AFGE San Francisco Region and Social Security Administration, San Francisco Region (Authority decision, January 15, 1982)

Final FLRA decision. This is a final order of the Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless it involves an unfair labor practice under 5 U.S.C. § 7116. This promotion grievance does not state that it involves an unfair labor practice.

Plain-English summary

A Social Security claims technician's manager approved her career-ladder promotion to GS-7 for November 2, 1980, but paperwork failed to reach the regional personnel office and the promotion took effect in January 1981. An arbitrator ordered a retroactive promotion with backpay, finding that only ministerial steps remained after the manager's approval. The agency argued that the Back Pay Act and its regulations barred the remedy. The Authority rejected those exceptions because a clerical delay after the authorized approval could be remedied with retroactive pay, and left the award in place.

Decision snapshot

• Authority: 5 U.S.C. § 5596(b)(1), 5 U.S.C. § 7122(a).
• Outcome: Agency exceptions denied; retroactive promotion and backpay award upheld.
• Key point: A clerical delay after an authorized promotion approval can support a retroactive pay remedy.

Full text (FLRA public release)

[ v07 p622 ]

07:0622(98)AR

The decision of the Authority follows:

7 FLRA No. 98

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
SAN FRANCISCO REGION
Union

and

OFFICE OF PROGRAM OPERATIONS,
FIELD OPERATIONS, SOCIAL
SECURITY ADMINISTRATION,
SAN FRANCISCO REGION
Activity

Case No. O-AR-249

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR LIONEL RICHMAN FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/ (THE STATUTE)
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
2425). THE UNION FILED AN OPPOSITION.

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER
CONCERNS THE EFFECTIVE DATE OF THE GRIEVANT'S PROMOTION. THE GRIEVANT,
A GS-6, CLAIMS TECHNICIAN, BECAME ELIGIBLE FOR PROMOTION TO GS-7 ON
NOVEMBER 2, 1980. SIX WEEKS PRIOR TO THAT ELIGIBILITY DATE, HER
DISTRICT MANAGER EXECUTED THE NECESSARY FORMS IN ORDER FOR HER PROMOTION
TO BE EFFECTIVE NOVEMBER 2, 1980. THE FORMS WERE TIMELY RECEIVED BY THE
AREA OFFICE, BUT WERE NOT RECEIVED BY THE REGIONAL PERSONNEL OFFICE.
CONSEQUENTLY, A DUPLICATE SET OF FORMS WAS FORWARDED TO THE REGIONAL
OFFICE AND THE PROMOTION WAS MADE EFFECTIVE JANUARY 11, 1981. A
GRIEVANCE WAS FILED REQUESTING THAT THE PROMOTION BE MADE RETROACTIVE
WITH BACKPAY TO NOVEMBER 2, 1980. THE REQUEST WAS DENIED AND THE
GRIEVANCE WAS SUBMITTED TO ARBITRATION.

IN TERMS OF THE GRIEVANCE THE ARBITRATOR FOUND THAT UNDER THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT, ONCE THE GRIEVANT'S DISTRICT
MANAGER MADE THE REQUIRED DETERMINATION THAT THE CAREER LADDER PROMOTION
OF THE GRIEVANT WAS WARRANTED AND HAD APPROVED THE PROMOTION, THE
MINISTERIAL ACTS TO EFFECTUATE THAT PROMOTION HAD TO BE COMPLETED IN
TIME FOR THE GRIEVANT'S PROMOTION TO BE EFFECTIVE AS SOON AS POSSIBLE
AFTER SHE MET THE ELIGIBILITY AND TIME-IN-GRADE REQUIREMENTS. THUS, THE
ARBITRATOR DETERMINED THAT THE AGENCY HAD FAILED TO COMPLY WITH THIS
REQUIREMENT WHEN THE GRIEVANT WAS NOT PROMOTED ON NOVEMBER 2, 1980.
CONSEQUENTLY, EMPHASIZING THAT THE REQUIRED DISCRETION WITH RESPECT TO
THE APPROVAL OF THE GRIEVANT'S PROMOTION HAD BEEN EXERCISED AND WAS
INTENDED TO BE EFFECTIVE NOVEMBER 2, 1980, SUBJECT ONLY TO A MINISTERIAL
REVIEW OF THE GRIEVANT'S ELIGIBILITY, THE ARBITRATOR RULED THAT IN
EFFECT THE GRIEVANT'S PROMOTION OCCURRED ON NOVEMBER 2, 1980, AND THAT
THE GRIEVANT WAS THEREFORE ENTITLED TO A RETROACTIVE PROMOTION WITH
BACKPAY TO NOVEMBER 2, 1980.

IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY
TO THE BACK PAY ACT. /2/ SPECIFICALLY, THE AGENCY MAINTAINS THAT
FAILURE TO TIMELY PROMOTE AN AGGRIEVED EMPLOYEE WHICH ONLY DELAYS THE
EMPLOYEE'S PROMOTION IS NOT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL
ACTION WITHIN THE MEANING OF THE BACK PAY ACT FOR WHICH AN AWARD OF
BACKPAY IS AUTHORIZED.

HOWEVER, DIRECTLY CONTRARY TO THE AGENCY'S ASSERTIONS, IT IS CLEAR
THAT THE BACK PAY ACT PROVIDES THE STATUTORY AUTHORITY TO AWARD A
RETROACTIVE PROMOTION AND BACKPAY TO REMEDY AN ADMINISTRATIVE OR
CLERICAL ERROR WHICH DELAYED A PROMOTION. /3/ IN SUCH CASES IT IS
ESSENTIAL ONLY THAT THE OFFICIAL HAVING THE AUTHORITY TO APPROVE THE
PROMOTION HAS DONE SO; WHEN, SUBSEQUENT TO THAT APPROVAL, FORMAL
MINISTERIAL ACTION TO EFFECT THE PROMOTION IS NOT TAKEN ON A TIMELY
BASIS AS REQUIRED OR INTENDED, A RETROACTIVE PROMOTION WITH BACKPAY IS
AUTHORIZED. /4/ AS HAS BEEN NOTED, THE ARBITRATOR IN MAKING HIS AWARD
EXPRESSLY FOUND THAT THE GRIEVANT'S DISTRICT MANAGER WAS THE OFFICIAL
WITH THE AUTHORITY TO APPROVE HER PROMOTION; THAT THE REQUIRED
DISCRETION WITH RESPECT TO THE GRIEVANT'S PROMOTION HAD BEEN EXERCISED;
THAT THE GRIEVANT'S PROMOTION HAD BEEN EXPRESSLY APPROVED BY HER
DISTRICT MANAGER; AND THAT IN TERMS OF THIS CASE THE GRIEVANT'S
DISTRICT MANAGER INTENDED, AND THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT REQUIRED, THAT THE GRIEVANT'S PROMOTION WAS TO BE EFFECTIVE
NOVEMBER 2, 1980. THUS, TO REMEDY THE UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION SUFFERED BY THE GRIEVANT WHICH RESULTED IN THE
GRIEVANT'S PROMOTION BEING DELAYED PAST THE DATE IT WOULD OTHERWISE HAVE
BEEN EFFECTIVE, THE ARBITRATOR PROPERLY ORDERED IN ACCORDANCE WITH THE
BACK PAY ACT THAT THE GRIEVANT'S PROMOTION BE RETROACTIVELY EFFECTIVE AS
OF NOVEMBER 2, 1980, WITH BACKPAY. CONSEQUENTLY, NO BASIS IS PROVIDED
FOR FINDING THE AWARD CONTRARY TO THE BACK PAY ACT.

