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lt jX/@-\TE COMPTROLLER GENERALDECISION ) :F T6.4E UNITED STATER

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FILE: B-190408 DATE: December 21, 1977

MATTER OF: Janice Levy - Arbitration Award ofRetroactive Promotion and Backpay

iDIGEST: 1. Where promotion of employee in career

ladder position was delayed becauseoriginal promotion request submittedby supervisor was lost in mails, agencymay not comply with arbitration awardof retroactive promotion and backpay.Original promotion request was Jostprior to approval of promotion byauthorized official and hence the delayin processing does not constitute sucbadministrative error as will supportretroactive promotion. Further, em-ployee had no vested right to promo-tion effective the same date as otheremployees in same career ladderprogram.

2. Award of retroactive pro.notion andbackpay may not be sustained basedon arbitrator's finding that emnloyeewould have been promoted March 28bui for loss of promotion request andthat such loss constituted violation ofcollective bargaining agreement pro-vision incorporating principle of equalpay for equal work. Retroactive pro-motion is appropriate where delay urfailure to promote violates nondis-cretionary agency regulation, policyor collective bargaining agreementprovision, or a right granted by statute.Arbitrator did not and, in fact, couldnot, find that principle of equal pay :forequal work mandates career ladderpromotion at a specific date.

The Department of Health, Education, and Welfare (HEW) hasrequested a decision concerning its authority to implement an ar-bitration award of retroactive promotion and backpay to Ms. JaniceLevy. The award was granted by the arbitrator as a remedy for

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IIEW's failure to process Ms. Levy's promotion simultaneouslywith the promotions of other similarly situated career ladderemployees. The Department believes that our decisions do notpermit it to comply with the award.

The facts are not in dispute and may be summarized as follows.Janice Levy is a Claims Representative in the Social Security Ad-ministration (SSA). She was hired at grade GS-5 and, upon 1 year'ssatisfactory service, was promoted to GS-7, effective March 16,1975. She became eligible for a career ladder promotion to GS-9after 1 year of service in the lower grade. Promotion requestswere initiated by the District Manager for a group of eligible em-ployees in the Brooklyn Office of the SSA, including Ms. Levy.Those requests were forwarded in a common envelope to theNew York Regional Personnel Officer of HEW, together with thesupervisor's recommendation that the promotions be made effec-tive March 28, 1976. All of the grievaunt's eligible coworkerswere promoted on March 28, 1976. However, for reasons thatremain unexplained, the promotion request made on Ms. Levy'sDehalf apparently never reached the Regional PTrsonnel Officerwho was authorized to approve promotion actions. As a result.Ms. Levy was not promoted along with the other employees onMarch 28, 1976. When the error was discovered, the DistrictManager, on May 7, resubmitted the promotion request, recom-mending that her promotion be made ru troactive to March 28,1970. The Regional Personnel Officer approved Ms. Levy'spromotion effective May 9, 1976, but declined to make it retro-active on tie ground that he had no authority to do so.

Ms. Levy filed a grievance as a result of the refusal topromote her on a retroactive basis. The matter was ultimatelysubmitted to arbitration under the agency's labor-managementagreement. On December 21, 1976, Eva Robins, the arbitrator,awarded Ms. Levy a promotion retroactive to March 28, '1976,together with backpay from that date through May 8, 1976. Theaward was predicated on the arbitrator's finding that the employerviolated the following nrovisior at Article XXV, Section 1.2 of thethe General Agreement Between the Bureau of District Office Op-erations, SSA, New York Region, and the New York-New JerseyCouncil of District Office Locals of the American Federation ofGovernment Employees, AFL-CYO:

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"The r: n)ployer and thu Union agree to theprinciple of equal pry for substantially equalwork as well as providin~g distinctions in pay thatare consistent with distinctions in work and workperformance. "

In awarding a retroactive promotion with backpay, the arbi-trator considered the Comptroller General's holding in B-180046,April 11, 1974, that where an original promotion request was lostin the mails the employee could not be promoted retroactivelyinasmuch as the loss occurred prior to approval by the particularofficial having delegattd authority to approve promotions. Thatdecision summarizes pertinent rulings with respect to retroactivityof proznotionni as follows:

"** * In cavyes involving approval of retroactivepromo: ions on the ground of administrative orclerical error it is necessary that the officialhaving delegated authority to approve the pro-motion has done so. If subsequent to suchapproval formal action to effect the promotionis not taken on a timely basis as intended by theapproving officer consideration may be given toauthorizing a retroactive effective date. Hcw-ever, when, as in this case, the delay or 'error'occurred prior to approval by such responsibleofficial the intent of the agency to promote hasnot been established and there is no basis forholding that e properly approved promotion wasdelayed due to an administrative or clericalerror. * ' *"

