In re Unfair Labor Practice Make-Whole Remedies

Decision Date19 March 1975
Docket NumberB-180010
Citation54 Comp.Gen. 760
PartiesIN THE MATTER OF UNFAIR LABOR PRACTICE MAKE-WHOLE REMEDIES.
CourtComptroller General of the United States

Compensation - removals, suspensions, etc. - back pay - unfair labor practices unfair labor practices which involve personnel actions by agency directly affecting employees May be regarded as unjustified or unwarranted personnel actions under back pay act, 5 U.S.C. 5596 (1970), and assistant secretary of labor for labor-management relations May order agency to pay such back pay allowances, differentials, and other substantial financial employee benefits as are authorized under 5 c.F.R., part 550, subpart h, provided it is established that, but for the unfair labor practice, the harm to the employee would not have occurred. Interest - back pay - statutory authority required assistant secretary of labor for labor-management relations May not order agency to pay interest on back pay awards in absence of specific statutory authority. Officers and employees - back pay act - applicability - unsuccessful applicants for appointment excluded the back pay act of 1966, 5 U.S.C. 5596, is applicable only to federal employees and does not apply to unsuccessful applicants for employment. Therefore, while the assistant secretary of labor for labor-management relations is authorized to take affirmative action when he finds that an agency has engaged in an unfair labor practice in hiring he has no authority to direct an agency to make an appointment under the back pay ACT. General accounting office - decisions - requests - review basis under provisions of 31 U.S.C. 74 and 82d, agency heads and authorized certifying officers have statutory right to seek decision from this office on propriety of payments. Hence, agency May legitimately delay implementation of a determination by the assistant secretary of labor for labor-management relations involving expenditure of funds pending comptroller general decision.

This matter involves a request for an advance decision as to whether certain federal employee make-whole remedies under the back pay act of 1966, 5 U.S.C. 5596 (1970), and other relevant statutes are available to the assistant secretary of labor for labor-management relations (a/slmr), for use under his authority to remedy improper personnel actions caused by unfair labor practices (ulp).

The a/slmr is authorized by executive order 11491, as amended, 3 C.F.R. 254 (1974), to decide ulp complaints and upon finding that a ulp has occurred is authorized to require agencies or labor organizations to take remedial action. In this connection, sections 6(a)(4) and 6(b) provide:

Sec. 6. Assistant secretary of labor for labor-management relations.
(a) the assistant secretary shall -
(4) decide unfair labor practice complaints and alleged violations of the standards of conduct for labor organizations; ***
(b) in any matters arising under paragraph (A) of this section, the assistant secretary May require an agency or a labor organization to cease and desist from violations of this order and require it to take such affirmative action as he considers appropriate to effectuate the policies of this order.

The unfair labor practices that May result in erroneous personnel actions to employees and thus require remedial measures are set forth in sections 19(a)(1), 19(a)(2), and 19(a)(4) of the order and are as follows:

Sec. 19. Unfair labor practices. (A) agency management shall not -
(1) interfere with, restrain, or coerce an employee in the exercise of the rights assured by this order:
(2) encourage or discourage membership in a labor organization by discrimination in regard to hiring, tenure promotion, or other conditions of employment;
(4) discipline or otherwise discriminate against an employee because he has filed a complaint or given testimony under this order;

Specifically the a/slmr has requested this office to decide whether he has authority to employ make-whole measures under the back pay act of 1966, 5 U.S.C. 5596, supra, or any other relevant statute when he finds violations of the order involving the discriminatory failure to promote, to hire and/or to pay overtime. In addition the a/slmr requests whether he has authority to order the payment of interest along with any back pay award.

The back pay act of 1966, 5 U.S.C. 5596, supra, provides as follows:

Sec. 5596. Back pay due to unjustified personnel action
(a) for the purpose of this section, "agency" means -
(1) an executive agency;
(2) the Administrative Office of the United States courts;
(3) the library of congress;
(4) the government printing office; and
(5) the government of the District of Columbia.
(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.
(c) the civil service commission shall prescribe regulations to carry out this section. However, the regulations are not applicable to the Tennessee valley authority and its employees.

The above-quoted statute requires that a finding be made by an appropriate authority that an employee has undergone an unjustified or unwarranted personnel action. Appropriate authority is defined in regulations implementing the back pay statute contained in 5 c.F.R., part 550, subpart H....

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