37:1176(101)AR - - Treasury, IRS, Brookhaven Service Center and NTEU Chapter 99 - - 1990 FLRAdec AR - - v37 p1176



[ v37 p1176 ]
37:1176(101)AR
The decision of the Authority follows:


37 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

BROOKHAVEN SERVICE CENTER

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 99

(Union)

0-AR-1789

DECISION

October 24, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator James P. Whyte filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

A grievance was filed over the amount of an incentive award that the grievant had received for sustained superior performance. The Arbitrator found that the grievance was arbitrable and that the grievant was entitled to an award in excess of the 5 percent he had received. The Arbitrator remanded the grievance to the parties for a determination of an award in excess of 5 percent but not more than 10 percent.

For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On February 8, 1988, the grievant, a GS-8 Tax Examiner Assistant at the Agency's Brookhaven Service Center (BSC), received an incentive award of $818 in connection with an outstanding rating on all three critical elements of his performance for the appraisal period of December 1986 to October 5, 1987. On February 18, 1988, the grievant filed a grievance alleging that the award was not based on his salary at the time the award was approved, and that the amount of the award--5 percent of his salary--did not reflect the extent to which his performance exceeded the performance level for an outstanding rating. The grievant alleged that the Agency's action violated Articles 4 and 18 of the parties' agreement and Internal Revenue Manual (IRM), 0451.(1) As a remedy, the grievant sought (1) an award based on his pay rate as of the day of approval, and (2) an increase in the amount of the award to reflect superior performance exceeding outstanding performance. The grievant also sought information on how award amounts are determined.

The pay rate issue was resolved when management agreed that the grievant's award should have been based on his salary at the time the award was approved. Management denied the remaining part of the grievance and arbitration was invoked. At the hearing, the issues before the Arbitrator were:

1. Is the Grievance substantively arbitrable?

2. Did Management comply with Article XVIII and applicable rules and regulations in determining Grievant's incentive award for the period December, 1986--October, 1987 and, if not, what remedy is applicable?

3. Does Management have an obligation under the Agreement and rules and regulations to provide Grievant with an explanation of how the award amount was determined?

Award at 3. Except for issue 1, the issues were stipulated by the parties.

With respect to the first issue, the Agency contended before the Arbitrator that the grievance was not arbitrable under Article 18 of the parties' agreement, which provides for awards in accordance with IRM, 0451. The Agency asserted that under Article 18, Section 3, management has sole discretion to determine the amount of monetary awards and the award received by the grievant was within the parameters set forth in IRM, 0451. The Union argued that Article 41 of the agreement defines a grievance as any complaint by an employee relating to employment.(2) The Union maintained that the grievance satisfied the contractual definition and, therefore, was arbitrable. The Arbitrator found that Article 41, Section 2, A.1. of the agreement "clearly defines a grievance as any matter relating to the employment of an employee," and that "Article 18 provides, as a matter relating to employment, the granting of performance awards in accordance with the provisions of IRM 0451." Award at 7. The Arbitrator found, therefore, that the grievance, questioning the amount of a performance award, was arbitrable.

The Arbitrator sustained the grievance on the merits. He rejected the Agency's contention that Article 18, Section 3 of the agreement provides management with sole discretion to determine the amount of awards. The Arbitrator found that IRM, Exhibit 0451-4 and Article 4, Preamble 8.(a) and Section 1, B.9. of the agreement demonstrate that "[m]anagement's discretion in determining the amount of performance awards is not unlimited but is subject to reasoned consideration of each employee's performance when, as here, the awards are individual[.]" Id. at 8. The Arbitrator further found that the evidence "clearly and convincingly proves" that: (1) management's determination of the grievant's 5 percent award failed to account for the volume of error-free work he produced compared to other employees; (2) other employees who received 5 percent awards did far less work than the grievant during the period in question; and (3) it appeared that the grievant's work on referrals from the District Office was overlooked by his supervisor and by the Branch Chief, who was also unaware of the volume of grievant's work compared to other employees. Id. The Arbitrator noted that the Branch Chief "candidly admitted that knowledge [or] consideration of these matters could have resulted in a higher award." Id.

The Arbitrator found that "[e]vidence of [m]anagement's budgetary considerations was somewhat general." Award at 8. The Arbitrator found that "[n]onetheless it appeared, with one exception [an employee received an award of 15%], that awards were capped at five percent to meet a dollar limitation." Id. at 8. The Arbitrator found that "[t]his approach constituted an arbitrary guideline in light of the fact that IRM, Exhibit 0451-4 permits awards in excess of five percent, 'up to' ten percent, for employees rated outstanding on all critical elements." Id.

