B-180311, OCT 4, 1974, 54 COMP GEN 263

B-180311, OCT 4, 1974, 54 COMP GEN 263

COMPENSATION - PROMOTIONS - TEMPORARY - RETROACTIVE CIVILIAN EMPLOYEE, ASSIGNED TEMPORARILY TO PERFORM THE DUTIES OF A HIGHER LEVEL POSITION, MAY BE RETROACTIVELY TEMPORARILY PROMOTED FOR THAT PERIOD SINCE PROVISION IN COLLECTIVE BARGAINING AGREEMENT IN EFFECT AT THE TIME PROVIDED THAT EMPLOYEES SO ASSIGNED FOR MORE THAN ONE PAY PERIOD WOULD BE TEMPORARILY PROMOTED. IF SUCH PROVISION IS VALID UNDER EXECUTIVE ORDER 11491, THEN AGENCY ACCEPTANCE OF AGREEMENT MADE PROVISION A NONDISCRETIONARY AGENCY POLICY AND GENERAL ACCOUNTING OFFICE HAS PERMITTED RETROACTIVE CHANGES IN SALARY WHEN ERRORS OCCURRED AS THE RESULT OF A FAILURE TO CARRY OUT A NONDISCRETIONARY AGENCY POLICY. OFFICERS AND EMPLOYEES - PROMOTIONS - ADMINISTRATIVE DETERMINATION - FEDERAL LABOR RELATIONS COUNCIL REVIEW QUESTION OF WHETHER PROVISION IN COLLECTIVE BARGAINING AGREEMENT PROVIDING FOR TEMPORARY PROMOTION FOR EMPLOYEES ASSIGNED TO HIGHER LEVEL POSITIONS FOR ONE PAY PERIOD OR MORE IS VALID IN LIGHT OF SECTION 12(B)(2) OF EXECUTIVE ORDER 11491 WHICH PROVIDES THAT MANAGEMENT OFFICIALS OF AN AGENCY RETAIN THE RIGHT TO PROMOTE EMPLOYEES WITHIN THE AGENCY IS FOR DETERMINATION BY HEAD OF AGENCY INVOLVED, SUBJECT TO REVIEW BY FEDERAL LABOR RELATIONS COUNCIL. IT IS NOTED, HOWEVER, THAT PROVISION APPEARS VALID SINCE AGENCY HAS RETAINED RIGHT TO MAKE DETERMINATIONS AS TO WHETHER AND WHOM TO ASSIGN TO HIGHER LEVEL POSITION, AND 5 CFR 335.102(F) LEAVES TO AGENCY DISCRETION THE DEFINITION OF A "REASONABLE TIME" IN WHICH TO EFFECT SUCH PROMOTIONS, THUS MAKING THE TIME PERIOD AMENABLE TO NEGOTIATION.

IN THE MATTER OF A RETROACTIVE TEMPORARY PROMOTION, OCTOBER 4, 1974:

THIS MATTER INVOLVES A REQUEST FOR A DECISION FROM THE COMMANDER OF THE PUGET SOUND NAVAL SHIPYARD AS TO WHETHER HE MAY RETROACTIVELY GIVE AN EMPLOYEE OF THE SHIPYARD A TEMPORARY PROMOTION AND PAY THE EMPLOYEE THE COMPENSATION COMMENSURATE WITH THAT PROMOTION FOR THE PERIOD IN QUESTION. THE COMMANDER STATES THAT HIS DESIGNATED REPRESENTATIVE IN A NEGOTIATED GRIEVANCE PROCEDURE HELD THAT A TEMPORARY PROMOTION SHOULD HAVE BEEN PROCESSED FOR A PERIOD OF TIME IN JUNE AND JULY OF 1972 UNDER THE PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE SHIPYARD AND THE BREMERTON METAL TRADES COUNCIL. THE DECISION IN THE GRIEVANCE WAS THAT RETROACTIVE DOCUMENTATION OF AND PAYMENT FOR SUCH A PROMOTION REQUIRED A DETERMINATION AS TO LEGALITY. THEREFORE THE MATTER HAS BEEN SUBMITTED TO OUR OFFICE.

