B-180010, DEC 2, 1974, 54 COMP GEN 435

B-180010, DEC 2, 1974, 54 COMP GEN 435

ARBITRATION - AWARD - RETROACTIVE PROMOTION WITH BACK PAY - VIOLATION OF COLLECTIVE BARGAINING AGREEMENT FOLLOWING ARBITRATOR'S DETERMINATION THAT AGENCY HAD NOT GIVEN EMPLOYEE PRIORITY CONSIDERATION FOR PROMOTION IN ACCORDANCE WITH FEDERAL PERSONNEL MANUAL AND COLLECTIVE BARGAINING AGREEMENT AND THAT HAD SUCH ACCEPTED ARBITRATOR'S FINDINGS AND APPEALED ONLY THAT PORTION OF CONSIDERATION BEEN GIVEN, EMPLOYEE WOULD HAVE BEEN PROMOTED, AGENCY AWARD GRANTING EMPLOYEE RETROACTIVE PROMOTION AND BACK PAY. SINCE AGENCY DID NOT QUESTION ARBITRATOR'S FINDING THAT EMPLOYEE WOULD HAVE BEEN PROMOTED BUT FOR AGENCY'S UNWARRANTED PERSONNEL ACTION, GAO WOULD HAVE NO OBJECTION TO PROCESSING RETROACTIVE PROMOTION AND PAYING BACK PAY UNDER 5 U.S.C. 5596 IN ACCORDANCE WITH 54 COMP. GEN. 312. ARBITRATION - AWARD - CONSISTENT WITH LAW, REGULATIONS AND GAO DECISIONS WHILE GAO WOULD HAVE NO OBJECTION TO PROCESSING RETROACTIVE PROMOTION IN ACCORDANCE WITH ARBITRATOR'S AWARD TO EMPLOYEE OF DEFENSE SUPPLY AGENCY, THERE IS NO LEGAL BASIS UNDER WHICH PROMOTION MAY BE EFFECTIVE RETROACTIVE TO JULY 1, 1969, AS ORDERED BY ARBITRATOR. SINCE ARBITRATOR'S AWARD WAS BASED ON FINDING THAT AGENCY HAD NOT AFFORDED EMPLOYEE PRIORITY CONSIDERATION DUE HIM FOR PROMOTION, EFFECTIVE DATE OF RETROACTIVE PROMOTION MUST CONFORM WITH ONE OF DATES ON WHICH A POSITION WAS FILLED FOR WHICH EMPLOYEE WAS ENTITLED TO PRIORITY CONSIDERATION BUT DID NOT RECEIVE IT AND DATE IS DETERMINED TO BE JULY 22, 1969. COMPENSATION - PROMOTIONS - "TWO STEP INCREASES" CONCERNING PROPER STEP IN GRADE IN WHICH EMPLOYEE SHOULD BE PLACED UPON PROCESSING RETROACTIVE PROMOTION, THERE IS NO LEGAL BASIS FOR PLACING HIM IN STEP 10 OF GS-13 AS ORDERED BY ARBITRATOR. UNDER 5 U.S.C. 5334(B) AN EMPLOYEE WHO IS PROMOTED TO HIGHER GRADE IS ENTITLED TO BASIC PAY AT LOWEST RATE OF HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC PAY BY TWO STEP INCREASES. SINCE EMPLOYEE WAS IN GRADE GS-12, STEP 7, ON EFFECTIVE DATE OF RETROACTIVE PROMOTION, HE IS ONLY ENTITLED TO PROMOTION TO GRADE GS-13, STEP 4.

IN THE MATTER OF A RETROACTIVE PROMOTION WITH BACK PAY PURSUANT TO ARBITRATION AWARD, DECEMBER 2, 1974:

THIS MATTER INVOLVES A REQUEST SUBMITTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) ON BEHALF OF MR. RUSSELL D. MIKEL FOR A DECISION AS TO WHETHER AN ARBITRATOR'S AWARD GRANTING MR. MIKEL A RETROACTIVE PROMOTION AND COMMENSURATE BACK PAY MAY PROPERLY BE IMPLEMENTED.

