B-180010, OCT 31, 1974, 54 COMP GEN 312

B-180010, OCT 31, 1974, 54 COMP GEN 312

REGULATIONS - PROMOTION PROCEDURES - COLLECTIVE BARGAINING AGREEMENT WHEN AGENCY AGREED IN A COLLECTIVE BARGAINING AGREEMENT THAT IT WOULD BE POLICY OF THE AGENCY TO FILL VACANCIES BY PROMOTION FROM WITHIN IF QUALIFICATIONS OF AGENCY APPLICANTS ARE EQUAL TO THOSE FROM OUTSIDE AGENCY, THEN AT THE TIME THAT THE HEAD OF THE AGENCY APPROVED THE AGREEMENT UNDER SECTION 15 OF EXECUTIVE ORDER NO. 11491, SUCH POLICY, UNLESS OTHERWISE PROVIDED IN THE AGREEMENT, BECAME A NONDISCRETIONARY AGENCY POLICY AND PART OF THE AGENCY'S PROMOTION PROCEDURES. ARBITRATION - AWARD - COLLECTIVE BARGAINING AGREEMENT - VIOLATION - AGENCY IMPLEMENTATION REGARDING WEIGHT GENERAL ACCOUNTING OFFICE (GAO) SHOULD GIVE TO BINDING ARBITRATION AWARD IN WHICH ARBITRATOR FOUND THAT AGENCY HAD VIOLATED COLLECTIVE BARGAINING AGREEMENT CONCERNING PROMOTIONS FROM WITHIN AGENCY, ABSENT FINDING THAT AWARD IS CONTRARY TO APPLICABLE LAW, APPROPRIATE REGULATION, EXECUTIVE ORDER NO. 11491, OR DECISIONS OF THIS OFFICE, GAO BELIEVES THAT BINDING ARBITRATION AWARD MUST BE GIVEN THE SAME WEIGHT AS ANY OTHER EXERCISE OF ADMINISTRATIVE DISCRETION, I.E., AUTHORITY TO IMPLEMENT AWARD SHOULD BE REFUSED ONLY IF AGENCY HEAD'S OWN DECISION TO TAKE SAME ACTION WOULD BE DISALLOWED. ARBITRATION - AWARD - RETROACTIVE PROMOTION WITH BACK PAY - VIOLATION OF COLLECTIVE BARGAINING AGREEMENT EMPLOYEE WHO AGENCY ADMITS WAS NOT PROMOTED TO A POSITION TO WHICH SHE WOULD HAVE BEEN PROMOTED HAD THE AGENCY NOT VIOLATED CERTAIN PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE AGENCY AND A LABOR UNION MAY BE RETROACTIVELY PROMOTED BACK TO THE TIME SHE WOULD HAVE BEEN PROMOTED HAD THERE NOT BEEN A VIOLATION AND PAID COMMENSURATE BACK PAY SINCE AGENCY ACCEPTANCE OF THE AGREEMENT MADE THE PROVISION A NONDISCRETIONARY AGENCY POLICY AND VIOLATION WAS UNWARRANTED AND UNJUSTIFIED PERSONNEL ACTION UNDER BACK PAY ACT, 5 U.S.C. 5596. 48 COMP. GEN. 502; B-175867, JUNE 19, 1972; B-181972, AUG. 28, 1974; AND OTHER CONFLICTING DECISIONS, MODIFIED. ARBITRATION - AWARD - IMPLEMENTATION BY AGENCY - NOT AUTOMATIC GENERAL ACCOUNTING OFFICE (GAO) DECISION AUTHORIZING RETROACTIVE PROMOTION FOLLOWING ARBITRATOR'S AWARD SHOULD NOT BE CONSTRUED AS MEANING THAT ANY AWARD OF AN ARBITRATOR, EVEN IF MADE PURSUANT TO A BINDING ARBITRATION AGREEMENT, MAY AUTOMATICALLY BE IMPLEMENTED BY AGENCY INVOLVED. WHILE GAO IS CONCERNED WITH GIVING MEANINGFUL EFFECT TO EXECUTIVE ORDER 11491, ARBITRATOR'S AWARDS MUST BE CONSISTENT WITH LAW, REGULATION AND DECISIONS OF THIS OFFICE AND WHERE THERE IS DOUBT AS TO WHETHER AN AWARD MAY PROPERLY BE IMPLEMENTED, A DECISION FROM THIS OFFICE SHOULD BE SOUGHT.