The Arbitrator concluded that the grievant was entitled to an award in excess of 5 percent. Because the grievant's appraisal was not produced at the hearing, the Arbitrator remanded the grievance to the parties for a "determination of a performance award in excess of five percent up to ten percent."(3) Id. The Arbitrator stated that the remand would satisfy the grievant's request for information on how award amounts are determined.

The Arbitrator also retained jurisdiction, pursuant to Article 44, to consider any Union claim for attorney fees.

III. First Exception

A. Positions of the Parties

The Agency contends that the issue of the grievant's monetary award was not arbitrable. The Agency states that Article 18, Section 3, and the IRM "reserve the amount of an award to the sole discretion of management." Exceptions at 4. The Agency asserts that the "applicable contractual and [IRM] language regarding the amount of awards is framed in terms of ranges . . . with no specific restrictions upon the Employer's determination of where a particular employee falls within this range." Id. Relying on Article 18, Section 1 A. and the IRM, the Agency contends that the "language describing management's discretion is unambiguous," while the "language of Article 41 relied upon by the Arbitrator . . . provides only a general definition of the term 'grievance.'" Exceptions at 5. The Agency claims that this language and the evidence demonstrates that the parties "did not envision the grievance definition of Article 41 to extend the Arbitrator's jurisdiction to reviewing the precise amount of a performance award." Id. at 6. The Agency asserts, therefore, that the grievance is not arbitrable because it concerns a matter which the contract left "solely to the discretion of management." Id.

The Union contends that Article 41 of the agreement is a "broad-scope" grievance article. Opposition at 6. The Union states that the grievance asserted that management violated Articles 4 and 18 of the agreement. This complaint, according to the Union, "clearly falls within the grievance definition of . . . Article 41, § 2(A)(1)(a)." Id.

B. Analysis and Conclusions

The application of Article 18 of the agreement was an issue submitted to the Arbitrator. Further, the agreement contains its own definition of grievance. Article 41, Section 2 A. defines grievance as "any complaint: 1. by an employee concerning any matter relating to the employment of the employee . . . ." The Arbitrator interpreted the agreement and found that the grievance, questioning the amount of the award given under Article 18, was arbitrable because it concerned a matter relating to the employment of the employee under Article 41, Section 2.

The Authority has held that the interpretation and application of the collective bargaining agreement is a question solely for the arbitrator in that it is the arbitrator's construction of the agreement for which the parties have bargained. Department of Health and Human Services, Social Security Administration, Louisville, Kentucky District and National Federation of Federal Employees, Local 1790, 10 FLRA 436, 437 (1982). Thus, the Agency's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the agreement, and, consequently, provides no basis for finding the award deficient. See Independent Letterman Hospital Workers Union and Department of the Army, Letterman Army Medical Center, Nutrition Care Division, Presidio of San Francisco, California, 32 FLRA 322 (1988); U.S. Army Corps of Engineers, Kansas City District and National Federation of Federal Employees, Local 29, 22 FLRA 151 (1986).

IV. Second, Third and Fourth Exceptions

A. Positions of the Parties

1. Agency

The Agency contends that the award violates its right to determine its budget under section 7106(a)(1) of the Statute. The Agency cites Department of the Air Force, Langley Air Force Base v. FLRA, 878 F.2d 1430 (4th Cir. 1989) (unpublished decision) (Langley Air Force Base). In that case, the court denied enforcement of the Authority's decision in National Association of Government Employees, Locals R4-26 and R4-196 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 607 (1988). The court found that proposals mandating awards of varying salary percentages to employees receiving certain performance ratings directly interfered with management's right to determine its budget under section 7106(a)(1) of the Statute. The Agency asserts that Article 18, Section 1 A. "acknowledges management's reserved right to determine its budget." Therefore, the Agency contends that its determination to limit most cash awards to 5 percent due to budgetary constraints was a proper exercise of its right. Id. at 8.

