[ v08 p240 ]
08:0240(50)AR
The decision of the Authority follows:
8 FLRA No. 50 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, AREA III Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3231 Union Case No. O-AR-258 DECISION THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF ARBITRATOR HILLARD KREIMER FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. SEC. 7122(A)) AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2425). THE UNION DID NOT FILE 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-9 CLAIMS REPRESENTATIVE, BECAME ELIGIBLE FOR A CAREER LADDER PROMOTION TO GS-10 IN APRIL 1980. SEVERAL WEEKS PRIOR TO HIS ELIGIBILITY DATE, THE GRIEVANT'S DISTRICT MANAGER EXECUTED THE NECESSARY FORMS IN ORDER FOR HIS PROMOTION TO BE EFFECTIVE AT THAT TIME. HOWEVER, THESE FORMS WERE NEVER RECEIVED BY THE REGIONAL PERSONNEL OFFICE. CONSEQUENTLY, A DUPLICATE SET OF FORMS WAS FORWARDED TO THAT OFFICE AND THE GRIEVANT'S PROMOTION WAS EFFECTIVE MAY 18, 1980. A GRIEVANCE WAS FILED REQUESTING THAT THE PROMOTION BE MADE RETROACTIVE WITH BACKPAY TO APRIL 6, 1980. THE REQUEST WAS DENIED AND THE GRIEVANCE WAS SUBMITTED TO ARBITRATION. BEFORE THE ARBITRATOR, THE ACTIVITY ARGUED THAT THE LOSS OF A PROMOTION REQUEST PRIOR TO APPROVAL BY THE AUTHORIZED OFFICIAL DOES NOT CONSTITUTE AN ADMINISTRATIVE ERROR WHICH WILL SUPPORT AN AWARD OF RETROACTIVE PROMOTION WITH BACKPAY. THE ARBITRATOR FOUND THAT THE MAJOR CONDITION PRECEDENT TO THE GRIEVANT'S CAREER LADDER PROMOTION WAS THE DISTRICT MANAGER'S VERIFICATION THAT THE GRIEVANT'S PROMOTION WAS WARRANTED AND HER APPROVAL OF THAT PROMOTION. NOTING THAT SUCH CONDITION HAD BEEN FULLY MET PRIOR TO THE GRIEVANT'S ELIGIBILITY DATE, THE ARBITRATOR, CONTRARY TO THE AGENCY'S POSITION, EXPRESSLY FOUND THAT THIS MATTER CONSTITUTED AN ADMINISTRATIVE ERROR THAT COULD PROPERLY BE CORRECTED. HE THEREFORE RULED THAT ON ACCOUNT OF THIS ADMINISTRATIVE ERROR, THE GRIEVANT HAD SUFFERED AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH RESULTED IN THE DELAY IN HIS PROMOTION FOR WHICH HE WAS ENTITLED TO HIS REQUESTED RETROACTIVE PROMOTION AND BACKPAY. THUS, AS HIS AWARD, THE ARBITRATOR SUSTAINED THE GRIEVANCE. IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO THE BACK PAY ACT, 5 U.S.C. SEC. 5596 (SUPP. III 1979). THIS EXCEPTION HOWEVER PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT. THIS CASE IS NOT MATERIALLY DIFFERENT FROM AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION AND OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 7 FLRA 622 (1982). IN THAT CASE AN EMPLOYEE'S CAREER LADDER PROMOTION WHICH HAD BEEN APPROVED BY HER SSA DISTRICT MANAGER WAS DELAYED BECAUSE THE NECESSARY FORMS TO EFFECTUATE THAT PROMOTION WERE NOT INITIALLY RECEIVED BY THE REGIONAL PERSONNEL OFFICE AND HAD TO BE DUPLICATED. AS ONE OF ITS EXCEPTIONS TO THE ARBITRATOR'S AWARD IN THAT CASE (WHICH ORDERED THE AGGRIEVED EMPLOYEE RETROACTIVELY PROMOTED WITH BACKPAY), SSA CONTENDED THAT THE AWARD WAS CONTRARY TO THE BACK PAY ACT. HOWEVER, IN DENYING THAT EXCEPTION, THE AUTHORITY EXPRESSLY HELD THAT "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." ID. AT 623. ACCORDINGLY, FOR THE REASONS SET FORTH IN GREATER DETAIL IN OFFICE OF PROGRAM OPERATIONS, NO BASIS HAS BEEN PROVIDED FOR FINDING THAT THE ARBITRATOR'S AWARD IN THIS CASE IS CONTRARY TO THE BACK PAY ACT. THE AGENCY'S EXCEPTION IS THEREFORE DENIED. /1/ ISSUED, WASHINGTON, D.C., MARCH 24, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ IT IS NOTED THAT THE GRIEVANCE IN THIS CASE REQUESTED THAT THE PROMOTION BE MADE RETROACTIVE TO APRIL 6, 1980, WHILE THE ACTIVITY CONTENDED THAT THE EFFECTIVE DATE SHOWN ON THE ORIGINAL (MISSING) SF-52 WAS APRIL 20, 1980. IN COMPLYING WITH THE ARBITRATOR'S AWARD, THE ACTIVITY SHOULD DETERMINE, IN ACCORDANCE WITH APPLICABLE LAW AND REGULATION, THE DATE ON WHICH THE GRIEVANT'S PROMOTION WOULD HAVE BEEN EFFECTIVE (APRIL 6 OR APRIL 20) HAD THE ADMINISTRATIVE ERROR NOT OCCURRED AND MAKE THE RETROACTIVE PROMOTION EFFECTIVE AS OF THAT DATE.