THE ARBITRATOR'S AWARD WAS RENDERED AS THE RESULT OF A GRIEVANCE FILED BY MR. MIKEL (NOW RETIRED) AND PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT BETWEEN MR. MIKEL'S AGENCY, THE DEFENSE SUPPLY AGENCY (DSA), AND LOCAL 2449 OF AFGE. THE ARBITRATOR FOUND THAT DSA HAD WRONGFULLY DENIED A PROMOTION OPPORTUNITY TO MR. MIKEL, A GS-12 EMPLOYEE, AND THAT HAD HE NOT BEEN WRONGFULLY DENIED SUCH OPPORTUNITY HE WOULD, IN FACT, HAVE BEEN PROMOTED. THEREFORE, THE ARBITRATOR CONCLUDED THAT MR. MIKEL SHOULD "BE UPGRADED TO THE GS-13 LEVEL, STEP 10, RETROACTIVE TO JULY 1, 1969, AND BE MADE WHOLE ACCORDINGLY."

UPON RECEIPT OF THE ARBITRATOR'S AWARD, DSA PROMOTED MR. MIKEL FROM GS-12 TO GS-13, STEP 5, EFFECTIVE ON JUNE 17, 1973. THE AGENCY DID NOT CONTEST THE FINDING THAT MR. MIKEL WAS WRONGFULLY DENIED A PROMOTION OPPORTUNITY OR THAT HE SHOULD NOW RECEIVE A PROMOTION. HOWEVER, BECAUSE THE AGENCY HAD DOUBT ABOUT ITS LEGAL AUTHORITY TO EXECUTE THE "MAKE WHOLE" PROVISIONS OF THE AWARD, IT FILED A PETITION WITH THE FEDERAL LABOR RELATIONS COUNCIL FOR A REVIEW OF THOSE PORTIONS OF THE AWARD WHICH DIRECTED DSA (1) TO PROMOTE MR. MIKEL RETROACTIVELY TO JULY 1, 1969; AND (2) TO PROMOTE HIM TO GS-13, STEP 10. IN APPEALING THE AWARD, DSA STATED IN ITS PETITION:

SINCE THE ARBITRATOR'S BASIC DETERMINATION THAT MR. MIKEL WAS WRONGFULLY DENIED A PROMOTION OPPORTUNITY IS NOT BEING CHALLENGED, THERE IS NO NEED TO SUMMARIZE THE FACTS OF THE CASE EXCEPT AS THEY HAVE A BEARING UPON THE "MAKE WHOLE" PROVISIONS OF THE AWARD WHICH ARE SUBJECT TO CHALLENGE.

THE AGENCY CONTENDED THAT COMPLIANCE WITH THE RETROACTIVITY PORTION OF THE AWARD AND THE ORDER TO PROMOTE TO STEP 10 WOULD VIOLATE BOTH THE BACK PAY ACT AND THE LAW FIXING THE IN-GRADE STEP WHEN A PROMOTION TO A HIGHER GRADE IS MADE.

THE COUNCIL'S DECISION ON THE APPEAL, FLRC NO. 73A-51, WAS ISSUED SEPTEMBER 24, 1974. THE FACTS IN THE CASE AND THE ARBITRATOR'S FINDINGS AS TO WHETHER THE MATTERS WERE ARBITRABLE ARE STATED IN THE COUNCIL'S DECISION AS FOLLOWS:

