B-181271, DEC 30, 1974, 54 COMP GEN 538

B-181271: Dec 30, 1974

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IS IMPROPER TO THE EXTENT THAT IT DOES NOT PROVIDE FOR BACK PAY SINCE SALARY IS PART OF POSITION TO WHICH EMPLOYEE IS APPOINTED AND MAY NOT BE WITHHELD. EMPLOYEE IS ENTITLED TO BACK PAY INCIDENT TO RETROACTIVE PROMOTION UNDER PROVISIONS OF 5 U.S.C. 5596. AWARD IS MODIFIED TO MAKE EFFECTIVE DATE OF RETROACTIVE PROMOTION AT BEGINNING OF FIRST PAY PERIOD AFTER JULY 7. WHERE THIS IS UNFEASIBLE. THIS OFFICE WILL IN SPECIAL CASES MODIFY THE AWARD TO CONFORM TO REQUIREMENTS OF LAW AND REGULATIONS. THESE PROMOTION FORMS WERE NOT APPROVED AND ON SEPTEMBER 26. AN ARBITRATOR WAS SELECTED AND HEARINGS WERE HELD ON DECEMBER 13 AND 17. COPELAND'S PROMOTION REQUEST WAS SUBMITTED BY HER IMMEDIATE SUPERVISOR ON JUNE 29.

B-181271, DEC 30, 1974, 54 COMP GEN 538

ARBITRATION - AWARD - RETROACTIVE PROMOTION WITH BACK PAY - ENTITLEMENT ARBITRATION AWARD BASED ON COMPROMISE SETTLEMENT BY UNION AND OFFICE OF ECONOMIC OPPORTUNITY THAT GRANTS EMPLOYEE RETROACTIVE PROMOTION, BUT MAKES INCREASED PAY FOR HIGHER LEVEL POSITION PROSPECTIVE, IS IMPROPER TO THE EXTENT THAT IT DOES NOT PROVIDE FOR BACK PAY SINCE SALARY IS PART OF POSITION TO WHICH EMPLOYEE IS APPOINTED AND MAY NOT BE WITHHELD. THUS, EMPLOYEE IS ENTITLED TO BACK PAY INCIDENT TO RETROACTIVE PROMOTION UNDER PROVISIONS OF 5 U.S.C. 5596. ARBITRATION - AWARD - MODIFICATION ARBITRATOR'S EFFECTIVE DATE OF JUNE 29, 1973, FOR RETROACTIVE PROMOTION BASED ON EARLIER FINDINGS OF GRIEVANCE EXAMINER CANNOT BE SUSTAINED SINCE EVIDENCE SHOWS AGENCY HEAD HAD NOT EXERCISED HIS DISCRETION TO PROMOTE EMPLOYEE UNTIL JULY 7, 1973. THUS, AWARD IS MODIFIED TO MAKE EFFECTIVE DATE OF RETROACTIVE PROMOTION AT BEGINNING OF FIRST PAY PERIOD AFTER JULY 7, 1973, WHEN OFFICIAL AUTHORIZED TO MAKE APPOINTMENTS ACTED. ARBITRATION - AWARD - IMPLEMENTATION BY AGENCY RETROACTIVE PROMOTIONS - BACK PAY ACT WHERE ARBITRATOR'S AWARD CANNOT BE LEGALLY IMPLEMENTED AND CONTAINS NO FINDINGS AND CONCLUSIONS, OUR OFFICE FAVORS RETURNING IT TO ARBITRATOR WITH OUR OBJECTIONS AND FOR MODIFICATION. HOWEVER, WHERE THIS IS UNFEASIBLE, THIS OFFICE WILL IN SPECIAL CASES MODIFY THE AWARD TO CONFORM TO REQUIREMENTS OF LAW AND REGULATIONS.

