46:1297(123)AR - - Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1993 FLRAdec AR - - v46 p1297
[ v46 p1297 ]
The decision of the Authority follows:
46 FLRA No. 123
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 1, 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 Emily Maloney 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.
The Arbitrator found that the grievant was entitled to a performance rating of "excellent" and that he was not treated fairly under the parties' collective bargaining agreement. The Arbitrator found that other employees who had received the same performance rating as the grievant had received monetary performance awards and certificates of recognition for "excellent" performance, but that the grievant did not receive an award or a certificate. The Arbitrator ordered the Agency to give the grievant the appropriate monetary performance award and certificate of recognition. For the following reasons, we deny the Agency's exceptions to the award.
II. Background and Arbitrator's Award
The grievant filed a grievance protesting his performance appraisal of "fully successful" for the 1990-91 rating period. The grievant contended that he should have been rated "superior" and should have received a monetary performance award. During the processing of the grievance, the Agency offered to raise the grievant's performance rating to "excellent," but refused to give the grievant a performance award or a certificate of recognition. Other employees who had received a rating of "excellent" had received performance awards of 1 percent of their pay. The grievant accepted the offer to raise his performance rating but maintained that he was entitled to the same performance award and certificate of recognition that was given to other employees rated "excellent." The grievance was not resolved and was submitted to arbitration on the following issue:
Was [the grievant] rated fairly, accurately, and equitably in accordance with applicable law, rule, regulation and contract? If not, what is the appropriate remedy?
Award at 2.
Noting the grievant's acceptance of the Agency's offer to raise his performance rating to "excellent," the Arbitrator stated that "[t]he issue remaining before the [A]rbitrator then relates only to the appropriate remedy, and whether under the circumstances of this case the grievant should also receive a monetary award and certificate of excellent performance." Id. at 3. She observed that four other employees on the grievant's team who were rated "excellent" had received monetary awards and certificates of recognition. She also noted that of the 52 employees in the entire Tactical Systems Unit/Branch, with one exception, "all of the 26 employees rated as ['excellent'] received monetary awards." Id. at 4.
The Arbitrator rejected the Agency's contention that the grievance was not grievable or arbitrable under Agency regulations. She found that the parties' collective bargaining agreement did not exclude such a grievance or prevent her from making a monetary award. The Arbitrator also rejected the Agency's contention that the matter was not grievable because it concerned the Agency's right to determine its budget. The Arbitrator stated that the case "must fairly be viewed as a challenge by the grievant to a performance appraisal rating." Id. at 7.
The Arbitrator held that "the language of Article 9(S)1 [of the local supplemental collective bargaining agreement] and the common law of arbitration favoring broad remedial authority for arbitrators mandates [sic] a remedy of adjustment of the grievant's rating for the period in question to ['excellent'] and the same percentage monetary award and certificate of recognition as was accorded to all other employees in his team who were rated as ['excellent']." Id. at 7-8 (footnote omitted).(1) She made the following award:
The grievant was not fairly, accurately, or equitably rated in accordance with applicable law, rule, regulation and contract. The performance evaluation shall be changed [to "excellent"]; and the grievant shall be awarded the monetary recognition and certificate of performance given to other employees of his team who received an excellent rating for the 1990-91 period.
Id. at 8.
III. Positions of the Parties
A. The Agency
The Agency asserts 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 at a higher level of review than the officials proposing the awards.(2)
The Agency contends that Authority decisions have consistently held nonnegotiable bargaining proposals that mandate the granting of performance awards on the ground that such proposals conflict with 5 C.F.R. § 430.504(d). The Agency maintains that although nothing in the parties' master labor agreement or local supplemental agreement requires the payment of performance awards, such a requirement would be unenforceable. The Agency argues that if the Arbitrator interpreted either the local supplemental agreement or the master agreement as providing for mandatory performance awards, the award is deficient because it enforces an agreement provision that conflicts with a Government-wide regulation.
The Agency also asserts that the award interferes with the Agency's right to determine its budget under section 7106(a)(1) of the Statute. The Agency maintains that the amount of money set aside for performance awards had already been expended. The Agency claims that the Arbitrator's requirement that the grievant be given a monetary award interferes with its right to determine its budget because "a specific amount of money must be added to the budget in order to pay [the grievant] a performance award." Exceptions at 4.
Finally, the Agency asserts that the award is deficient because it does not draw its essence from the parties' master collective bargaining agreement, particularly Sections 15.04 and 34.01.(3) The Agency contends that by relying on the fairness requirement of Section 9(S)1 of the local supplemental agreement, the Arbitrator has prevented management from exercising its discretion to determine and approve monetary awards and has disregarded the terms of the master agreement.