IN MAY 1969, RUSSELL D. MIKEL, MANAGEMENT TECHNICIAN, GS-12, APPLIED FOR EACH OF TWO GS-13 POSITIONS, BUT WAS FOUND NOT TO MEET THE ELIGIBILITY REQUIREMENTS. AS TO ONE OF THESE POSITIONS, AND AGENCY CONCEDED THAT MIKEL HAD NOT BEEN REFERRED TO THE SELECTING OFFICIAL AND, HENCE, HAD BEEN DENIED AN OPPORTUNITY FOR CONSIDERATION IN COMPETITION WITH OTHER QUALIFIED CANDIDATES. MIKEL FILED A GRIEVANCE AND, AS CORRECTIVE ACTION, THE AGENCY DIRECTED THAT MIKEL BE GIVEN "PRIORITY CONSIDERATION" (FN1) FOR THE NEXT POSITION FOR WHICH HE WAS QUALIFIED. SUBSEQUENTLY, MIKEL WAS CONSIDERED FOR ANOTHER GS-13 VACANCY; HOWEVER, HE WAS NOT CONSIDERED BY THE SELECTING OFFICIAL BECAUSE HE HAD NOT BEEN RANKED AMONG THE BEST QUALIFIED. MIKEL GRIEVED, AND THE AGENCY AGREED WITH MIKEL THAT SINCE THE PROMOTION PANEL DID NOT RANK MIKEL AMONG THE BEST QUALIFIED, INDEED "PRIORITY CONSIDERATION" WAS NOT AFFORDED FOR THIS PARTICULAR VACANCY. JANUARY 30, 1970, THE AGENCY DIRECTED THAT MIKEL RECEIVE "PRIORITY CONSIDERATION" FOR THE FIRST TWO VACANCIES FOR WHICH HE WAS BASICALLY QUALIFIED. (FN1)

FN1 "PRIORITY CONSIDERATION" AND THE TREATMENT OF EMPLOYEES ENTITLED THERETO, ARE COVERED BY PART II, ARTICLE Q, SECTION 10, OF THE COLLECTIVE BARGAINING AGREEMENT, WHICH PROVIDES:

PART II - ARTICLE Q. PROMOTIONS AND FILLING POSITION VACANCIES

SECTION 10. EMPLOYEES ENTITLED TO PRIORITY CONSIDERATION AS DEFINED IN THE FPM WILL RECEIVE SUCH CONSIDERATION INCLUDING A PERSONAL INTERVIEW PRIOR TO OFFICIAL ANNOUNCEMENT ... OF THE VACANCY. NONSELECTION OF AN EMPLOYEE HAVING THE RIGHT TO PRIORITY CONSIDERATION MUST BE JUSTIFIED IN WRITING. AN EMPLOYEE WITH SUCH RIGHTS WHO IS NONSELECTED SHALL AUTOMATICALLY BE INCLUDED ON ALL PROMOTION REGISTERS FOR WHICH HE IS QUALIFIED, DEVELOPED AS A RESULT OF OFFICIAL ANNOUNCEMENT, AND WILL BE RATED AND RANKED BY THE PANEL IN THE SAME MANNER AS ALL OTHER APPLICANTS.

FPM CH. 335, SEC. 6-4C, PROVIDES:

C. ACTION INVOLVING NONSELECTED EMPLOYEES.

(2) IF THE CORRECTIVE ACTION DID NOT INCLUDE VACATING THE POSITION, AN EMPLOYEE WHO WAS NOT PROMOTED OR GIVEN PROPER CONSIDERATION BECAUSE OF THE VIOLATION IS TO BE GIVEN PRIORITY CONSIDERATION FOR THE NEXT APPROPRIATE VACANCY BEFORE CANDIDATES UNDER A NEW PROMOTION OR OTHER PLACEMENT ACTION ARE CONSIDERED. AN EMPLOYEE MAY BE SELECTED ON THE BASIS OF THIS CONSIDERATION AS AN EXCEPTION TO COMPETITIVE PROMOTION PROCEDURES (SEE SECTION 4-3F).

ON FEBRUARY 5, 1973, MIKEL FILED A GRIEVANCE GROUNDED, AS THE ARBITRATOR CONCLUDED, ON TWO BASIC CLAIMS: (1) THAT HIS POSITION HAD BEEN INCORRECTLY CLASSIFIED, AND (2) THAT HE HAD NOT BEEN ACCORDED "PRIORITY CONSIDERATION" FOR A PROMOTION. THE GRIEVANCE WAS SUBMITTED TO ARBITRATION.