IN THE MATTER OF A RETROACTIVE PROMOTION WITH BACK PAY PURSUANT TO ARBITRATION AWARD, OCTOBER 31, 1974:

THIS MATTER INVOLVES A REQUEST FOR A DECISION AS TO WHETHER THE NATIONAL LABOR RELATIONS BOARD (NLRB) HAS THE AUTHORITY TO COMPLY WITH AN ARBITRATOR'S AWARD AND GRANT AN EMPLOYEE OF THAT AGENCY A RETROACTIVE PROMOTION WITH APPROPRIATE BACK PAY.

THE QUESTION ARISES AS THE RESULT OF AN ARBITRATOR'S DECISION ISSUED PURSUANT TO AN ARBITRATION HEARING UNDER A COLLECTIVE BARGAINING CONTRACT BETWEEN THE GENERAL COUNSEL OF THE NLRB AND THE NATIONAL LABOR RELATIONS BOARD UNION. THE ARBITRATOR FOUND THAT THE GENERAL COUNSEL HAD IMPROPERLY FILLED A CLERICAL VACANCY IN HIS OFFICE BY SELECTING AN APPLICANT FROM OUTSIDE THE AGENCY AND THEREBY REJECTING FOUR ADMITTEDLY "WELL-QUALIFIED" APPLICANTS WHO WERE ALREADY EMPLOYED BY THE AGENCY. THE ARBITRATOR FOUND THAT SUCH SELECTION AND CONCURRENT REJECTIONS VIOLATED THE CONTRACTUAL PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT CALLING FOR FILLING VACANCIES BY PROMOTION OR REASSIGNMENT OF PERSONS ALREADY EMPLOYED IN THE AGENCY, PROVIDED THEIR QUALIFICATIONS ARE EQUAL TO THOSE OF APPLICANTS FROM OTHER SOURCES.

THE PROVISION WHICH THE ARBITRATOR FOUND WAS VIOLATED IS IN ARTICLE IX OF THE COLLECTIVE BARGAINING AGREEMENT, WHICH READS AS FOLLOWS:

ARTICLE IX

CLERICAL PROMOTIONS

SECTION 1. INTRODUCTION - THE PARTIES AGREE THAT THE MISSION AND RESPONSIBILITIES OF THE OFFICE OF THE GENERAL COUNSEL IN THE ENFORCEMENT OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED, DEMAND A HIGH DEGREE OF STAFF EFFECTIVENESS. IT IS THEREFORE THE POLICY OF THE GENERAL COUNSEL:

A. TO OBTAIN AND RETAIN THE BEST PERSONNEL AVAILABLE AND TO UTILIZE AS FULLY AS POSSIBLE ALL VALUABLE AND APPROPRIATE EXPERIENCE.

B. TO FILL VACANCIES BY PROMOTION OR REASSIGNMENT OF PERSONS ALREADY EMPLOYED IN THE AGENCY, PROVIDED THEIR PERSONAL QUALIFICATIONS, TRAINING AND EXPERIENCE ARE EQUAL TO THOSE OF APPLICANTS FROM OTHER SOURCES.

C. THAT RECRUITMENT FROM OUTSIDE THE AGENCY IS USUALLY RESORTED TO ONLY TO FILL POSITIONS AT THE ENTRANCE LEVEL OR TO FILL POSITIONS FOR WHICH ELIGIBLES ARE IN SHORT SUPPLY OR TO APPOINT INDIVIDUALS WHO WILL ADD TO THE PERSONNEL RESOURCES OF THE AGENCY.

SECTION 2. ALL PROMOTIONS WILL BE MADE IN ACCORDANCE WITH THIS AGREEMENT, THE AGENCY'S MERIT PROMOTION REGULATIONS, AND RELATED CIVIL SERVICE REGULATIONS.