THE FACTS IN THE CASE ARE STATED IN THE SUBMISSION AS FOLLOWS:

THE GRIEVANT, A GS-9 QUALITY ASSURANCE SPECIALIST, WAS ASSIGNED THE DUTIES OF A NONSUPERVISORY GS-10 LEVEL POSITION FROM 2 JUNE THROUGH 21 JULY 1972, WHILE THE INDIVIDUAL WHO FILLED THAT POSITION WAS ON LEAVE. THE APPLICABLE AGREEMENT PROVISION STATES THAT WHEN AN EMPLOYEE IS ASSIGNED TO A HIGHER LEVEL NONSUPERVISORY POSITION FOR A PAY PERIOD OR MORE, A TEMPORARY PROMOTION WILL BE MADE. IT WAS DETERMINED, PRIMARILY ON THE BASIS OF A WRITTEN DECISION BY THE FIRST LINE SUPERVISOR, THAT THE SCOPE OF THE GRIEVANT'S ASSIGNMENT ENCOMPASSED SUBSTANTIALLY ALL OF THE DUTIES OF THE GS-10 POSITION AND THAT THE GRIEVANT WAS QUALIFIED TO ASSUME THOSE DUTIES. THE SUPERVISOR DID NOT, HOWEVER, NOTIFY OR DISCUSS WITH ANY HIGHER LEVEL SUPERVISION THIS PARTICULAR WORK ASSIGNMENT.

IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT FEDERAL GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE APPOINTED, REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. PRICE V. UNITED STATES, 80 F. SUPP. 542, 543 (112 CT. CL. 198 (1948)) AND CASES CITED THEREIN. ALSO, THE GRANTING OF PROMOTIONS FROM GRADE TO GRADE IS A DISCRETIONARY MATTER PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY INVOLVED. SEE TIERNEY V. UNITED STATES, 168 CT. CL. 77 (1964); WIENBERG V. UNITED STATES, 192 CT. CL. 24 (1970). MOREOVER, SALARY INCREASES MAY ORDINARILY NOT BE MADE RETROACTIVELY. HOWEVER, WE HAVE HELD THAT WHEN AN EMPLOYEE HAS BECOME ELIGIBLE FOR A COMPENSATION INCREASE UNDER AGENCY REGULATIONS OR POLICIES, ADMINISTRATIVE ACTION RETROACTIVELY CORRECTING AN ERROR OR OVERSIGHT IN PROCESSING THE NECESSARY DOCUMENTS TO GRANT THE INCREASE WILL NOT BE REGARDED BY US AS A PROHIBITED RETROACTIVE ADJUSTMENT. WE DISCUSSED THE GENERAL RULE REGARDING RETROACTIVE SALARY CHANGES IN OUR DECISION OF JANUARY 22, 1970, B-168715:

AS A GENERAL RULE AN ADMINISTRATIVE CHANGE IN SALARY MAY NOT BE MADE RETROACTIVELY EFFECTIVE IN THE ABSENCE OF A STATUTE SO PROVIDING. COMP. GEN. 706 (1947), 39 ID. 583 (1960), 40 ID. 207 (1960). HOWEVER, WE HAVE PERMITTED ADJUSTMENTS (RETROACTIVELY EFFECTIVE) OF SALARY RATES IN CERTAIN CASES WHEN ERRORS OCCURRED IN FAILURES TO CARRY OUT NONDISCRETIONARY ADMINISTRATIVE REGULATIONS OR POLICIES. SEE 34 COMP. GEN. 380 (1955) AND 39 ID. 550 (1960). ALSO, WE HAVE PERMITTED RETROACTIVE ADJUSTMENTS IN CASES WHERE THE ADMINISTRATIVE ERROR HAS DEPRIVED THE EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION. SEE 21 COMP. GEN. 369, 376 (1941), 37 ID. 300 (1957), 37 ID. 774 (1958).

