B-170170, OCT. 9, 1970

B-170170: Oct 9, 1970

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UNDER AN ARBITRATION AGREEMENT THE TIME WHEN A RECLASSIFICATION SHOULD TAKE EFFECT WAS NOT WITHIN THE PROVINCE OF THE ARBITRATOR AND THEREFORE A RECOMMENDATION THAT AN AWARD WAS TO BE RETROACTIVE WAS NOT VALID. EDWARD MARGOSIAN: THIS IS IN REFERENCE TO YOUR LETTER DATED JUNE 19. IT IS STATED IN YOUR LETTER THAT THROUGH 1967. THE WAGE SURVEY FOR THE CORPORATION'S WAGE BOARD EMPLOYEES WAS AGENCY DIRECTED AND THE EFFECTIVE DATE OF INCREASES WAS GOVERNED BY 5 U.S.C. 5343. THE CIVIL SERVICE COMMISSION RULED THAT SINCE THE EMPLOYEES WERE PAID UNDER A NEGOTIATED PAY SCHEDULE. SUCH EMPLOYEES WERE EXEMPT FROM THE COORDINATED FEDERAL WAGE SYSTEM. IT IS STATED FURTHER THAT BECAUSE OF THE RULING. THE RETROACTIVITY PROVISIONS OF 5 U.S.C. 5343 NO LONGER WERE APPLICABLE TO WAGE BOARD EMPLOYEES OF THE SAINT LAWRENCE SEAWAY CORPORATION.

B-170170, OCT. 9, 1970

WAGE BOARD EMPLOYEE - RETROACTIVE SALARY ADJUSTMENT DECISION CONCLUDING THAT CLAIM OF A WAGE BOARD EMPLOYEE FOR RETROACTIVE ADJUSTMENT OF COMPENSATION AS RESULT OF CHANGE IN CLASSIFICATION OF POSITION AS LINEMAN MAY NOT BE CERTIFIED OR PAID. UNDER AN ARBITRATION AGREEMENT THE TIME WHEN A RECLASSIFICATION SHOULD TAKE EFFECT WAS NOT WITHIN THE PROVINCE OF THE ARBITRATOR AND THEREFORE A RECOMMENDATION THAT AN AWARD WAS TO BE RETROACTIVE WAS NOT VALID.

TO MR. EDWARD MARGOSIAN:

THIS IS IN REFERENCE TO YOUR LETTER DATED JUNE 19, 1970, AND ENCLOSURES, REQUESTING OUR OPINION IN REGARD TO A CLAIM SUBMITTED TO YOUR OFFICE BY HOMER BREITBECK, A WAGE BOARD EMPLOYEE OF THE SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, FOR RETROACTIVE COMPENSATION AS A RESULT OF A CHANGE IN CLASSIFICATION OF HIS POSITION, KNOWN AS LINESMAN.

IT IS STATED IN YOUR LETTER THAT THROUGH 1967, THE WAGE SURVEY FOR THE CORPORATION'S WAGE BOARD EMPLOYEES WAS AGENCY DIRECTED AND THE EFFECTIVE DATE OF INCREASES WAS GOVERNED BY 5 U.S.C. 5343, BUT ON FEBRUARY 15, 1968, THE CIVIL SERVICE COMMISSION RULED THAT SINCE THE EMPLOYEES WERE PAID UNDER A NEGOTIATED PAY SCHEDULE, SUCH EMPLOYEES WERE EXEMPT FROM THE COORDINATED FEDERAL WAGE SYSTEM. IT IS STATED FURTHER THAT BECAUSE OF THE RULING, AND CITING 38 COMP. GEN. 538 (1959), THE RETROACTIVITY PROVISIONS OF 5 U.S.C. 5343 NO LONGER WERE APPLICABLE TO WAGE BOARD EMPLOYEES OF THE SAINT LAWRENCE SEAWAY CORPORATION. IT APPEARS FROM THE RECORD THAT BECAUSE OF THIS RULING, THE CORPORATION WAS OF THE VIEW, LATER FOUND TO BE ERRONEOUS, THAT MANAGEMENT AND THE UNION WERE PRECLUDED FROM ENTERING INTO A TENTATIVE AGREEMENT AS TO EFFECTIVE DATE OF A WAGE INCREASE IN THE EVENT ACCORD COULD NOT BE REACHED BY A SPECIFIED DATE.