SINCE THE AGENCY ADMITTED THAT THE FOUR AGENCY APPLICANTS WERE AT LEAST AS WELL QUALIFIED AS THE APPLICANT FROM OUTSIDE THE AGENCY, THE ARBITRATOR FOUND THAT THE AGENCY SHOULD HAVE SELECTED ONE OF THE FOUR AGENCY APPLICANTS FOR THE POSITION IN QUESTION IN ACCORDANCE WITH THE AGREEMENT. THE GENERAL COUNSEL HAS ADMITTED THAT THE CONTRACT WAS VIOLATED BUT QUESTIONS WHETHER HE MAY PROPERLY IMPLEMENT THE ARBITRATION AWARD IN ITS ENTIRETY. THAT AWARD DIRECTED THE GENERAL COUNSEL TO SELECT, ON SOME BASIS CONSISTENT WITH THE AGREEMENT AND WITH APPLICABLE LAW, ONE OF THE FOUR AGENCY APPLICANTS TO FILL THE POSITION GIVEN THE NONAGENCY APPLICANT AND TO "MAKE THE APPLICANT SO SELECTED WHOLE FOR ANY LOSS OF WAGES WHICH SHE SUSTAINED BY NOT BEING GIVEN THAT POSITION, STARTING WITH THE DATE THE POSITION WAS FIRST FILLED" BY THE EMPLOYEE SELECTED FROM OUTSIDE THE AGENCY.

THE GENERAL COUNSEL STATES THAT IN COMPLIANCE WITH THE AWARD HE HAS SELECTED ONE OF THE FOUR AGENCY APPLICANTS FOR THE POSITION, BUT IN VIEW OF THE COURT OF CLAIMS DECISION, CHAMBERS V. UNITED STATES, 451 F.2D 1045 (1971), ON THE QUESTION OF RETROACTIVE BACK PAY, HE HAS DECIDED TO SUBMIT THE MATTER TO THIS OFFICE FOR A DECISION AS TO THE PROPRIETY OF PAYING THE ORDERED BACK PAY. THE GENERAL COUNSEL POINTS OUT THAT PRIOR TO THE CHAMBERS DECISION, BOTH THE COURT OF CLAIMS AND THE COMPTROLLER GENERAL HAD RULED CONSISTENTLY THAT PROMOTIONS MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO FAR AS THE PAYMENT OF BACK PAY IS CONCERNED AND REFERS TO OUR DECISIONS, 32 COMP. GEN. 527 (1953), 33 ID. 140 (1953), AND 50 ID. 850 (1971). HE CITES THE RULE STATED IN 33 COMP. GEN. 140 THAT THIS OFFICE "HAS NEVER SANCTIONED RETROACTIVE PROMOTIONS SO FAR AS THE PAYMENT OF SALARY IS CONCERNED."

IT IS THE POSITION OF THE GENERAL COUNSEL OF THE NLRB THAT HIS AGENCY SHOULD HAVE THE AUTHORITY TO COMPLY WITH THE ARBITRATOR'S AWARD WITH RESPECT TO THE PAYMENT OF BACK PAY TO MAKE THE EMPLOYEE WHOLE FOR THE LOSSES SUFFERED BY NOT BEING SELECTED FOR THE POSITION IN QUESTION. THESE VIEWS ARE BASED ON THE CONVICTION THAT IN ORDER TO GIVE MEANINGFUL EFFECT TO EXECUTIVE ORDER 11491, AS AMENDED, AND THE COLLECTIVE BARGAINING AGREEMENT ENTERED INTO PURSUANT THERETO, IT IS ESSENTIAL THAT "BINDING" ARBITRATION, WHEN AGREED TO, MEANS JUST THAT. THE GENERAL COUNSEL FURTHER STATES THAT THIS IS ESPECIALLY TRUE IN LABOR-MANAGEMENT RELATIONS IN THE PUBLIC SECTOR WHERE, UNLIKE THE PRIVATE SECTOR, NEITHER EMPLOYEES NOR UNIONS HAVE ANY SELF-HELP AND THEREFORE MUST REST THEIR HOPES WITH THE ARBITRATOR. HE STATES THAT AN AGENCY'S INABILITY TO COMPLY FULLY WITH AN ARTBITRATOR'S AWARD DOES NOTHING TO ENHANCE MEANINGFUL AND PEACEFUL LABOR RELATIONS IN THE FEDERAL SECTOR. THEREFORE HE REQUESTS THAT WE ISSUE A DECISION THAT WILL AUTHORIZE THE ABENCY TO COMPLY FULLY WITH THE ARBITRATION AWARD IN THIS CASE BY PAYING BACK PAY TO THE EMPLOYEE IN QUESTION AS DIRECTED BY THE ARBITRATOR.