IN THE CITED DECISION, B-168715, IT WAS HELD THAT THE EMPLOYEES INVOLVED HAD NO VESTED RIGHT TO BE PROMOTED AT ANY SPECIFIC TIME, BUT RATHER THAT THE AGENCY'S REGIONAL COMMISSIONER WAS GIVEN THE AUTHORITY TO PROMOTE. RECOGNIZED IN THAT CASE THAT THE INTENT OF THE ADMINISTRATIVE INSTRUCTIONS INVOLVED WAS THAT THE PROMOTION BE MADE WITHIN A REASONABLE TIME, BUT THAT A DELAY IN EFFECTING THE PROMOTIONS DID NOT, IN EFFECT, CONSTITUTE ADMINISTRATIVE ERROR.

IN THE PRESENT CASE, HOWEVER, THE AGENCY HAS THROUGH COLLECTIVE BARGAINING NEGOTIATED AN AGREEMENT WITH THE UNION, ONE OF THE PROVISIONS OF WHICH IS THAT WHEN AN EMPLOYEE IS ASSIGNED TO A HIGHER LEVEL NONSUPERVISORY POSITION FOR A PAY PERIOD OR MORE, HE WILL BE TEMPORARILY PROMOTED TO THAT POSITION. MATTERS REGARDING TEMPORARY PROMOTIONS ARE PROPERLY WITHIN THE DISCRETION OF THE AGENCY UNDER SECTION 335.102(F) OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS WHICH PROVIDES THAT, GENERALLY, AN AGENCY MAY TEMPORARILY PROMOTE AN EMPLOYEE TO MEET A TEMPORARY NEED FOR A DEFINITE PERIOD OF 1 YEAR OR LESS AND EXTEND SUCH A PROMOTION FOR A DEFINITE PERIOD NOT TO EXCEED 1 ADDITIONAL YEAR. THE TIME PERIODS PROVIDED IN THE REGULATIONS ARE MAXIMUMS RATHER THAN MINIMUMS AND IT IS LEFT TO THE INDIVIDUAL AGENCY'S DISCRETION TO DECIDE AFTER WHAT MINIMUM PERIOD TO TEMPORARILY PROMOTE AN EMPLOYEE. WE BELIEVE THAT THE TEMPORARY PROMOTION PROVISION INVOLVED IN THIS CASE, IF PROPERLY INCLUDIBLE IN THE COLLECTIVE BARGAINING AGREEMENT IN ACCORDANCE WITH SECTIONS 11 AND 12 OF EXECUTIVE ORDER 11491 AS AMENDED BY EXECUTIVE ORDER 11616 OF AUGUST 26, 1971, 3 CFR 254, BECAME A NONDISCRETIONARY AGENCY POLICY AT THE TIME THAT THE COLLECTIVE BARGAINING AGREEMENT WAS APPROVED BY THE HEAD OF THE AGENCY UNDER SECTION 15 OF EXECUTIVE ORDER 11491. THEREFORE, WHILE THE SHIPYARD RETAINED THE DISCRETION TO CHOOSE WHICH EMPLOYEE, IF ANY, TO ASSIGN TEMPORARILY TO A HIGHER LEVEL POSITION, ONCE THE DECISION WAS MADE TO ASSIGN A PARTICULAR EMPLOYEE TO A HIGHER LEVEL POSITION FOR A PAY PERIOD OR MORE, IT THEN BECAME INCUMBENT UPON THE AGENCY TO TEMPORARILY PROMOTE THAT EMPLOYEE IN ACCORDANCE WITH THE COLLECTIVE BARGAINING AGREEMENT.

