Department of Health and Human Services, Social Security Administration, Area III (Activity) and American Federation of Government Employees, Local 3231, AFL-CIO (Union)



[ 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. FRAZ