46:1126(102)AR - - HHS, SSA and AFGE Local 1923 - - 1993 FLRAdec AR - - v46 p1126
[ v46 p1126 ]
The decision of the Authority follows:
46 FLRA No. 102
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 8, 1993
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 J. Fredrik Ekstrom 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.
An employee who was also a Union official filed a grievance protesting the fact that she received a smaller performance award than the awards received by other employees who had the same performance rating. The Arbitrator found that the Agency had violated law, regulation and the parties' collective bargaining agreement by treating the grievant differently from other employees. The Arbitrator ordered the Agency to reimburse the grievant for the difference between what she received as a performance award and what she should have received under the parties' agreement. For the following reasons, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant is a GS-10 claims examiner and is also a Union vice president. The grievant received a rating of "outstanding" for the October 1, 1989, through September 30, 1990, appraisal period and was given a performance award of $500. The grievant claimed that she was entitled to an award of $1,010 under the Agency's performance awards program. The Agency maintained that the grievant was not entitled to a larger award because she had spent part of the performance appraisal period on detail to a GS-11 supervisory position and had spent a considerable amount of time in the performance of Union representation duties with the result that she had not performed the duties of her regular position for the full period.
The Union filed a grievance on the grievant's behalf. The grievance was not resolved and was submitted to arbitration on the following issue:
Does the performance award given to the grievant ($500.00) violate law, rule or regulation or the Master Agreement? If so[,] what shall the remedy be?
Award at 3.
Before the Arbitrator, the Union claimed that other employees with ratings of "outstanding" had received awards of $1,010 and that the grievant was treated in a disparate manner compared to other employees and to other Union officials. The Union sought as a remedy either the full amount of the performance award or a quality step increase for her "outstanding" performance rating.
The Union argued before the Arbitrator that Union officials were entitled to a specified amount of official time for representation activities and that the grievant properly had used that time during the rating period. The Union noted that another GS-10 employee who was rated "outstanding" had received $1,010 and that lower-graded employees had received performance awards larger than that received by the grievant.
The Agency contended to the Arbitrator that the grievant had received an amount that "accurately reflected the level of her quantifiable contributions during the appraisal year." Id. at 9. The Agency maintained that it has the discretion under the parties' collective bargaining agreement and relevant Agency regulations to determine the amount of a performance award in proportion to the services provided by an employee. The Agency contended that the grievant spent approximately "44% (the equivalent of about 17.6 hours a week) of her time" performing the duties of her position and that an award of $500 was appropriate in those circumstances. Id. at 10. The Agency contended that, because of the grievant's Union activities, she did not perform the full range of her regular duties and that she could not be appraised on work that was outside the regular duties of her position but must be appraised on the same basis as a part-time employee. The Agency also contended that the grievance was not arbitrable under 5 C.F.R. § 430.504(e), which makes an agency's failure to pay a performance award nongrievable and nonarbitrable.
The Arbitrator noted that although the parties' agreement provides for a minimum award of $500 for employees who receive ratings of "outstanding," the Agency's regulations provide that employees who receive ratings of "outstanding" will not receive less than employees who receive ratings of "excellent."(1) The Arbitrator found that a part-time employee and a full-time employee who had ratings of excellent had received larger performance awards than the grievant. He concluded that the grievant had not been treated as required under the agreement.
The Arbitrator also addressed the allegation of disparate treatment of the grievant by the Agency because of her Union activities. He found that by giving the grievant a lower award, "the Agency is telling an employee that by participating as a part[-]time Union [o]fficer, you are to receive a lower cash award than others who do not participate in such activities." Id. at 14. He found that the Agency's action "has a very chilling effect" and that the "reduction of the award from $1010.00 to $500.00 is also a penalty." Id.
The Arbitrator found that the Agency's performance regulations clearly provide that full-time employees, such as the grievant, who receive performance ratings of "outstanding" are entitled to cash awards of $1010 unless those employees are less than full-time or had been promoted during the appraisal period. He cited the Agency's Personnel Manual for Supervisors, Chapter S451, Appendix B, General Schedule Employee Performance Award Scale, which provides that GS-10 employees rated "outstanding" are entitled to performance awards ranging from a minimum of $1,010 to a maximum of $2,520. The Arbitrator found that the grievant was a full-time employee and that, although the grievant had received a temporary promotion during the appraisal period, the temporary promotion had not been considered by the Agency as a factor in reducing her cash award.
