B-181173, NOV 13, 1974

B-181173, NOV 13, 1974

WHERE COLLECTIVE BARGAINING AGREEMENT ENTERED INTO BY FAA PROVIDES THAT EMPLOYEES DETAILED TO HIGHER LEVEL POSITIONS FOR 60 DAYS OR MORE ARE TO BE GIVEN TEMPORARY PROMOTIONS AND ARBITRATOR FOUND THAT TWO EMPLOYEES HAD BEEN DETAILED INSTEAD OF ASSIGNED TO HIGHER GRADE FOR TRAINING AND AWARDED TEMPORARY PROMOTIONS AND RETROACTIVE COMPENSATION TO SUCH EMPLOYEES, THE AWARD MAY BE IMPLEMENTED BY THE FAA UNDER THE BACK PAY ACT, 5 U.S.C. SEC 5596, SINCE BY INCLUDING THE PROVISION IN THE AGREEMENT THE FAA MADE THE PROVISION A MANDATORY AGENCY POLICY AND MAY ACT ON THE ARBITRATOR'S FINDING THAT THERE WERE UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTIONS.

IMPLEMENTATION OF ARBITRATION AWARD:

THIS MATTER INVOLVES A REQUEST FOR AN ADVANCE DECISION AS TO WHETHER THE FEDERAL AVIATION ADMINISTRATION (FAA), DEPARTMENT OF TRANSPORTATION, MAY LEGALLY COMPLY WITH THE TERMS AND CONDITIONS OF AN ARBITRATION AWARD WHICH HELD THAT THE FAA HAD VIOLATED A COLLECTIVE BARGAINING AGREEMENT BY FAILING TO TEMPORARILY PROMOTE TWO GRADE GS-5 FAA EMPLOYEES, ABRAHAM MICKLIS AND MARTIN FORCHINA, TO GRADE GS-6 AND THAT THEY WERE ENTITLED TO THE DIFFERENCE IN PAY BETWEEN GRADE GS-6 AND GS-5 FOR THE PERIOD NOVEMBER 1, 1972, TO MARCH 26, 1973.

IN AUGUST 1972, WHILE MESSRS. MICKLIS AND FORCINA OCCUPIED GS-5, VOUCHER EXAMINER POSITIONS IN THE TRAVEL AND PAYMENT SECTIONS OF THE VOUCHER EXAMINATION BRANCH AT THE EASTERN REGIONAL HEADQUARTERS OF THE FAA, JOHN F. KENNEDY INTERNATIONAL AIRPORT, JAMAICA, NEW YORK, THEY WERE APPROACHED BY THE VOUCHER EXAMINING SUPERVISOR, MRS. RUTH BERGER, WHO INFORMED THEM THAT THE CHIEF OF THE ACCOUNTING DIVISION HAD REQUESTED HER TO TRAIN THEM TO PROCESS EMPLOYEE RELOCATION VOUCHERS INASMUCH AS THE OFFICE HAD ACCUMULATED A BACKLOG OF THIS WORK. SHE EXPLAINED THAT PROCESSING EMPLOYEE RELOCATION VOUCHERS OCCUPIED THE MAJOR PART OF GS-6 VOUCHER EXAMINERS' TIME AND THIS TYPE WORK WOULD MAKE THEM "BEST QUALIFIED" TO COMPETE FOR THESE HIGHER GRADE POSITIONS IN THE EVENT OPENINGS SHOULD OCCUR. IN THIS CONNECTION SHE INTIMATED THAT SUCH OPENINGS WOULD BE AVAILABLE IN THE NOT TOO DISTANT FUTURE. GS-5 VOUCHER EXAMINERS NORMALLY WORKED EXCLUSIVELY ON LESS COMPLICATED TRAVEL AND COMMERCIAL VOUCHERS WHICH REQUIRE A LOWER LEVEL OF COMPETANCE.

THE EMPLOYEES AGREED TO THE PROPOSAL. MRS. BERGER STATED THAT AFTER ABOUT TWO MONTHS OF TRAINING MESSRS. MICKLIS AND FORCINA ACHIEVED SUFFICIENT COMPETENCE TO PROCESS CERTAIN EMPLOYEE RELOCATION VOUCHERS. THESE EMPLOYEES CONTINUED TO PROCESS EMPLOYEE RELOCATION VOUCHERS UNTIL MARCH 26, 1973, WHEN THEY WERE ADVISED BY THE CHIEF OF THE ACCOUNTING DIVISION THAT THEY WERE NOT GOING TO BE PROMOTED TO THE GS-6 LEVEL ANYTIME IN THE FORESEEABLE FUTURE. AFTER THEY HAD CONSULTED THE PRESIDENT OF THEIR LOCAL UNION, THEY DECLINED TO DO ANY MORE EMPLOYEE RELOCATION VOUCHERS AND AS GS-5 VOUCHER EXAMINERS RETURNED TO PROCESSING ONLY TRAVEL AND COMMERCIAL VOUCHERS.

