Skip to main content

B-172671, JUN 14, 1971, 50 COMP GEN 850

B-172671 Jun 14, 1971
Jump To:
Skip to Highlights

Highlights

THE EXERCISE OF THE 5-WEEK RULE IS ADMINISTRATIVE AND ITS VALIDITY IS NOT A MATTER FOR ARBITRATION. AN ATTORNEY WHOSE PROMOTION WAS DELAYED BY REASON OF THE 5-WEEK RULE IS NOT ENTITLED TO A RETROACTIVE PROMOTION FOR IN THE ABSENCE OF ADMINISTRATIVE ERROR THE GENERAL RULE AGAINST RETROACTIVE PROMOTIONS APPLIES. 1971: REFERENCE IS MADE TO YOUR LETTER OF APRIL 20. IT IS STATED THAT THE ARBITRATOR FOUND THAT THE BOARD'S DECISION NOT TO PROMOTE THE EMPLOYEE AT A PARTICULAR TIME UNDER A BOARD-CREATED "FIVE-WEEK CUT-OFF" RULE WAS A VIOLATION OF A NEGOTIATED AGREEMENT BETWEEN THE BOARD AND A LABOR ORGANIZATION. NEW ENTRANCE GRADES FOR ATTORNEYS WERE ESTABLISHED AT GRADES GS-9 AND GS-11 INSTEAD OF AT GS-7 AND GS-9.

View Decision

B-172671, JUN 14, 1971, 50 COMP GEN 850

COMPENSATION - PROMOTIONS - WHITTEN RIDER RESTRICTION - WAIVER FOLLOWING THE UPGRADING OF THE ENTRANCE GRADES FOR ATTORNEYS TO GS-9 AND GS-11 FROM GS-7 AND GS-9, AND THE ADJUSTING OF GRADES AS A CONSEQUENCE, THE NATIONAL LABOR RELATIONS BOARD (NLRB) NEGOTIATED AN AGREEMENT WITH THE NLRB PROFESSIONAL ASSOCIATION TO CONSIDER SHORTER TIME PERIODS FOR PROMOTIONS AND REQUESTED WAIVER OF THE WHITTEN AMENDMENT REQUIREMENT OF 1- YEAR IN GRADE EXCEPT WHEN ONLY 5 WEEKS OR LESS REMAINED TO COMPLETE THE REQUIRED YEAR OF SERVICE, AND AS THE AGREEMENT ENTERED INTO PURSUANT TO EXECUTIVE ORDER NO. 10988, WHICH RESERVED TO THE GOVERNMENT THE AUTHORITY TO PROMOTE THE EFFICIENCY OF PERSONNEL OPERATIONS, DOES NOT GUARANTEE PROMOTIONS, THE EXERCISE OF THE 5-WEEK RULE IS ADMINISTRATIVE AND ITS VALIDITY IS NOT A MATTER FOR ARBITRATION. THEREFORE, AN ATTORNEY WHOSE PROMOTION WAS DELAYED BY REASON OF THE 5-WEEK RULE IS NOT ENTITLED TO A RETROACTIVE PROMOTION FOR IN THE ABSENCE OF ADMINISTRATIVE ERROR THE GENERAL RULE AGAINST RETROACTIVE PROMOTIONS APPLIES.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 14, 1971:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1971, REQUESTING OUR DECISION AS TO WHETHER THE NATIONAL LABOR RELATIONS BOARD (NLRB) MAY LAWFULLY MAKE A RETROACTIVE PROMOTION OF ONE OF ITS EMPLOYEES (IF AN EXCEPTION TO THE WHITTEN AMENDMENT BE GRANTED BY THE COMMISSION) IN ORDER TO COMPLY WITH AN ADVISORY ARBITRATION AWARD. IT IS STATED THAT THE ARBITRATOR FOUND THAT THE BOARD'S DECISION NOT TO PROMOTE THE EMPLOYEE AT A PARTICULAR TIME UNDER A BOARD-CREATED "FIVE-WEEK CUT-OFF" RULE WAS A VIOLATION OF A NEGOTIATED AGREEMENT BETWEEN THE BOARD AND A LABOR ORGANIZATION.

WE UNDERSTAND THAT EFFECTIVE SEPTEMBER 1, 1968, NEW ENTRANCE GRADES FOR ATTORNEYS WERE ESTABLISHED AT GRADES GS-9 AND GS-11 INSTEAD OF AT GS-7 AND GS-9. ATTORNEYS HIRED EARLIER IN GS-7 AND GS-9, WHO QUALIFIED UNDER THE NEW STANDARDS, WERE PROMOTED AND THE BOARD REQUESTED WAIVER BY THE COMMISSION OF THE SERVICE-IN-GRADE REQUIREMENT WHEN NECESSARY. LATER THE BOARD TOOK ACTION TO ADJUST THE GRADES OF ATTORNEYS IN GS-11 AND GS-12 WHO HAD BEEN HIRED BEFORE SEPTEMBER 1, 1968.