IN THE MATTER OF RETROACTIVE PROMOTION PURSUANT TO ARBITRATION AWARD, DECEMBER 30, 1974:

THIS MATTER CONCERNS A REQUEST FOR A DECISION FROM THE OFFICE OF ECONOMIC OPPORTUNITY (OEO), AS TO WHETHER THAT AGENCY HAS AUTHORITY TO IMPLEMENT A LABOR RELATIONS ARBITRATION AWARD GRANTING A RETROACTIVE PROMOTION WITHOUT BACK PAY TO BARBARA N. COPELAND, AN OEO EMPLOYEE. THE ARBITRATION AWARD RESULTED FROM A GRIEVANCE FILED BY THE NATIONAL COUNCIL OF OEO LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE), AFL-CIO, ON BEHALF OF MS. COPELAND, DATED AUGUST 23, 1973, WITH MR. RANDAL TEAGUE, SPECIAL ASSISTANT TO THE DIRECTOR, THE OEO OFFICIAL AUTHORIZED TO RESOLVE GRIEVANCES IN ACCORDANCE WITH ARTICLE 16, SECTION 7, OF THE NATIONAL AGREEMENT BETWEEN OFFICE OF ECONOMIC OPPORTUNITY AND AFGE (AFL-CIO) FOR NATIONAL COUNCIL OF OEO LOCALS, DATED MARCH 1972.

THE RECORD INDICATES THAT IN THE PREARBITRATION STAGE OF THE GRIEVANCE, MR. TEAGUE REVIEWED THE RECORD AND MET WITH THE EMPLOYEE AND A REPRESENTATIVE OF THE UNION. FROM THE EVIDENCE IN THE CASE, HE FOUND THAT MS. COPELAND'S SUPERVISORS IN THE MIGRANTS AND SEASONAL FARM WORKERS BRANCH, PROGRAMS OPERATION DIVISION, HAD MADE AN OFFICIAL FINDING DURING MARCH 1973 THAT SHE HAD PERFORMED "DUTIES AT THE GS-9 LEVEL AT AN ACCEPTABLE LEVEL OF COMPETENCE" AND IN JUNE 1973 HAD RECOMMENDED HER FOR PROMOTION FROM GRADE GS-7 TO GS-9. FURTHER, MR. TEAGUE FOUND THAT THE OEO DIRECTOR-DESIGNATE, ALVIN J. ARNETT, HAD APPROVED PROMOTION DOCUMENTS FOR MS. COPELAND ON JULY 7, 1973, AND FORWARDED THEM TO THE OEO PERSONNEL OFFICE FOR ADMINISTRATIVE PROCESSING. HOWEVER, THE PERSONNEL OFFICE FAILED TO PROCESS MS. COPELAND'S PROMOTION.

MR. TEAGUE FOUND FOR THE EMPLOYEE ON AUGUST 27, 1973, AND IN THE EXERCISE OF HIS AUTHORITY EXECUTED DOCUMENTS GRANTING MS. COPELAND A RETROACTIVE PROMOTION EFFECTIVE JUNE 29, 1973, AND FORWARDED THEM TO THE OEO OFFICE OF ADMINISTRATION FOR APPROVAL. THESE PROMOTION FORMS WERE NOT APPROVED AND ON SEPTEMBER 26, 1973, THE UNION INITIATED ACTION TO SUBMIT THE GRIEVANCE TO BINDING ARBITRATION. AN ARBITRATOR WAS SELECTED AND HEARINGS WERE HELD ON DECEMBER 13 AND 17, 1973, DURING WHICH AGENCY AND UNION REPRESENTATIVES PRESENTED EVIDENCE AND ARGUMENTS.

A REVIEW OF THE TRANSCRIPT OF THE ARBITRATION PROCEEDINGS REVEALS THE FOLLOWING RELEVANT INFORMATION, DERIVED FROM THE EARLIER GRIEVANCE PROCEEDINGS AND OTHER DOCUMENTS. THE BARGAINING AGREEMENT INCORPORATED BY REFERENCE ALL EXISTING AGENCY REGULATIONS, INCLUDING A REGULATION THAT REQUIRED ROUTINE PERSONNEL ACTIONS, SUCH AS PROMOTIONS, TO BE PROCESSED WITHIN 8 DAYS AFTER SUBMISSION OF THE REQUEST BY A PROPERLY AUTHORIZED OFFICIAL. MS. COPELAND'S PROMOTION REQUEST WAS SUBMITTED BY HER IMMEDIATE SUPERVISOR ON JUNE 29, 1973, AND APPROVED BY THE AGENCY HEAD, MR. ARNETT, ON JULY 7, 1973. HOWEVER, THE OEO PERSONNEL OFFICE DID NOT COMPLETE THE ADMINISTRATIVE PROCESSING OF THE APPROVED REQUEST.

