Averi v. United States

23 Cl. Ct. 127, 1991 U.S. Claims LEXIS 186, 1991 WL 80717
CourtUnited States Court of Claims
DecidedMay 17, 1991
DocketNo. 619-87 C
StatusPublished
Cited by7 cases

This text of 23 Cl. Ct. 127 (Averi v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Averi v. United States, 23 Cl. Ct. 127, 1991 U.S. Claims LEXIS 186, 1991 WL 80717 (cc 1991).

Opinion

OPINION AND ORDER

TURNER, Judge.

Plaintiffs are eighteen radio broadcast technician foremen presently or formerly employed by the Voice of America.1 They seek back pay and benefits of approximately $200,000 based on assertions that the Office of Personnel Management wrongfully applied pay cap statutes to them and abused its discretion by failing to establish a special pay plan for them after implementation of the pay cap statutes.2

[129]*129The matter stands on cross-motions for summary judgment.3 For reasons stated below, it is concluded that plaintiffs’ motion must be denied and that defendant is entitled to summary judgment.

I

An understanding of plaintiffs’ legal claims and of their requests for relief requires an understanding of the prevailing rate pay system and the authority of federal agencies to implement the system.

Most clerical, managerial and professional employees in the Executive Branch receive salary pursuant to the so-called General Schedule which classifies employees for pay purposes by various grades and steps within grades. See 5 U.S.C. § 5104. In contrast, Executive Branch employees with certain skills and in certain trades are paid pursuant to a “prevailing rate” system established by Congress ostensibly to match the pay of such employees with that of similar private sector employees in the same geographic area.4 (The Congressional directive to Executive Branch pay-fixers is to achieve this match “as nearly as is consistent with the public interest.” 5 U.S.C. §§ 5343(a), 5348 and 5349.) Wage schedules based on the prevailing private sector rates are designated “regular wage schedules.” 5 U.S.C. § 5343.

The statutory scheme for the prevailing rate system contemplates that recruitment and retention of some skills may require adjustments to prevailing rates. OPM is authorized to devise “special wage schedules,” 5 U.S.C. § 5343(c)(3)(B) & (e)(4), to attract and retain employees with needed skills when a regular prevailing rate schedule would be ineffective. Pursuant to such statutory authorization, OPM has promulgated regulations controlling the development of special pay programs. 5 C.F.R. § 532.105.

II

Approximately 150 radio broadcast technicians (RBTs) are employed by VO A to handle all technical aspects of recording and radio broadcasting. These technicians are supervised by radio broadcast technician foremen, including plaintiffs. It is undisputed that the nature of the work performed by the foremen differs significantly from that performed by the technicians. The foremen have more authority and responsibility than the technicians.

Both technicians and foremen are prevailing rate employees as defined in 5 U.S.C. § 5342(a)(2)(A). Unlike foremen, the technicians negotiate their wages through collective bargaining and are represented by the National Federation of Federal Employees (NFFE), Local 1418. Because of their status as supervisors, the foremen are excluded from the bargaining unit of technicians.

The collective bargaining agreement governing wage rates for radio broadcast technicians from 1979 to 1984 contained a pay-setting formula that set rates based on surveys of comparable positions in the private sector. In 1984, VOA renegotiated its contract with NFFE. The new contract set pay increases for technicians at 5% per year through January 1988 and established a two-tier pay structure under which newly hired technicians were paid on a different scale with lower rates and more steps to the top of the grade (PX 20). (The higher-rate schedule for the “grandfathered” technicians was designated AD-2; the lower-rate schedule for newly hired technicians was designated WB-2.) This action was taken in response to VOA’s recognition [130]*130that then existing pay rates for technicians were unrealistically high.

The foremen’s wage classification history is convoluted. Since 1959 they have been classified under several different wage systems. As a result, between 1959 and 1981, the wages of the foremen and their subordinates, the technicians, became compressed.5 In response to a request from VOA, OPM remedied this situation in 1981 by establishing a special wage schedule for the foremen. See 5 U.S.C. § 5343(e)(4); 5 C.F.R. § 532.105. The 1981 special pay schedule linked the foremen’s rate of pay directly to that of the technicians. It provided a single wage rate for foreman set at 111.5% of the negotiated technicians rate.6 Adoption of the 1981 special pay plan for foreman corrected all pre-existing compensation problems and appeared to provide a long term solution. (The events of which plaintiffs complain occurred after 1981).

After OPM established the special wage schedule for VOA foremen in 1981, Congress circumvented its effect by legislating pay caps applicable to prevailing rate employees. During fiscal years 1983 through 1987, these pay caps applied to any prevailing rate employee described in 5 U.S.C. § 5342(a)(2)(A) except when the caps conflicted with the terms of a collective bargaining agreement.7 Thus, VOA technicians were exempted from limitations on pay increases under this Congressional scheme while the foremen were not. The effect of capping the foremen’s wages was to create a new pay compression problem, eventually leading to pay inversion with respect to some of the technicians. The pay cap legislation covering fiscal years 1988, 1989 and 1990 did not exempt from application of the pay caps those employees who negotiate their wages through collective bargaining agreements.8 Consequently, events giving rise to the complaint ended with fiscal year 1987.

After the pay caps were applied, the foremen received pay increases ranging from 0% to 4% during the fiscal years 1983 through 19879 (PX 70). Meanwhile, the technicians received pay increases of 5% each year during the same period pursuant to their collective bargaining agreement (PX 20). The foremen received pay increases limited to 2% in FY 1988 and 4.1% [131]*131in FY 1989 while the previous exemption from pay caps for negotiated-rate employees was eliminated.

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Bluebook (online)
23 Cl. Ct. 127, 1991 U.S. Claims LEXIS 186, 1991 WL 80717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/averi-v-united-states-cc-1991.