BOTH THE NATIONAL LABOR RELATIONS BOARD UNION AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES REQUESTED AND RECEIVED PERMISSION TO SUBMIT BRIEFS WITH THIS OFFICE IN THE MATTER. THE NATIONAL LABOR RELATIONS BOARD UNION, IN ITS BRIEF, POINTS OUT THAT THE DECISION OF THE ARBITRATOR IN THIS CASE DOES NOT VIOLATE APPLICABLE LAW, REGULATION, OR EXECUTIVE ORDER 11491 AND THAT THE AWARD OF ORDERING THE AGENCY TO SELECT ONE OF THE FOUR AGENCY APPLICANTS FOR THE POSITION IN QUESTION CONSTITUTES A SINE QUA NON FOR INSURING ADHERENCE TO THE COLLECTIVE BARGAINING AGREEMENT AND THUS FOR GIVING FULL IMPLEMENTATION TO THE EXECUTIVE ORDER. IT IS ARGUED THAT NOT GIVING EFFECT TO THE AWARD WOULD ALLOW THE AGENCY TO VIOLATE THE CONTRACT WITH IMPUNITY AND WOULD NULLIFY THE EFFECT OF THE COLLECTIVE BARGAINING AGREEMENT, AS TO BOTH ITS SUBSTANTIVE PROVISIONS AND AS TO AN ARBITRATION PROCEDURE PROVIDED THEREIN. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES STATED THAT AT ISSUE IS WHETHER AN ARBITRATION AWARD MADE PURSUANT TO A NEGOTIATED PROCEDURE PROVIDING FOR BINDING ARBITRATION, AS AUTHORIZED BY EXECUTIVE ORDER 11491, AS AMENDED, REPRESENTS A VALID EXERCISE OF AN AGENCY'S ADMINISTRATIVE DISCRETION IN ACCORDANCE WITH STATED AGENCY POLICY AND IS, THEREFORE, BINDING UPON THAT AGENCY.

THIS CASE INVOLVES, IN ADDITION TO THE QUESTION OF WHETHER THE PARTICULAR EMPLOYEE INVOLVED MAY BE GRANTED A RETROACTIVE PROMOTION AS A RESULT OF THE AGENCY'S VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT, THE BROADER QUESTION, ADDRESSED IN ALL THE SUBMISSIONS TO THIS OFFICE IN THE MATTER, OF THE VALUE AND EFFECT OF A PROVISION IN A COLLECTIVE BARGAINING AGREEMENT CALLING FOR BINDING ARBITRATION OF DISPUTES OVER THE INTERPRETATION AND APPLICATION OF THAT AGREEMENT, INCLUDING THE AUTHORITY OF AN AGENCY TO COMPLY WITH A BINDING ARBITRATION AWARD, AND THE RELATIONSHIP OF DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES TO THOSE AWARDS.

THE POLICIES GOVERNING RELATIONSHIPS BETWEEN AGENCIES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT AND FEDERAL EMPLOYEES AND ORGANIZATIONS REPRESENTING THOSE EMPLOYEES ARE OUTLINED IN EXECUTIVE ORDER 11491, AS AMENDED BY EXECUTIVE ORDER 11616 OF AUGUST 26, 1971, 3 C.F.R. 254. SECTION 11 OF THAT ORDER SETS FORTH THE GUIDELINES COVERING NEGOTIATION OF AGREEMENTS AND PROVIDES THAT AN AGENCY AND A LABOR ORGANIZATION MAY NEGOTIATE WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS SO FAR AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL, PUBLISHED AGENCY POLICIES AND REGULATIONS, A NATIONAL OR OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL IN THE AGENCY, AND THE EXECUTIVE ORDER. UNDER SECTION 12, EACH AGREEMENT IS SUBJECT TO CERTAIN RETAINED RIGHTS OF THE AGENCY AND THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND BY SUBSEQUENTLY PUBLISHED AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS OF APPROPRIATE AUTHRITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY LEVEL.

