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OPM Contact: Murray M. Meeker
This responds to a request for an advance decision from the
Manager of the [agency]. The request concerns whether the [agency]
has authority to pay retroactive cost-of-living adjustments
(COLA's) to those employees in the [xxx] Region who were on pay
retention when they were converted from wage grade positions to
series 2101 positions in the General Schedule in December 1994. It
is OPM's determination that [xxx] lacks authority to pay
retroactive COLA's to [xxx] employees.
The [xxx], the labor organization that represents the affected
employees, reports that numerous wage grade employees did not have
their pay set accurately at the time of the conversion. [xxx]
asserts that this occurred because [xxx] erroneously instructed
employees in January 1995 that an employee's pay retention would
terminate if the employee elected to terminate grade retention, and
that it was not until August 1996, that [xxx] correctly advised
employees that pay retention already in effect at the time of the
conversion would not terminate where an employee elected to
terminate grade retention and most importantly that such an
election to terminate grade retention would entitle employees to a
[xxx] reports further that [xxx] continued to provide
misinformation in December 1996 when [agency] staff in [xxx] were
advised that converted [agency] employees were not eligible for
COLA's. [xxx] maintains that [xxx's] failure to set the pay of
affected employees at the maximum level constituted a violation of
both the [agency's] Personnel Management System and the
Agreement Between the [xxx] and the [xxx] (February 10,
1992) (Agreement). While [xxx] acknowledges that there was
a lack of information, [xxx] has indicated that it does not have
the authority to make the retroactive payments.
[xxx] disagrees and contends that Section 2 of Article 35 of the
Agreement compels a different result. On its face, this
section of the Agreement appears to simply incorporate the
simultaneous action provision in OPM's pay setting regulations, 5
C.F.R. 531.203(f), which states that when an employee becomes
entitled to two salary adjustments at the same time, the changes
shall be effected in the order that provides the employee with the
maximum benefit. This section applies only when two pay setting
actions may be effected simultaneously; it is inapplicable where an
election must be made before an action may be taken. However, OPM
declines to definitively construe collective bargaining agreements.
[xxx] may pursue its position through arbitration. Our decision is
limited to the issue of whether erroneous information, by itself,
may justify a back pay award.
It is well established that an agency is not authorized to pay
retroactive benefits as a result of any misinformation that may
have been provided to employees. Erroneous advice does not
constitute an unjustified or unwarranted personnel action under the
Back Pay Act, Pub. L. No. 100-202, 5 U.S.C. 5596. 60 Comp. Gen. 417