B-180010, MAR 19, 1975, 54 COMP GEN 760

B-180010, MAR 19, 1975, 54 COMP GEN 760

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - BACK PAY - UNFAIR LABOR PRACTICES UNFAIR LABOR PRACTICES WHICH INVOLVE PERSONNEL ACTIONS BY AGENCY DIRECTLY AFFECTING EMPLOYEES MAY BE REGARDED AS UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS UNDER BACK PAY ACT, 5 U.S.C. 5596 (1970), AND ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS MAY ORDER AGENCY TO PAY SUCH BACK PAY ALLOWANCES, DIFFERENTIALS, AND OTHER SUBSTANTIAL FINANCIAL EMPLOYEE BENEFITS AS ARE AUTHORIZED UNDER 5 C.F.R., PART 550, SUBPART H, PROVIDED IT IS ESTABLISHED THAT, BUT FOR THE UNFAIR LABOR PRACTICE, THE HARM TO THE EMPLOYEE WOULD NOT HAVE OCCURRED. INTEREST - BACK PAY - STATUTORY AUTHORITY REQUIRED ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS MAY NOT ORDER AGENCY TO PAY INTEREST ON BACK PAY AWARDS IN ABSENCE OF SPECIFIC STATUTORY AUTHORITY. OFFICERS AND EMPLOYEES - BACK PAY ACT - APPLICABILITY - UNSUCCESSFUL APPLICANTS FOR APPOINTMENT EXCLUDED THE BACK PAY ACT OF 1966, 5 U.S.C. 5596, IS APPLICABLE ONLY TO FEDERAL EMPLOYEES AND DOES NOT APPLY TO UNSUCCESSFUL APPLICANTS FOR EMPLOYMENT. THEREFORE, WHILE THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS IS AUTHORIZED TO TAKE AFFIRMATIVE ACTION WHEN HE FINDS THAT AN AGENCY HAS ENGAGED IN AN UNFAIR LABOR PRACTICE IN HIRING, HE HAS NO AUTHORITY TO DIRECT AN AGENCY TO MAKE AN APPOINTMENT UNDER THE BACK PAY ACT. GENERAL ACCOUNTING OFFICE - DECISIONS - REQUESTS - REVIEW BASIS UNDER PROVISIONS OF 31 U.S.C. 74 AND 82D, AGENCY HEADS AND AUTHORIZED CERTIFYING OFFICERS HAVE STATUTORY RIGHT TO SEEK DECISION FROM THIS OFFICE ON PROPRIETY OF PAYMENTS. HENCE, AGENCY MAY LEGITIMATELY DELAY IMPLEMENTATION OF A DETERMINATION BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS INVOLVING EXPENDITURE OF FUNDS PENDING COMPTROLLER GENERAL DECISION.

IN THE MATTER OF UNFAIR LABOR PRACTICE MAKE-WHOLE REMEDIES, MARCH 19, 1975:

THIS MATTER INVOLVES A REQUEST FOR AN ADVANCE DECISION AS TO WHETHER CERTAIN FEDERAL EMPLOYEE MAKE-WHOLE REMEDIES UNDER THE BACK PAY ACT OF 1966, 5 U.S.C. 5596 (1970), AND OTHER RELEVANT STATUTES ARE AVAILABLE TO THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS (A/SLMR), FOR USE UNDER HIS AUTHORITY TO REMEDY IMPROPER PERSONNEL ACTIONS CAUSED BY UNFAIR LABOR PRACTICES (ULP).

THE A/SLMR IS AUTHORIZED BY EXECUTIVE ORDER 11491, AS AMENDED, 3 C.F.R. 254 (1974), TO DECIDE ULP COMPLAINTS AND UPON FINDING THAT A ULP HAS OCCURRED IS AUTHORIZED TO REQUIRE AGENCIES OR LABOR ORGANIZATIONS TO TAKE REMEDIAL ACTION. IN THIS CONNECTION, SECTIONS 6(A)(4) AND 6(B) PROVIDE:

SEC. 6. ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.

(A) THE ASSISTANT SECRETARY SHALL -

(4) DECIDE UNFAIR LABOR PRACTICE COMPLAINTS AND ALLEGED VIOLATIONS OF THE STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS; ***

(B) IN ANY MATTERS ARISING UNDER PARAGRAPH (A) OF THIS SECTION, THE ASSISTANT SECRETARY MAY REQUIRE AN AGENCY OR A LABOR ORGANIZATION TO CEASE AND DESIST FROM VIOLATIONS OF THIS ORDER AND REQUIRE IT TO TAKE SUCH AFFIRMATIVE ACTION AS HE CONSIDERS APPROPRIATE TO EFFECTUATE THE POLICIES OF THIS ORDER.