WE BELIEVE THAT ONCE AN AGREEMENT WITH A LABOR ORGANIZATION IS APPROVED UNDER SECTION 15 OF EXECUTIVE ORDER 11491, AND THE PROVISIONS OF THE AGREEMENT ARE CONSISTENT WITH LAWS AND REGULATIONS AND WITHIN THE GUIDELINES OF SECTIONS 11, 12 AND 13 OF THE EXECUTIVE ORDER, THEN, UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE AGREEMENT, SUCH PROVISIONS BECOME NONDISCRETIONARY AGENCY POLICIES. FURTHER, WE BELIEVE THAT WHEN AN AGENCY, IN ITS DISCRETION, CHOOSES TO AGREE TO BINDING ARBITRATION, THEN A DECISION OF AN ARBITRATOR, IF OTHERWISE PROPER, BECOMES, IN EFFECT, THE DECISION OF THE HEAD OF THE AGENCY INVOLVED. THEREFORE, REGARDING THE WEIGHT WHICH THIS OFFICE SHOULD GIVE TO BINDING ARBITRATION AWARDS, ABSENT A FINDING THAT AN ARBITRATION AWARD IS CONTRARY TO APPLICABLE LAW, APPROPRIATE REGULATION, EXECUTIVE ORDER 11491, OR DECISIONS OF THIS OFFICE IF THE AWARD INVOLVES PAYMENTS TO BE MADE BY THE AGENCY INVOLVED, WE BELIEVE THAT A BINDING ARBITRATION AWARD MUST BE GIVEN THE SAME WEIGHT AS ANY OTHER EXERCISE OF ADMINISTRATIVE DISCRETION, I.E., THE AUTHORITY TO IMPLEMENT THE AWARD SHOULD BE REFUSED ONLY IF THE AGENCY HEAD'S OWN DECISION TO TAKE THE SAME ACTION WOULD BE DISALLOWED BY THIS OFFICE.

IN THAT REGARD, SECTION 13(B) OF EXECUTIVE ORDER 11491 PROVIDES THAT EITHER AN AGENCY OR AN EXCLUSIVE REPRESENTATIVE MAY FILE AN EXCEPTION TO AN ARBITRATOR'S AWARD WITH THE FEDERAL LABOR RELATIONS COUNCIL. THE EXCEPTION MAY RELATE TO A DISPUTE OVER THE FACTS, OVER THE INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT, OR WITH RESPECT TO THE LEGALITY OF THE REMEDY FASHIONED BY THE ARBITRATOR. UNDER 31 U.S.C. SEC. 74, DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, MAY APPLY FOR AND THE COMPTROLLER GENERAL MUST RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY OR UNDER THEM. WHEN A MATTER IS SUBMITTED TO THIS OFFICE INVOLVING AN ARBITRATION AWARD, THE COMPTROLLER GENERAL WILL NOT RULE ON THE FACTS OR THE INTERPRETATION OF THE AGREEMENT AND BY SUBMITTING AN ARBITRATION AWARD TO THIS OFFICE FOR A RULING ON THE LEGALITY OF ITS IMPLEMENTATION, WE WILL ASSUME THAT THERE IS NO DISPUTE AS TO THESE MATTERS SINCE THE AGENCY INVOLVED DID NOT NOTE AN EXCEPTION WITH THE FEDERAL LABOR RELATIONS COUNCIL UNDER SECTION 13(B) OF THE EXECUTIVE ORDER. OUR CONSIDERATION WILL BE LIMITED, THEREFORE, TO THE PROPRIETY OF IMPLEMENTING THE PARTICULAR ARBITRATION AWARD IN QUESTION. WHEN AN AGENCY DOES CHOOSE TO FIRST FILE AN EXCEPTION WITH THE COUNCIL, IF THE COUNCIL IS UNSURE AS TO WHETHER THE ARBITRATION AWARD MAY PROPERLY BE IMPLEMENTED IN ACCORDANCE WITH THE DECISIONS OF THIS OFFICE, IT SHOULD EITHER SUBMIT THE MATTER DIRECTLY TO THIS OFFICE FOR DECISION OR, AFTER RULING ON ANY OTHER ISSUES INVOLVED IN THE EXCEPTION WHICH INVOLVE MATTERS NOT WITHIN THE JURISDICTION OF THIS OFFICE, IT SHOULD INSTRUCT THE AGENCY INVOLVED TO REQUEST A RULING FROM THIS OFFICE AS TO THE LEGALITY OF IMPLEMENTATION OF THE AWARD.