IN OCTOBER 1969 THE BOARD NEGOTIATED AGREEMENTS WITH THE NLRB PROFESSIONAL ASSOCIATION WHICH CONTAINED SHORTER TIME PERIODS FOR CONSIDERATION FOR PROMOTION. THE NEWLY ESTABLISHED TIME-IN-GRADE REQUIREMENTS WERE AS FOLLOWS:

A. ATTORNEYS SHALL BE ELIGIBLE FOR CONSIDERATION FOR PROMOTION FROM GS-9 TO GS-11 AFTER 1 YEAR IN GRADE.

B. ATTORNEYS SHALL BE ELIGIBLE FOR CONSIDERATION FOR PROMOTION FROM GS-11 TO GS-12 AFTER 1 YEAR IN GRADE AND A MINIMUM OF 14 MONTHS OF APPROPRIATE BOARD EXPERIENCE.

C. ATTORNEYS SHALL BE ELIGIBLE FOR CONSIDERATION FOR PROMOTION FROM GS-12 TO GS-13 AFTER A MINIMUM OF 16 MONTHS IN GRADE AND 30 MONTHS OF APPROPRIATE BOARD EXPERIENCE.

D. POLICY SET FORTH IN A-C ABOVE IS NOT TO BE INTERPRETED TO IMPLY AUTOMATIC PROMOTION OR TO PRECLUDE EARLIER PROMOTION WHERE APPROPRIATE FOR THOSE ATTORNEYS WHO HAVE HAD LEGAL EXPERIENCE WITH OTHER FEDERAL AGENCIES, CLERKING EXPERIENCE OR EXPERIENCE AS A PRIVATE PRACTITIONER, AS WELL AS FOR THOSE ATTORNEYS WHO BY THEIR PERFORMANCE INDICATE THEY ARE PERFORMING AT A HIGHER GRADE LEVEL.

APPARENTLY, THERE WERE ATTORNEYS WHO HAD COMPLETED THE SPECIFIED BOARD SERVICE WHO WERE DESERVING OF PROMOTION WITHOUT REGARD TO THE TIME-IN- GRADE POLICY SET FORTH IN THE ABOVE AGREEMENT BUT WHO COULD NOT BE PROMOTED WITHOUT OBTAINING A WAIVER OF THE WHITTEN AMENDMENT REQUIREMENT OF 1 YEAR IN GRADE FROM THE CIVIL SERVICE COMMISSION. IF THE TIME REQUIRED TO COMPLETE THE REQUIREMENT OF 1 YEAR IN GRADE WAS APPRECIABLE, THE BOARD WOULD REQUEST THAT A WAIVER BE GRANTED BY THE COMMISSION. HOWEVER, THE BOARD HAD A PRACTICE THAT IF THE INTERVAL WAS 5 WEEKS OR LESS NO REQUEST WOULD BE MADE AND THE PROMOTION WOULD BE MADE EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD AFTER THE 1 YEAR SERVICE REQUIREMENT WAS MET. THE REASON GIVEN FOR THIS PRACTICE WAS A BALANCING OF THE PREJUDICE TO THE INDIVIDUAL AGAINST THE EXPENDITURE OF TIME AND EFFORT TO PROCESS THE REQUEST FOR THE WAIVER WITHOUT WHICH THE PROMOTION COULD NOT BE GRANTED IN ANY EVENT.

IN THE SPECIFIC CASE HERE INVOLVED THE BOARD DETERMINED THAT MR. AMEDEO GRECO, A GS-12 ATTORNEY, WAS ELIGIBLE FOR PROMOTION (APPARENTLY ON APRIL 11, 1970). HOWEVER, BECAUSE OF THE 5-WEEK RULE HIS PROMOTION WAS NOT MADE UNTIL MAY 17, 1970, AFTER HE HAD COMPLETED 1 YEAR IN GRADE. MR. GRECO AND THE NLRB PROFESSIONAL ASSOCIATION FILED A GRIEVANCE WHICH WAS SUBSEQUENTLY HEARD BY AN ARBITRATOR. THE ARBITRATOR HELD THAT MR. GRECO SHOULD BE COMPENSATED FOR THE DELAY IN HIS PROMOTION AND THAT THE 5-WEEK RULE SHOULD BE ABANDONED. THE ARBITRATOR BASED HIS AWARD, IN PART, ON FINDINGS THAT THE 5-WEEK RULE WAS NOT APPLIED CONSISTENTLY AND THAT ALL REQUESTS FOR EXCEPTIONS TO THE WHITTEN AMENDMENT SOUGHT BY THE BOARD FOR ATTORNEYS IN SITUATIONS SIMILAR TO THAT OF MR. GRECO WERE GRANTED BY THE COMMISSION.