The arbitrator distinguished the situation a.ddressed in B-180046,supra, based first on the fact that Ms. Levy's promotion was part

a career ladder program, and based secondly on the fact thatloss of the initial promotion request had been established by clearand compelling evidence:

"It was acknowledged at the hearing thatthere is no question whatever about Ms. Levy'sperformance and eligibility for promotion as acareer ladder promotion It was stipulated that.but for Vie error, Ms. Levy would have had the

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promotional increase as of March 28, 1976. itappears to the Arbitrator to be cold comfort tothe grievant that retroactivity was requested bythe operating management but declined cn!y hecause Regional Personnel Management had norecord of receipt of the original form preparedand approved by that same operating management.Where, as here, it is clear that this was not anoptional promotion but was a part of a car.eerladder program in whLi:h hcr colleagues as wellas Ms. Levy were to be promoted as of a datecertain, the improper retroactivity which thecivil service and coniptroller general rulesappears to be aimed at pr.??nting would notseem to have the same characteristics. In theopinion of this Arbitrator, a lasting inequityresults from the application of the no-retroactivityprovision in exactly the same mnanner for careerladder promotions as for other promotions whiuhmigkt .require the added protections. There doesnot appear to be any doubt that the interpretationgiven by the Employer constitutes a continuingviolation of Article XXV, Section 12 of theagreement. "

The arbitrator stated that she believed this grievance to be dis-tinguishable from the Comptroller General's decision in B-180046,supra, not only because of the difference in the kind of promotionEvoled, but for other reasons as well. The arbitrator's opinioncontinued as follows:

"* * * There is here clear and compellingevidence of clerical or administrative error.Ms. Levy had inquired in advance about herpromotion, was tol6 it was in process. TheAssistant District Manager testified to its prep-aration and its transmittal as required. The per-formaiice appraisal supporting statements arcglowing, and contain no negative comment. As acareer ladder promotion, there can be no doubtthat Ms. Levy would have received the promotionas of March LB, 1976 but for the administrativeerror. It was stipulated at the hearing that error

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occurred. There is no basis upon which one candecide which of two conjectures is valic'; but eithc-the original Form 52 was lost before It reached theRegional Personnel Office, or it was loot after itreached that office and before it wvs acted cn there.

"Finally, it should be noted that the Arbitratorreads the Comptroller General's decision submittedas Employer Exhibit 4 [B-180046, April 11, 1974]as indicating that some retroactive correction ispermissible. Thus, in discussing the general 'rule',the decision states that where a personnel action wasnot effected as originally intended, the error may becorrected retroactively to comply with the originalintent, without violating the rule prohibiting retro-prohibiding retroactive promotions. Subsequentlanguage appears to raise other questions as to thetime when the error occurs, but does so on the basisof the establishment of the intent cf the agency. Itappears to the Arbitrator that, for the reasonsstated above, the clear intent of the Agency to rro-mote has beei established. Whether the correctionof error must be made by one department or anotherof the agency, since the error is found to result incontract violatlon it appears to the Arbitrator, andshe so finds, that it must be corrected tby the Agency."

The Social Security Admiznistration filed a petition for reviewand stay of the arbitration award with the Federal Labor RelationsCouncil (FLRC). In denying the petition for review and for stayof the awaid, the Council specifically rejected the agency's con-tention that the award violates the general rule prohibitingretroactive promotion, stating:

"The Council will grant review of an arbitrationaward in cases where it appears, based upon thefacts and circumstances described in the petition,that the exception to the award presents groundsthat the award violates applicable law and appro-priate regulation. In this case, however, theCouncil is of the opinion that the agency's petitiondoes not present facts and circumstances neces-sary to support its exception that the arbitrator's

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award violates applicable law and appropriateregulation. In this regard, the Council has pre-viously noted that, consistent with Civil ServiceCommission instructions and Comptroller Generaldecisions, it has been established that an agencymay be required to promote a particular individual,consistent with the Federal Personnel Manual, andaccord that individual backpay. when a finding hasbeen made by an arbitrator, or other competentauthority, that such individual would definitely (andin accordance with lair, regulation and/or thenegotiated agreement) nave been promoted at aparticular point in time but for, among other things,an agency violation of its negotiated agreement.* * * As noted previously the arbitrator specificallyfound that the error by the agency constituted aviolation of Article XXV. section 12 of the negotiatedagreement. Moreover, as noted by the arbitrator,it was stipulated that, but for the error, the grievantwould have been promoted on March 28. The agency'sargument that the provision found to be violated, be-cause of its lack of specificity, does not constitutea nondiscretionary agency requirement appears toconstitute nothing more than disagreement with thearbitrator's interpretation of Article XXV, sec-tion 12 of the parties' collective bargaining agree-ment. In this respect, Council precedent is clearthat a challenge to an arbitrator's interpretation ofa collective bargaining agreement is not a groundupon which the Council will grant review of anarbitration award. * * "

