48:0357(31)AR - - HHS, SSA, Office of Hearings and Appeals and AFGE, Council 215 - - 1993 FLRAdec AR - - v48 p357



[ v48 p357 ]
48:0357(31)AR
The decision of the Authority follows:


48 FLRA No. 31

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 215

(Union)

0-AR-2408

_____

DECISION

August 20, 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 Fred Blackwell 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.(1)

The Union filed a grievance on behalf of its officers who spent 100 percent of their time on official time. The Union alleged that four of the officers who had performance ratings of "excellent" did not receive performance awards and quality step increases (QSI's) as did other employees with the same performance rating who were not Union officers. The Arbitrator sustained the grievance and ordered that the affected officers receive backpay for the performance awards and/or QSI's which they should have received. For the following reasons, we will deny the Agency's exceptions to the award.

II. Background and Arbitrator's Award

In November 1992, the Agency informed the Union that it would not grant cash performance awards to Union officials who spent 100 percent official time on Union activities. In the past, certain Union officials using 100 percent official time had been allowed to have their last performance ratings "carried-over" pursuant to a letter of understanding (LOU) dated July 20, 1988. Award at 14. Those employees who had carried-over performance ratings of "excellent" based on their last performance of Agency duties had received cash performance awards. The Union filed an institutional or "union-management" grievance pursuant to Article 24, Section 10 of the parties' collective bargaining agreement. Id. at 5. The grievance alleged that the Agency's action in refusing to pay cash awards to those Union officials violated the Statute, the parties' collective bargaining agreement, the LOU, and past practice. The grievance was not resolved and was submitted to arbitration on the following stipulated issues:

1. Did the Agency discriminate against Union Representatives James E. Marshall and Albert B. Carrozza in conditions of employment by withholding payment of recommended and/or approved Performance Awards in the amount of $990.00 each for their summary rating of "4-Excellent" for the appraisal period ending September 30, 1991, because they had engaged in Union activities protected by the National Agreement and 5 USC?

If so, what is the relief?

2. Did the Agency discriminate against and/or take reprisal actions against Union Representatives Sue B. Burton and Barbara A. Hampton in conditions of employment by cancellation of an Award and Quality Step Increase, respectively, because of the filing of this grievance[?]

If so, what is the relief?

Id. at 11.

The Arbitrator noted that grievants Marshall and Carrozza had been granted 100 percent official time from 1989 to the present and that grievants Burton and Hampton had been granted 100 percent official time for the appraisal year 1991. He noted that each of the grievants had "received carry-over performance appraisals [of excellent] from the beginning of their status as [Union officials granted 100 percent official time] to the present." Id. at 10. The Arbitrator found that the four grievants had been approved for cash performance awards for appraisal year 1991. The Arbitrator also found that the Agency had refused to pay the awards because in the Agency's view there is no legal authority to pay cash performance awards to Union officials who are granted 100 percent official time.

The Union asserted before the Arbitrator that the Agency's denial of cash performance awards to three grievants and a QSI to a fourth grievant violated the parties' collective bargaining agreement, past practice, and the LOU, which is attached as Appendix A to the parties' agreement. The Union maintained that the LOU "confirmed the validity of a prior practice under which a performance appraisal of a 100% Union Official carried over by the Agency from one year to the next, became the rating of record of such Employee, and under which the Agency granted cash performance awards to 100% Union Employees who received such carryover appraisals." Id. at 12. The Union also contended that the Arbitrator could award relief to individual grievants despite the Agency's contention that such relief was not available in "a Union-Management grievance under Article 24, Section 10" of the parties' collective bargaining agreement. Id. The Agency argued that it did not have the legal authority to pay cash performance awards to the individual grievants in this case.