The Agency also contends that the award does not draw its essence from the agreement. The Agency asserts that the "Agency's budgetary limitations were improperly dismissed by the [A]rbitrator as 'arbitrary.'" Id. at 7. The Agency states that under Article 18, Section 1 A., performance awards are made "on the basis of merit and within applicable budget limitations to individuals or groups." Id. (Emphasis in original). The Agency asserts that "uncontested testimony" established that based on the BSC's proposed budget a "managerial decision was made to limit most monetary awards to a maximum of five percent of an employee's salary." Id. The Agency contends that in spite of this evidence, the Arbitrator found that evidence of management's budgetary consideration was "somewhat general and that to cap awards at 5% based on budgetary constraints was arbitrary." Id. The Agency states that the Arbitrator's determination "ignores the language of [Article 18, Section 1 A] of the agreement." Id. at 9.

The Agency further contends that the Arbitrator exceeded his authority by remanding the grievance to the parties for a determination of the amount of grievant's performance award. The Agency asserts that the "language of the applicable provisions leaves the amount of the award to the exclusive discretion of the Agency; there is no provision for the Union's involvement in this determination." Id. at 10. The Agency states that it is inappropriate for the Arbitrator to direct a remedy that the Union did not achieve in contract bargaining. The Agency contends, therefore, that by fashioning a remedy which directs Union participation in the determination of the amount of the award, the Arbitrator exceeded his authority under the agreement. The Agency also contends that because the Arbitrator fashioned a remedy that is not provided for in the agreement, the award fails to draw its essence from the agreement.

2. Union

The Union states that the Agency's exceptions should be denied because the award is not deficient on any of the grounds set forth in section 7122 of the Statute.

The Union disputes the Agency's claim that the Arbitrator's award interferes with management's right to determine its budget. The Union states that the Arbitrator's decision "cannot interfere with management's right to determine its budget where the evidence shows award amounts are set without impact on or regard for the Agency's award budget." Id. at 11. The Union asserts, therefore, that the court's decision in Langley Air Force Base is "irrelevant." Id.

The Union asserts that the Agency has not established that the Arbitrator's award does not draw its essence from the contract. The Union maintains that the Arbitrator correctly evaluated the evidence and concluded that management's cap of 5 percent on sustained superior performance awards was arbitrary. The Union asserts that the record does not establish that because of BSC's budget a managerial decision was made to limit most monetary awards to a maximum of 5 percent. The Union states that "[t]estimony by management officials . . . is much more ambiguous on the issue of management's budgetary considerations in setting award amounts." Id. at 8. The Union asserts that the Arbitrator's conclusion that the evidence was "somewhat general" is clearly supported by the record. Id. at 10. According to the Union, management did not show that the 5 percent limitation was based on budgetary considerations. The Union states that the evidence shows that "[a]lthough management set a 'rough' guideline, this 'guideline' was flexible and could be varied depending on individual circumstances." Id. The Union asserts that the Agency's objection to this finding is "mere disagreement with [the Arbitrator's] evaluation of the record." Id.

The Union further contends that the Arbitrator's remedy, remanding the grievance to the parties for a determination of the specific amount of grievant's award, is within the scope of his remedial powers. The Union states that the "parties stipulated that the issue of determining the appropriate remedy . . . was specifically left to the Arbitrator." Id. The Union further states that this remedy was ordered because: (1) the Arbitrator was unable to set the award amount in excess of 5 percent due to management's failure to produce the award recommendation supporting their decision; and (2) discussion between management and the Union satisfies the grievant's request for information regarding management's determination of award amounts. The Union contends that the award does not grant the Union the right to negotiate award amounts, but rather "merely designates a process to insure that the [g]rievant is fairly compensated for his performance in accord with contractual requirements." Id. at 13. The Union states that there is nothing in the agreement which precludes this remedy, and further states that Article 43 of the contract permits the Arbitrator to make an aggrieved employee whole.

The Union contends that the Arbitrator's remedy is "based on his interpretation of [g]rievant's rights and management's obligations" under the agreement. Id. at 14. The Union states that management's assertion that he "exceeded his authority by [the] remand is mere disagreement with his interpretation" of the agreement. Id.

B. Analysis and Conclusions

1. The Award Is Not Contrary to Law

The Agency argues, based on Langley Air Force Base, that the award violates its right to determine its budget under section 7106(a)(1) of the Statute. Specifically, the Agency contends that Article 18, Section 1 A recognizes management's right to determine its budget, and that management's determination to limit most cash awards to 5 percent was a proper exercise of this right. The Agency asserts, therefore, that the Arbitrator's determination that the limitation of awards to 5 percent was arbitrary is contrary to management's right to determine its budget. We disagree.

