43:1435(116)AR - - Air Force, Scott AFB, IL and NAGE Local R7-23 - - 1992 FLRAdec AR - - v43 p1435



[ v43 p1435 ]
43:1435(116)AR
The decision of the Authority follows:


43 FLRA No. 116

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

SCOTT AIR FORCE BASE, ILLINOIS

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-23

(Union)

0-AR-2150

DECISION

February 7, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Milton O. Talent filed by the Union 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 Agency did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging, in part, that the Agency violated the parties' collective bargaining agreement by failing to distribute monetary performance awards equitably.

For the reasons discussed below, we will remand the award to the parties to have them obtain a clarification of the award from the Arbitrator.

II. Background and Arbitrator's Award

At the end of the performance rating period, the Agency distributed monetary performance awards to unit employees. The Union took exception to the manner in which the Agency distributed the monetary awards and filed a grievance which alleged, among other things, that the Agency had not distributed such awards as required by Article XXX, Section 8 of the parties' contract. Article XXX, Section 8 was initially a Union bargaining proposal that the Federal Service Impasses Panel (the Panel), in an impasse proceeding, ordered the parties to adopt.(*) Article XXX, Section 8 provides:

Bargaining unit employees shall be treated fairly and equitably relative to the percentage amount received for a performance rating. To this end, absent compelling reasons not to do so, all employees receiving a superior rating shall receive an equal award based upon an equitable formula for dispensing the total monies available. All employees receiving an excellent rating shall receive an equitable but lesser amount.

Award at 4. In ordering the parties to adopt this provision, the Panel stated that "the amount of awards should be limited by the size of the awards budget which is within the [Agency's] control." Id. at 17.

The Union asserted that a pooling of the award money was required by Article XXX, Section 8. That is, in the Union's view, this provision requires the Agency to pool the funds earmarked for awards by each organization within the Agency and distribute them to unit employees receiving superior and excellent performance ratings. The Agency disagreed with the Union's interpretation of Article XXX, Section 8 and asserted that "awards moneys from different organizations and Major Force Programs (MFP) cannot be pooled into one pot for distribution, [and that the] agreement must be applied within the restraints of organizational and MFP lines." Id. at 7. The Agency asserted, therefore, that management "did distribute award monies fairly and consistently in accordance with Article XXX, Section 8 of [the parties'] contract." Id. at 2. The parties were unable to resolve the grievance and submitted the matter to arbitration.

The Arbitrator noted that the only issue before him was the "meaning and interpretation of Article XXX, Section 8." Award at 3. The Arbitrator stated the issue as "[w]hether the [Agency] violated the Agreement in its interpretation and application of Article XXX, Section 8?" Id. at 7. The Arbitrator stated that an understanding of the structure of the unit and the Agency was necessary "[t]o understand the extent and ramifications" of the dispute. Id. at 14. According to the Arbitrator, the Union represents employees in a consolidated unit that consists of "some two to three thousand employees distributed among some forty[-]seven different independent and autonomous organizations." Id.

The Arbitrator discussed the parties' positions and the bargaining history concerning Article XXX, Section 8. The Arbitrator next discussed the Agency's budgetary process. The Arbitrator stated that: (1) each organizational unit submits its budget for the forthcoming year covering different purposes and programs and requests a certain amount which it anticipates will be necessary to provide bonuses for employees in that unit; (2) in each case, the amount varies depending on the number of employees and the amount of cash awards the organizational unit anticipates it will have to meet; and (3) the Agency then submits the different budgets to Congress which then authorizes money for the purposes and programs outlined in the budget. Having examined the budgetary process, the Arbitrator found that "[u]nder Congressional rules and the law, moneys programmed for one purpose cannot be redirected or diverted to some other purpose." Id. at 17. Therefore, the Arbitrator concluded that "[w]hat the Union is requesting in the instant case [could not] be accomplished legally[,]" that is, "money in one organizational budget [could not] be diverted" to provide rewards in another organizational unit. Id. Thus, the Arbitrator concluded that such a restriction "would prohibit the pooling of funds and the use of money in one organization for purposes and programs of another organization." Id. at 18.

In view of his conclusion, the Arbitrator accepted the Agency's interpretation of Article XXX, Section 8. The Arbitrator stated that "[s]uch interpretation [was] valid under that part of the [Panel's] order which provided that the amount of the awards should be limited by the size of the award budget which is within the [Agency's] control." Id. at 19. Accordingly, the Arbitrator concluded that "[m]anagement's distribution of [the] awards fairly and equally within [the MFP] . . . was proper" and, therefore, he denied the grievance. Id.

III. Union's Exceptions

The Union contends that the award is contrary to law. According to the Union, the "only authority that the [Agency] cited [on] which the Arbitrator could base his decision was AFR [Air Force Regulation] 40-452, 7-2," which provides "that each activity will be responsible for budgeting an appropriate amount of organizational funds necessary to meet the requirements of recognizing exceptional performance with a percent of the yearly budget, up to 1%, to be allocated to support cash award recognition." Exceptions at 2; Award at 3. The Union asserts that AFR 40-452, 7-2 is not a Government-wide regulation and that no compelling need has been established for it.