ON JULY 6, 1973, MR. ARNETT SIGNED DOCUMENTS TRANSFERRING THE OFFICE TO WHICH MS. COPELAND WAS ASSIGNED, THE MIGRANT AND SEASONAL FARM WORKERS BRANCH, TO THE DEPARTMENT OF LABOR. THE EFFECTIVE DATE OF THIS TRANSFER WAS SET AS AUGUST 5, 1973. AS A RESULT OF THIS ACTION, THE ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT OF THE DEPARTMENT OF LABOR, FORWARDED A LETTER DATED JULY 16, 1973, TO ALL MEMBERS OF THE STAFF OF THE MIGRANT AND SEASONAL FARM WORKERS BRANCH, INCLUDING MS. COPELAND, OFFERING THESE EMPLOYEES EMPLOYMENT WITH THE DEPARTMENT OF LABOR. THE LETTER EXTENDED AN OFFER TO TRANSFER INTO THE DEPARTMENT AT THE EMPLOYEES' SAME GRADE AND SALARY AND WITH THE SAME TENURE. IN RESPONSE TO THIS LETTER, MS. COPELAND, ON JULY 17, 1973, SIGNED AND RETURNED THE FORM PROVIDED AS AN ATTACHMENT TO THE AFOREMENTIONED LETTER. ON THIS FORM SHE CHECKED THE FOLLOWING STATEMENT: "I ACCEPT THE OFFER TO TRANSFER AT MY SAME GRADE AND SALARY AND WITH MY SAME TENURE FROM THE OFFICE OF ECONOMIC OPPORTUNITY TO THE DEPARTMENT OF LABOR." IMMEDIATELY AFTER THIS STATEMENT, MS. COPELAND WROTE, "PRESENTLY GS-7. WILL ONLY ACCEPT A GS-9." MANAGEMENT CONTENDS THAT BY CONDITIONING HER TRANSFER, MS. COPELAND HAD IN EFFECT DECLINED THE OFFER TO TRANSFER TO THE DEPARTMENT OF LABOR WITH HER POSITION DUTIES, UPON WHICH HER REQUEST FOR PROMOTION WAS BASED.

OTHER EVIDENCE IN THE RECORD INDICATES THAT ON JULY 25, 1973, OEO PROMULGATED A LETTER TO PROVIDE INFORMATION TO EMPLOYEES THAT HAD EVIDENCED A DESIRE TO DECLINE THE OFFER OF TRANSFER, INDICATING THE CONSEQUENCES OF THEIR ELECTION AND THE FUTURE STATUS OF THEIR EMPLOYMENT WITH OEO. THIS LETTER READ IN PART:

IF AN EMPLOYEE DECLINES AN OFFER OF TRANSFER (EITHER DIRECTLY OR BY FAILING TO RETURN THE OFFER LETTER), HE WILL BE RETAINED AT OEO AT LEAST 30 DAYS AFTER THE SCHEDULED TRANSFER DATE (THAT IS UNTIL SEPTEMBER 4 FOR THOSE WHO HAD ALREADY RECEIVED OFFER LETTERS AND SEPTEMBER 18 FOR THOSE WHO WILL BE IDENTIFIED THROUGH THE VOLUNTEER PROCESS.)

AFTER THE 30-DAY PERIOD, MANAGEMENT MAY LAY THE EMPLOYEE OFF, WITHOUT RIF COMPETITION. HOWEVER, MR. ARNETT HAS COMMITTED THE AGENCY TO MAKING EVERY EFFORT TO PLACE EMPLOYEES WHO DECLINE IN BONA FIDE CONTINUING OEO POSITIONS PARTICULARLY WHEN THERE IS HARDSHIP INVOLVED, SUCH AS COMMUTATION OR REGIONALIZATION POSSIBILITIES.