IN THE INSTANT CASE IT HAS BEEN DETERMINED THAT THE EMPLOYEE INVOLVED WAS ASSIGNED THE DUTIES OF THE HIGHER LEVEL POSITION, THAT HE WAS QUALIFIED TO ASSUME THOSE DUTIES, AND THAT HE DID IN FACT PERFORM THEM FOR LONGER THAN A PAY PERIOD. THE FACT THAT THE EMPLOYEE'S FIRST LINE SUPERVISOR DID NOT DISCUSS THE PARTICULAR WORK ASSIGNMENT WITH ANY HIGHER LEVEL OF SUPERVISION WOULD NOT MAKE A DIFFERENCE IF THE FIRST LINE SUPERVISOR HAD THE AUTHORITY, AS HE APPARENTLY DID, TO ORDER THE EMPLOYEE TO PERFORM THE DUTIES OF THE HIGHER LEVEL POSITION.

ACCORDINGLY, WE VIEW THE AGENCY'S FAILURE TO GIVE THE EMPLOYEE A TEMPORARY PROMOTION AT THE TIME IN QUESTION AS AN ADMINISTRATIVE ERROR AND WOULD HAVE NO OBJECTION TO CORRECTION OF THE ERROR AT THIS TIME BY PROCESSING A RETROACTIVE TEMPORARY PROMOTION AND PAYING THE APPROPRIATE BACK PAY SO LONG AS THE PROVISION IN THE AGREEMENT CALLING FOR TEMPORARY PROMOTIONS AFTER ASSIGNMENT FOR 1 OR MORE PAY PERIODS IS VALID UNDER EXECUTIVE ORDER 11491. IN THAT REGARD WE NOTE THAT SECTION 12(B)(2) OF EXECUTIVE ORDER 11491 PROVIDES, CONCERNING PROVISIONS IN FEDERAL EMPLOYEES' COLLECTIVE BARGAINING AGREEMENTS, THAT MANAGEMENT OFFICIALS OF AN AGENCY RETAIN THE RIGHT, IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS, TO PROMOTE EMPLOYEES WITHIN THE AGENCY. THE QUESTION OF WHETHER OR NOT THE PROVISION IN THE AGREEMENT FOR TEMPORARY PROMOTIONS IS CONTRARY TO THE AGENCY'S RETAINED RIGHT TO PROMOTE UNDER SECTION 12(B)(2) IS A MATTER FOR DETERMINATION BY THE HEAD OF THE AGENCY, SUBJECT TO REVIEW BY THE FEDERAL LABOR RELATIONS COUNCIL. WE HAVE BEEN INFORMALLY ADVISED BY THE FEDERAL LABOR RELATIONS COUNCIL THAT SUCH AN AGREEMENT WOULD NOT APPEAR TO BE CONTRARY TO THE PROVISIONS OF SECTION 12(B)(2) AND WE NOTE THAT THERE IS NO MINIMUM TIME PERIOD PROVIDED BY LAW OR REGULATIONS BEFORE WHICH TEMPORARY PROMOTIONS CANNOT BE EFFECTED AND THE AGENCY IN THIS CASE HAS RETAINED THE RIGHT TO MAKE THE DETERMINATION AS TO WHETHER OR NOT TO ASSIGN AN EMPLOYEE TO THE HIGHER LEVEL POSITION, AND WHOM TO ASSIGN TO THAT POSITION, AGREEING ONLY THAT ONCE THOSE DETERMINATIONS HAVE BEEN ADMINISTRATIVELY MADE, IT WILL PROCESS A TEMPORARY PROMOTION IF THE ASSIGNMENT EXTENDS FOR MORE THAN 1 PAY PERIOD.

THEREFORE IT WOULD APPEAR THAT THE TEMPORARY PROMOTION PROVISION IN THE AGREEMENT WAS PROPER AND CORRECTIVE ACTION IN THIS CASE MAY BE TAKEN AS INDICATED.