The Union contends that the "only reason that the Arbitrator denied the grievance is because he concluded [on the basis of AFR 40-452, 7-2] that the Union's interpretation of Article XXX, Section 8 was illegal." Exceptions at 2 (emphasis in original). The Union states that the Arbitrator's award "invalidates [this] part of the contract, based on a regulation that is not a [G]overnment-wide regulation." Id. at 3. According to the Union, the Arbitrator "is under the mistaken assumption that AFR 40-452 would control over a negotiated agreement, and could render part of it illegal." Id. at 2. The Union asserts that this assumption conflicts with section 7117(a) of the Statute, which allows parties to bargain over and modify Agency regulations as long as the subject matter involved is not inconsistent with a Government-wide regulation or law and as long as no compelling need has been established for the regulation.

The Union states that there is no "law, rule or regulation" that would make the Union's interpretation of Article XXX, Section 8 "illegal." Id. at 3. The Union contends that this provision was "legally negotiated" by the parties and, therefore, "controls over AFR 40-452." Id. at 3. The Union contends that because there was no basis for the Arbitrator to invalidate the contract provision the Arbitrator exceeded his authority. In support of its position, the Union cites American Federation of Government Employees, Local 3836 and Federal Emergency Management Agency, Washington, D.C., 31 FLRA 921 (1988) (FEMA). In FEMA, the Authority found, in part, that the agency had not established that proposals concerning, among other things, the agency's performance award budget and the allocation of funds from that budget to a pool for unit employees conflicted with an agency regulation for which there was a compelling need.

IV. Analysis and Conclusions

We conclude, for the reasons discussed below, that the award must be remanded to the parties for resubmission to the Arbitrator.

The Arbitrator found that "Congressional rules and the law" precluded him from interpreting Article XXX, Section 8 to allow the pooling of the incentive awards budgets of different organizational elements and MFPs. Award at 17. The Arbitrator did not identify the "law" and "Congressional rules" on which he relied to reach this determination. The Union argues that there is no "law, rule or regulation" that would make the Union's interpretation of Article XXX, Section 8 illegal. Exceptions at 3. The Union contends that the "only authority" that the Agency cited on which the Arbitrator could base his decision was an Agency regulation, AFR 40-452, 7-2, which would not take precedence over the parties' negotiated agreement. Id. at 2.

If there are specific "Congressional rules" and "law" which would make it illegal for an Agency to pool the incentive awards budgets of different organizational elements, then Article XXX, Section 8 could not be interpreted and enforced to require such action. In the absence of any reference in the record to the specific rules and the law on which the Arbitrator based his conclusion, we are unable to determine whether the Arbitrator properly applied those authorities in concluding that Article XXX, Section 8 could not legally be interpreted as requiring the pooling of the incentive awards budgets of different organizations and MFPs. Accordingly, we are unable to determine whether the award is deficient.

As the record in this case is insufficient for us to determine whether the award is deficient, we will remand the award to the parties for resubmission to the Arbitrator so that the Arbitrator can clarify his award. Specifically, we are remanding the award for the purpose of having the Arbitrator clarify his award by stating: (1) the specific "Congressional rules" and "law" on which he relied, including citations to those authorities; and (2) the reasons that those authorities make it unlawful to interpret Article XXX, Section 8 to allow the pooling of the incentive awards budgets of different organizational elements and MFPs.

However, if the basis for the Arbitrator's conclusion is, as the Union claims, the Agency's regulation, AFR 40-452, 7-2, then our holding in U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 194 (1990) (Fort Campbell) would be applicable. In Fort Campbell, we held that "provisions that become part of a collective bargaining agreement take precedence over agency rules and regulations with respect to matters to which they both apply."

If the Arbitrator concluded that Article XXX, Section 8 required the pooling of incentive awards budgets, and if the Arbitrator's conclusion that the Agency was precluded from pooling those budgets was based solely on the Agency regulation, then the award is deficient to the extent it holds that AFR 40-452, 7-2 takes precedence over Article XXX, Section 8 of the parties' agreement. It is not clear, however, that the Arbitrator's award was based on AFR 40-452, 7-2. Therefore, we will also remand the award to the parties to seek clarification from the Arbitrator as to whether AFR 40-452 forms the basis of his award.

Finally, we reject the Union's contention that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration. U.S. Department of the Treasury, Internal Revenue Service, Midwest Region, Chicago, Illinois and National Treasury Employees Union, 42 FLRA 1098, 1101-1102 (1991). We find that the Union has not provided any basis on which to conclude that the Arbitrator resolved an issue not submitted to arbitration. The Union's contention constitutes mere disagreement with the Arbitrator's resolution of the issue before him and provides no basis for finding the award deficient.

V. Decision

The award is remanded to the parties for the purpose of requesting that the Arbitrator clarify his award by stating: (1) the specific "Congressional rules" and "law" on which he relied, including citations to those authorities; and (2) the reasons that those authorities make it unlawful to interpret Article XXX, Section 8 to allow the pooling of the incentive awards budgets of different organizational elements and MFPs. In thus clarifying the basis of his award, the Arbitrator should indicate whether AFR 40-452, 7-2 was the basis for his conclusion that Article XXX, Section 8 could not legally be interpreted to require the pooling of incentive awards budgets of different organizations and MFPs.

On receipt of the award, as clarified, either party may timely file with the Authority exceptions to that award.




FOOTNOTES:
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*/ See Department of the Air F