B-182734, APR 18, 1975, 54 COMP GEN 888

B-182734, APR 18, 1975, 54 COMP GEN 888

COMPENSATION - PROMOTIONS - RETROACTIVE - ADMINISTRATIVE ERROR - COLLECTIVE BARGAINING AGREEMENT COLLECTIVE BARGAINING AGREEMENT PROVIDES THAT CERTAIN INTERNAL REVENUE SERVICE CAREER-LADDER EMPLOYEES, DULY CERTIFIED AS CAPABLE OF HIGHER GRADE DUTIES, WILL BE PROMOTED EFFECTIVE FIRST PAY PERIOD AFTER 1 YEAR IN GRADE, BUT EMPLOYEES WERE PROMOTED 1 PAY PERIOD LATE. SINCE PROVISION RELATING TO EFFECTIVE DATES OF PROMOTIONS BECOMES NONDISCRETIONARY AGENCY REQUIREMENT IF PROPERLY INCLUDABLE IN BARGAINING AGREEMENT, GENERAL ACCOUNTING OFFICE WILL NOT OBJECT TO RETROACTIVE PROMOTIONS BASED ON ADMINISTRATIVE DETERMINATION THAT EMPLOYEES WOULD HAVE BEEN PROMOTED AS OF REVISED EFFECTIVE DATE BUT FOR FAILURE TO TIMELY PROCESS PROMOTIONS IN ACCORDANCE WITH THE AGREEMENT.

IN THE MATTER OF INTERNAL REVENUE SERVICE EMPLOYEES - RETROACTIVE PROMOTION WITH BACK PAY, APRIL 18, 1975:

THIS MATTER CONCERNS A REQUEST ON BEHALF OF A DISTRICT DIRECTOR OF THE INTERNAL REVENUE SERVICE (IRS), DEPARTMENT OF THE TREASURY, FOR A DECISION AS TO WHETHER THE OFFICE CONCERNED MAY RETROACTIVELY ADJUST THE PROMOTION DATES OF TWO IRS EMPLOYEES WHOSE PROMOTIONS WERE ERRONEOUSLY DELAYED FOR ONE PAY PERIOD BEYOND THE DATE THEY SHOULD HAVE BECOME EFFECTIVE PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT BETWEEN IRS AND THE NATIONAL TREASURY EMPLOYEES UNION (NTEU).

THE RECORD, AS PROVIDED BY THE AGENCY, INDICATES THAT THE TWO IRS EMPLOYEES, INITIALLY APPOINTED TO GRADE GS-5 CAREER-LADDER POSITIONS AS TAX TECHNICIANS, BECAME ELIGIBLE FOR PROMOTION TO GRADE GS-7, THE NEXT GRADE IN THEIR CAREER LADDERS, SHORTLY BEFORE SEPTEMBER 1, 1974. PRIOR TO SEPTEMBER 1 THE GROUP MANAGER, WHO WAS RESPONSIBLE FOR CERTIFYING THAT THE TWO EMPLOYEES WERE CAPABLE OF PERFORMING DUTIES AT THE NEXT HIGHER GRADE LEVEL, ORALLY ADVISED THEM THAT THEY WOULD BE PROMOTED TO GRADE GS-7, EFFECTIVE SEPTEMBER 1. HOWEVER, AS THE APPARENT RESULT OF ADMINISTRATIVE OVERSIGHT, THE REQUISITE PERSONNEL ACTIONS WERE NOT TIMELY PROCESSED, AND AS A RESULT THE PROMOTIONS DID NOT BECOME EFFECTIVE UNTIL SEPTEMBER 15.

THE DELAYED EFFECTIVE DATES PROMPTED THE TWO EMPLOYEES TO FILE A GRIEVANCE THROUGH THEIR UNION REPRESENTATIVE, ALLEGING A VIOLATION OF ARTICLE 7, SECTION 5, OF THE MULTI-DISTRICT AGREEMENT BETWEEN THE IRS AND THE NTEU WHICH STATES:

ALL EMPLOYEES IN CAREER LADDER POSITIONS WILL BE PROMOTED ON THE FIRST PAY PERIOD AFTER A PERIOD OF ONE YEAR OR WHATEVER LESSER PERIOD MAY BE APPLICABLE PROVIDED THE EMPLOYER HAS CERTIFIED THAT THE EMPLOYEE IS CAPABLE OF SATISFACTORILY PERFORMING AT THE NEXT HIGHER LEVEL.

THE GRIEVANCE HAS BEEN HELD IN ABEYANCE PENDING OUR DECISION, WHICH COULD CONCEIVABLY RESOLVE THE MATTER IF THE RETROACTIVE ADJUSTMENT IS HELD TO BE PROPER AND IS ADMINISTRATIVELY IMPLEMENTED BY IRS.