In Fort Stewart Schools v. FLRA, 58 U.S.L.W. 4624 (U.S. May 29, 1990) (Fort Stewart), affirming 860 F.2d 396 (11th Cir. 1988), the Supreme Court upheld the Authority's determination that the proposals therein did not interfere with management's right to determine its budget pursuant to section 7106 of the Statute. The Court noted the Authority's finding that in order "'[t]o establish that a proposal directly interferes with an agency's right to determine its budget under section 7106(a)(1) of the Statute, an agency must make a substantial showing that a proposal requires the inclusion of a particular program or amount in its budget or that the proposal will result in significant and unavoidable increases in cost not affected . . . by compensating benefits.'" Fort Stewart, 58 U.S.L.W. at 4627, quoting Fort Stewart (Georgia) Association of Educators and Fort Stewart Schools, 28 FLRA 547, 551 (1987).(3)

In Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA No. 79, slip op. at 10-12 (1990) (Norfolk Naval Shipyard), we found, relying on the Court's decision in Fort Stewart, that a proposal which delineated the ranges of performance awards payable to unit employees for the attainment of various levels of performance did not directly interfere with management's right to determine its budget under section 7106(a)(1) of the Statute. We applied the budget test set forth in Wright-Patterson and found that the agency had not established that the proposal required a particular program or amount to be included in the agency's budget or that the proposal would result in a significant and unavoidable increase in costs to the agency. Further, in view of the Supreme Court's decision in Fort Stewart, the court's decision in Langley Air Force Base was not followed to the extent that it pertained to management's right to determine its budget.

In this case, the Arbitrator found, based on the record evidence, that management's action in limiting the grievant's performance award to 5 percent was contrary to Articles 4 and 18 of the agreement and to the guidelines contained in the IRM, which permit awards of up to 10 percent for employees like the grievant who receive outstanding ratings on all critical job elements. The record evidence does not establish that the award would require the inclusion of a particular program or amount in the Agency's budget or that the award would result in significant and unavoidable increases in costs to the Agency. See Fort Stewart and Wright-Patterson. Rather, the evidence shows that the award only requires management to comply with Article 18, which provides that "[p]erformance recognition awards . . . are made by the Employer on the basis of merit and within applicable budget limitations to individuals . . . .," and the IRM in determining the grievant's award.

Although management argues that a determination had been made to limit awards to 5 percent based on its budget, the evidence does not establish that the award would result in significant and unavoidable increases in costs to the Agency.(4) The evidence shows that the 5 percent limitation was a guideline rather than a budgetary requirement. In particular, we note that the Arbitrator found the record evidence on the issue of management's budgetary considerations to be "somewhat general." Award at 8. In this respect, a management official testified before the Arbitrator that although a 5 percent guideline had been established, "if [an employee was] more outstanding than another, there's a possibility that that percentage could be higher based on the individual facts." Transcript at 84. The management official also testified that "we never stop the award process," and that if funds were exhausted before the end of the year payment would be delayed and paid out of the next year's funds or money within the budget would be reallocated to cover the awards. Transcript at 81 and 85 and Award at 5. Further, the Arbitrator found that the grievant's Branch Chief was unaware of the volume of the grievant's work and that he admitted that knowledge of that factor could have resulted in a higher award. Award at 8. Additionally, there was evidence that one employee received an award of 15 percent. Id. at 4. Thus, consistent with the Arbitrator's determination, the record evidence does not establish that budgetary considerations required management to limit the award to five percent. We conclude, therefore, that the award requiring the parties to determine the amount of the grievant's award within the ranges determined by the Arbitrator does not directly interfere with management's right to determine its budget.

We note that this case is distinguishable from Norfolk Naval Shipyard, mentioned above, where we found that a proposal delineating the ranges of performance awards was nonnegotiable because it conflicted with 5 C.F.R. § 430.503(c)(1). The proposal in that case did not allow meaningful review of the award by the budget reviewing official as required by the regulation. The official would have had no authority to disapprove the award. In this case, management had determined, pursuant to procedures set forth in the agreement and an Agency regulation, that the grievant should receive a performance award. Awards are granted under these procedures on the basis of "merit and within applicable budget limitations." See Article 18 in the Appendix. Thus, under these procedures management, unlike in Norfolk Naval Shipyard, had an opportunity to approve or disapprove the award. The Arbitrator's award only interprets and enforces these procedures.