REGARDING THE GRANTING OF RETROACTIVE PAY INCREASES WE STATED THE FOLLOWING IN B-168715, JANUARY 22, 1970:

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).

WITH RESPECT TO AGREEMENTS WITH EMPLOYEE ORGANIZATIONS EXECUTIVE ORDER NO. 10988, JANUARY 18, 1962, EFFECTIVE DURING THE PERIOD THE AGREEMENT HERE CONCERNED WAS ENTERED INTO, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 7. ANY BASIC OR INITIAL AGREEMENT ENTERED INTO WITH AN EMPLOYEE ORGANIZATION AS THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN A UNIT MUST BE APPROVED BY THE HEAD OF THE AGENCY OR AN OFFICIAL DESIGNATED BY HIM. ALL AGREEMENTS WITH SUCH EMPLOYEE ORGANIZATIONS SHALL ALSO BE SUBJECT TO THE FOLLOWING REQUIREMENTS, WHICH SHALL BE EXPRESSLY STATED IN THE INITIAL OR BASIC AGREEMENT AND SHALL BE APPLICABLE TO ALL SUPPLEMENTAL, IMPLEMENTING, SUBSIDIARY OR INFORMAL AGREEMENTS BETWEEN THE AGENCY AND THE ORGANIZATION:

(1) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT OFFICIALS AND EMPLOYEES ARE GOVERNED BY THE PROVISIONS OF ANY EXISTING OR FUTURE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL AND AGENCY REGULATIONS, WHICH MAY BE APPLICABLE, AND THE AGREEMENT SHALL AT ALL TIMES BE APPLIED SUBJECT TO SUCH LAWS, REGULATIONS AND POLICIES;

(2) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS, (A) TO DIRECT EMPLOYEES OF THE AGENCY, (B) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN POSITIONS WITHIN THE AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY ACTION AGAINST EMPLOYEES, (C) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR OTHER LEGITIMATE REASONS, (D) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM, (E) TO DETERMINE THE METHODS, MEANS AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE CONDUCTED; AND (F) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE MISSION OF THE AGENCY IN SITUATIONS OF EMERGENCY.

THE AGREEMENT IN QUESTION DOES NOT GUARANTEE PROMOTIONS OF THE ATTORNEYS INVOLVED, BUT MERELY STATES THAT SUCH ATTORNEYS SHALL BE ELIGIBLE FOR CONSIDERATION FOR PROMOTION WHEN THEY HAVE COMPLETED THE REQUISITE PERIODS OF SERVICE. IT CAUTIONS THAT THE POLICY SET FORTH THEREIN IS NOT TO BE INTERPRETED TO "IMPLY AUTOMATIC PROMOTION OR TO PRECLUDE EARLIER PROMOTION." UNDER SECTION 7 OF EXECUTIVE ORDER NO. 10988 THE MANAGEMENT OFFICIALS OF THE BOARD RETAIN THE RIGHT, IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS, TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM AND TO DETERMINE THE METHODS AND MEANS BY WHICH SUCH OPERATIONS ARE TO BE CONDUCTED. THE BOARD ADOPTED THE 5-WEEK RULE BASED ON CONSIDERATIONS OF EFFICIENT PERSONNEL OPERATION. ADOPTION THEREOF WAS CONSISTENT WITH THE AUTHORITY RETAINED UNDER SECTION 7 SUPRA AND, THEREFORE, THE MATTER OF VALIDITY OF THE RULE DOES NOT APPEAR PROPERLY A SUBJECT OF ARBITRATION. SEE 50 COMP. GEN. 708 (1971).

THE ACTION OF THE BOARD IN SETTING THE EFFECTIVE DATE OF MR. GRECO'S PROMOTION WAS AN EXERCISE OF ITS DISCRETION AND WAS IN ACCORDANCE WITH STATED AGENCY POLICY. ACCORDINGLY, THE GENERAL RULE THAT PROMOTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE IS FOR APPLICATION, THERE BEING NO INDICATION OF ADMINISTRATIVE ERROR.

GAO Contacts

Office of Public Affairs