46:0631(62)AR - - NAGE Local R4-78 and VA Medical Center, Martinsburg, WV - - 1992 FLRAdec AR - - v46 p631



[ v46 p631 ]
46:0631(62)AR
The decision of the Authority follows:


46 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-78

(Union)

and

U. S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

MARTINSBURG, WEST VIRGINIA

(Agency)

0-AR-2292

DECISION

November 24, 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 John Remington 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 filed an opposition to the Union's exceptions.

The grievance contested the Agency's denial of a monetary performance award to an employee who had received an outstanding performance rating. The Arbitrator found that the grievance was not arbitrable and, therefore, denied the grievance. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant is a Nursing Assistant at the Agency. In the fall of 1989, the Agency selected the grievant to participate in a Registered Nurse Upward Mobility Program (UMP) with the goal that she would receive a degree and subsequently earn a license as a registered nurse and be employed at the Agency in that capacity. The grievant enrolled in the program at a local college but did not successfully complete all courses of study and was forced to withdraw from the program in the spring of 1990. During her enrollment in the program, the grievant received her regular Government salary and the Agency also paid for her tuition, fees, and books.

In March 1990, the grievant returned to her Nursing Assistant position. In April 1990, she received a performance appraisal covering the period from April 1, 1989 through March 31, 1990 and rating her as "Fully Successful." Although the grievant was enrolled in the UMP during most of this evaluation period, the performance appraisal was based on her actual job performance at the Agency. The grievant filed a grievance contesting this rating. The grievance was resolved in November 1990 when the grievant's supervisor raised her rating to "Outstanding."

Thereafter, the grievant requested a monetary performance award in connection with the outstanding rating. The Agency declined to recommend her for such an award. Subsequently, the grievant filed a grievance alleging that she should have received a cash performance award based on her outstanding rating. The Agency denied the grievance on the grounds that it was not arbitrable under the parties' master agreement and that the grievant was already compensated as an exceptional Nursing Assistant by virtue of her selection for the UMP, for which she had received tuition support as well as authorized absence to attend the program during the rating period. The matter was submitted to arbitration.

The Arbitrator stated that the threshold issue before him was whether the grievance was substantively arbitrable within the meaning of the parties' collective bargaining agreement. Before the Arbitrator, the Agency asserted that monetary performance awards are incentive awards within the meaning of Agency regulation MP-5, Part I, Chapter 451 and that incentive awards are precluded from arbitration by Article 13, Section 2 of the parties' master agreement.(*/)

The Agency also contended that it considered the grievant for a performance award and properly exercised its statutory authority to decline to make such an award. The Union maintained that the grievance was arbitrable because performance awards and incentive awards are distinct and performance awards are not barred from arbitration by Article 13, Section 2 of the parties' master agreement. Alternatively, the Union asserted that even if performance awards were considered incentive awards, the instant grievance nevertheless was arbitrable because the Agency's denial of the performance award constituted a prohibited personnel practice and was, therefore, arbitrable under Article 5, Section 10 of the parties' local agreement.

The Arbitrator rejected the Union's contention that performance awards and incentive awards are distinct and performance awards are not barred from arbitration by Article 13, Section 2 of the parties' master agreement. Based on his review of that provision of the agreement, the Agency's regulation cited above, and the testimony before him, the Arbitrator found that "[p]erformance [a]wards are a type of [i]ncentive [a]wards and subject to the exclusion set forth in Article 13, Section 2 of the [m]aster [a]greement." Award at 10.

The Arbitrator next considered the Union's alternative argument that the matter must be deemed arbitrable under Article 5, Section 10 of the parties' local agreement because the Agency's denial of the performance award constituted a prohibited personnel practice. The Arbitrator agreed that the matter before him would be arbitrable within the meaning of the local agreement "if a [p]rohibited [p]ersonnel [p]ractice was committed [by the Agency] in denying [g]rievant a cash [p]erformance [a]ward." Id. (emphasis in original). The Arbitrator found, however, that there was "not sufficient evidence within the record upon which to base such a determination." Id. In this regard, the Arbitrator stated that there was no contention that the grievant was denied an award based on her race, sex, age or any other prohibited discriminatory basis. The Arbitrator further found that there was "no evidence within the record of arbitrary action, harassment, favoritism or political coercion." Id. at 11. The Arbitrator stated that the grievant was denied an award "because the [Agency] reasoned that she had already been rewarded through her selection and participation in the [UMP], a [p]rogram which provided [g]rievant with both monetary and educational benefits." Id. The Arbitrator also found that there was no evidence that the Agency's action was precipitated by the initial grievance challenging the grievant's appraisal "and there is no other evidence whatsoever to support [g]rievant's claim of reprisal." Id. Thus, the Arbitrator found that the Agency did not commit any prohibited personnel practices or violate merit system protections in denying the grievant a cash performance award. The Arbitrator stated that "[i]t follows that the contractual prohibition at Article 13, Section 2 is applicable and that the instant grievance is not arbitrable and must be denied." Id.