IN ITS SECOND AND THIRD EXCEPTIONS THE AGENCY CONTENDS THAT THE AWARD
IS CONTRARY TO AGENCY REGULATIONS DELEGATING THE APPOINTING AUTHORITY
FOR PROMOTIONS AND THAT THE AWARD IS BASED ON A NONFACT. IN SUPPORT OF
THESE EXCEPTIONS, THE AGENCY HAS SUBMITTED AN AGENCY MEMORANDUM ON THE
SUBJECT OF THE DELEGATION OF APPOINTING AUTHORITY. ON THE BASIS OF THAT
MEMORANDUM, THE AGENCY MAINTAINS THAT THE REGIONAL PERSONNEL OFFICE WAS
VESTED WITH THE AUTHORITY TO APPROVE THE GRIEVANT'S PROMOTION INSTEAD OF
THE DISTRICT MANAGER AS FOUND BY THE ARBITRATOR. IN HIS AWARD, HOWEVER,
THE ARBITRATOR SPECIFICALLY ADDRESSED THE QUESTION OF WHO HAD THE
AUTHORITY TO APPROVE THE GRIEVANT'S PROMOTION. THE ARBITRATOR EXPRESSLY
ACKNOWLEDGED THAT THE REGIONAL PERSONNEL OFFICE WAS VESTED WITH THE
APPOINTING AUTHORITY, BUT ON THE BASIS OF SPECIFIC PROVISIONS OF THE
AGENCY'S PERSONNEL GUIDES FOR SUPERVISORS, /5/ THE ARBITRATOR ALSO
RECOGNIZED THAT THE GRIEVANT'S DISTRICT MANAGER WAS THE SELECTING
AUTHORITY FOR PURPOSES OF THE GRIEVANT'S PROMOTION. ON THE BASIS OF THE
EVIDENCE PRESENTED, AND EMPHASIZING IN PARTICULAR THE TESTIMONY OF THE
PERSONNEL SPECIALIST WHO FUNCTIONED AS THE APPOINTING AUTHORITY FOR THE
REGIONAL PERSONNEL OFFICE, THE ARBITRATOR DETERMINED THAT THE SELECTING
AUTHORITY WAS THE ONE WITH THE POWER TO APPROVE THE GRIEVANT'S
PROMOTION. CITING THE TESTIMONY OF THE SPECIALIST, THE ARBITRATOR
CONCLUDED THAT THE APPOINTING AUTHORITY WAS LIMITED TO DETERMINING
ELIGIBILITY FOR PROMOTION AND WAS REQUIRED TO EFFECTUATE THE PROMOTIONS
OF THOSE WHO MET THE ELIGIBILITY REQUIREMENTS.

IN THESE CIRCUMSTANCES, THE AGENCY HAS FAILED TO ESTABLISH THAT THE
ARBITRATOR'S AWARD REMEDYING THE UNWARRANTED DELAY IN THE GRIEVANT'S
PROMOTION IS CONTRARY TO AGENCY REGULATION. /6/ LIKEWISE, THE AGENCY
HAS NOT SHOWN THAT THE CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY
ERRONEOUS AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A
DIFFERENT RESULT WOULD HAVE BEEN REACHED. CONSEQUENTLY, THE AGENCY'S
SECOND AND THIRD EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
DEFICIENT.

IN ITS FOURTH EXCEPTION THE AGENCY CONTENDS THAT "THE AWARD CREATES A
NEW CONTRACT BETWEEN THE PARTIES (BY) WHICH THE AGENCY CANNOT ABIDE." IN
SUPPORT OF THIS CONTENTION, THE AGENCY REFERS TO ITS ARGUMENTS MADE IN
SUPPORT OF ITS FIRST THREE EXCEPTIONS. AS PREVIOUSLY INDICATED, THESE
ARGUMENTS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.

FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., JANUARY 15, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/2/ 5 U.S.C. 5596(1976 & SUPP. III 1979).

/3/ 55 COMP.GEN. 836(1976).

/4/ E.G., MATTER OF ADMINISTRATIVE ERROR-- RETROACTIVE PROMOTIONS,
B-183969, JULY 2, 1975.

/5/ A COPY OF THIS DOCUMENT WAS SUBMITTED BY THE UNION AS PART OF ITS
OPPOSITION TO THE AGENCY'S EXCEPTIONS.

/6/ THE AUTHORITY NEED NOT, THEREFORE, DECIDE WHETHER THE REGULATION
CITED BY THE AGENCY CONSTITUTES A "RULE OR REGULATION" WITHIN THE
MEANING OF SECTION 7122(A)(1) OF THE STATUTE.