We conclude, therefore, that the Agency has failed to support its claim that the award interferes with its right to determine its budget. See, for example, American Federation of Government Employees, AFL-CIO, Local 3477 and Commodity Futures Trading Commission, 27 FLRA 440 (1987); National Treasury Employees Union and Internal Revenue Service, 27 FLRA 132 (1987) (proposals establishing rate of incentive pay for performance found negotiable; proposals did not interfere with management's right to determine its budget).

2. The Award Concerning Article 18, Section 1 A. Does Not Fail to Draw Its Essence From the Agreement

For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and the purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (Department of Labor). The Agency has failed to demonstrate that the award is deficient under any of the tests outlined above.

The Agency contends that, in spite of evidence demonstrating that its decision to limit awards to 5 percent was based on budgetary limitations, the Arbitrator improperly found that management's decision was arbitrary. According to the Agency, the Arbitrator ignored the language of Article 18, Section 1 A. which "expressly provides for the application of budget limitations to performance awards." Exceptions at 7. However, we find that the Arbitrator considered Articles 4 and 18 of the agreement and determined that management's discretion in determining the amount of awards in the circumstances of this case was not unlimited but was subject to reasoned consideration of each employee's performance. Article 18 incorporated the IRM as it concerns awards. Further, after reviewing the evidence, the Arbitrator found that evidence of management's budgetary considerations was "somewhat general" and that its approach in limiting the award to 5 percent in light of IRM, Section 0451-4 was arbitrary. Award at 8. The Arbitrator's award, therefore, was based on his interpretation of the relevant provisions of the agreement.

The Agency has provided no basis for concluding that the Arbitrator's interpretation can in no rational way be drawn from the agreement, is unfounded in reason and fact and unconnected to the wording of the agreement, or does not represent a plausible interpretation of the agreement. The Agency's contention merely constitutes disagreement with the Arbitrator's interpretation and application of the agreement. That contention provides no basis for finding the award deficient under section 7122(a) of the Statute. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 462-63 (1990).

In connection with this exception, the Agency contends that the Arbitrator failed to recognize "uncontested testimony [that] established that based on and because of the [BSC's] proposed budget, a managerial decision was made to limit most awards to a maximum of five percent of an employee's salary." Exceptions at 7. The Agency's contention concerning the Arbitrator's evaluation of the evidence fails to establish that the award is deficient. The Agency's contention constitutes noting more than disagreement with the Arbitrator's: (1) findings of fact; (2) evaluation of the evidence and testimony; and (3) reasoning and conclusions. Therefore, it provides no basis for finding the award deficient. See George C. Marshall Space Flight Center, National Aeronautics and Space Administration, Huntsville, Alabama and Marshall Engineers and Scientists Association, International Federation of Professional and Technical Engineers, 34 FLRA 348 (1990).

3. The Arbitrator Did Not Exceed His Authority With Respect to the Remedy Ordered and the Remedy Does Not Fail to Draw Its Essence From the Agreement

An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 700, 703 (1990); U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168, 1178 (1988).

A stipulated issue before the Arbitrator was whether the Agency complied with the agreement and applicable rules and regulations in determining grievant's award, and if not, "what remedy is applicable." Award at 3. The Arbitrator concluded, based on the evidence presented to him, that the Agency violated the agreement and an Agency regulation in determining the grievant's award. The Arbitrator determined that the evidence established that the grievant was entitled to an award in excess of 5 and up to 10 percent. After finding the violation, and in response to another stipulated issue concerning management's obligation to provide the grievant with information concerning his award, the Arbitrator remanded the grievance to the parties for a determination of the award amount within the percentage ranges determined as appropriate. The Arbitrator, noting that a document used by management to evaluate grievant for the award was not produced at the hearing, stated that the remand would satisfy the grievant's information request.

We find that the award remanding the grievance to the parties is directly responsive to and properly confined to the issues before the Arbitrator and to his decision that the Agency violated applicable provisions of the agreement and the IRM. See Patent and Trademark Office, 32 FLRA 1168, 1178-79 (arbitrators have considerable latitude in fashioning remedies). Thus, the Agency's exception provides no basis for finding the award deficient.

