American Federation of Government Employees, San Francisco Region (Union) and Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region (Activity)

 



[ 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