B-233131.2, October 24, 1991

B-233131.2, October 24, 1991

PRECIS-UNAVAILABLE

Lee R. Schneider:

Mr. Lee R. Schneider, a former Internal Revenue Service (IRS) employee, requests reconsideration of our decision sustaining our Claims Group's settlement which denied his claim for retroactive promotion and backpay. For the reasons stated below, our previous decision is affirmed.

Background

The substance of Mr. Schneider's claim is that from 1973 to 1982, although classified as a grade GS-12 Revenue Agent, he performed the duties of a grade G5-13/14 Technical Advisor and Expert Witness. contends that the IRS's failure to promote him to grade GS-13 violated a provision in a labor management agreement requiring temporary promotions for employees detailed for at least 30 days to positions of a higher grade. The IRS does not dispute the meaning of the labor management agreement; rather, the IRS argues that the duties Mr. Schneider performed during the relevant time period were within the scope of his duties as a Revenue Agent and that he was not, in fact, detailed to a position of a higher grade.

In our previous decision, we did not reach the merits of Mr. Schneider's claim, but held that position classification disputes may be resolved only by the employing agency and the Office of Personnel Management. Lee R. Schneider, B-233131, June 22, 1989. In his request for reconsideration, Mr. Schneider, through his attorney, argues that we may settle his claim under the authority of the Back Pay Act. Mr. Schneider relies on our decisions Albert C. Beachley and Robert S. Davis, 61 Comp.Gen. 403 (1982), and Albert W. Lurz, 61 Comp.Gen. 492 (1982), in which we authorized payment of backpay on the basis of a provision in a collective bargaining agreement establishing a nondiscretionary agency policy to grant temporary promotions for certain details.

Analysis

Under the Back Pay Act, an "appropriate authority" may award backpay to an employee who is subjected to an "unjustified or unwarranted personnel action." 5 U.S.C. Sec. 5596 (1988). /1/ Implementing regulations issued by OPM define an appropriate authority as "an entity having the authority in the case at hand to correct the unjustified or unwarranted personnel action, including ... (c) the Comptroller General of the United States. ..." 5 C.F.R. Sec. 550.803 (1991). An entity's authority to award backpay, however, follows not from the entity's mere inclusion on the statutory list cited above, but rather from that entity's authority over the personnel action at issue. Accordingly, in our backpay cases we distinguish disputes involving personnel issues subject to another agency's jurisdiction from those involving the award itself. Compare, Albert D. Parker, 64 Comp.Gen. 349, 351 (1985), involving the settlement of an age discrimination complaint.

The primary issue in this case is whether Mr. Schneider's situation qualifies as a violation of a nondiscretionary agency policy as reflected in a collective bargaining agreement. The determinative fact is whether or not Mr. Schneider was actually detailed to perform the duties of the higher graded position, or whether he merely performed duties which were classified as part of his position.

In Mr. Schneider's case there has been presented no showing of a formal detail to the higher graded position. Thus, the dispute is, in essence, over whether the classification of the position he actually held covered the duties he performed, as the agency stated. This is a classification determination which may only be made by the employing agency, subject to appeal to the Office of Personnel Management. 5 U.S.C. Sec. 5112 (1988) and 5 C.F.R. Part 511 (1991). Since we have no jurisdiction to make or review such determinations, when a claim involves a position classification dispute, we accept as conclusive the agency's or OPM's determination. Here, the agency has determined that Mr. Schneider was not detailed to the higher-grade position, but rather that the duties he performed were within the scope of his grade GS-12 position. Therefore, there is no violation of the agreement for which we may grant a remedy under the Back Pay Act.

Further, Mr. Schneider's case is distinguishable from the circumstances in the Beachley-Davis, and Lurz cases, supra to which he refers. In those cases, the agency and the union agreed that the employees had been detailed without a temporary promotion to higher graded positions for more than 60 days contrary to an agency rule and a labor management agreement. The issues before us were whether the language of the rule and agreement were nondiscretionary so as to require retroactive temporary promotion and backpay, and whether the temporary promotions should be effective on the first day of the detail, or only after 60 days. Contrary to that situation, Mr. Schneider's claim does not involve a question of whether the terms of the labor-management agreement required a temporary promotion for certain details. Rather, the issue is the threshold question of whether, as a matter of fact, Mr. Schneider had been detailed to a higher- graded position. For the reasons stated above, we accept the agency's determination of that issue as conclusive.

Accordingly, our prior decision is affirmed.

/1/ The general rule is that backpay is not available to employees for periods of wrongful classification; however, backpay is allowed when an employee is denied a promotion required by law, which includes nondiscretionary promotion policies contained in labor-management agreements. See Turner-Caldwell III, 61 Comp.Gen. 408 (1982); Beachley Davis, supra; Valerie Pannucci Reynolds, B-225918, Apr. 14, 1988.