The above discussion is amplified by the following footnotesuggesting that decisions of this Office haz e permitted retroactivepromotions under similar circumstances where promotion requestshad not been approved by the properly delegated agency official:

"In support of its exception the agencycites decisions of the Comptroller General pro-hibiting retroactive promotions when the official::-aving authority to approve the promotion has notdone so. The agency alleges that in the facts andcircumstances of the instant case the official with

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the appropriate delegated authority was the RegionalPersonnel Officer and that o flcial had not approvedthe promotion. However, the Council notes that inat least two decisions the Comptroller General haspermitted retroactive promotions in cases involvingviolations of collective bargaining agr"eement provi-sions even though the appropriate agency officialhas not approved the promotions. 55 Comp.Gen. 42 (1975); B-180010, August 30, 1976. Thusin B-186utlO, August 30. 1976, involving a questionof whether an employee whore promotion was delayedcould be given a retroactive promotion, and in whichthe agency involved made arguments before theComptroller General similar to those imade by theagency in the instant case, the Comptroller Gencralconcluded that '[:]ince the arbitrator has determinedthat but for the agency's undue delay the grievantwould have been promoted earlier, we would haveno objection to processing a retroactive promotion* + * and paying the appropriate backpay. '"

Regarding the FLRC, we stated in 54i Comp. Gen. 312, 317 (1974):

"' * * When an agency doen choose to firstfile an exception with the Council, if the Council isunsure as to whether the arbitration award mayproperly be implemented in accordance with thedecisions of this Office, it should either submitthe matter directly to this Office for decision or,after ruling on any other issues involved in theexception which involve matters not within thejurisdiction of this Office, it should instruct theagency involved to request a ruling from thisOffice as to the legality of implementation ofthe award. "

That decision concedes the FLRC's authority to rule on questionsof the legality of implementation of an award in the first instancewhile at the same time reaffirming the Comptroller General'sstatutory responsibility as the final administrative authority to ruleon questions of the propriety of expenditures of appropriated funds.

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Upon an agency's request for decision or referral of ihe matterby the FLRC, where we have found that an arbitration award violatesapplicable law or regulations we have held that the award may not beimplemented. See 54 Comp. Gen. 921 (1975); 55 id. 183, 569;, 1062(1975); and 56 id. 57, 131 (1976). Althorgh in the instant rasc, theFLilC has opineid that the award does not violate applicable lawsand regulations, HEW questions the correctness of that determina-tion. Therefore, this Office will give further consideration to thequestion of whether the award contravenes the rule against retro-active promotions.

As a gencral rule a personnel action may not be made retroactiveso as to increase the right of an employee to compensation. Wc havemade exceptions to this rule where administrative or clerical error(1) prevented a personnel action from being effected as originallyintended, (2) resulted in nondiscretionary administrative regula-tions or policies not being carred out, or (3) Las deprived the ain-ployee of a right granted by statute or regulation. See 55 Comp.Gen. 42 (1975), 54 id. 888 (1975), and decisions cited therein.

With respect to delays or omissions in processing of promotionrequests that will be regarded a- administrative or clerical errorsthat will support retroactive promotion, applicable decisions havedrawn a distinction between those errors that occur prior to rp-proval of the promotion bv the properly authorized official andthose that occur after such approval but before the acts necessaryto effective promotion have been fully carried out. The rule is asstated in B-180046, quoted above. See also 54 Comp. Can. 539(1974); B-183969, July 2, 1975; and B-184817, November 28, 1975.The rationale for drawing this aistinction is that the individual with p

authority to approve promotion requests also has the authority notto approve any such request unless his exercise of disapprovalauthority is otherwise constrained by statute, administrative policyor regulation. Thus, where the delay or omission occurs beforethat official has had the opportunity to exercise his discretion withrespect to approval or disc pproval. administrative intent to pro-mote at any particular timL cannot be established other than byafter-the-fact statements as to what that official states would havebeen his determination. After I'ae authorized official has exer-cised his authority by approving the promotion requc st, all thatremains to effectuate that promotion is a series of ministerial "ctswhich could be compelled by writ of mandamus. In that catcg.).sy

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of case, administrative intent can be ascertained with certainty andretroactive promotion as a remedy for failure to accomplish thosemiuisterial acts is appropriate.

rhe arbitrator is of the opinion that the persuasiveness of theshowing of error is one factor that militates toward an exceptionto this rule. We note that in B-183969, supra, HEW itself requestedauthorization to retroactively effect 300 promotions, mostly careerladder promotions, based on a breakdown in procedures which;esulted in a failure to process promotion requests. In most casesof retroactive promotion requests, as in B-183969, the showing oferror is clear and certainly can be no more convincing than wherethe department or agency itself concedes the error and initiatesaction f- effect correction. Thus, we do not concur in the arbitra-tor's :?t'. rce on this factor.