MS. COPELAND REMAINED IN THE OFFICE OF OPERATIONS AFTER AUGUST 5, 1973, AS AN ADMINISTRATIVE ASSISTANT TO THE FORMER DIRECTOR OF THE MIGRANT'S DIVISION, MR. GRIFFITH, UNTIL HER UNOFFICIAL DETAIL ON SEPTEMBER 15, 1973, TO THE OFFICE OF HUMAN RIGHTS. SUBSEQUENTLY, ON OCTOBER 26, 1973, MS. COPELAND WAS REASSIGNED AS A GRADE GS-7, ADMINISTRATIVE ASSISTANT IN THE OFFICE OF HUMAN RIGHTS.

AFTER RECEIVING ALL THE ABOVE EVIDENCE IN THE RECORD, THE ARBITRATOR REMARKED LATE IN THE MORNING OF THE SECOND DAY OF HEARINGS, "*** THAT THE EQUITY CERTAINLY DOES NOT SEEM ON MANAGEMENT'S SIDE ***," AND INQUIRED IF THERE WAS ANY WAY THAT BOTH PARTIES COULD SETTLE THE MATTER. THE PARTIES HAD AN "OFF THE RECORD" DISCUSSION, AT THE CONCLUSION OF WHICH THE ARBITRATOR STATED FOR THE RECORD, WITHOUT OBJECTION, THAT AN AGREEMENT HAD BEEN REACHED, WHEREUPON THE HEARING WAS IMMEDIATELY ENDED.

ON THE SAME DATE, DECEMBER 17, 1973, THE ARBITRATOR MADE HIS AWARD, WHICH WE PRESUME MUST HAVE BEEN BASED ON THE AFOREMENTIONED AGREEMENT ALTHOUGH THE ARBITRATOR STATED NO FINDINGS OF FACT OR CONCLUSIONS OF LAW TO SUPPORT HIS AWARD. THIS PRESUMPTION IS SUPPORTED BY THE UNION IN A LETTER TO THIS OFFICE DATED NOVEMBER 19, 1974, IN WHICH THE UNION STATES: "AN AWARD IMPLEMENTING THE AGREEMENT WAS THEN AND THERE ISSUED BY ARBITRATOR DAUGHERTY ***." THE AWARD WAS AS FOLLOWS:

IT IS DECIDED THAT BARBARA N. COPELAND IS AWARDED A PROMOTION TO G.S. 9 EFFECTIVE JUNE 29, 1973. HOWEVER, NO BACK PAY IS AWARDED. THE G.S. 9 SALARY SHALL TAKE EFFECT NEXT PAY PERIOD AFTER THE DATE OF THIS DECISION.

IT IS NOTED THAT JUNE 29, 1973, IS THE SAME DATE THAT MR. TEAGUE HAD PREVIOUSLY ASSIGNED AS THE EFFECTIVE DATE FOR MS. COPELAND'S PROMOTION AND WE ASSUME THAT THIS PARTICULAR DATE STEMMED FROM THAT FINDING.

THE OEO PETITIONED THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) FOR REVIEW OF THE ABOVE-QUOTED AWARD ON JANUARY 8, 1974. THE PETITION WAS DENIED CONSIDERATION BECAUSE IT WAS FILED ONE DAY LATE. THE OEO NOW REQUESTS A DECISION OF THIS OFFICE AS TO WHETHER IT HAS AUTHORITY TO IMPLEMENT THE AWARD AS FASHIONED BY THE ARBITRATOR.

THE RECORD INDICATES THAT THE AWARD IN THIS CASE WAS THE RESULT OF A COMPROMISE AND SETTLEMENT REACHED BY THE PARTIES DURING THE ARBITRATION PROCEEDING. PUBLIC POLICY FAVORS THE AMICABLE SETTLEMENT OF LITIGATION AND AGREEMENTS ACCOMPLISHING THIS RESULT WILL BE DISREGARDED ONLY FOR THE STRONGEST OF REASONS. CITIES SERVICE OIL CO. V. COLEMAN OIL CO., INC., 470 F.2D 925 (1ST CIR. 1972); LICHTENSTEIN V. LICHTENSTEIN, 454 F.2D 69 (3D CIR., 1972). IN VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT THE OEO MUST IMPLEMENT THE AWARD IF IT MAY LEGALLY DO SO. THUS, THE ONLY QUESTION THAT IS BEFORE US AT THIS POINT IN TIME CONCERNS THE LEGALITY OF THE AWARD.

