In re Retroactive Promotion Pursuant to Arbitration Award

Citation54 Comp.Gen. 538
Decision Date30 December 1974
Docket NumberB-181271
CourtComptroller General of the United States

Arbitration - award - retroactive promotion with back pay - entitlement arbitration award based on compromise settlement by union and office of economic opportunity that grants employee retroactive promotion, but makes increased pay for higher level position prospective, is improper to the extent that it does not provide for back pay since salary is part of position to which employee is appointed and May not be withheld. Thus, employee is entitled to back pay incident to retroactive promotion under provisions of 5 U.S.C. 5596. Arbitration - award - modification arbitrator's effective date of June 29, 1973, for retroactive promotion based on earlier findings of grievance examiner cannot be sustained since evidence shows agency head had not exercised his discretion to promote employee until July 7, 1973. Thus award is modified to make effective date of retroactive promotion at beginning of first pay period after July 7 1973, when official authorized to make appointments acted. Arbitration - award - implementation by agency retroactive promotions - back pay act where arbitrator's award cannot be legally implemented and contains no findings and conclusions, our office favors returning it to arbitrator with our objections and for modification. However, where this is unfeasible, this office will in special cases modify the award to conform to requirements of law and regulations.

In the matter of retroactive promotion pursuant to arbitration award, December 30, 1974:

This matter concerns 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 a retroactive promotion without back pay to barbara n. Copeland, an oeo employee. The arbitration award resulted from a grievance filed by the national council of oeo locals American federation of government employees (afge), afl-cio on behalf of ms. Copeland, dated August 23, 1973, with Mr Randal teague, special assistant to the director, the oeo official authorized to resolve grievances in accordance with article 16, section 7, of the national agreement between office of economic opportunity and AFGE (afl-cio) for national council of oeo locals, dated March 1972.

The record indicates that in the prearbitration stage of the grievance, Mr. Teague reviewed the record and met with the employee and a representative of the union. From the evidence in the case, he found that ms. Copeland's supervisors in the migrants and seasonal farm workers branch, programs operation division, had made an official finding during March 1973 that she had performed "duties at the gs-9 level at an acceptable level of competence" and in June 1973 had recommended her for promotion from grade gs-7 to gs-9. Further, Mr. Teague found that the oeo director-designate, alvin j. Arnett, had approved promotion documents for ms. Copeland on July 7, 1973, and forwarded them to the oeo personnel office for administrative processing. However, the personnel office failed to process ms. Copeland's promotion.

Mr. Teague found for the employee on August 27, 1973, and in the exercise of his authority executed documents granting ms. Copeland a retroactive promotion effective June 29, 1973, and forwarded them to the oeo office of administration for approval. These promotion forms were not approved and on September 26, 1973, the union initiated action to submit the grievance to binding arbitration. An arbitrator was selected and hearings were held on December 13 and 17, 1973, during which agency and union representatives presented evidence and arguments.

A review of the transcript of the arbitration proceedings reveals the following relevant information, derived from the earlier grievance proceedings and other documents. The bargaining agreement incorporated by reference all existing agency regulations, including a regulation that required routine personnel actions, such as promotions, to be processed within 8 days after submission of the request by a properly authorized official. Ms. Copeland's promotion request was submitted by her immediate supervisor on June 29, 1973, and approved by the agency head, Mr. Arnett, on July 7, 1973. However, the oeo personnel office did not complete the administrative processing of the approved request.

On July 6, 1973, Mr. Arnett signed documents transferring the office to which ms. Copeland was assigned, the migrant and seasonal farm workers branch, to the department of labor. The effective date of this transfer was set as August 5, 1973. As a result of this action, the assistant secretary for administration and management of the department of labor, forwarded a letter dated July 16, 1973, to all members of the staff of the migrant and seasonal farm workers branch, including ms. Copeland, offering these employees employment with the department of labor. The letter extended an offer to transfer into the department at the employees' same grade and salary and with the same tenure. In response to this letter, ms. Copeland, on July 17, 1973, signed and returned the form provided as an attachment to the aforementioned letter. On this form she checked the following statement: "i accept the offer to transfer at my same grade and salary and with my same tenure from the office of economic opportunity to the department of labor." Immediately after this statement, ms. Copeland wrote, "presently gs-7. Will only accept a gs-9." Management contends that by conditioning her transfer, ms. Copeland had in effect declined the offer to transfer to the department of labor with her position duties, upon which her request for promotion was based.

Other evidence in the record indicates that on July 25, 1973, oeo promulgated a letter to provide information to employees that had evidenced a desire to decline the offer of transfer, indicating the consequences of their election and the future status of their employment with oeo. This letter read in part:

If an employee declines an offer of transfer (either directly or by failing to return the offer letter), he will be retained at oeo at least 30 days after the scheduled transfer date (that is until September 4 for those who had already received offer letters and September 18 for those who will be identified through the volunteer process.)

After the 30-day period, management May lay the employee off, without RIF competition. However, Mr. Arnett has committed the agency to making every effort to place employees who decline in bona fide continuing oeo positions particularly when there is hardship involved, such as commutation or regionalization possibilities.

Ms. Copeland remained in the office of operations after August 5, 1973, as an administrative assistant to the former director of the migrant's division, Mr. Griffith, until her unofficial detail on September 15, 1973, to the office of human rights. Subsequently, on October 26, 1973, ms. Copeland was reassigned as a grade gs-7, administrative assistant in the office of human rights.

After receiving all the above evidence in the record, the arbitrator remarked late in the morning of the second day of hearings, "*** that the equity certainly does not seem on management's side ***, " and inquired if there was any way that both parties could settle the matter. The parties had an "off the record" discussion, at the conclusion of which the arbitrator stated for the record, without objection, that an agreement had been reached, whereupon the hearing was immediately ended.

On the same date, December 17, 1973, the arbitrator made his award, which we presume must have been based on the aforementioned agreement although the arbitrator stated no findings of fact or conclusions of law to support his award. This presumption is supported by the union in a letter to this office dated November 19, 1974, in which the union states: "an award implementing the agreement was then and there issued by arbitrator daugherty ***." The award was as follows:

It is decided that barbara n. Copeland is awarded a promotion to g.S. 9 effective June 29, 1973. However, no back pay is awarded. The g.S. 9 salary shall take effect next pay period after the date of this decision.

It is noted that June 29, 1973, is the same date that Mr. Teague had previously assigned as the effective date...

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