Further, in Section IV. B.2. above, we set forth the test, as stated in Department of Labor, for determining whether an award is deficient because it fails to draw its essence from the agreement. As we stated above, the Arbitrator found that the Agency violated the agreement and the IRM in determining the amount of the grievant's award. The Arbitrator found, based upon the evidence, that the agreement and the IRM required that the grievant, who had received outstanding ratings on all critical elements, receive an award in excess of 5 percent and up to 10 percent. The Arbitrator's award remanding the grievance to the parties for a determination of the amount within the defined ranges is based on his interpretation of the agreement and the IRM. The Agency has provided no basis for concluding that the Arbitrator's interpretation can in no rational way be drawn from the agreement, is unfounded in reason and fact and unconnected to the wording of agreement, evidences a manifest disregard for the agreement, or does not represent plausible interpretation of the agreement. Instead, the Agency's assertion constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. That assertion provides no basis for finding the award deficient under section 7122(a) of the Statute. See, for example, Department of Labor.

V. Decision

The Agency's exceptions are denied.

APPENDIX

The pertinent text of Articles 4 and 18 and IRM 0451 is set forth below:

Article 4 - Protection Against Prohibited Personnel Practices

Preamble

The parties mutually recognize that personnel management should be implemented consistent with the following merit system principles:

. . . .

8. Employees should be--(a) Protected against arbitrary action[.]

. . . .

Section 1

B. For the purpose of this article, "personnel action" means:

. . . .

9. A decision concerning pay, benefits, or awards . . . [.]

Article 18 - Awards

Section 1

A. Performance recognition awards (i.e., Sustained Superior Performance Awards, Special Achievement Awards, and Quality Step Increases) are made by the Employer on the basis of merit and within applicable budget limitation to individuals or groups.

. . . .

Section 3

A. Subject to the exceptions listed below, the Employer has determined that employees who receive ratings of Outstanding on a majority of their critical elements, and ratings of at least Fully Successful on the remainder of their critical elements in an annual appraisal, will receive Sustained Superior Performance Awards (SSP) in accordance with the provision of IRM 0451.

B. Exceptions:

1. Monetary SSP awards will not be granted to employees covered by the Incentive Pay System.

2. The fact that an employee . . . [is being investigated as to conduct or is the subject of discipline] during the rating period will not preclude an SSP award . . . unless such preclusion is necessary to protect the integrity of the service[.]

IRM - 0451-4

Determining Award Amounts

Table 1--FOR SUSTAINED SUPERIOR PERFORMANCE (Special Achievement Award)

Monetary awards for sustained superior performance based on annual performance ratings will be no less than 1% of an employee's base salary during the rating period. The following table should be considered in determining the appropriate amount.

Percentage of Outstanding Ratings for Critical Job Elements 

Percent of Base Salary

 
  More than 50% rated Outstanding ...........  Up to 5%
 More than 60% rated Outstanding ...........  Up to 6%
 More than 70% rated Outstanding ...........  Up to 7%
 More than 80% rated Outstanding ...........  Up to 8%
 More than 90% rated Outstanding ...........  Up to 9%
 Outstanding ratings for all critical job elements ...................  Up to 10%

A. EXCEPTIONS

In an extraordinary situation, an exception may be made to extend the percentage range an additional 5% (Maximum of 15% of the employee's rate of basic pay). The award documentation must contain justification of the exceptional circumstances when an exception is approved.

B.CONSIDERATIONS FOR APPLICATION OF PERCENTAGE RANGE

o Improvements in productivity, operations or services

o Past awards (amount, reason, time since award)

o Time on the job

o Measurable benefits from superior contribution

o Nature, frequency, and level of accomplishments

o Importance of accomplishments to the organization

o Effort expended

o Creativity

o Work environment

o Recent or pending promotion

o Incumbent of career ladder position

o Paperwork reduction and effective cost control

The pertinent text of Article 41 is set forth below:

Article 41 - Employee Grievance Procedure

Section 2

A.

The term "grievance" means any complaint:

1. by an employee concerning any matter relating to the employment of the employee[.]




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The pertinent text of Articles 4 and 18, and IRM, 0451 is set forth in the attached Appendix.

2. The pertinent text of Article 41 is set forth in the attached Appendix.

3. The Arbitrator's reference to "appraisal" refers to an award recommendation form completed by the grievant's supervisor. See Transcript at 62. The Arbitrator noted that the Union's request for the form was not granted and that "[m]anagement [stated] that it had been lost." Id. at 5.

3. The Authority cited, as support for its formulation of the tests used to determine whether a proposal directly interfered with an agency's right to determine its budget, the earlier Authority decision in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), aff'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied 455 U.S. 945 (1982) (Wright-Patterson).

4. We express no view on the continued viability of this test, see American Federation of Government Empl