The Arbitrator concluded that the Agency had erroneously categorized the grievant as a part-time employee on the basis of her performance of Union duties on official time and because she had not devoted full time to the performance of the duties of her regular position. He found that the Agency's action in that manner was a violation of the parties' collective bargaining agreement and sections 7102 and 7116 of the Statute. He stated that "[w]hile there was no animus shown toward the grievant, there was most certainly animus concerning what she was doing." Id. at 15.
The Arbitrator concluded that the Agency had committed an unwarranted and unjustified personnel action and that but for the Agency's action the grievant would have received a full performance award of $1,010. As a remedy, he ordered the Agency to pay the grievant $510 plus interest.
III. Positions of the Parties
A. The Agency
The Agency contends that the Arbitrator's award is contrary to the U.S. Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF), because the award requires the Agency to pay the grievant for time spent performing Union activities that did not constitute the official business of the Agency. The Agency asserts that the grievant spent 27 percent of the appraisal period in a temporary promotion for which she could not be evaluated, 39 percent of the time on official time and 44 percent of the time performing the duties of her position.(2) The Agency argues that under BATF, the period on official time could not be considered in determining a performance award.
The Agency also contends that the award is contrary to 5 C.F.R. § 430.504(d), which provides that performance awards must be approved by an official at a higher level than the official proposing the award.(3) The Agency argues that the Arbitrator has set an award for the grievant and "effectively preempted" the requirement for higher-level review and approval contained in 5 C.F.R. § 430.504(d). Exceptions at 8.
The Agency also asserts that the award is contrary to 5 C.F.R. § 430.504(e), which provides: "The failure to pay an award under this subpart, or the amount of such an award, may not be appealed." The Agency contends that this regulation renders the grievance in this case nongrievable and nonarbitrable.
B. The Union
The Union contends that the award is not contrary to BATF because BATF does not apply to the circumstances of this case. Further, the Union asserts that the award is not contrary to 5 C.F.R. § 430.504(d) because the Agency had already established a performance award scale in its regulations and the Arbitrator was merely enforcing the application of that scale and was not creating a new scale or compelling the Agency to establish an award scale. As to the Agency's exception that the matter could not be arbitrated under 5 C.F.R. § 430.504(e), the Union contends that the regulation applies to appeals to the Merit Systems Protection Board or other administrative appeals and does not apply to grievances filed under a negotiated grievance procedure. In this regard, the Union contends that the Office of Personnel Management (OPM) cannot regulate what matters may be addressed in a negotiated grievance procedure under the Statute.
IV. Analysis and Conclusions
We conclude that the Agency has failed to establish that the Arbitrator's award is contrary to law, rule, or regulation or otherwise deficient. Accordingly, we will deny the Agency's exceptions.
We reject the Agency's contention that the award is inconsistent with BATF. We addressed a similar argument regarding BATF in Social Security Administration, Inland Empire Area, 46 FLRA 161 (1992) (SSA), in which we found that an agency violated section 7116(a)(1) and (2) of the Statute when it withheld gainsharing awards to union officials based on time spent on official time for union representation. We rejected the agency's argument that BATF was controlling and stated:
BATF concerned whether employee union negotiators engaged in collective bargaining under section 7131(a) of the Statute were in a duty status for the purposes of receiving travel and per diem under section 7131(a) of the Statute or pursuant to 5 U.S.C. § 5702(a). Because BATF involved official time under section 7131(a) of the Statute and travel and per diem under 5 U.S.C. § 5702(a), and this case does not, we find that BATF presented different issues from the issues in this case and that BATF is not controlling here.
SSA, 46 FLRA at 176. For the same reasons as expressed in SSA, we find that BATF is not applicable in this case. The grievant was on official time authorized under the parties' collective bargaining agreement and was not seeking travel and per diem under section 7131(a) of the Statute. Accordingly, we will deny the Agency's exception that the award is deficient because it is contrary to BATF.