THE ANNUAL WAGE BOARD NEGOTIATIONS BETWEEN THE CORPORATION AND LOCAL 1968 AFGE UNION WERE BEGUN IN SEPTEMBER OF 1968. IT IS STATED THAT IN PREVIOUS YEARS THE LINESMAN CLASSIFICATION HAD CARRIED THE SAME GRADE AND PAY RATE AS THE TRUCK DRIVER. HOWEVER, IN THE 1968 WAGE NEGOTIATIONS, THE GRADE OF TRUCK DRIVER WAS MOVED FROM A SLS-3 GRADE TO A SLS-4 GRADE BASED ON THE WAGE SURVEY OF THE AREA, WHEREAS THE GRADE OF LINESMAN REMAINED AT THE SLS -3 LEVEL. IT IS REPORTED THAT THE TWO NEGOTIATING TEAMS AGREED TO THIS CHANGE AND ARRIVED AT A SCALE OF HOURLY RATES FOR ALL POSITIONS OF THE WAGE BOARD EMPLOYEES, WHICH WAS PRESENTED TO THE CORPORATION AND TO THE MEMBERSHIP OF LOCAL 1968 AFGE UNION.

THE RECORD CONTAINS A MEMORANDUM DATED OCTOBER 18, 1968, SIGNED BY THE NEGOTIATING TEAMS OF THE UNION AND THE CORPORATION, SETTING FORTH THE RECOMMENDATION OF THE TEAMS AS FOLLOWS:

"1. APPROVAL OF THE ATTACHED WAGE SCHEDULE;

"2. A THOROUGH EVALUATION OF THE JOB OF MINESMAN, TO BE PERFORMED BY TWO EVALUATORS, ONE TO BE SELECTED BY LOCAL 1968 A.F.G.E. AND ONE TO BE SELECTED BY THE MANAGEMENT OF THE CORPORATION, SUCH EVALUATION TO BE ACCOMPLISHED AS SOON AS POSSIBLE.

"3. THAT AFTER A NEW WAGE SCHEDULE BECOMES EFFECTIVE, THE TWO WAGE NEGOTIATION TEAMS WILL MEET AT LEAST ONCE EACH MONTH AND DEVELOP FOR NEGOTIATION A SET OF PROCEDURES FOR THE 1969 SURVEY AND WAGE NEGOTIATIONS."

THIS RECOMMENDATION WAS PRESENTED TO THE CORPORATION AND THE UNION AND THE FOLLOWING STATEMENT OF RONALD D. KING, NATIONAL REPRESENTATIVE, AFGE 2ND DISTRICT, WAS MADE A PART OF THE OCTOBER 18 MEMORANDUM, SUPRA:

"AGREEMENT WAS MADE WITH MR. FAY MILLS OVER THE TELEPHONE CONCERNING 1968 -69 WAGE NEGOTIATIONS. MEMBERSHIP WAS WILLING TO ACCEPT THE PROPOSAL ON THE REVERSE SIDE WITH THE ADDITION TO NO. 2 AS FOLLOWS:

"IF THE TWO PERSONS SELECTED TO EVALUATE THE LINESMAN CLASSIFICATION DO NOT REACH AGREEMENT, IT WOULD BE SUBMITTED TO AN IMPARTIAL ARBITRATOR SELECTED BY THE PARTIES; HIS RECOMMENDATIONS TO BE SUBMITTED TO THE ADMINISTRATOR FOR FINAL DECISION. THE EVALUATION WOULD BE COMPLETED IN A REASONABLE PERIOD OF TIME SINCE A LENGTHY PERIOD OF TIME WOULD ONLY COMPOUND THE PROBLEM.

"MR. MILLS OBTAINED AGREEMENT TO THIS FROM MR. MCCANN AND WE AGREED NEGOTIATIONS WERE SETTLED AND THE RAISE WOULD GO INTO EFFECT SUNDAY, 20 OCTOBER 1969."

IT IS REPORTED IN YOUR LETTER THAT THE EVALUATION OF THE LINESMAN POSITION PROCEEDED TO ARBITRATION AND ON JULY 23, 1969, THE ARBITRATOR RENDERED HIS FINDING AND RECOMMENDED:

"1. THAT THE LINESMAN BE PLACED IN SLS 4 IN THE WAGE SCHEDULE OF THE CORPORATION.

"2. THAT SAID CLASSIFICATION BE EFFECTIVE AS OF THE DATES WHEN RECLASSIFICATIONS OF OTHER JOBS WERE MADE EFFECTIVE UNDER THE COLLECTIVE BARGAINING AGREEMENT, DATED MAY 15, 1968."

ON JULY 25, 1969, THE ACTING ADMINISTRATOR ISSUED PERSONNEL ACTIONS WHICH RECLASSIFIED THE LINESMAN FROM SLS-3 GRADE TO SLS-4 GRADE, EFFECTIVE JULY 27, 1969 IT WAS, AND IS, THE POSITION OF YOUR OFFICE THAT THE REGRADING AND CHANGE IN PAY RATE COULD NOT BE GIVEN RETROACTIVE EFFECT UNDER THE CIRCUMSTANCES HERE INVOLVED.