The other factor which the arbitrator finds distinguishesMs. Levy's case and permits retroactive promotion is the fact thathers was a career ladder position. The arbitrator states that herswas not an "opt ional promotion but part of a cnFrecr ladder programin which her colleagues as weli as Als. Levy were to be promiotedas of a date certain. " The arbitrator specifically finds that thisdifference in the kind of promotion "has meaning" and, from acareful reading of the arbitrator's opinion, it appearF that thisperceived distinction is the touchstone for the award.

We note that the opinion does not specifically refer to anvregulation, instruction or policy of either HEW or the SSA makingcareer ladder promotions obligatory and, in fact, the parties'agreement appears to confirm the nonexistence of any such require-ment by its reservation for further negotiations of the matter ofcareer ladder promotions. Article XXXVI, Section 14, of theagreement prevides:

"In the event the Employer obtains authorityto negotiate the effective date of career ladderpromotions, the parties agree to negotiate asupplement to the General A greement. "

In the absence of any such administrative regulation, instruction,or policy, career ladder promotions arc not mandatory. Sub-chapter 4-2b(2) of chapter 335 of the Fcderal Personnel Alanualspecifically provides that an agency may make successive carcrladder promotions:

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"(2) Career ladder position. An agency maymake successive career promotions of an employe-until he reaches the full performnnce level in acareer ladder if he is one of a group in which allemployees are given grade-building experience andare promoted as they demonstrate ability to performat the next higher level, and if there is enough workat the full performance level for all employees inthe gro ip. ' ""

In B-163715, January 22, 1970, we held that employees in suchpositions have no vested right to be promoted at any specific Limeand that the dates of such promotions were within the discretionaryauthority of the official having promotion approval authority. Thefact that career ladder employees have no vested right to promotionin the absence of a mandatory administrative regulation, instruc-tion or policy or provision in a collective bargaining agreementwas recently reaffirmed in Matte: of Adrienne Ahearn, B-186649,January 3, 1977. Compare Alat'cr Ft JosLph Pom1peo, B-18691.1,April 25, 1977, where retroactive promotions were upheld basedon the cxistenc' of an agency policj mandating promotion wherethere had been certification that a career ladder employee was per-forming at an acceptable level of competence.

Thus, we disagree with the arbitrator's conclusion that underpertinent regulations and decisions initiation of a promotionrequest without approval by the authorized official establishesagency intent + * promote within the context of the administrativeerror rule discussed above and that those authorities do not applyto career ladaer promotions where error is established by clearand convincing evidence.

The FLRC, in denying the SSA's request for review suggeststhat there is an alternative basis upon which the arbitration awardcan be upheld. As indicated by the above-quoted language from itsdecision, the FLRC is of the opinion that decisions of this Office,sperifically 55 Ccinp. Gen. 42 (1975), and B-180010. August 3, 1976,permit retroactive promotion wvhcre there has been a determinationof error on the agency's part amounting to a violation of a negotiatedagreement and where, but for that error, the employee would havebeen promoted on a specific date. Noting that the arbitrator speci-fically found that but for loss of the promotion request 10s. Levy

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would 'ave been promoted on March 28 and that such loss constituteda viliation of Article XXV, Section 12, of tlhe agreement, the FLRCfinds a basis for sustaining the award.

As indicated above, one exception to the rule prohibitingretroactive pronoticn is where the failure to promote constitutesviolation of a nondiscretionary regulation or policy. We have rerog-nized that an agen:cy, by agreeing to a provision of a collectiv'ebargaining agrceinent may, as well as by its own prorrmulgation :,fregulations and instructions, limit its discretion to such a degreethat it becomes mandatory nnder certain conditions to promoteclasses of employees. In both 55 Comp. Gan. 42, supra, andB-180010, supra, the collective bargaining agreements containedprovisions mandating promotion of career ladder employees. In55 Comp. Gen. 42, supra, the agreement included the followingspecific provision:

"All employees in career ladder positionswill be promoted on the first pa'y period after aperiod of one year or whatever lesser period maybe applicable provided the employer has; certifiedthat the employee is capable of satisfactorily per- Sforming at the next higher level. "

Tha arbitrator in that case found that the Internal Revenue Servicehad vioLated that provision in delaying promotions of seven employeesfor up to 2 months. In upholding the arbitration award, we statcs:

"* * *ovr recent decisions considering thelegality of implemonting binding arbitrationawards, which relate to Federal employeescc tered by collective-ba.'gaining agreenicnts,have held that the p'ovisions of such agreementsmay constitute nondiscretionary agency policiesif consistent with applicable laws and reguiations,including Executive Order 11491, as amended.There.'ore, when an arbitrator acting withinproper authority and consisten' with applicablelaws and Comptroller General decisions, decidesthat an agency has violated an agreement, thatsuch violation directly results in a loss of pay,and awards uackpay to remedy that loss, theagency head can lawfully implement a backpay

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award for the period during which the employeewould have received the pay but for the violation,so long as as the relevant provision is properlyincludable in the agreement. a; "'

There, retroactive promotions were properly awarded based uponthe arbitrator's finding that the delays in the promotions violated 4nondiscretionary agency policy. See also 54 Comp. Gen. 888 (1975).In B-180010, supra, the award of retroactive promotion was partiallyupheld based on the arbitrator's finding that the agency had violatedthe nondiscretionary policy to which it had subscribed in the col-lective bargaining agreement mandating, rather than permitting,promotion of certain career ladder employees when they had metthe qualifications of the position, demonstrated ability to performat the higher level and provided there was enough work at the fullperformance level for all employees in the career ladder group.Thus, not every violation of a collective bargaining agreementwill support the award of a retroactive promotion, but only violationof a nondiscretionary agency policy. See 55 Comp. Gen. 427 (1975),and 54 Comp. Gen. 403 (1974).

The FLRC suggests that the arbitrator's finding that SSAviolated Article XXV, Section 12, of the agreement amounts to afinding of violation of such a mandatory agency requirement. Havingreviewed the arbitrator's opinion we are unable to find that shespecifically construed Article XXV, Section 12, as mandating pro-motion of career ladder employees at any specific time. Rather,she appears to have concluded that the inequity that woild resultfrom failure to retroactively promote the employee violates thegeneral concept of equal pay for equal work as incorporated in theagreement. Moreover, wvŽ do not believe that the arbitrator couldspecifically find that the language of that section constitutes a non-discretionary agency policy mandating promotion of career ladderemployees within any specific timefrannc.

In interpreting the language of a collective bargaining agree-ment, the arbitrator is bound by applicable laws and regulations.Where a particular provision1 does nothing more than incorporatecontrolling laws and regulations into the agreement, the arbitratoris not free to disregard administrative and judicial constructi:inof such provision and the obligation of this Office to determinewhether the agreement, as construed by the arbitrator, violates

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applicable laws and regulations extends to a consideration ofthe arbitrator's interpretation of such specific provision.

The language of Article XXV, Section 12, in substance, ismerely a restatement of the following provision of the Classifica-tion Act as codified E 5 U. S.C. § 5101 (1970):

"S 5101. Purpose

"It is the purpose of this chapter to providea plan for classification of positions whL. eby--

"(1) in determining the rate of basicpay which an employee will receive--

"(A) the principle of equal payfor substantially equal work will befollowed; and

"(B) variations in rates of basicpay paid to different employees will be inproportion to substantial differences inthe difficulty, responsibility, and qualifi-cation requirements of the work performedand to the contributions of employees toefficiency and economy in the service* X 8. "

That language sets forth a basic precept of the position classifi-cation system established in 1949. Odian v. United States. 203 Ct.Cl. 321 (1973). Even with respect to classification actions, theargument has been judicially rejected that the principle of equal payfor equal work mandates the upgrading of positions at any specificdate, Brech v. United States immigration and Naturalization Service,362 F. 9upp. 914 (1973), much less that it permits payment of backpayas a remedy for failures to timely reclassify, Hancke v. Spsrearof Health, Education and Welfare, 535 F. 2d 1291 act7G). ll¶htthat substantially similar language is incorporated into a collectivebargaining agreement does not, in our opinion, give the arbitratorauthority to now find that language of a law that has been in exis-tence since 1949 mandates career ladder promotions, given the

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above court decisions and the fact that decisions of this Officepostdating 1949 heve repeatedly held that employees, and in

particular career ladder employees, have no vested right topromotion.

Accordingly, we hold that HEW iay no comply with thearbitrator's award of retroactive pi imotiui i backpay toMs. Levy.

Doputy Comntroller Generalof the United States

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