EARLIER ON MARCH 2, 1973, THE UNION, ON BEHALF OF THESE EMPLOYEES, INITIATED A GRIEVANCE ACTION ALLEGING THAT THE FAA HAD VIOLATED THE TERMS AND CONDITIONS OF THE COLLECTIVE BARGAINING AGREEMENT OF JUNE 5, 1972, BETWEEN THE AGENCY AND THE UNION BY FAILING TO AWARD TEMPORARY PROMOTIONS TO MESSRS. MICKLIS AND FORCINA. THE GRIEVANCE WAS SUBMITTED TO BINDING ARBITRATION IN ACCORDANCE WITH ARTICLE XXIII OF THE AGREEMENT AND THE PARTIES STIPULATED THAT THE ISSUE TO BE DECIDED WAS AS FOLLOWS:

"WHETHER ABRAHAM MICKLIS AND MARTIN FORCINA, VOUCHER EXAMINERS GS-5, WERE ASSIGNED TO TRAINING OR 'DETAILED' TO GS-6 FOR A PERIOD IN 1972 1973? THEY WERE 'DETAILED', DID THE AGENCY VIOLATE ARTICLE XII, SECTION 1, AND IF SO, WHAT REMEDY, IF ANY, SHALL BE APPLIED?"

SECTION 1, ARTICLE XII, OF THE AGREEMENT PROVIDES:

"ARTICLE XII - DETAILS AND TEMPORARY PROMOTIONS

"SECTION 1

"WHEN IT IS KNOWN IN ADVANCE THAT A DETAIL TO A HIGHER GRADE POSITION WILL EXTEND 60 DAYS OR MORE, THE DETAILED EMPLOYEE WILL BE TEMPORARILY PROMOTED. COMPETITIVE PROMOTION PROCEDURES MUST BE USED WHEN A TEMPORARY PROMOTION WILL EXCEED 120 DAYS."

THE DULY APPOINTED ARBITRATOR HELD A HEARING ON JANUARY 7, 1974, AT REGIONAL HEADQUARTERS DURING WHICH REPRESENTATIVES OF BOTH PARTIES APPEARED AND PRESENTED ARGUMENTS. THE ARBITRATOR TOOK THE MATTER UNDER ADVISEMENT AND RENDERED HIS OPINION AND AWARD AS TO THE DISPUTED ISSUE ON MARCH 6, 1974. THE AWARD READ AS FOLLOWS:

"AWARD

"ABRAHAM MICKLIS AND MARTIN FORCINA WERE 'DETAILED' TO GS-6 FROM NOVEMBER 1, 1972 TO MARCH 26, 1973 AND THE AGENCY VIOLATED ARTICLE XII, SECTION 1 BY FAILING TO COMPENSATE THEM AS 'TEMPORARILY PROMOTED' TO GS 6 DURING THAT PERIOD.

"AS THE APPROPRIATE REMEDY FOR THIS BREACH OF CONTRACT, THE AGENCY SHALL COMPENSATE ABRAHAM MICKLIS AND MARTIN FORCINA IN AN AMOUNT EQUAL TO THE DIFFERENCE IN THE RATES OF PAY FOR GS-5 AND GS-6 FOR THE PERIOD BETWEEN NOVEMBER 1, 1972 AND MARCH 26, 1973."

NEITHER PARTY SOUGHT REVIEW BY THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) OF THE FINDING OR AWARD IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN 5 C.F.R. PART 2411, SUBPART D (1974). THERE IS THUS NO ISSUE BEFORE US RELATING TO THE INTERPRETATION OF THE AGREEMENT OR THAT THE AGREEMENT WAS VIOLATED. THE AGENCY MUST COMPLY WITH THE TERMS OF THE AWARD TO THE EXTENT THAT IT CAN LAWFULLY EXPEND APPROPRIATED FUNDS FOR THE PAY THE EMPLOYEES WOULD HAVE EARNED HAD THEY BEEN TEMPORARILY PROMOTED AS REQUIRED. THEREFORE, THE AGENCY NOW SEEKS A DECISION FROM US ON THE NARROW ISSUE OF WHETHER IT MAY IMPLEMENT THE AWARD.