OUR DECISIONS HAVE GENERALLY HELD THAT PERSONNEL ACTIONS, INCLUDING PROMOTIONS, CANNOT BE MADE RETROACTIVELY EFFECTIVE UNLESS CLERICAL OR ADMINISTRATIVE ERRORS OCCURRED THAT (1) PREVENTED A PERSONNEL ACTION FROM TAKING EFFECT AS ORIGINALLY INTENDED, (2) DEPRIVED AN EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION, OR (3) WOULD RESULT IN FAILURE TO CARRY OUT A NONDISCRETIONARY ADMINISTRATIVE REGULATION OR POLICY IF NOT ADJUSTED RETROACTIVELY. SEE 54 COMP. GEN. 263 (1974), AND DECISIONS CITED THEREIN; 52 ID. 920 (1973); AND 50 ID. 850 (1971). WE HAVE ALSO RECOGNIZED THAT THE ABOVE-STATED EXCEPTIONS TO THE GENERAL RULE, PROHIBITING RETROACTIVELY EFFECTIVE PERSONNEL ACTIONS, MAY CONSTITUTE "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS" UNDER 5 U.S.C. SEC. 5596 (1970), AND CONSEQUENTLY BE REMEDIABLE THROUGH THE PAYMENT OF BACK PAY (B-180056, MAY 28, 1974, AND 54 COMP. GEN. 312 (1974)).

FURTHERMORE, OUR RECENT DECISIONS CONSIDERING THE LEGALITY OF IMPLEMENTING BINDING ARBITRATION AWARDS, WHICH RELATE TO FEDERAL EMPLOYEES COVERED BY COLLECTIVE BARGAINING AGREEMENTS, HAVE HELD THAT THE PROVISIONS OF SUCH AGREEMENTS MAY CONSTITUTE NONDISCRETIONARY AGENCY POLICIES IF CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS, INCLUDING EXECUTIVE ORDER 11491, AS AMENDED. THEREFORE, WHEN AN ARBITRATOR ACTING WITHIN PROPER AUTHORITY AND CONSISTENT WITH APPLICABLE LAWS AND COMPTROLLER GENERAL DECISIONS DECIDES THAT AN AGENCY HAS VIOLATED AN AGREEMENT, THAT SUCH VIOLATION DIRECTLY RESULTS IN A LOSS OF PAY, AND AWARDS BACK PAY TO REMEDY THAT LOSS, THE AGENCY HEAD CAN LAWFULLY IMPLEMENT A BACK PAY AWARD FOR THE PERIOD DURING WHICH THE EMPLOYEE WOULD HAVE RECEIVED THE PAY BUT FOR THE VIOLATION, SO LONG AS THE RELEVANT PROVISION IS PROPERLY INCLUDABLE IN THE AGREEMENT. SEE 54 COMP. GEN. 312, SUPRA, AND 54 ID. 435 (1974). SIMILARLY, AN AGENCY HEAD ON HIS OWN INITIATIVE, WITHOUT WAITING FOR THE MATTER TO COME BEFORE AN ARBITRATOR, MAY CONCLUDE THAT THE AGREEMENT HAS BEEN VIOLATED AND INSTITUTE THE SAME REMEDY.

IN THIS CASE, NO CHALLENGE TO THE PROPRIETY OF INCLUDING ARTICLE 7, SECTION 5 OF THE MULT-DISTRICT AGREEMENT HAS BEEN PRESENTED EITHER TO THIS OFFICE OR TO THE FEDERAL LABOR RELATIONS COUNCIL IN ACCORDANCE WITH EXECUTIVE ORDER 11491, AS AMENDED. SINCE THAT ISSUE IS NOT BEFORE US, OUR CONSIDERATION IS LIMITED TO THE QUESTION OF WHETHER COMPLIANCE WITH THE PROVISION IN QUESTION WOULD CONSTITUTE A VIOLATION OF EXISTING STATUTES, REGULATIONS, OR EXECUTIVE ORDERS. IT DOES NOT APPEAR THAT COMPLIANCE WOULD BE SUCH A VIOLATION IN THE INSTANT CASE.

THE PROVISION IS A LAWFUL EXERCISE OF THE AGENCY'S DISCRETION TO EFFECT PROMOTIONS IN A TIMELY MANNER.

IN VIEW OF THE FOREGOING, WE WOULD HAVE NO OBJECTION TO PREARBITRATION ADMINISTRATIVE ACTION CHANGING THE EFFECTIVE DATES OF PROMOTION FOR THE TWO EMPLOYEES TO SEPTEMBER 1, 1974, IF THE AGENCY DETERMINES THAT THEY WOULD HAVE BEEN PROMOTED TO GRADE GS-7 POSITIONS EFFECTIVE SEPTEMBER 1, 1974, BUT FOR THE ADMINISTRATIVE FAILURE TO TIMELY PROCESS SUCH PROMOTIONS. CHANGES IN THE PROMOTION DATES WOULD ALSO REQUIRE ADJUSTMENT OF WAITING PERIODS FOR WITHIN-GRADE STEP INCREASES.