B. The Union
Initially, the Union contends that the Agency's exceptions are untimely and should not be considered by the Authority. The Union asserts that the Authority's rule allowing the addition of 5 days to the deadline for filing exceptions to arbitration awards that are served on the parties by mail is inconsistent with the Statute. The Union asks that the Authority reconsider the rule.
The Union contends that the award does not interfere with management's discretion to approve performance awards. The Union asserts that the award is consistent with applicable Government-wide regulations and states that it "is not seeking to bind the Agency to grant a cash award in all instances, but only to enforce the language of its labor contract on behalf of [the grievant]." Opposition at 3. The Union also asserts that the award does not interfere with the Agency's right to determine its budget and maintains that the Agency had already exercised that right when it agreed to give monetary awards to employees who received "excellent" performance ratings. Finally, the Union contends that the award does not fail to draw its essence from the parties' agreement.
IV. Analysis and Conclusions
A. The Agency's Exceptions Are Timely
We reject the Union's contention that the Agency's exceptions are untimely. The Union contends that the Authority's regulation in 5 C.F.R. § 2429.22, allowing the addition of 5 days to the 30-day period for filing exceptions to arbitration awards when the awards are served by mail, is inconsistent with the Statute. We have consistently rejected such arguments. See Federal Trade Commission, Headquarters, Washington, D.C. and American Federation of Government Employees, Local 2211, 34 FLRA 14, 15 (1989) (5-day allowance for service by mail does not extend the prescribed period for filing documents but rather is an allowance for mail service). Accordingly, we will consider the Agency's exceptions.
B. The Award Is Not Deficient
The Agency has failed to establish that the Arbitrator's award is contrary to law, rule, or regulation or that it is otherwise deficient under the Statute.
We find no merit in the Agency's contention that the award is contrary to 5 C.F.R. § 430.504(d) on the basis that it deprives the Agency of the right to approve or disapprove performance awards at a higher level of review. We also conclude that the Arbitrator's award is not contrary to section 7106(a)(1) of the Statute on the ground that it interferes with the Agency's right to establish its budget. The Agency had already agreed that the grievant was entitled to a performance appraisal of "excellent." The record before the Arbitrator established that other employees who had received performance ratings equal to that of the grievant had also received monetary awards. The Arbitrator was merely enforcing the agreement provision requiring that matters of personnel administration be applied to all employees fairly and equitably. On that basis, the Arbitrator determined that the grievant was entitled to the same monetary award and certificate of recognition that was given to other employees rated "excellent." We find nothing in 5 C.F.R. § 430.504(d) or in management's right to determine its budget under section 7106(a)(1) of the Statute that prevents the Arbitrator from granting an incentive award as a remedy for the improper appraisal in this case. Specifically, as to section 7106(a)(1) of the Statute, we find that the award does not prescribe a program, operation, or dollar amount that the Agency must include in its budget. Rather, the award only enforces Article 9(S)1 of the local supplemental agreement in determining the remedy in this case to require that performance awards be distributed fairly and equitably. Accordingly, we will deny the Agency's exceptions in this regard. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 46 FLRA No. 102, slip op. at 6-7 (1993); U.S. Department of the Treasury, Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176, 1183-87 (1990) (arbitrator's award granting performance award of between 5 and 10 percent to grievant found not to be deficient under management's right to determine its budget).
Finally, we find no merit in the Agency's contention that the award is deficient because it fails to draw its essence from the parties' master agreement. To establish that an award is deficient on this ground, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 43 FLRA 1266, 1269 (1992).
The Agency has failed to establish that the award is deficient under any of these tests. The Arbitrator found that the grievance was arbitrable under the parties' master agreement and that the master agreement did not preclude a monetary award as a remedy for an improper performance appraisal. Based on her interpretation of Article 9(S)1 of the local supplemental agreement, the Arbitrator concluded that the performance awards program was a personnel administration matter covered by that provision and that, under that provision, the performance awards program must be applied fairly and equitably with respect to the grievant. The Agency has not shown that the Arbitrator's interpretation of the parties' master agreement or the local supplemental agreement in this manner is irrational, implausible, or otherwise deficient. Rather, the Agency's contention constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreements and, as such, provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 44 FLRA 283, 286 (1992).
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 9(S)1 of the parties' local supplemental agreement provides:
All employees shall be treated fairly and equitably and without discrimination in all aspects of personnel administration.
2. 5 C.F.R. § 430.504(d) provides:
(d) The decision to grant a performance award, including the amount of such award, shall be reviewed and approved by an official of the agency who is at a higher level than the official who made the initial decision, unless there is no official at a higher level in the agency.
3. Section 15.04(a) of the parties' master agreement provides in relevant part:
a. The primary intent of this program is to recognize employee performance which exceeds the requirements of the performance standards. Employees whose performance is rated "Superior" will be given monetary or nonmonetary recognition. Recognition may also be given to employees rated "Excell