In re implementation of arbitration award

Decision Date20 November 1974
Docket NumberB-181069
CourtComptroller General of the United States

Arbitration - award - grant of retroactive promotion - implementation by agency - back pay act arbitration award providing retroactive effective dates of promotions and compensation for three office of economic opportunity employees May be implemented under back pay act, 5 U.S.C. 5596, since arbitrator found that bargaining agreement had been breached which incorporated by reference agency regulation requiring promotion requests to be processed in 8 days.

This matter involves 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 retroactive promotions and back pay to certain oeo employees. The arbitration award stemmed from a grievance filed by the national council of oeo locals on September 24 1973, alleging certain violations of the national agreement between the office of economic opportunity and American federation of government employees (AFGE) (afl-cio) for national council of oeo locals, dated March 31, 1972. The grievance with which we are specifically concerned alleged that the agency had delayed promotions to certain employees in the office of economic development of the oeo in violation of the time frame established by oeo staff manual 250-2 which was incorporated by reference into the agreement by article 2, section 2 of the agreement.

During the later part of September 1973, the oeo initiated standard forms 52, request for personnel action, to promote the personnel involved. Classification survey was conducted from September 28, 1973 to November 5, 1973. At the end of the survey, 7 of the 8 promotion requests that had been submitted by the office of economic development were granted.

The arbitration hearing of the grievance was held on December 10 1973, in Washington, D.C., at which representatives of the agency and the union appeared and presented their cases. The arbitrator found the agreement had been violated and stated the rationale for his findings as follows:

A principal area of disagreement between the parties concerns the time frame within which promotions must be effected. Oeo staff manual 250-2 sets forth time frames for personnel actions and states:

Time frames

To Expedite the Processing of Standard Form 52 Through the Various Steps, the Following Time Frames Have Been Established. They Are Applicable Only If the Request Follows A Routine Schedule. This Means that All Necessary Forms Documents and Additional Memoranda Are Properly Signed and Received in Personnel With the Request that No Changes Be Made By the Requesting Office.

Specific times are allotted to all Actions.Eight days is the time allotted for the action with which we are concerned here. The agreement provides that regulations of the employer "will govern the procedure in matters relating to employment, along with applicable law and the agreement." The staff manual is a regulation within the meaning of the agreement. A management witness testified that the handbook was "just a guide for the Administrative Officer, nothing we ever lived by." It is a well established principle in law that the government is bound to follow the regulations it issues. The situation here is not identical, but it is analogous. Until the policies set forth in the handbook are changed, in the agreed upon manner it is incumbent upon the employer to follow them. This is given contractual recognition in article 2, section 2. The agreement provides flexibility for the employer in the matter of the establishment and change of policies and practices. It does not contemplate the establishment and subsequent disregard of policy. This is what we have here and in consequence the agreement has been violated.

The parties have left a matter which May be of some consequence unbriefed by their after-hearing decision to dispense with briefs.

The grievance asks that the promotions be made "effective no later than the beginning of the next pay period." This shows recognition that effective dates should coincide with the start of a pay period and not split a pay period. The literal adherence to the processing period referred to in the staff manual might contravene this principle. Interpretation recognizing this practice means that the eight day period referred to in the staff manual May be adjusted to make promotions effective at the beginning of the pay period following the expiration of the processing period.

Based on the above-quoted findings and conclusions the arbitrator made the following award on January 31, 1974:

Management is required to process promotions within the time frames established by oeo staff manual 250-2, as discussed above.
Failure of management to follow the manual May result in an award establishing a date consistent with the time frames in the staff manual, as discussed above, which result in both retroactive pay and a retroactive effective date for promotion.
Thelma woodland's promotion is to be made effective October 14, 1973.
Narva ross' promotion is to be made effective October 7 1973.
Craig hathaway's promotion is to be made effective October 7, 1973.

Oeo does not agree with the arbitrator's findings and conclusions and does not believe there is legal authority under which the award May be implemented. In support of this thesis, oeo argues as follows:

It was and is, this agency position that anytime an audit is deemed necessary in order to justify or support a particular promotion it constitutes a deviation from the norm. It should be noted that the arbitrator did not directly contend that the promotion delay was either the result of an unjustified and/or unwarranted personnel action, or administrative error, nor did he rule that "they were" delayed as the result of any discrimination. It is this agency's contention that the promotions followed the classification study in a timely manner and that a promotion retroactive to a time proceeding the classification would not be in keeping with the requirements of 5 CFR 550.803.

The arbitrator's authority to interpret the agency's regulation stems from the fact that it was incorporated by reference into the collective bargaining agreement. Article 2, section 2 requires the parties to abide by "all federal laws, applicable state laws, regulations of the employer, and this agreement in matters relating to the employment of employees covered by this agreement." Article 3, section 9, specifically refers to the oeo handbook in a list of oeo directives which oeo employees must follow once a general distribution is made. Article 3, sections 6 and 7 require prior consultation in most instances before such directives May be changed. We therefore believe that the arbitrator's authority to interpret the provisions of a collective bargaining agreement under section 13 of executive order 11491, 3 CFR 254 (1974) extends to the interpretation of the agency's own...

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