THE UNFAIR LABOR PRACTICES THAT MAY RESULT IN ERRONEOUS PERSONNEL ACTIONS TO EMPLOYEES AND THUS REQUIRE REMEDIAL MEASURES ARE SET FORTH IN SECTIONS 19(A)(1), 19(A)(2), AND 19(A)(4) OF THE ORDER AND ARE AS FOLLOWS:

SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT -

(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY THIS ORDER:

(2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT;

(4) DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE HE HAS FILED A COMPLAINT OR GIVEN TESTIMONY UNDER THIS ORDER;

SPECIFICALLY, THE A/SLMR HAS REQUESTED THIS OFFICE TO DECIDE WHETHER HE HAS AUTHORITY TO EMPLOY MAKE-WHOLE MEASURES UNDER THE BACK PAY ACT OF 1966, 5 U.S.C. 5596, SUPRA, OR ANY OTHER RELEVANT STATUTE WHEN HE FINDS VIOLATIONS OF THE ORDER INVOLVING THE DISCRIMINATORY FAILURE TO PROMOTE, TO HIRE AND/OR TO PAY OVERTIME. IN ADDITION THE A/SLMR REQUESTS WHETHER HE HAS AUTHORITY TO ORDER THE PAYMENT OF INTEREST ALONG WITH ANY BACK PAY AWARD.

THE BACK PAY ACT OF 1966, 5 U.S.C. 5596, SUPRA, PROVIDES AS FOLLOWS:

SEC. 5596. BACK PAY DUE TO UNJUSTIFIED PERSONNEL ACTION

(A) FOR THE PURPOSE OF THIS SECTION, "AGENCY" MEANS -

(1) AN EXECUTIVE AGENCY;

(2) THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS;

(3) THE LIBRARY OF CONGRESS;

(4) THE GOVERNMENT PRINTING OFFICE; AND

(5) THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.

(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION.

(C) THE CIVIL SERVICE COMMISSION SHALL PRESCRIBE REGULATIONS TO CARRY OUT THIS SECTION. HOWEVER, THE REGULATIONS ARE NOT APPLICABLE TO THE TENNESSEE VALLEY AUTHORITY AND ITS EMPLOYEES.

THE ABOVE-QUOTED STATUTE REQUIRES THAT A FINDING BE MADE BY AN APPROPRIATE AUTHORITY THAT AN EMPLOYEE HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. APPROPRIATE AUTHORITY IS DEFINED IN REGULATIONS IMPLEMENTING THE BACK PAY STATUTE CONTAINED IN 5 C.F.R., PART 550, SUBPART H. SECTION 550.803(C) READS AS FOLLOWS:

(C) THE APPROPRIATE AUTHORITY REFERRED TO IN SECTION 5596 OF TITLE 5, U.S.C. AND THIS SUBPART IS (1) THE AGENCY OR THE OFFICE OR OFFICIAL IN AN AGENCY AUTHORIZED UNDER APPLICABLE LAW OR REGULATION TO CORRECT, OR TO DIRECT THE CORRECTION OF, THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, OR (2) A COURT HAVING JURISDICTION TO MAKE A DETERMINATION THAT A PERSONNEL ACTION IS UNJUSTIFIED OR UNWARRANTED.

THUS, AN APPROPRIATE AUTHORITY MAY BE AN AGENCY OR AN OFFICIAL AUTHORIZED UNDER APPLICABLE LAW OR REGULATION TO CORRECT OR DIRECT THE CORRECTION OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. WE BELIEVE THAT UNDER THE PROVISIONS OF SECTION 6(B) OF THE ORDER, THE A/SLMR SATISFIES THE ABOVE- DESCRIBED CRITERIA OF AN APPROPRIATE AUTHORITY. IN A NUMBER OF RECENT DECISIONS WE HAVE, IN EFFECT, HELD THAT A LABOR RELATIONS ARBITRATOR IS AN APPROPRIATE AUTHORITY WITHIN THE MEANING OF THE BACK PAY ACT AND ITS IMPLEMENTING REGULATIONS. 53 COMP. GEN. 1054 (1974); 54 ID. 435 (1974); 54 ID. 538 (1974). CONSEQUENTLY, WE NOW HOLD THAT THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS IS ALSO AN APPROPRIATE AUTHORITY UNDER PROVISIONS OF THE BACK PAY STATUTE AND IMPLEMENTING REGULATIONS WHEN EXERCISING HIS AUTHORITY UNDER SECTION 6(B) OF THE ORDER TO DIRECT AN AGENCY HEAD TO CORRECT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION CAUSED BY AGENCY DISCRIMINATION AGAINST AN EMPLOYEE BECAUSE OF HIS UNION ACTIVITY.