THE ARBITRATOR DETERMINED IN HIS OPINION THAT THE SECOND CLAIM IN THE MIKEL GRIEVANCE, RELATING TO "PRIORITY CONSIDERATION," WAS ARBITRABLE, BUT THE FIRST CLAIM WAS NOT (FN2) ***

FN2 THE ARBITRATOR DETERMINED THAT MIKEL'S FIRST CLAIM CONCERNING THE 'CLASSIFICATION OF HIS POSITION WAS "BEYOND ARBITRAL JURISDICTION IN VIEW OF THE PROCEDURES AVAILED OF BY MIKEL VIA HIS APPEALS TO THE CIVIL SERVICE COMMISSION AND ITS DISPOSITION OF THE APPEALS."

BECAUSE THE BACK PAY ACT IS IMPLEMENTED THROUGH REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION, THE COUNCIL SOUGHT THE COMMISSION'S ADVICE ON THE MATTER. THE COMMISSION, IN REPLYING TO THE COUNCIL, STATED IN PART AS FOLLOWS:

TECHNICALLY, THE QUESTION IS NOT WHETHER THE AWARD VIOLATES 5 U.S.C. 5596, SINCE THERE WAS NO "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION TAKEN." SECTION 550.803(E) OF THE COMMISSION'S REGULATIONS DEFINES PERSONNEL ACTION FOR THIS PURPOSE AS BEING ANY ACTION BY AN AUTHORIZED OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR DEDUCTION OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE. THE COMPTROLLER GENERAL, IN HIS DECISION AT 48 COMP. GEN. 502, STATED "THAT A POSITIVE ADMINISTRATIVE ACTION ADVERSE TO THE EMPLOYEE MUST BE THE BASIS FOR BACK PAY RATHER THAN AN OMISSION OR FAILURE TO TAKE ACTION FOR AN IMPROPER REASON."

RATHER, THE QUESTION IS WHETHER THERE IS A BASIS FOR THE AGENCY TO APPROVE A PROMOTION TO BE EFFECTIVE RETROACTIVELY. THE COMPTROLLER GENERAL HAS RULED ON NUMEROUS OCCASIONS THAT PROMOTIONS MAY NOT BE MADE TO TAKE EFFECT RETROACTIVELY, EXCEPT IN CASES WHERE THROUGH ADMINISTRATIVE ERROR, SUCH AS CLERICAL ERROR RESULTING IN THE DELAYED TYPING OF THE PERSONNEL ACTION, A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED.

THE COMPTROLLER GENERAL HAS ALSO RULED THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. (SEE 39 COMP. GEN. 583 AND 40 ID. 207.)

IN ITS SECOND EXCEPTION TO THE AWARD, THE AGENCY ALLEGED THAT IT MAY NOT FIX PAY ON PROMOTION AT A RATE WHICH IS NOT IN ACCORDANCE WITH LAW AND REGULATION. IN THE INSTANT CASE, THE PROPER STEP WOULD HAVE BEEN STEP 4, IF THE PROMOTION COULD HAVE BEEN LEGALLY EFFECTED RETROACTIVELY TO JULY 1, 1969; HOWEVER, NEITHER CITATION WOULD HAVE PERMITTED THE AGENCY TO FIX THE PAY AT THE STEP 10.

FOR THE REASONS SET FORTH ABOVE, THE ARBITRATOR'S AWARD IN THIS CASE MAY NOT BE IMPLEMENTED.

IN ACCORDANCE WITH THE COMMISSION'S REPLY, THE COUNCIL MODIFIED THE ARBITRATOR'S AWARD BY STRIKING THAT PORTION OF THE AWARD WHICH ORDERED THAT MR. MIKEL BE PROMOTED TO THE GS-13 LEVEL, STEP 10, RETROACTIVE TO JULY 1, 1969, AND THAT HE BE MADE WHOLE ACCORDINGLY.

IN OUR DECISION OF OCTOBER 31, 1974, 54 COMP. GEN. 312, WE POINTED OUT THAT UNDER SECTION 13(B) OF EXECUTIVE ORDER 11491, AS AMENDED BY EXECUTIVE ORDER 11616 OF AUGUST 26, 1971, 3 CODE OF FEDERAL REGULATIONS (C.F.R.) 254, 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. WE FURTHER STATED THAT WHEN A MATTER IS SUBMITTED TO OUR OFFICE FOR A RULING AS TO THE LEGALITY OF THE IMPLEMENTATION OF A PARTICULAR ARBITRATION AWARD, WE WILL NOT RULE ON THE FACTS OR THE INTERPRETATION OF THE AGREEMENT AND OUR CONSIDERATION WILL BE LIMITED TO THE PROPRIETY OF IMPLEMENTING THE AWARD IN QUESTION.