The Arbitrator noted the Union's contentions that the grievant was denied a performance award for reasons outside of her job performance and that she was never properly considered for a performance award. However, the Arbitrator declined to rule upon these matters because he had determined that the grievance was not arbitrable and these matters went to the merits of the dispute. The Arbitrator stated that "[s]o long as the [Agency] did not unlawfully deny [g]rievant the [p]erformance [a]ward, the [Agency's] motivation is essentially irrelevant and the Arbitrator has no authority to second guess the [Agency] or substitute his judgement for theirs." Id. at 11-12. Accordingly, the Arbitrator declined to determine whether the grievant was properly considered for a performance award.

III. Union's Exceptions

The Union contends that by denying the grievant a performance award solely on the basis of her participation in the UMP and not on the basis of her job performance, the Agency committed a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(10). The Union asserts that a prohibited personnel practice is subject to the parties' negotiated grievance procedure as a violation of Article 4 of the master agreement and Article 5, Section 10 of the local agreement. According to the Union, the Arbitrator "improperly limited his view of what constituted a prohibited personnel practice to claims of reprisal." Exceptions at 4. The Union asserts that after finding that the grievant was denied an award because the Agency reasoned that she had been rewarded through her selection and participation in the UMP, the Arbitrator should have found that the Agency's action constituted a violation of 5 U.S.C. § 2302(b)(10) because participation in the UMP was outside of the grievant's work performance.

The Union also contends that the Arbitrator's finding that the Agency considered participation in the UMP in determining whether to grant the grievant a performance award demonstrates that the Agency violated other contract provisions. In this regard, the Union asserts that the Arbitrator improperly failed to consider these other contract provisions. Specifically, the Union contends that Article 5, Section 3 of the local agreement requires that employees receive recognition for excellent performance in accordance with rules and regulations and argues that the Agency's regulations do not provide for participation in an upward mobility program as a factor to be considered in distributing performance awards. The Union also contends that Article 5, Section 5 of the local agreement protects employees from "arbitrary, harassment or personal favoritism[,]" and that this provision "certainly includes denial of an award for reasons outside the scope of actual performance." Id. at 5. Finally, the Union asserts that the Agency's action is inconsistent with the grievant's right to equal treatment in the allocation of awards with other employees receiving an outstanding rating and with Article 7, Section 3 of the master agreement, in which the Agency agreed not to abuse its rights and responsibilities as a party to the contract.

IV. Agency's Opposition

The Agency asserts that the award is not contrary to any law, rule or regulation. The Agency contends that it presented substantial evidence that performance awards were not subject to the grievance procedure under Article 13, Section 2 of the parties' master agreement, and that the Arbitrator properly found that the grievance was not arbitrable.

In response to the Union's contention that the Agency committed a prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(10), the Agency asserts that the Union has incorrectly interpreted this section. The Agency asserts that, contrary to the Union's claim that section 2302(b)(10) precludes an agency from basing a decision on factors not related to an employee's job performance, that section precludes an agency from discriminating against an employee "'on the basis of conduct which does not adversely affect the performance of the employee . . . .'" Opposition at 5 (quoting 5 U.S.C. § 2302(b)(10); emphasis deleted).

Further, the Agency disputes the Union's contention that the Arbitrator improperly limited his view of what constituted a prohibited personnel practice to claims of reprisal. The Agency asserts that "the Arbitrator not only addressed the issue of reprisal but also carefully explained that the Agency did not violate 5 U.S.C. [§] 2302(b)(10)." Id. at 6. Noting the Arbitrator's discussion and findings with regard to 5 U.S.C. § 2302(b)(10), the Agency contends that the Arbitrator correctly found that there was no discrimination within the meaning of 5 U.S.C. § 2302(b)(10).