The Arbitrator concluded that the Agency had violated relevant provisions of the parties' agreement, the LOU, and an Agency regulation, HHS Instruction 430-5.(2) He sustained the grievance and found that but for the Agency's violation, three of the grievants would have received cash performance awards and the fourth would have received a QSI. The Arbitrator found that the Agency's past practice through appraisal year 1991 had been to process cash performance appraisal awards for employees who were granted 100 percent official time as Union representatives based on the employees' ratings of record carried over from their last appraisals based on performance of their regular duties. He determined that based on that past practice, the cash performance awards in dispute were "a contract benefit" for the employees involved. Id. at 16. He also found that the denial of cash awards violated the employees' contractual right to join and assist the Union.

The Arbitrator rejected the Agency's contention that the Authority's decision in National Association of Government Employees, Federal Union of Scientists and Engineers, Local R14-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 42 FLRA 1285, 1292-94 (1991) (Naval Underwater Systems Center) precluded the granting of cash awards in this case. He found that Naval Underwater Systems Center concerned a negotiability dispute over performance awards for a union president that arose between different parties and that it was not applicable to the present case. He noted that, in this case, the Agency had already negotiated the July 20, 1988, LOU with the Union and now was attempting to abrogate that agreement.

Finally, the Arbitrator rejected the Agency's contention that he could not award relief to individual grievants in an institutional grievance. He found no provision in the parties' agreement that would prohibit his awarding relief to the grievants in this case. The Arbitrator concluded that the Agency had violated the parties' agreement, the LOU, and HHS Instruction 430-5 and found that "but for this wrongful personnel action[] and violation of the Agreement and HHS Instruction 430-5, the loss of cash awards by Grievants Marshall and Carroza, and the loss of cash awards and a quality step increase by Grievants Burton and Hampton, would not have occurred." Id. at 19. He sustained the grievance and ordered the Agency to pay the four grievants backpay with interest for the cash awards and QSI's that they would have received for appraisal year 1991.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is contrary to law and regulations "because the Arbitrator ordered the Agency to treat Union officials differently than similarly-situated employees when granting performance awards." Exceptions at 1. The Agency asserts that the award is inconsistent with 5 C.F.R. § 430.205(b) and (c), HHS Instructions 403-4 and 430-5, and section 7116(a)(2) of the Statute. The Agency also asserts that the failure to receive an award is not grievable, citing 5 U.S.C. § 4505a(b)(2) (Supp. II 1990), which provides in part that "failure to pay a cash award under this section, or the amount of such an award, may not be appealed."

The Agency maintains that the Arbitrator misinterpreted the LOU and improperly used the LOU as the basis for finding that the grievants were entitled to performance awards. The Agency contends that the LOU provides only for carried-over performance ratings for Union officials granted 100 percent official time in order that those persons will have a performance rating of record for purposes of determining eligibility for within-grade pay increases and for applying for other positions. The Agency asserts that nothing in the LOU addresses performance awards and that the Arbitrator erred in relying on the LOU in his award. The Agency also contends that even if a past practice had been established to give awards to Union officials granted 100 percent official time, such a practice would be illegal and could not be continued.

The Agency contends that under 5 C.F.R. § 430.205(b) and (c) and HHS Instruction 430-4, an employee can be appraised for performance award purposes only after that employee's work in his or her regular position has been observed for a minimum of 90-120 days. The Agency also asserts that the Arbitrator's remedy ordering performance awards for the grievants whose work performance had not been observed violates section 7116(a)(2) of the Statute because the Arbitrator's award "would discriminate against similarly-situated employees who are not Union officials and encourage employees to join the Union and/or participate in Union activities." Id. at 5. The Agency maintains that the Union failed to show that the Agency discriminated against the grievants because of their Union activities and that "no evidence was presented to show that similarly-situated employees received a performance award." Id.

The Agency also contends that the award is contrary to Authority precedent in which the Authority has held nonnegotiable bargaining proposals which attempt to prescribe performance ratings for Union officials. In this regard, the Agency cites Naval Underwater Systems Center, Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938 (1990) (Norfolk Naval Shipyard), and Hawaii Federal Employees Metal Trades Council, AFL-CIO and U.S. Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii, 34 FLRA 873 (1990) (Hawaii FEMTC).