ALTHOUGH WE ARE NOT, STRICTLY SPEAKING, AN AVENUE OF APPEAL FROM DECISIONS OF THE FEDERAL LABOR RELATIONS COUNCIL, WE ARE OBLIGATED BY LAW TO MAKE FINAL DETERMINATIONS REGARDING THE LEGALITY OF EXPENDITURES OF APPROPRIATED FUNDS. THEREFORE, WHENEVER THERE IS A QUESTION AS TO WHETHER AN ARBITRATOR'S AWARD MAY PROPERLY BE IMPLEMENTED AND INVOLVES, EITHER DIRECTLY OR INDIRECTLY, THE PAYMENT OF MONEY, A DECISION IN THE MATTER SHOULD BE REQUESTED FROM OUR OFFICE. IN THAT REGARD, WE ALSO POINTED OUT IN 54 COMP. GEN. 312, SUPRA, THAT WHENEVER A MATTER IS SUBMITTED DIRECTLY TO THIS OFFICE FOR A RULING AS TO THE LEGALITY OF IMPLEMENTATION OF AN ARBITRATOR'S AWARD AND AN EXCEPTION IS NOT FIRST FILED WITH THE FEDERAL LABOR RELATIONS COUNCIL UNDER SECTION 13(B) OF EXECUTIVE ORDER 11491, WE WILL ASSUME THAT THERE IS NO DISPUTE AS TO THE FACTS OR THE INTERPRETATION OF THE AGREEMENT AS DETERMINED BY THE ARBITRATOR AND WILL, THEREFORE, LIMIT OUR CONSIDERATION 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 PERTAIN TO MATTERS NOT WITHIN THE JURISDICTION OF THIS OFFICE, IT SHOULD INSTRUCT THE AGENCY TO REQUEST A RULING FROM THIS OFFICE AS TO THE LEGALITY OF IMPLEMENTATION OF THE AWARD.

BECAUSE THE HOLDING IN 54 COMP. GEN. 312, SUPRA, WHICH AUTHORIZED AN AGENCY TO PROCESS A RETROACTIVE PROMOTION AND PAY THE APPROPRIATE BACK PAY TO AN EMPLOYEE WHO HAD NOT BEEN PROMOTED AS THE RESULT OF A VIOLATION OF A PROVISION IN A COLLECTIVE BARGAINING AGREEMENT, WAS RENDERED SUBSEQUENT TO THE COUNCIL'S DECISION IN MR. MIKEL'S CASE AND APPEARS TO BE APPLICABLE TO HIS CASE, WE HAVE AGREED TO REVIEW MR. MIKEL'S CLAIM AS IT PERTAINS TO THE QUESTION OF WHETHER THE ARBITRATOR'S AWARD GRANTING HIM A RETROACTIVE PROMOTION AND BACK PAY MAY BE IMPLEMENTED.

IN THE ABOVE-CITED CASE, WE REFERRED TO THE BACK PAY ACT OF 1966, CODIFIED IN 5 U.S.C. 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.