AS TO THE FACTS OF THIS PARTICULAR CASE, IT IS INDICATED THAT FOLLOWING THE ARBITRATOR'S DECISION, THE GENERAL COUNSEL OF THE NLRB PETITIONED THE FEDERAL LABOR RELATIONS COUNCIL FOR REVIEW OF THE DECISION. THEREAFTER THE GENERAL COUNSEL WITHDREW THE MATTER FROM THE COUNCIL WITH THE UNDERSTANDING THAT HE WOULD SUBMIT THE ISSUE OF BACK PAY TO THIS OFFICE FOR A DECISION.

AUTHORITY UNDER WHICH AN AGENCY MAY RETROACTIVELY ADJUST AN EMPLOYEE'S COMPENSATION IS CONTAINED IN THE BACK PAY ACT OF 1966, CODIFIED IN 5 U.S.C. SEC. 5596, WHICH PROVIDES, IN PART, AS FOLLOWS:

(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.

THE CIVIL SERVICE COMMISSION HAS PROMULGATED IMPLEMENTING REGULATIONS TO THAT ACT IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, PART 550, SUBPART H. AS TO WHETHER THOSE REGULATIONS PERMIT AN AGENCY HEAD TO TAKE COGNIZANCE OF AN ARBITRATOR'S FINDING THAT AN EMPLOYEE HAS BEEN SUBJECTED TO AN ERRONEOUS PERSONNEL ACTION BY HIS AGENCY AND PAY THE EMPLOYEE UNDER THE BACK PAY ACT, THE CIVIL SERVICE COMMISSION HAS STATED, IN A LETTER SET FORTH, IN PART, IN ATTACHMENT 2 TO FPM LETTER NO. 711-71, JUNE 3, 1973, AS FOLLOWS:

THE REGULATION (5 C.F.R. 550.803) SAYS IN EFFECT THE EMPLOYEE IS ENTITLED TO BACK PAY WHEN THE ... (AGENCY HEAD) OR OTHER APPROPRIATE AUTHORITY MAKES A DECISION ON HIS OWN INITIATIVE THAT THE ADVERSE PERSONNEL ACTION WAS UNJUSTIFIED OR UNWARRANTED. THE CONTEXT OF THE REGULATION SHOWS THAT THE EXPRESSION ON HIS OWN INITIATIVE DOES NOT PREVENT HIM FROM ACTING ON THE AWARD OF AN ARBITRATOR, BUT ONLY DISTINGUISHES THIS CASE FROM THE CASE IN WHICH HE ACTS ON AN APPELLATE DECISION.

IN OUR DECISION OF JUNE 25, 1974, 53 COMP. GEN. 1054, WE RECOGNIZED THAT WHERE AN ARBITRATOR HAS MADE A FINDING THAT AN AGENCY HAS VIOLATED A COLLECTIVE BARGAINING AGREEMENT TO THE DETRIMENT OF AN EMPLOYEE, THE AGENCY HEAD MAY ACCEPT THAT FINDING AND AWARD THE EMPLOYEE BACK PAY FOR THE PERIOD OF THE ERRONEOUS PERSONNEL ACTION SO LONG AS THE CIRCUMSTANCES SURROUNDING THE ERRONEOUS ACTION FALL WITHIN THE CRITERIA SET FORTH IN THE BACK PAY ACT AND THE IMPLEMENTING REGULATIONS. THE CRITERIA FOR AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION ARE SET FORTH IN 5 C.F.R. SEC. 550.803 (D) AND (E) WHICH PROVIDE:

(D) TO BE UNJUSTIFIED OR UNWARRANTED, A PERSONNEL ACTION MUST BE DETERMINED TO BE IMPROPER OR ERRONEOUS ON THE BASIS OF EITHER SUBSTANTIVE OR PROCEDURAL DEFECTS AFTER CONSIDERATION OF THE EQUITABLE, LEGAL, AND PROCEDURAL ELEMENTS INVOLVED IN THE PERSONNEL ACTION.