THE AGENCY INDICATES THAT IT BELIEVES OUR DECISION 52 COMP. GEN. 920 (1973) MAY SERVE AS A BAR TO THE IMPLEMENTATION OF THE AWARD FASHIONED BY THE ARBITRATOR. IN THAT CASE, A GS-12 PERSONNEL MANAGEMENT SPECIALIST WAS ASSIGNED TO FILL A GS-13 BRANCH CHIEF POSITION ON A TEMPORARY ACTING BASIS FOR A PERIOD OF ABOUT 13 MONTHS. BECAUSE HE WAS NOT FORMALLY DETAILED, TEMPORARILY OR PERMANENTLY PROMOTED, THE EMPLOYEE FILED A GRIEVANCE. THE GRIEVANCE EXAMINER CONCLUDED THAT CIVIL SERVICE COMMISSION AND AGENCY REGULATIONS HAD BEEN BREACHED WHICH RESULTED IN UNFAIR TREATMENT TO THE EMPLOYEE. THE EXAMINER RECOMMENDED THAT THE AGENCY OBTAIN A RULING FROM THIS OFFICE AS TO WHETHER THE EMPLOYEE COULD BE GIVEN A RETROACTIVE TEMPORARY PROMOTION. WHEN WE WERE REQUESTED TO RENDER A DECISION ON THE MATTER, WE DETERMINED THAT THE EMPLOYEE HAD NO VESTED RIGHT TO A PROMOTION AT ANY TIME BY STATUTE, REGULATION OR OTHERWISE, THAT IS, NO NONDISCRETIONARY AGENCY POLICY OR REGULATIONS HAD BEEN VIOLATED. THUS, THERE WAS NO BASIS FOR THE AWARD OF A RETROACTIVE TEMPORARY PROMOTION UNDER THE BACK PAY ACT OF 1966, CODIFIED IN 5 U.S.C. 5596 (1970) IN THAT CASE SINCE NO UNWARRANTED PERSONNEL ACTION HAD OCCURRED.

IN THE INSTANT CASE, THE ARBITRATOR FOUND THAT MESSRS. MICKLIS AND FORCINA HAD A VESTED RIGHT UNDER THE AGREEMENT TO TEMPORARY PROMOTIONS WHICH WERE NOT GIVEN WHEN DUE. HENCE, THE CASE BEFORE US MAY BE DISTINGUISHED FROM 52 COMP. GEN. 920, SUPRA, ON THIS BASIS.

THE CIVIL SERVICE COMMISSION HAS PROMULGATED IMPLEMENTING REGULATIONS TO THE BACK PAY ACT OF 1966, SUPRA, 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 SUBJECT 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 (ATTACHMENT 2 TO FPM LETTER NO. 711-71, JUNE 13, 1973) THE FOLLOWING:

"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."

THE INSTANT CASE IS SIMILAR TO THAT INVOLVED IN OUR DECISION B 180311, OCTOBER 4, 1974, 54 COMP. GEN. . THE ISSUE THERE ALSO INVOLVED THE QUESTION OF WHETHER EMPLOYEES COVERED BY A COLLECTIVE BARGAINING AGREEMENT REQUIRING THEIR TEMPORARY PROMOTION AFTER THEY HAD BEEN ASSIGNED TO HIGHER LEVEL NONSUPERVISORY POSITIONS FOR AT LEAST ONE PAY PERIOD COULD BE GIVEN RETROACTIVE PROMOTIONS WHEN THAT PROVISION OF THE AGREEMENT WAS VIOLATED. THERE WE POINTED OUT THAT WHILE INITIALLY MATTERS CONCERNING TEMPORARY PROMOTIONS ARE PROPERLY WITHIN THE DISCRETION OF THE AGENCY UNDER 5 C.F.R. SEC 335.102(F) (1974), SUCH MATTERS, IF PROPERLY INCLUDED WITHIN A COLLECTIVE BARGAINING AGREEMENT IN ACCORDANCE WITH EXECUTIVE ORDER NO. 11491, AS AMENDED, 3 C.F.R. SEC 254 (1974), BECAME NONDISCRETIONARY AND MUST BE COMPLIED WITH BY THE AGENCY WHEN THE STATED CRITERIA HAS BEEN SATISFIED.

IN B-179711, JUNE 25, 1974, 53 COMP. GEN. , WE STATED 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 FOR THAT ACT. THE CRITERIA OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITHIN THE PURVIEW OF THE BACK PAY ACT IS CONTAINED 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."

IN VIEW OF THE ABOVE WE CONCLUDE THAT THE FAILURE OF THE AGENCY TO AWARD TEMPORARY PROMOTIONS REQUIRED UNDER THE COLLECTIVE BARGAINING AGREEMENT IS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITHIN THE CONTEMPLATION OF THE ABOVE QUOTED REGULATION. ACCORDINGLY, THE FAA MAY IMPLEMENT THE ARBITRATOR'S AWARD IN THIS CASE UNDER THE AUTHORITY CONTAINED IN 5 U.S.C. SEC 5596 PERTAINING TO BACK PAY.