IT HAS LONG BEEN HELD THAT THE POWER OF APPOINTMENT IS WITHIN THE DISCRETION OF THE HEAD OF A DEPARTMENT. IT IS AN EXECUTIVE FUNCTION WHICH INVOLVES EXERCISING THE DISCRETION OF THE EXECUTIVE. KEIM V. UNITED STATES, 177 U.S. 290 (1900); AMUNDSON V. UNITED STATES, 128 CT. CL. 80, 120 F. SUPP. 201 (1954); DONNELLY V. UNITED STATES, 133 CT. CL. 120, 134 F. SUPP. 635 (1955); GOLDSTEIN V. UNITED STATES, 131 CT. CL. 228, 130 F. SUPP. 330 (1955), CERT. DENIED 350 U.S. 888 (1955); TIERNEY V. UNITED STATES, 168 CT. CL. 77 (1964); WIENBERG V. UNITED STATES, 192 CT. CL. 24, 425 F.2D 1244 (1970).

IT WOULD APPEAR FROM THE AWARD AND THE SETTLEMENT ON WHICH IT WAS BASED THAT ALL PARTIES AGREE THAT MR. ALVIN J. ARNETT, THE OEO DIRECTOR DESIGNATE, EXERCISED HIS DISCRETION TO APPOINT BY APPROVING MS. COPELAND'S PROMOTION ON JULY 7, 1973. AFTER THE EXERCISE OF DISCRETION, ALL THAT REMAINED WAS THE PERFORMANCE OF MINISTERIAL ACTS WHICH COULD BE COMPELLED BY A WRIT OF MANDAMUS. MURRAY V. VAUGHN, 300 F. SUPP. 688 (D.R.I. 1969). THUS FAILURE BY THE PERSONNEL OFFICE TO ACCOMPLISH THE MINISTERIAL ADMINISTRATIVE TASKS INCIDENT TO EFFECTING THE PROMOTION WITHIN THE PRESCRIBED TIME FRAME COULD REASONABLY HAVE BEEN FOUND TO CONSTITUTE AN UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION WITHIN THE MEANING OF THE BACK PAY ACT OF 1966, 5 U.S.C. SEC. 5596 (1970), ALTHOUGH THE ARBITRATOR FAILED TO STATE THIS FINDING EXPLICITLY. SIMILARLY, THIS UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION APPEARS TO HAVE BEEN AGGRAVATED BY THE PERSONNEL OFFICE'S DETERMINATION THAT MS. COPELAND DECLINED THE DEPARTMENT OF LABOR OFFER TO TRANSFER AND THUS NULLIFIED HER PROMOTION WHEN SHE INSISTED THAT HER TRANSFER BE AT GRADE GS-9, ALTHOUGH IT IS APPARENT THAT SHE WAS UNAWARE OF MR. ARNETT'S APPROVAL OF HER PROMOTION AT THAT TIME. IN FACT, THERE IS EVERY INDICATION THAT HAD THE EMPLOYEE'S PROMOTION BEEN PROPERLY PROCESSED ADMINISTRATIVELY, SHE WOULD HAVE TRANSFERRED TO THE DEPARTMENT OF LABOR IN HER POSITION AT THE GS-9 LEVEL. ALTHOUGH AGAIN WE MUST INFER THAT THIS WAS THE ARBITRATOR'S CONCLUSION SINCE OTHERWISE THERE WOULD HAVE BEEN NO BASIS TO AWARD A RETROACTIVE PROMOTION.

IN 53 COMP. GEN. 1054 (1974), 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 OF 1966, CODIFIED IN 5 U.S.C. SEC. 5596 (1970), AND THE IMPLEMENTING REGULATIONS FOR THAT ACT, CONTAINED IN 5 C.F.R. SEC. 550.803 (D) AND (E).