(E) A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5, U.S.C. AND THIS SUBPART IS ANY ACTION BY AN AUTHORIZED OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE AND INCLUDES, BUT IS NOT LIMITED TO, SEPARATIONS FOR ANY REASON (INCLUDING RETIREMENT), SUSPENSIONS, FURLOUGHS WITHOUT PAY, DEMOTIONS, REDUCTIONS IN PAY, AND PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION COVERED BY PART 752 OF THIS CHAPTER.

WE BELIEVE THAT A VIOLATION OF A PROVISION IN A COLLECTIVE BARGAINING AGREEMENT, SO LONG AS THAT PROVISION IS PROPERLY INCLUDABLE IN THE AGREEMENT, WHICH CAUSES AN EMPLOYEE TO LOSE PAY, ALLOWANCES OR DIFFERENTIALS, IS AS MUCH AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION AS IS AN IMPROPER SUSPENSION, FURLOUGH WITHOUT PAY, DEMOTION OR REDUCTION IN PAY AND THAT THEREFORE THE BACK PAY ACT IS THE APPROPRIATE STATUTORY AUTHORITY FOR COMPENSATING THE EMPLOYEE FOR THE PAY, ALLOWANCES OR DIFFERENTIALS HE WOULD HAVE RECEIVED BUT FOR THE VIOLATION OF THE AGREEMENT. IN THAT REGARD, TO THE EXTENT THAT PREVIOUS DECISIONS OF THIS OFFICE MAY HAVE BEEN INTERPRETED AS HOLDING TO THE CONTRARY, SUCH DECISIONS WILL NO LONGER BE FOLLOWED.

IN THE PRESENT CASE, THE AGENCY FAILED TO CARRY OUT WHAT HAD BECOME, THROUGH ITS INCLUSION IN A COLLECTIVE BARGAINING AGREEMENT, A NONDISCRETIONARY AGENCY POLICY BY PLACING AN EMPLOYEE FROM OUTSIDE THE AGENCY IN A POSITION FOR WHICH THERE WERE FOUR APPLICANTS WITHIN THE AGENCY QUALIFIED FOR THE POSITION, ONE OF WHOM THE GENERAL COUNSEL ADMITS WOULD HAVE BEEN ORIGINALLY PROMOTED TO THE POSITION HAD THE AGENCY ADHERED TO ITS POLICY. FURTHER, THE AGENCY SUBSEQUENTLY RECOGNIZED THAT THE POLICY HAD NOT BEEN FOLLOWED AND SELECTED ONE OF THOSE FOUR AGENCY EMPLOYEES TO THE POSITION. SINCE IN THIS PARTICULAR CASE THE AGENCY HAS ADMITTED THAT HAD IT NOT BEEN FOR THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THE EMPLOYEE LATER PROMOTED TO THE POSITION WOULD HAVE BEEN PROMOTED ORIGINALLY, WE WOULD HAVE NO OBJECTION TO THE AGENCY AT THIS TIME PROCESSING A RETROACTIVE PROMOTION AND PAYING THE APPROPRIATE BACK PAY.

