Social Security Administration and AFGE Local 2369 (Authority decision, September 29, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

An arbitrator ordered a career-ladder promotion retroactive to the date an SSA employee first became eligible, with backpay. The employee’s supervisor had delayed preparing the forms needed for approval. The Authority held that the Back Pay Act permits a retroactive promotion for delay after approval by the authorized official, but the delay here preceded approval. It set aside the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Arbitration award set aside; retroactive promotion and backpay removed.
• Key point: A delay before authorized approval did not support a retroactive promotion under the Back Pay Act.

Full text (FLRA public release)

[ v10 p163 ]

10:0163(33)AR

The decision of the Authority follows:

10 FLRA No. 33

SOCIAL SECURITY ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2369
Union

Case No. O-AR-370

DECISION

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

THE DISPUTE IN THIS MATTER CONCERNS A DELAY IN THE PROMOTION OF THE
GRIEVANT. THE GRIEVANT BECAME ELIGIBLE FOR A CAREER LADDER PROMOTION ON
AUGUST 24, 1980. HOWEVER, THE SUPERVISOR IN CHARGE NEGLECTED TO EXECUTE
THE NECESSARY FORMS TO HAVE THE GRIEVANT'S PROMOTION APPROVED AND MADE
EFFECTIVE ON THAT DATE. THE DELAY IN FILING THE NECESSARY FORMS
RESULTED IN THE GRIEVANT'S PROMOTION NOT BEING EFFECTIVE UNTIL OCTOBER
5, 1980. A GRIEVANCE WAS FILED PROTESTING THE DELAY THAT WAS ULTIMATELY
SUBMITTED TO ARBITRATION.

THE ARBITRATOR FOUND THAT THE ACTIVITY HAD VIOLATED THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT BY NOT TIMELY PROCESSING THE GRIEVANT'S
PROMOTION AND THAT SUCH VIOLATION HAD RESULTED IN THE GRIEVANT'S
PROMOTION BEING DELAYED FROM AUGUST 24 TO OCTOBER 5. ACCORDINGLY, THE
ARBITRATOR ORDERED THAT THE GRIEVANT'S PROMOTION BE MADE RETROACTIVE TO
AUGUST 24, 1980, WITH BACKPAY.

AS ONE OF ITS EXCEPTIONS, THE AGENCY ESSENTIALLY CONTENDS THAT THE
AWARD IS DEFICIENT AS CONTRARY TO THE BACK PAY ACT, 5 U.S.C. 5596. THE
AUTHORITY AGREES. AS WAS EXPLAINED IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, SAN FRANCISCO REGION AND OFFICE OF PROGRAM OPERATIONS, FIELD
OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 7 FLRA
NO. 98(1982), THE BACK PAY ACT PROVIDES STATUTORY AUTHORITY TO AWARD A
RETROACTIVE PROMOTION AND BACKPAY IN PROMOTION DELAY CASES ONLY WHEN THE
UNWARRANTED DELAY IS SUBSEQUENT TO APPROVAL OF THE PROMOTION BY THE
PROPERLY AUTHORIZED OFFICIAL. ACCORD DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION, AREA III AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3231, 8 FLRA NO.
50(1982). AS HAS BEEN NOTED, THE UNWARRANTED DELAY IN THIS CASE WAS IN
EXECUTING THE NECESSARY FORMS TO OBTAIN THE APPROVAL OF THE GRIEVANT'S
PROMOTION. CONSEQUENTLY, THE ARBITRATOR'S ORDER THAT THE GRIEVANT'S
PROMOTION BE MADE RETROACTIVE TO AUGUST 24, 1980, WITH BACKPAY IS
DEFICIENT AS NOT AUTHORIZED BY THE BACK PAY ACT. U.S. ARMY AIR DEFENSE
CENTER, FORT BLISS, TEXAS AND NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-22, 10 FLRA NO. 32(1982). ACCORDINGLY, THE
ARBITRATOR'S AWARD IS SET ASIDE. /1/

ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ IN VIEW OF THIS DECISION, IT IS NOT NECESSARY TO RESOLVE THE
AGENCY'S OTHER EXCEPTION TO THE AWARD.