THEREFORE, THE A/SLMR MAY ORDER AN AGENCY HEAD TO TAKE REMEDIAL MEASURES AVAILABLE UNDER THE BACK PAY STATUTE AND OTHER MAKE-WHOLE STATUTES (SUCH AS 5 U.S.C. 8909 (1970) WHICH DEALS WITH REINSTATEMENT OF HEALTH INSURANCE AND 5 U.S.C. 8706(F) (SUPP. III, 1975) WHICH SIMILARLY DEALS WITH REINSTATEMENT OF LIFE INSURANCE) AS SET FORTH IN IMPLEMENTING REGULATIONS, CIVIL SERVICE COMMISSION INSTRUCTIONS AND DECISIONS FROM THIS OFFICE. SUCH REMEDIAL MEASURES INCLUDE AMONG OTHER THINGS BACK PAY FOR RETROACTIVE PROMOTIONS AND BACK PAY FOR PERIODS OF OVERTIME OF WHICH THE EMPLOYEE HAS BEEN DEPRIVED. IN THIS CONNECTION WE POINT OUT THAT BEFORE ANY MONETARY PAYMENT MAY BE MADE UNDER THE PROVISIONS OF 5 U.S.C. 5596, THERE MUST BE A DETERMINATION NOT ONLY THAT AN EMPLOYEE HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, BUT THAT SUCH ACTION DIRECTLY RESULTED IN A WITHDRAWAL OF PAY, ALLOWANCES, OR DIFFERENTIALS, AS DEFINED IN APPLICABLE CIVIL SERVICE REGULATIONS. ALTHOUGH EVERY PERSONNEL ACTION WHICH DIRECTLY AFFECTS AN EMPLOYEE AND WHICH HAS BEEN FOUND TO BE AN UNFAIR LABOR PRACTICE MAY ALSO BE CONSIDERED TO BE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, THE REMEDIES UNDER THE BACK PAY ACT ARE NOT AVAILABLE UNLESS THE A/SLMR CAN ALSO ESTABLISH THAT BUT FOR THE WRONGFUL ACTION, THE WITHDRAWAL OF PAY, ALLOWANCES, AND DIFFERENTIALS WOULD NOT HAVE OCCURRED. THE FOLLOWING EXAMPLES MAY BE ILLUSTRATIVE.

1. THE A/SLMR FINDS THAT AN EMPLOYEE WAS NOT INCLUDED ON A LIST OF ELIGIBLES FOR PROMOTION BECAUSE HE WAS KNOWN TO BE ACTIVE IN UNION AFFAIRS. ALTHOUGH THE A/SLMR MAY FIND THIS TO BE AN UNFAIR LABOR PRACTICE AND THUS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, HE MAY NOT ORDER HIS RETROACTIVE PROMOTION WITH ACCOMPANYING BACK PAY SINCE IT CANNOT BE FOUND THAT HAD HE BEEN INCLUDED ON THE LIST OF ELIGIBLES, HE WOULD DEFINITELY HAVE RECEIVED THE PROMOTION. SEE 54 COMP. GEN. 435 (1974); B- 164815, AUGUST 22, 1968.

2. BY THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT, THE AGENCY AGREED TO CONSULT WITH THE UNION BEFORE SELECTING INDIVIDUAL EMPLOYEES FOR OVERTIME ASSIGNMENTS. THE AGENCY FAILED TO COMPLY WITH THE AGREEMENT TO CONSULT AND INSTEAD SELECTED THE MOST SENIOR MEMBERS OF A CREW FOR THE ASSIGNMENT. A JUNIOR MEMBER OF THE CREW COMPLAINS THAT AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED BECAUSE OF THE FAILURE TO CONSULT AND THIS IS SUSTAINED BY THE A/SLMR. NEVERTHELESS, THE JUNIOR EMPLOYEE MAY NOT BE AWARDED RETROACTIVE OVERTIME PAY SINCE IT CANNOT BE SHOWN THAT HAD THE AGENCY COMPLIED WITH THE CONSULTATION REQUIREMENT, HE WOULD HAVE BEEN SELECTED FOR THE ASSIGNMENT.