AS TO OUR DECISIONS CONCERNING RETROACTIVE PROMOTIONS AND BACK PAY CITED BY THE GENERAL COUNSEL OF THE NLRB, NONE ARE FOR APPLICATION UNDER THE FACTS OF THIS CASE. IN 32 COMP. GEN. 527 (1953) AND 33 ID. 140 (1953) WE WERE CONCERNED WITH STATUTORY AND REGULATORY LANGUAGE WHICH, BY ITS TERMS, WAS FOR PROSPECTIVE APPLICATION ONLY. THE DECISION IN 50 COMP. GEN. 850 (1971) WAS BASED ON THE FACT THAT IN THAT CASE THE AGENCY HAD RETAINED THE DISCRETION TO SET THE EFFECTIVE DATE OF PROMOTIONS AND THERE WAS NO BASIS FOR THIS OFFICE GIVING A RETROACTIVE PROMOTION PURSUANT TO AN ADVISORY ARBITRATION AWARD TO A DATE PRIOR TO THE ONE SET BY THE AGENCY. FURTHER, THAT CASE INVOLVED APPLICATION OF EXECUTIVE ORDER 10988, JANUARY 17, 1962, WHICH WAS REVOKED BY EXECUTIVE ORDER 11491, UNDER WHICH THE POLICIES SET FORTH IN THIS DECISION HAVE BEEN FORMULATED.

HOWEVER, OUR DECISION IN THIS MATTER SHOULD NOT BE CONSTRUED TO MEAN THAT ANY PROVISION IN A COLLECTIVE BARGAINING AGREEMENT AUTOMATICALLY BECOMES A NONDISCRETIONARY AGENCY POLICY. AS PREVIOUSLY INDICATED, UNDER EXECUTIVE ORDER 11491, AGREEMENTS ARE LIMITED AS TO WHAT THEY MAY CONTAIN AND AGENCIES HAVE CERTAIN RETAINED RIGHTS WHICH THEY MAY NOT BARGAIN AWAY. SECTION 12(B)(2) OF THE EXECUTIVE ORDER PROVIDES THAT MANAGEMENT OFFICIALS MUST RETAIN THE RIGHT TO "HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES WITHIN THE AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TO TAKE OTHER DISCIPLINARY ACTION AGAINST EMPLOYES." SINCE THIS CASE WAS WITHDRAWN FROM THE FEDERAL LABOR RELATIONS COUNCIL IN ORDER TO SUBMIT THE QUESTION OF BACK PAY TO THIS OFFICE, IT DOES NOT APPEAR THAT THE COUNCIL RULED ON THE QUESTION OF WHETHER OR NOT THE PROMOTION PROVISION IN THE AGREEMENT, OR THE ARBITRATOR'S AWARD THEREUNDER, VIOLATED THE RETAINED RIGHT OF THE AGENCY TO PROMOTE EMPLOYEES. HOWEVER, WHILE THAT QUESTION IS ESSENTIALLY ONE FOR THE COUNCIL, WE NOTE THAT THE AGREEMENT AND THE AWARD WOULD APPEAR TO BE PROPER SINCE THE PROVISION IN THE AGREEMENT IS IN CONSONANCE WITH SUBCHAPTER 3-3E OF CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL WHICH PROVIDES THAT IT IS WITHIN THE DISCRETION OF AN AGENCY TO LIMIT ITS CONSIDERATION OF APPLICANTS FOR POSITIONS TO EMPLOYEES WITHIN THE ORGANIZATION OF APPLICANTS FOR POSITIONS ONLY INSTRUCTED THE AGENCY TO DO THAT.

WE ALSO WANT TO STRESS THAT OUR DECISION HEREIN SHOULD NOT BE CONSTRUED AS MEANING THAT ANY AWARD OF AN ARBITRATOR, WHETHER OR NOT MADE PURSUANT TO A BINDING ARBITRATION AGREEMENT, MAY AUTOMATICALLY BE IMPLEMENTED BY THE AGENCY INVOLVED. WHILE WE, LIKE THE GENERAL COUNSEL OF THE NLRB AND THE OTHER PARTIES WHO SUBMITTED BRIEFS IN THIS MATTER, ARE CONCERNED WITH GIVING MEANINGFUL EFFECT TO EXECUTIVE ORDER 11491, WE POINT OUT THAT ARBITRATOR'S AWARDS MUST BE CONSISTENT WITH LAW, REGULATION, AND, WHERE THE AWARD INVOLVES, DIRECTLY OR INDIRECTLY, THE PAYMENT OF MONEY, DECISIONS OF THIS OFFICE. WHEN THERE IS DOUBT AS TO WHETHER AN AWARD MAY BE PROPERLY IMPLEMENTED, A DECISION FROM THE COUNCIL OR FROM THIS OFFICE SHOULD BE SOUGHT.