The Agency also disputes the Union's argument that the grievant's conduct in the UMP was unrelated to her job performance. The Agency asserts that although the Union argues that the grievant's conduct did not adversely affect her performance, it is clear that while the grievant was in school, she was on official time, being paid a full-time salary and accruing all employee benefits. The Agency contends, therefore, that it established a causal relationship between her performance as an employee and her conduct at school. Noting the court's statement in Garrow v. Gramm, 856 F.2d 203, 207 (D.C. Cir. 1988) that section 2302(b)(10) was intended to prohibit discrimination against activities that have no bearing on an employee's job performance, the Agency asserts that "it cannot be said that the grievant's failure in this fully funded course meant to enhance her skills as an employee had no bearing on her job performance." Id. at 8 (emphasis in original).

V. Analysis and Conclusions

We conclude that the Union fails to establish that the Arbitrator's award is deficient.

The Union asserts that the Arbitrator should have found that the Agency committed a prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(10) and, therefore, should have found that the grievance was arbitrable under Article 5, Section 10 of the local agreement. We construe this assertion as a contention that the award is contrary to law under section 7122(a)(1) of the Statute. We find no merit to this assertion.

The Authority has held that merit systems principles are hortatory and are not self-executing and that to establish a finding of a prohibited personnel practice under 5 U.S.C. § 2302(b), a party must show that: (1) the disputed personnel action violated law, rule or regulation; and (2) the law, rule or regulation implements or directly concerns merit system principles. U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 463 (1991). In this case, the Union has not shown that the Agency's action in denying the grievant a monetary performance award violated any provision of law, rule or regulation. Because the Union has not shown that the Agency's action violated any provision of law, rule or regulation, we find that the Union has not demonstrated that the Arbitrator's award, finding that the Agency did not commit a prohibited personnel practice, is contrary to law.

We note that the Arbitrator specifically found that the evidence in the record was "not sufficient" to support the Union's contention that the Agency's actions constituted a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b). Award at 10. The Arbitrator found that there was: (1) no contention that the grievant was denied a cash performance award based on her race, sex, age or any other prohibited discriminatory basis; (2) no evidence of "arbitrary action, harassment, favoritism or political coercion[;]" and (3) no evidence that the Agency's denial of the award was precipitated by the initial grievance nor was there any other evidence to support the grievant's claim of reprisal. Id. at 11. The Arbitrator concluded, therefore, based on all these findings and not solely on his finding concerning the grievant's claim of reprisal, that the Agency did not commit a prohibited personnel practice or violate merit systems protections in denying the grievant a monetary performance award. In our view, the Union's exception in this regard constitutes mere disagreement with the Arbitrator's findings and conclusions and, therefore, presents no basis for review of the award. See, for example, General Services Administration and American Federation of Government Employees, Council 236, 45 FLRA 1226, 1231-1232.

Further, the Union claims that the award is deficient because the Arbitrator refused to address its contention that the Agency considered the grievant's participation in the UMP as a basis for denying the performance award in violation of Article 5, Section 3 of the parties' local agreement. We find that this contention does not provide a basis for finding the award deficient. The Arbitrator interpreted provisions of the parties' master and local agreements and found that the grievance was not arbitrable under the parties' agreements. Having determined that the grievance was not arbitrable, the Arbitrator declined to comment on matters that concerned the merits of the dispute. The Union's contention constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreements. Consequently, we find that such contention provides no basis for finding the award deficient. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176, 1180 (1990).

VI. Decision

The Union's exceptions are denied.

APPENDIX

MASTER AGREEMENT

ARTICLE 4

PROVISIONS OF LAWS AND REGULATIONS

It is agreed and understood by the Employer and the Union that in the administration of all matters covered by this agreement, officials and employees are governed by future and existing laws and by existing regulations of appropriate authorities including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the agreement is approved; and by subsequently published policies and regulations required by law.

ARTICLE 7

RIGHTS AND RESPONSIBILITIES OF THE EMPLOYER

. . . .

Section 3 - The Employer agrees not to abuse its rights and responsibilities as a Party to this Agreement, any Supplemental Agreements, or other procedures concerning the labor-management relationship on a national or local level.

ARTICLE 13

GRIEVANCE PROCEDURE

Section 2 - Excluded from the coverage of this procedure are grievances concerning:

. . . .

i. Decisions relating to incentive awards[.]

SUPPLEMENTAL AGREEMENT

ARTICLE 5 - EMPLOYEE RIGHTS AND RESPONSIBILITIES

Section 3. Employee will receive equal pay for an equal value, considering both national and local rates paid by private employers, with incentives and recognition for excellent performance in accordance with rules and regulations.

Section 5. Employees will be protected from arbitrary action, harassment, personal favoritism, political coercion or reprisal from making complaints or grievances or for lawful disclosures of information.

Section 10. Employees will be protected from prohib