO A WITHIN-GRADE INCREASE. SIMILARLY, AN EMPLOYEE NOT SEPARATED BUT MERELY DEMOTED IN A REDUCTION IN FORCE AND LATER REPROMOTED TO HIS FORMER GRADE AND STEP WOULD BE ENTITLED TO COUNT TIME SPENT IN THAT STEP OF HIS GRADE PRIOR TO THE REDUCTION IN FORCE IN DETERMINING ELIGIBILITY FOR HIS NEXT WITHIN-GRADE INCREASE. THIS CASE IF MR. NILL HAD NOT ACCEPTED THE TEMPORARY APPOINTMENT TO WG-3, STEP 3, AFTER HIS SEPARATION, THERE IS NO QUESTION THAT HIS PRIOR SERVICE AT STEP 3 OF WG-6 WOULD BE CREDITED FOR DETERMINING HIS ELIGIBILITY FOR ADVANCEMENT TO STEP 4 FOLLOWING HIS REHIRE OR REPROMOTION TO THAT STEP AND GRADE. WE AGREE WITH THE EMPLOYEE THAT IT IS NOT THE INTENT OF THE REGULATION TO PENALIZE EMPLOYEES WHO ACCEPT TEMPORARY POSITIONS AT A LOWER GRADE LEVEL WHILE AWAITING RECALL FROM A REDUCTION-IN-FORCE ACTION.

AS EXPRESSED IN ITS LETTER OF MAY 17, 1974, TO MR. NILL'S REPRESENTATIVE, THE CIVIL SERVICE COMMISSION BELIEVES THAT THE LANGUAGE OF SEC. S8-5F, QUOTED ABOVE, IS INAPPLICABLE TO MR. NILL'S CASE SINCE HE WAS ACTUALLY SEPARATED IN A REDUCTION IN FORCE. AS THE CSC CONSTRUES THAT SUBSECTION, IT DOES NOT APPLY BECAUSE IT REFERS TO A "CHANGE TO LOWER GRADE" WHICH REQUIRES CONTINUOUS SERVICE. WE RESPECTFULLY DISAGREE WITH THAT VIEW OF THE COMMISSION. WE BELIEVE THAT THIS PROVISION OF SECTION S8-5F SHOULD BE CONSTRUED TO APPLY TO CASES LIKE MR. NILL'S CASE, WHETHER OR NOT THE SERVICE HAS BEEN CONTINUOUS.

WE, THEREFORE, HOLD THAT MR. NILL DID NOT RECEIVE AN "EQUIVALENT INCREASE" UPON HIS REINSTATEMENT AT WG-6, STEP 3, AND HE MAY BE CREDITED WITH TIME SPENT IN STEP 3 OF WG-6 PRIOR TO HIS SEPARATION ON JUNE 20, 1972, FOR THE PURPOSE OF DETERMINING HIS ELIGIBILITY FOR ADVANCEMENT TO STEP 4 OF THAT GRADE. ACCORDINGLY, THE DISALLOWANCE OF MR. NILL'S CLAIM IS REVERSED AND APPROPRIATE ADJUSTMENTS IN HIS COMPENSATION SHOULD BE MADE BY THE AIR FORCE. IN THAT CONNECTION, SECTION S8-5H OF FPM SUPPLEMENT 532 -1, JANUARY 16, 1973, STATES THAT WHEN "A WITHIN-GRADE INCREASE IS DELAYED BEYOND ITS PROPER EFFECTIVE DATE THROUGH ADMINISTRATIVE OVERSIGHT, ERROR, OR DELAY, THE AGENCY SHALL MAKE THE INCREASE EFFECTIVE AS OF THE DATE IT WAS PROPERLY DUE."