AS A GENERAL RULE, FAILURE-TO-CONSULT ACTIONS, IN THE ABSENCE OF A REQUIREMENT THAT THE AGENCY CARRY OUT THE ADVICE RECEIVED AS A RESULT OF THE CONSULTATION, ARE NOT LIKELY TO RESULT IN THE NECESSARY "BUT FOR" RELATIONSHIP BETWEEN THE WRONGFUL ACT AND THE HARM TO THE INDIVIDUAL EMPLOYEE FOR WHICH THE BACK PAY ACT IS THE APPROPRIATE REMEDY. HOWEVER, THE BACK PAY ACT MAY BE APPROPRIATELY UTILIZED FOR THE CLASS OF UNFAIR LABOR PRACTICES WHICH INVOLVE DISCRIMINATION IN PROMOTION, OVERTIME PAY, AND OTHER BENEFITS BECAUSE OF THE EMPLOYEE'S PARTICIPATION OR FAILURE TO PARTICIPATE IN UNION ACTIVITIES.

REGARDING AGENCY DISCRIMINATION IN HIRING WE POINT OUT THAT THE BACK PAY ACT, 5 U.S.C. 5596, SUPRA, IS APPOSITE ONLY TO FEDERAL EMPLOYEES AND DOES NOT PROVIDE A REMEDY FOR UNSUCCESSFUL APPLICANTS FOR FEDERAL EMPLOYMENT. ALSO, THE AUTHORITY TO APPOINT IS IN THE ADMINISTRATIVE AGENCIES UNDER REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION. IN VIEW OF THIS AND SINCE THERE IS NOTHING IN ANY LEGISLATION OF WHICH WE ARE AWARE WHICH AUTHORIZES THE A/SLMR TO MAKE APPOINTMENTS TO CIVIL SERVICE POSITIONS, IT IS OUR OPINION THAT HE MAY NOT DIRECT AN APPLICANT'S APPOINTMENT EVEN THOUGH HE IS AUTHORIZED TO TAKE AFFIRMATIVE ACTION IN CASES INVOLVING DISCRIMINATION IN HIRING AS A RESULT OF AN UNFAIR LABOR PRACTICE.

WITH REGARD TO THE PAYMENT OF INTEREST ON BACK PAY AWARDS, IT IS A GENERAL RULE OF LAW THAT IN THE ABSENCE OF A CONTRACT OR A STATUTE EVINCING A CONTRARY INTENTION, INTEREST DOES NOT RUN UPON CLAIMS AGAINST THE GOVERNMENT. SEABOARD AIR LINE RAILWAY V. UNITED STATES, 261 U.S. 299, 304 (1923); SMYTH V. UNITED STATES, 302 U.S. 329, 353 (1937); 45 COMP. GEN. 169 (1965). NEITHER THE BACK PAY ACT NOR ANY OTHER APPLICABLE STATUTE SPECIFICALLY PROVIDES FOR THE PAYMENT OF INTEREST ON RETROACTIVE AWARDS OF BACK PAY RESULTING FROM AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. THEREFORE, INTEREST MAY NOT BE AWARDED BY THE A/SLMR ON ANY BACK PAY, ALLOWANCES AND DIFFERENTIALS FOR WHICH HE HAS DIRECTED PAYMENT TO AN EMPLOYEE.

WE ALSO POINT OUT THAT ALTHOUGH THE A/SLMR MAY ORDER AN AGENCY HEAD TO TAKE REMEDIAL ACTION WITH RESPECT TO AN EMPLOYEE, INCLUDING THE PAYMENT OF BACK PAY, ALLOWANCES AND DIFFERENTIALS AND OTHER SUBSTANTIAL EMPLOYMENT BENEFITS, HIS ORDER DOES NOT PRECLUDE THE AGENCY HEAD OR THE AUTHORIZED CERTIFYING OFFICER OF THE AGENCY FROM EXERCISING THEIR STATUTORY RIGHTS UNDER PROVISIONS OF 31 U.S.C. 74 AND 31 U.S.C. 82D IN REQUESTING AN ADVANCE DECISION FROM THIS OFFICE AS TO THE PROPRIETY OF SUCH PAYMENTS. ACCORDINGLY, AN AGENCY MAY PROPERLY DELAY THE IMPLEMENTATION OF AN ORDER ISSUED BY THE A/SLMR INVOLVING THE EXPENDITURE OF FUNDS UNTIL IT HAS OBTAINED AN ADVANCE DECISION FROM THIS OFFICE.