IN THAT CASE, WE ALSO REFERRED TO OUR DECISION OF JUNE 25, 1974, 53 COMP. GEN. 1054, WHEREIN 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 PERSONNEL 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. 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 54 COMP. GEN. 312, SUPRA, WE HELD 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 THE PRESENT CASE THE ARBITRATOR FOUND THAT THE AGENCY HAD AGREED TO GIVE MR. MIKEL PRIORITY CONSIDERATION FOR SUBSEQUENT SUITABLE GS-13 VACANCIES IN ACCORDANCE WITH THE FEDERAL PERSONNEL MANUAL AND THE COLLECTIVE BARGAINING AGREEMENT FOLLOWING THEIR ACKNOWLEDGEMENT THAT, THROUGH AN ERROR, MR. MIKEL HAD EARLIER BEEN DENIED AN OPPORTUNITY FOR CONSIDERATION FOR A GIVEN VACANT GS-13 POSITION, AND THAT THE AGENCY HAD NOT SUBSEQUENTLY ACCORDED MR. MIKEL THE PRIORITY CONSIDERATION REQUIRED IN THE CIRCUMSTANCES. HE ALSO FOUND THAT HAD MR. MIKEL BEEN AFFORDED SUCH PRIORITY CONSIDERATION, HE WOULD HAVE BEEN PROMOTED. UNDER SECTION 12(B)(2) OF EXECUTIVE ORDER 11491, MANAGEMENT OFFICIALS OF AN AGENCY 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 EMPLOYEES." WE HAVE SOME QUESTION AS TO WHETHER THE FINDING BY THE ARBITRATOR THAT MR. MIKEL WOULD HAVE BEEN PROMOTED IS PROPERLY WITHIN HIS AUTHORITY UNDER THE EXECUTIVE ORDER. HOWEVER, OF PRIME IMPORTANCE IN THAT REGARD IS THE FACT THAT THE AGENCY DID NOT TAKE AN EXCEPTION TO THE ARBITRATOR'S FINDING THAT MR. MIKEL "WOULD HAVE BEEN PROMOTED," QUESTIONING ONLY THEIR AUTHORITY TO GRANT THE ORDERED RETROACTIVE PROMOTION AND BACK PAY. WE BELIEVE THAT THE FACT THAT THE AGENCY CHOSE NOT TO TAKE AN EXCEPTION TO THE FINDING THAT MR. MIKEL WOULD HAVE BEEN PROMOTED BUT FOR ITS DENIAL OF PRIORITY CONSIDERATION WAS TANTAMOUNT TO AN AGENCY DETERMINATION THAT BUT FOR THEIR VIOLATION OF THE AGREEMENT IN NOT GIVING MR. MIKEL PRIORITY CONSIDERATION AFTER THEY HAD ORDERED HE BE GIVEN IT, HE WOULD HAVE BEEN PROMOTED. THEREFORE, IN ACCORDANCE WITH OUR DECISION 54 COMP. GEN. 312, SUPRA, WE WOULD HAVE NO OBJECTION TO PROCESSING A RETROACTIVE PROMOTION FOR MR. MIKEL AND PAYING THE APPROPRIATE BACK PAY.