MR. BREITBECK, IN PRESENTING HIS CLAIM, HAS CITED TWO UNPUBLISHED DECISIONS OF OUR OFFICE, B-126868, APRIL 8, 1963, AND B-62932, JULY 5, 1950. IN B-62932 IT WAS HELD THAT A TENTATIVE AGREEMENT BETWEEN A COMPETENT WAGE FIXING AUTHORITY AND A UNION WHICH PROSPECTIVELY SETS THE EFFECTIVE DATE FOR WAGE INCREASES MAY BE REGARDED AS AUTHORIZING INCREASED PAYMENTS FROM THAT DATE EVEN THOUGH THE AMOUNT OF THE INCREASE IS NOT DETERMINED OR AGREED TO UNTIL A LATER DATE. THIS DECISION WAS CITED IN B- 126868, SUPRA. THE CLAIMANT CONTENDS THAT THE CORPORATION, BY ITS REFUSAL TO FOLLOW THE PRACTICE OF MAKING ANY WAGES ARRIVED AT IN NEGOTIATIONS EFFECTIVE AT A CERTAIN DATE, REGARDLESS OF THE DATE AGREEMENT WAS REACHED, COMMITTED AN ADMINISTRATIVE ERROR WHICH DEPRIVED THE EMPLOYEES OF RETROACTIVE PAY TO WHICH THEY WERE ENTITLED.

THE RECORD SUPPORTS THE CONCLUSION THAT AT THE TIME OF WAGE NEGOTIATIONS HERE INVOLVED NEITHER PARTY WAS AWARE OF THE DECISIONS CITED BY THE CLAIMANT. HOWEVER, AS INDICATED IN THE MEMORANDUM OF OCTOBER 18, 1968, QUOTED ABOVE, THE NEGOTIATING TEAMS RECOMMENDED, AND THE CORPORATION AND THE UNION APPROVED, THE WAGE SCHEDULES WHICH INCLUDED LINESMAN IN GRADE SLS-3 AT AN INCREASED RATE OVER THAT OF THE PRECEDING YEAR. THE EFFECTIVE DATE WAS OCTOBER 20, 1969. RECOMMENDATION NO. 2 OF THE NEGOTIATING TEAMS, FOR A THOROUGH EVALUATION OF THE JOB OF LINESMAN AS SOON AS POSSIBLE BY TWO EVALUATORS, WAS ACCEPTED BY THE CORPORATION AND BY THE UNION WITH A FURTHER REQUIREMENT THAT IF AGREEMENT COULD NOT BE REACHED AN IMPARTIAL ARBITRATOR WOULD BE SELECTED BY THE PARTIES AND THAT THE EVALUATION WOULD BE COMPLETED IN A REASONABLE PERIOD OF TIME. IN THIS CONNECTION WE NOTE THAT THE STATED REASON FOR URGENCY WAS TO AVOID A "COMPOUNDING OF THE PROBLEM," THEREBY INDICATING THAT ANY RESULTING CHANGE WAS NOT INTENDED TO BE RETROACTIVE.

THE QUESTION FOR DETERMINATION OF THE EVALUATORS, AND IF THEY COULD NOT AGREE, BY THE ARBITRATOR, THEREFORE, RELATED SOLELY TO THE EVALUATION OF THE JOB OF LINESMAN, TO BE MADE IN A REASONABLE TIME. THIS WAS RESOLVED BY THE RECOMMENDATION OF THE ARBITRATOR THAT THE LINESMAN BE PLACED IN SLS -4 IN THE WAGE SCHEDULE. HOWEVER, WITH RESPECT TO RETROACTIVE APPLICATION OF THE CHANGE, WE POINT OUT THAT AN ARBITRATION AWARD MUST CONFORM TO, AND COMPLY WITH, THE ARBITRATION AGREEMENT OR SUBMISSION ON WHICH IT WAS FOUNDED, AND FROM WHICH THE ARBITRATOR DERIVES HIS AUTHORITY OR JURISDICTION TO ACT. THE QUESTION AS TO WHEN THE RECLASSIFICATION SHOULD TAKE EFFECT WAS NOT A MATTER WITHIN THE AGREEMENT OF THE PARTIES AS SET FORTH IN THE MEMORANDUM OF OCTOBER 18, 1968, WHICH THE EVALUATORS OR AN IMPARTIAL ARBITRATOR WERE TO DETERMINE, AND THEREFORE, BASED ON THE RECORD BEFORE US THE ARBITRATOR WAS WITHOUT AUTHORITY TO INCLUDE IN THE AWARD A BINDING RECOMMENDATION THAT THE RECLASSIFICATION BE MADE RETROACTIVE.

FURTHERMORE, IT LONG HAS BEEN THE RULE OF THIS OFFICE THAT IN THE ABSENCE OF A CONTROLLING STATUTE, ANY DECREASES OR INCREASES IN COMPENSATION MAY NOT BE MADE RETROACTIVELY EFFECTIVE. SEE 24 COMP. GEN. 676 (1945); 27 ID. 649 (1948); 40 ID. 212 (1960). IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE CLAIM OF HOMER BREITBECK IS NOT PROPER FOR CERTIFICATION AND PAYMENT.