THE CSC HAS INTERPRETED THESE REGULATIONS SO AS TO PERMIT THE IMPLEMENTATION OF ARBITRATION AWARDS BY AGENCY HEADS. THIS INTERPRETATION IS CONTAINED IN ATTACHMENT 2 TO FPM LETTER NO. 711-71, JUNE 13, 1973, AND PROVIDES 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 LIGHT OF THE FOREGOING, WE CONCLUDE THAT THE ARBITRATOR'S AWARD IN THIS CASE IS TANTAMOUNT TO A FINDING BY THE ARBITRATOR UNDER THE PROVISIONS OF ARTICLE 17 OF THE NATIONAL AGREEMENT BETWEEN OFFICE OF ECONOMIC OPPORTUNITY AND AFGE (AFL-CIO) FOR THE NATIONAL COUNCIL OF OEO LOCALS DATED MARCH 1972 THAT MS. COPELAND UNDERWENT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITH RESPECT TO HER PROMOTION TO GRADE GS 9 WITHIN THE CONTEMPLATION OF THE ABOVE-QUOTED REGULATIONS. HOWEVER, THE CORRECTIVE ACTION SET FORTH IN THE AWARD DOES NOT CONFORM TO THE REQUIREMENTS OF 5 C.F.R. SEC. 550.804(A) (1974) IN TWO RESPECTS. SECTION 550.804 PROVIDES:

SEC. 550.804 CORRECTIVE ACTION.

(A) WHEN AN APPROPRIATE AUTHORITY CORRECTS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, THE AGENCY SHALL RECOMPUTE FOR THE PERIOD COVERED BY THE CORRECTIVE ACTION THE PAY, ALLOWANCES, DIFFERENTIALS, AND LEAVE ACCOUNT (LIMITING THE ACCUMULATION TO THE MAXIMUM PRESCRIBED BY LAW OR REGULATION FOR THE EMPLOYEE) OF THE EMPLOYEE AS IF THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED AND THE EMPLOYEE SHALL BE DEEMED FOR ALL PURPOSES TO HAVE RENDERED SERVICE IN THE AGENCY FOR THE PERIOD COVERED BY THE CORRECTIVE ACTION. ***

IT IS FUNDAMENTAL THAT THE SALARY OF A GOVERNMENT JOB IS INCIDENT TO AND ATTACHES TO THE JOB. IT IS THUS A PART OF THE JOB AND GOES WITH IT. BECAUSE OF THIS PRINCIPLE, THE SALARY IS PAYABLE ONLY TO THE PERSON APPOINTED TO THE JOB, AND A GOVERNMENT EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE HAS BEEN APPOINTED. SEE BORAX V. UNITED STATES, 78 F. SUPP. 123, 110 CT. CL. 236 (1948), CERT. DENIED, 335 U.S. 821; PRICE V. UNITED STATES, 80 F. SUPP. 542, 112 CT. CL. 198 (1948); GANSE V. UNITED STATES 376 F.2D 900, 180 CT. CL. 183 (1967); UNITED STATES V. MCLEAN, 95 U.S. 750 (1877); AMUNDSON V. UNITED STATES, 120 F. SUPP. 201 (CT. CL. 1954); DVORKIN V. UNITED STATES, 101 CT. CL. 296, CERT. DENIED, 323 U.S. 730 (1944). SIMILARLY, WHERE AN EMPLOYEE HAS RECEIVED THE SALARY OF THE OFFICE TO WHICH HE WAS APPOINTED, HE HAS RECEIVED HIS FULL ENTITLEMENT. PRICE V. UNITED STATES, SUPRA; GANSE V. UNITED STATES, SUPRA. WHILE AS A GENERAL RULE, AN ADMINISTRATIVE CHANGE IN SALARY MAY NOT BE MADE RETROACTIVELY EFFECTIVE IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY TO DO SO, WE HAVE PERMITTED RETROACTIVE PROMOTIONS UPON THE FINDINGS OF AN ARBITRATOR THAT AN EMPLOYEE WOULD HAVE BEEN PROMOTED ON A SPECIFIC DATE BUT FOR AN AGENCY'S UNWARRANTED OR UNJUSTIFIED PERSONNEL ACTIONS. 54 COMP. GEN. 312 (1974), AND 54 COMP. GEN. 435 (1974).

