B-204371(1),L/M, FEB 5, 1982, OFFICE OF GENERAL COUNSEL

B-204371(1),L/M: Feb 5, 1982

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DIGEST: FINAL GRIEVANCE DECISION MADE PURSUANT TO GRIEVANCE PROCEDURE ESTABLISHED UNDER COLLECTIVE BARGAINING AGREEMENT HELD THAT EMPLOYEE WAS ENTITLED TO RETROACTIVE PROMOTION WITH ACCOMPANYING BACKPAY AND AGENCY CERTIFYING OFFICER REQUESTS ADVANCE DECISION AS TO WHETHER PAYMENT WOULD BE PROPER. THE COMPTROLLER GENERAL WILL NOT CONSIDER THE SUBMISSION SINCE THERE IS NO INDICATION THAT THE CERTIFYING OFFICER HAS BEEN PRESENTED WITH A SPECIFIC VOUCHER FOR PAYMENT OF BACKPAY. THE MATTER IS MORE APPROPRIATELY FOR RESOLUTION THROUGH THE LABOR MANAGEMENT PROCEDURES SET FORTH IN CHAPTER 71 OF TITLE 5. MABLE LEE IS ENTITLED TO A RETROACTIVE PROMOTION WITH BACKPAY. THE RECORD SHOWS THAT PURSUANT TO THE GRIEVANCE PROCEDURE PROVIDED UNDER THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT A FINAL GRIEVANCE DECISION WAS MADE BY THE ASSISTANT SECRETARY FOR MANAGEMENT AND BUDGET.

B-204371(1),L/M, FEB 5, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: FINAL GRIEVANCE DECISION MADE PURSUANT TO GRIEVANCE PROCEDURE ESTABLISHED UNDER COLLECTIVE BARGAINING AGREEMENT HELD THAT EMPLOYEE WAS ENTITLED TO RETROACTIVE PROMOTION WITH ACCOMPANYING BACKPAY AND AGENCY CERTIFYING OFFICER REQUESTS ADVANCE DECISION AS TO WHETHER PAYMENT WOULD BE PROPER. THE COMPTROLLER GENERAL WILL NOT CONSIDER THE SUBMISSION SINCE THERE IS NO INDICATION THAT THE CERTIFYING OFFICER HAS BEEN PRESENTED WITH A SPECIFIC VOUCHER FOR PAYMENT OF BACKPAY. IN ADDITION, THE MATTER IS MORE APPROPRIATELY FOR RESOLUTION THROUGH THE LABOR MANAGEMENT PROCEDURES SET FORTH IN CHAPTER 71 OF TITLE 5, UNITED STATES CODE.

MR. J. A. WYZYKOWSKI, DEPARTMENT OF HEALTH AND HUMAN SERVICES:

YOUR SUBMISSION DATED DECEMBER 1, 1981, REQUESTS AN ADVANCE DECISION AS TO WHETHER MS. MABLE LEE IS ENTITLED TO A RETROACTIVE PROMOTION WITH BACKPAY. THE RECORD SHOWS THAT PURSUANT TO THE GRIEVANCE PROCEDURE PROVIDED UNDER THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT A FINAL GRIEVANCE DECISION WAS MADE BY THE ASSISTANT SECRETARY FOR MANAGEMENT AND BUDGET, DEPARTMENT OF HEALTH AND HUMAN SERVICES, ON JULY 15, 1980. THE ASSISTANT SECRETARY HELD THAT MS. LEE WAS ENTITLED TO A RETROACTIVE PROMOTION WITH BACKPAY.

WE ADVISED MR. GRINSTEAD, ASSISTANT GENERAL COUNSEL, BUSINESS AND ADMINISTRATIVE LAW DIVISION OF THE DEPARTMENT, IN OUR LETTER OF SEPTEMBER 2, 1981, THAT THE APPLICABLE REGULATION, 4 C.F.R. 22.7(B)(1981), PROVIDES THAT THE COMPTROLLER GENERAL WILL NOT ISSUE A DECISION OR COMMENT ON THE MERITS OF A MATTER WHICH IS SUBJECT TO A NEGOTIATED GRIEVANCE PROCEDURE AUTHORIZED BY 5 U.S.C. 7121, EXCEPT UPON THE REQUEST OF AN AUTHORIZED CERTIFYING OR DISBURSING OFFICER OR THE JOINT REQUEST OF THE AGENCY AND LABOR ORGANIZATION.

UNDER THE AUTHORITY CONTAINED IN 31 U.S.C. 82D, A CERTIFYING OFFICER IS ENTITLED TO A DECISION BY THE COMPTROLLER GENERAL ON A QUESTION OF LAW INVOLVED IN THE PAYMENT OF A SPECIFIC VOUCHER WHICH SHOULD ACCOMPANY THE REQUEST TO OUR OFFICE. IN YOUR SUBMISSION, WHILE YOU IDENTIFY YOURSELF AS AN AUTHORIZED CERTIFYING OFFICER, YOU HAVE NOT INDICATED WHETHER YOU HAVE BEEN ASKED TO CERTIFY PAYMENT OF A SPECIFIC VOUCHER WHICH WOULD PROVIDE BACKPAY TO MS. LEE. UNDER THE CIRCUMSTANCES, WE DO NOT REGARD YOUR SUBMISSION AS A REQUEST FOR AN ADVANCE DECISION TO A CERTIFYING OFFICER UNDER 31 U.S.C. 82D. ACCORDINGLY, THE COMPTROLLER GENERAL WILL NOT ACT UPON YOUR SUBMISSION OF DECEMBER 1, 1981.

EVEN IF YOU WERE TO SUBMIT A VOUCHER WE DO NOT FIND THAT THE CASE IS ONE WHICH IS APPROPRIATE FOR SETTLEMENT BY A COMPTROLLER GENERAL'S DECISION. THIS IS SO BECAUSE THE WRITTEN RECORD BEFORE US DOES NOT INCLUDE A CLEAR AND MUTUALLY AGREED UPON STATEMENT OF THE FACTS INVOLVED. THE COMPTROLLER GENERAL IS IN A POSITION TO DETERMINE LEGAL QUESTIONS WITH RESPECT TO PAYMENTS. HOWEVER, CASES WHICH INVOLVE DISPUTED FACTS ARE MORE APPROPRIATE FOR RESOLUTION THROUGH THE LABOR MANAGEMENT PROCEDURES SET FORTH IN CHAPTER 71 OF TITLE 5, UNITED STATES CODE. IN THAT CONNECTION 4 C.F.R. 22.8 PROVIDES THAT THE COMPTROLLER GENERAL WILL NOT ISSUE A DECISION ON ANY MATTER WHICH HE FINDS IS MORE PROPERLY WITHIN THE JURISDICTION OF THE FEDERAL LABOR RELATIONS AUTHORITY OR OTHER ADMINISTRATIVE BODY OR COURT OF COMPETENT JURISDICTION.

WE ARE RETURNING THE ENCLOSURES TO YOUR LETTER OF DECEMBER 1, 1981, AND ARE ADVISING MESSRS. GRINSTEAD AND COOK OF OUR ACTION IN THIS MATTER.