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









LOCAL 1923





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. Depar