HOWEVER, BECAUSE THE SALARY IS A PART OF THE POSITION, IT IS NOT LEGALLY POSSIBLE TO MAKE A PROMOTION APPOINTMENT RETROACTIVELY AND WITHHOLD PART OF THE SALARY FOR THE NEW GRADE LEVEL. HENCE, IT WAS IMPROPER TO SPECIFY THAT MS. COPELAND WAS NOT TO RECEIVE BACK PAY FOR THE PERIOD IN WHICH THE ERRONEOUS PERSONNEL ACTION WAS IN EFFECT. SHE IS ENTITLED TO THE GRADE AND SALARY OF THE POSITION TO WHICH SHE WAS APPOINTED RETROACTIVELY FROM THE DATE THE APPOINTMENT BECAME OR SHOULD HAVE BECOME EFFECTIVE.

THE JUNE 29, 1973, DATE SELECTED BY THE ARBITRATOR AS THE DATE ON WHICH HER PROMOTION MUST BE DEEMED EFFECTIVE IS NOT SUPPORTED BY FINDINGS OF FACT OR CONCLUSIONS OF LAW, ALTHOUGH, AS MENTIONED, SUPRA, IT IS POSSIBLE THAT THE ARBITRATOR MERELY ADOPTED THE FINDINGS OF THE GRIEVANCE EXAMINER IN THIS RESPECT. WHILE WE WISH TO GIVE THE MAXIMUM EFFECT POSSIBLE TO ARBITRATION AWARDS, SUCH AWARDS MUST BE IN CONFORMANCE WITH APPLICABLE LAWS AND REGULATIONS. CF. B-180010, SUPRA, 1974. WE ARE AWARE OF NO LEGAL BASIS FOR PROMOTING MS. COPELAND RETROACTIVELY AS OF JUNE 29, 1973, SINCE IT WAS NOT UNTIL JULY 7, 1973, THAT HER PROMOTION WAS APPROVED BY THE PROPER AUTHORIZING OFFICIAL, MR. ARNETT. PERSONNEL HAD NO AUTHORITY TO PROCESS MS. COPELAND'S PROMOTION PRIOR TO JULY 7, 1973, AND THEREFORE, THERE WAS NO UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION PRIOR TO THAT DATE. ACCORDINGLY, WE FIND THAT THE RETROACTIVE PROMOTION SHOULD BE MADE EFFECTIVE AS OF THE BEGINNING OF THE FIRST PAY PERIOD AFTER JULY 7, 1973.

IN SITUATIONS WHERE AN ARBITRATION AWARD DOES NOT CONFORM TO STATUTORY OR REGULATORY REQUIREMENTS, AS IN THIS CASE, WE WOULD PREFER TO RECOMMEND THAT THE PARTIES AGREE TO RETURN IT TO THE ARBITRATOR, ALONG WITH OUR OBJECTIONS, FOR HIS REVISION OR MODIFICATION. HOWEVER, IN THE INSTANT CASE THE ARBITRATOR HAS SINCE DIED AND THIS COURSE OF ACTION HAS BECOME IMPOSSIBLE. TO RETURN THE CASE TO A DIFFERENT ARBITRATOR MIGHT REQUIRE LENGTHY PROCEEDINGS TO DETERMINE ALL THE FACTS DE NOVO WHICH IN THIS INSTANCE SEEMS UNDULY BURDENSOME FOR THE EMPLOYEE SINCE THERE IS NO BASIC DISAGREEMENT AS TO HER ENTITLEMENT TO A PROMOTION. ACCORDINGLY, WE WOULD NOT OBJECT TO OEO IMPLEMENTATION OF THE AWARD MODIFIED TO RETROACTIVELY GRANT MS. COPELAND A PROMOTION TO GRADE GS-9 TOGETHER WITH FULL BACK PAY AND ALLOWANCES EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD AFTER MR. ARNETT APPROVED THE PROMOTION REQUEST ON JULY 7, 1973.