We find no merit in the Agency's contention that the award is contrary to 5 C.F.R. § 430.504(d) because it deprives the Agency of the right to approve or disapprove performance awards by officials at higher levels than the officials who propose the awards. The Arbitrator's award in no way interferes with the Agency's rights in that regard. The Agency had already determined that the grievant was entitled to a performance appraisal of "outstanding" and the Arbitrator was merely enforcing the established contractual and regulatory procedures regarding performance awards and the requirement in the parties' collective bargaining agreement that employees be treated fairly. See National Treasury Employees Union and U.S. Department of the Treasury, Financial Management Service, 45 FLRA 696, 701 (1992), petition for review filed sub nom. U.S. Department of the Treasury, Financial Management Service, No. 92-1441 (D.C. Cir. Sept. 18, 1992) (bargaining proposal that specified conditions for granting an award but did not mandate granting of award held negotiable).
In this case, the Agency had already agreed to a minimum amount of award for employees rated "outstanding." The Arbitrator interpreted the parties' agreement and determined that the Agency had improperly decided that the grievant should not be treated like other full-time employees due to the amount of official time that she had used during the appraisal period. As we noted in SSA, "official time under the Statute 'is time which counts toward the fulfillment of an employee's basic work requirement.'" 46 FLRA at 175, citing National Treasury Employees Union, Chapter 65 and Department of the Treasury, Internal Revenue Service, 25 FLRA 373, 376 n.3 (1987). This case does not concern the Agency's right to approve or disapprove the granting of a performance award to the grievant or the amount of such award, but rather concerns the application of the parties' collective bargaining agreement and the Agency's regulations. The cases cited by the Agency in its exceptions concern the negotiability of bargaining proposals that were found to preclude an agency from exercising the right to approve or disapprove performance awards under 5 C.F.R. § 430.504(d) and are not applicable in this case. See National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 47, 51-52 (1991); compare U.S. Department of the Treasury, Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176, 1179-80 (1990) (arbitrator had authority to interpret agreement provision specifying amounts of incentive awards based on performance). Consequently, the Agency's contention that the award is contrary to 5 C.F.R. § 430.504(d) provides no basis for finding the award deficient.
We also conclude that the Agency has failed to establish that the award is contrary to 5 C.F.R. § 430.504(e) on the ground that the amount of the grievant's performance award cannot be appealed. The matter before the Arbitrator arose from a grievance filed under the parties' negotiated grievance procedure established pursuant to section 7121 of the Statute. The OPM regulation in 5 C.F.R. § 430.504(e) pertains to appeals before the Merit Systems Protection Board or to other forms of administrative appeals under the Civil Service Reform Act, but has no bearing on the content of negotiated grievance procedures under the Statute. See U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 461 (1990), citing American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA 314, 322 (1981) ("OPM regulations . . . may not be applied in a manner inconsistent with the scope of negotiated grievance procedures allowed under section 7121 of the Statute."). The only matters that are excluded automatically from coverage under a negotiated grievance procedure are those matters listed in section 7121(c) of the Statute. Section 7121(c) does not list matters pertaining to the granting of a performance award or the amount of a performance award. Moreover, the Agency has not shown that the grievance in this case concerns a matter that the parties have agreed to exclude from their negotiated grievance procedure, as they are permitted to do under section 7121(a)(2) of the Statute. Therefore, 5 C.F.R. § 430.504(e) does not bar the arbitration of the grievance in this case and the Agency's exception in this regard will be denied. See id.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The Arbitrator cited Article 17, Section 4 of the agreement, which provides in relevant part:
Section 4--Amounts of Awards
. . . .
2. Cash awards for performance shall be in accordance with a scale set by the [Agency]. When management grants an award, the minimum award amount for a summary appraisal of excellent shall be $300 and the minimum award for a summary appraisal of outstanding shall be $500.
2. We note that the Agency's figures add up to 110 percent.
3. 5 C.F.R. § 430.504(d) provides:
(d) The dec