ARTICLE 42

**WITHIN-GRADE PAY INCREASES**

**Section 42.01 - Criteria**. Within-grade increases are granted in
accordance with applicable law and regulations which provide that the
employee\'s supervisor determines that the employee\'s work if of an
\"acceptable level of competence,\" as demonstrated by an overall
performance rating of fully successful or better and the employee has
completed the required waiting period.

**Section 42.02 - Appraisal**. If the decision to grant, deny, or delay
a within-grade increase is not supported by the most recent rating of
record, the employee shall receive a new rating. If the last rating of
record was given prior to the previous appraisal period, a new rating
shall be issued.

**Section 42.03 - Notification of Intent**. At least sixty (60) days
prior to the date that an employee is eligible to receive a within-grade
increase, the employee\'s supervisor shall notify the employee as to
his/her performance. If the employee\'s performance has not been at an
acceptable level of competence, the agency shall notify the employee,
(opportunity to improve notice or performance improvement plan), in
writing, as to the following:

\(1\) Those critical elements and standards of the employee\'s
performance in which the employee is deficient and the measurable and
demonstrable extent of the deficiency;

\(2\) Any instances, specifically described, which support the alleged
deficiencies;

\(3\) Assistance which shall be offered so as to enable the employee to
improve his/her performance so as to meet the requirements specified for
the position; and

\(4\) That the employee\'s within-grade increase may be denied unless
sustained improvement to an acceptable level of competence is shown
within sixty (60) days.

If the agency does not give sixty (60) days advance notice and the
within-grade increase is denied, the agency shall make a redetermination
of the employee\'s acceptable level of competence not later than sixty
(60) days after the date on which the employee completed the required
waiting period. If the redetermination indicates that the employee\'s
performance is at an acceptable level of competence or higher, the
within-grade increase is granted effective the first day of the first
pay period beginning on or after the redetermination.

**Section 42.04 - Delay of Within-Grade Increase**. When a within-grade
increase determination is delayed, the employee must be informed in
writing of:

\(1\) The fact that the decision of his/her within-grade increase is
being postponed;

\(2\) The reason for the postponement;

\(3\) The date the determination will be made;

\(4\) The fact that when the decision is made, it will be retroactive to
the date it was originally due;

\(5\) The specific requirements for performance at an acceptable level
of competence. If the employee does not have a performance plan, he/she
shall be given a plan; and

\(6\) Advise that if a subsequent determination is made that the
employee\'s performance is at an acceptable level of competence, the
within-grade increase shall be granted retroactively to the beginning of
the pay period following completion of the applicable waiting period.

If the employee does not have a performance plan, he/she must be given
one immediately.

**Section 42.05 - Denial of Within-Grade (Negative Determination)**. If
at the end of the sixty (60) day period provided in Section 42.03, the
employee\'s performance is not at an acceptable level of competence for
the purpose of approving the within-grade increase, the employee shall
be given a written notice which contains the following:

\(1\) Statement of denial of within-grade increase;

\(2\) Reasons for the negative determination;

\(3\) Employee\'s right to request, in writing, a reconsideration of the
negative determination within fifteen (15) days of receipt of the
negative determination;

\(4\) Name of reconsideration official to whom the request should be
sent;

\(5\) Employee\'s right to contest the basis for the negative
determination in person and in writing;

\(6\) Employee\'s right to a representative in presenting the request to
the reconsideration official; and

\(7\) Statement that the employee has the right to a reasonable amount
of official time in preparing and presenting the request.

**Section 42.06 - Reconsideration File**. The reconsideration official
shall establish a reconsideration file to include copies of:

\(1\) Written negative determination and supporting documents;

\(2\) Employee\'s request for reconsideration;

\(3\) Report of investigation if one was made;

\(4\) Written summary or transcript of any personal presentation; and

\(5\) Decision of the reconsideration official.

The file shall be retained and made available to the employee and
his/her representative.

**Section 42.07 - Reconsideration Decision Official\'s Notice**. On or
before close of business on the tenth (10th) workday after the date of
receipt of the employee\'s written presentation, or the date of the
completion of a personal presentation, whichever is later, the
reconsideration official shall issue a notice of decision to the
employee.

**Section 42.08 - Acceptable Level of Competence Waiver**. The
acceptable level of competence determination shall be waived when
employees meet the criteria contained in 5 CFR 531.

**Section 42.09 - Effective Dates**.

\(1\) When a determination is made that the employee\'s work is not of
an acceptable level of competence and the determination is final (i.e.,
the determination has not been reversed on reconsideration or
arbitration), the determining official shall make a redetermination
within thirty-nine (39) calendar weeks following the original due date
for the within-grade increase. Nothing, however, shall preclude the
official from making such a redetermination at an earlier date.

\(2\) When an acceptable level of competence is achieved after a
negative determination, the effective date of the within-grade increase
shall be the first pay period after an acceptable level of competence
has been achieved.

\(3\) A within-grade increase reconsideration favorable to the employee
shall be made retroactive to the date it was originally due and all
records relating to the negative determination shall be destroyed.

\(4\) If a within-grade increase is delayed due to insufficient
information, e.g., has not had standards and elements for ninety (90)
days and the employee subsequently achieves an acceptable level of
competence or better, the within-grade increase shall be granted
retroactively to the date it was originally due.

**Section 42.10 - Application of Articles 21 and 22**. The negative
reconsideration procedure as set forth in this Article substitutes for
and, is in lieu of, the grievance procedure, (Article 22). However, if a
denial of a within-grade increase is coupled with any performance based
action, the provisions of Article 21 are applicable.

**Section 42.11 - Arbitration**. If an employee\'s negative
determination is sustained after reconsideration, the Union may invoke
arbitration within twenty (20) calendar days of the employee\'s receipt
of the reconsideration decision.