AS TO THE DATE ON WHICH MR. MIKEL'S RETROACTIVE PROMOTION SHOULD BE EFFECTIVE, THERE IS NO CLEAR INDICATION IN THE ARBITRATOR'S AWARD AS TO THE REASON FOR HIS CHOOSING JULY 1, 1969, AS THE EFFECTIVE DATE OF THE AWARD. IN THAT REGARD, WHILE WE WISH TO GIVE THE MAXIMUM EFFECT POSSIBLE TO ARBITRATION AWARDS, SUCH AWARDS MUST BE IN CONFORMANCE WITH APPLICABLE LAWS AND REGULATIONS. WE ARE AWARE OF NO LEGAL BASIS UNDER WHICH MR. MIKEL COULD BE RETROACTIVELY PROMOTED BACK TO THE SPECIFIC DATE SELECTED BY THE ARBITRATOR. SINCE THE AWARD WAS BASED UPON THE ARBITRATOR'S DETERMINATION THAT THE AGENCY HAD NOT ACCORDED MR. MIKEL THE CONSIDERATION THAT WAS REQUIRED IN THE CIRCUMSTANCES FOR VARIOUS GS 13 POSITIONS FOLLOWING THE AGENCY MANDATE THAT HE BE GIVEN "PRIORITY CONSIDERATION" FOR ALL SUITABLE GS-13 POSITIONS, WE BELIEVE THAT THE EFFECTIVE DATE OF MR. MIKEL'S PROMOTION MUST CONFORM WITH ONE OF THE DATES ON WHICH A POSITION WAS FILLED FOR WHICH MR. MIKEL WAS ENTITLED TO PRIORITY CONSIDERATION BUT DID NOT RECEIVE IT. THE DEFENSE SUPPLY AGENCY, IN ITS PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD TO THE FEDERAL LABOR RELATIONS COUNCIL, STATES THAT THE FIRST POSITION FOR WHICH MR. MIKEL WAS ENTITLED TO PRIORITY CONSIDERATION BUT NOT SELECTED WAS FILLED ON JUNE 2, 1970. THEY APPEAR TO BASE THIS CONTENTION ON THE FACT THAT THE POSITION FILLED JUNE 2, 1970, WAS THE FIRST SUCH POSITION FOR WHICH MR. MIKEL WAS ENTITLED TO PRIORITY CONSIDERATION FOLLOWING THE JANUARY 30, 1970, MANDATE BY THE DEPUTY DIRECTOR OF DSA THAT MR. MIKEL BE GIVEN PRIORITY CONSIDERATION FOR THE FIRST TWO VACANCIES FOR WHICH HE WAS BASICALLY QUALIFIED. THE AFGE, ON THE OTHER HAND, STATES THAT THE DATES AND FACTS PRESENTED BY DSA IN THEIR REQUEST FOR REVIEW ARE CONTRARY TO THE DATES AND FACTS PRESENTED AND TESTED IN THE ARBITRATION PROCEEDINGS AND THAT, IN FACT, MR. MIKEL WAS ENTITLED TO PRIORITY CONSIDERATION FOR A GS-13 POSITION THAT WAS OPEN IN JUNE 1969. THIS POSITION WAS APPARENTLY AN ADMINISTRATIVE OFFICER VACANCY THAT WAS FILLED JULY 22, 1969. THE RECORD IN THE MATTER AND THE STATEMENT OF FACTS BY THE FEDERAL LABOR RELATIONS COUNCIL IN ITS DECISION WOULD APPEAR TO SUPPORT THE CONTENTION OF AFGE. THOSE FACTS INDICATE THAT IN MAY 1969 MR. MIKEL WAS NOT FOUND TO MEET THE ELIGIBILITY REQUIREMENTS FOR TWO GS-13 POSITIONS. AS TO ONE OF THOSE POSITIONS, THE AGENCY CONCEDED THAT MR. MIKEL HAD NOT BEEN REFERRED TO THE SELECTING OFFICIAL AND, HENCE, DIRECTED THAT HE BE GIVEN PRIORITY CONSIDERATION FOR THE NEXT POSITION FOR WHICH HE WAS QUALIFIED. WHEN SUBSEQUENTLY MR. MIKEL WAS NOT SELECTED FOR A VACANT GS-13 POSITION (APPARENTLY THE ADMINISTRATIVE OFFICER POSITION, SUPRA) THE AGENCY AGREED THAT HE HAD NOT BEEN GIVEN PRIORITY CONSIDERATION AND THEN ORDERED (IN THE JANUARY 30, 1970, MANDATE) THAT HE BE GIVEN SUCH CONSIDERATION FOR THE NEXT TWO VACANCIES FOR WHICH HE WAS QUALIFIED. THE FACT THAT MR. MIKEL WAS ENTITLED TO PRIORITY CONSIDERATION FOR A POSITION PRIOR TO THE JUNE 2, 1970, POSITION IS FURTHER SUPPORTED BY THE CASE RESUME WHICH ACCOMPANIED THE JANUARY 30, 1970, DIRECTIVE OF THE DEPUTY DIRECTOR OF DSA. IN THAT RESUME, IN AN ITEM BY ITEM STATEMENT OF THE ISSUES, IT IS STATED:

2. MIKEL CONTENDS DSASC-Z FAILED TO PROPERLY CONSIDER HIS APPLICATION FOR PROGRAM ANALYST, GS-345-13 (ONE OF THE MAY 1969 VACANCIES).

DSASC-Z ACKNOWLEDGES AN ERROR IN REGARD TO THIS MATTER AND HAD ADOPTED THE CONCEPT OF PRIORITY CONSIDERATION AS CORRECTIVE ACTION.

3. MIKEL CONTENDS THAT HAVING PROMISED PRIORITY CONSIDERATION DSASC Z FAILED TO PROVIDE SUCH CONSIDERATION IN CONNECTION WITH A SUBSEQUENT VACANCY FOR ADMINISTRATIVE OFFICER, GS-341-13 (APPARENTLY THE POSITION FILLED JULY 22, 1969).

DSASC-Z AGREES WITH MIKEL SINCE THE PROMOTION PANEL DID NOT RANK MIKEL AMONG THE FIVE BEST QUALIFIED, INDEED PRIORITY CONSIDERATION WAS NOT AFFORDED FOR THIS PARTICULAR VACANCY BUT IS STILL PROMISED FOR A FUTURE APPROPRIATED VACANCY.

BASED ON THE FOREGOING AND IN ACCORDANCE WITH THE ARBITRATOR'S FINDING THAT MR. MIKEL WAS NOT AFFORDED PRIORITY CONSIDERATION FOR ANY OF THE POSITIONS TO WHICH HE WAS ENTITLED, WE BELIEVE THAT THE APPROPRIATE DATE BACK TO WHICH MR. MIKEL'S RETROACTIVE PROMOTION SHOULD BE MADE EFFECTIVE IS JULY 22, 1969.

CONCERNING THE PROPER STEP IN GRADE GS-13 IN WHICH MR. MIKEL SHOULD BE PLACED, THERE IS NO LEGAL BASIS FOR PLACING HIM IN STEP 10 OF THAT GRADE AS ORDERED BY THE ARBITRATOR. THERE ARE TEN STEPS IN THE GENERAL SCHEDULE GRADE, GS-13, EACH SUCCESSIVE STEP CALLING FOR A HIGHER SALARY RATE. THE GENERAL PURPOSE OF THESE WITHIN-GRADE STEPS IS TO PERMIT AN EMPLOYEE WHO PERFORMS SATISFACTORY SERVICE IN ANY GIVEN GRADE FOR FIXED PERIODS OF TIME, SUCH AS 52, 104, OR 156 WEEKS, WITHOUT BEING PROMOTED TO A HIGHER GRADE, TO RECEIVE AN INCREASE IN SALARY BY ADVANCING TO THE NEXT HIGHEST WITHIN-GRADE STEP. THE RULES WHICH GOVERN DETERMINATIONS CONCERNING THE APPROPRIATE WITHIN-GRADE STEP AT WHICH ANY GIVEN EMPLOYEE MAY BE CLASSIFIED AND PAID ARE SET FORTH IN SECTIONS 5335 AND 5336 OF TITLE 5, U.S.C. IN ADDITION, SECTION 5334(B) OF TITLE 5 PROVIDES THAT "AN EMPLOYEE WHO IS PROMOTED OR TRANSFERRED TO A POSITION IN A HIGHER GRADE IS ENTITLED TO BASIC PAY AT THE LOWEST RATE OF THE HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC PAY BY NOT LESS THAN TWO STEP-INCREASES OF THE GRADE FROM WHICH HE IS PROMOTED OR TRANSFERRED." THE AGENCY INDICATES THAT ON JULY 22, 1969, MR. MIKEL'S GRADE AND STEP WERE GS-12, STEP 7, AND THAT IF HE HAD BEEN PROMOTED ON THAT DATE HE WOULD HAVE BEEN PROMOTED TO GS-13, STEP 4. SINCE THERE IS NO LEGAL BASIS FOR PLACING MR. MIKEL IN A HIGHER STEP OF GRADE GS-13 THAN HE WOULD HAVE BEEN PLACED IN, IF PROMOTED ORIGINALLY, MR. MIKEL SHOULD BE RETROACTIVELY PROMOTED IN ACCORDANCE WITH THE FOREGOING TO GS 13, STEP 4.

IT IS NOTED THAT MR. MIKEL HAS RETIRED AND HIS ANNUITY WAS BASED ON LOWER PAY RATES THAN THOSE PROVIDED IN THE ARBITRATOR'S AWARD. ANY REQUEST FOR ADJUSTMENT OF HIS ANNUITY RESULTING FROM IMPLEMENTATION OF THE AWARD AND THIS DECISION IS FOR REFERRAL TO THE UNITED STATES CIVIL SERVICE COMMISSION WHICH HAS JURISDICTION IN THE MATTER.