Additionally, the Agency asserts that the award is deficient because it does not draw its essence from the parties' collective bargaining agreement. The Agency maintains that nothing in the agreement requires that Union officials granted 100 percent official time receive performance awards. The Agency states that the agreement requires that performance awards be given in accordance with HHS Instruction 430-5, which "indicates that a performance award is based on the employee's rating of record which requires a summary rating and the summary rating is a written record of the appraisal of each critical and noncritical element." Exceptions at 9 (citations omitted). The Agency also claims that the Arbitrator misinterpreted Article 3 of the parties' agreement, which concerns employees' rights to join or assist the Union. The Agency maintains that the Arbitrator erred in finding that Article 3 "mandates awards" to Union officials who have been granted 100 percent official time. Id. at 10.

B. The Union

The Union asserts that the issue in this case concerns the Agency's discrimination against the grievants on the basis of their protected activity by failing to give them performance awards when it gave awards to other employees with the same performance ratings. The Union maintains that all the Agency's exceptions repeat arguments that were made before the Arbitrator and that the Agency is merely attempting to relitigate the matter before the Authority.

The Union asserts that there is no merit in the Agency's contention that the granting of performance awards to the grievants would constitute discrimination against other employees in violation of section 7116(a)(2) of the Statute. The Union states that this exception is "frivolous" and "ignores the fact that in this case at bar all similarly-situated employees did receive awards, which establishes that only the Union officials involved in this grievance were treated disparately." Opposition at 3-4. The Union maintains that the Agency's exceptions amount to a contention that Union representational functions on official time do not constitute the work of the Government and asserts that such an argument is contrary to Authority precedent.

The Union denies that the award is contrary to 5 C.F.R. § 430.205(b) and (c) and HHS Instruction 430-5 and asserts that the Agency is merely disagreeing with the Arbitrator and attempting to relitigate this argument before the Authority. The Union also disputes the Agency's contention that the failure to receive performance awards is not grievable. The Union points out that this matter arose in grievance arbitration and was properly before the Arbitrator. The Union maintains that "the Arbitrator's award in no way interfered with the Agency's rights and his award merely enforced the established laws, regulations and the requirements in the parties['] collective bargaining agreement." Id. at 6. Finally, the Union asserts that the Agency has not demonstrated that the award fails to draw its essence from the parties' collective bargaining agreement.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law or Regulation

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.

Initially, we reject the Agency's contention that the Union cannot grieve the grievants' failure to receive performance awards under 5 U.S.C. § 4505a(b)(2). The Authority addressed a similar argument in U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 46 FLRA 1126, 1132-33 (1993) and determined that 5 C.F.R. § 430.504(e), which implements chapters 43 and 45 of title 5, 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 scope of negotiated grievance procedures under the Statute. Consequently, matters concerning the amount of performance awards are not excluded automatically from coverage under a negotiated grievance procedure and may be considered under such procedures.

We find no merit in the Agency's contention that the award is contrary to 5 C.F.R. § 430.205(b) and (c) and HHS Instructions 430-4 and 430-5. Those regulations pertain to the minimum time in which performance must be observed in order to appraise an employee and to the requirement that performance awards be based on the rating of record for the appraisal year for which paid. Those considerations are not at issue in this case. The Arbitrator found that the grievants had valid performance appraisals for appraisal year 1991, based on the carry-over of their last performance appraisals pursuant to the parties' LOU and the past practice of the Agency in granting performance awards based on carryover appraisals. He found that the Agency had improperly denied the performance awards to the grievants in violation of the agreement, the LOU and its past practice of making awards to employees with carried-over appraisals of "excellent." He further concluded that "the Agency's attempt to deny the benefit [was] wrongful and violative of the Agreement and Regulations" and deprived the grievants of their rights under the agreement "to join and assist the Union." Award at 16. In contending that the Arbitrator erred in finding that the grievants were entitled to performance awards based on their carried-over appraisals of "excellent," the Agency has not shown that the award is contrary to any of the regulations cited. Rather, the Agency is merely disagreeing with the Arbitrator's interpretation and application of the collective bargaining agreement and the LOU. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1143 (1992).

We also conclude that the Agency has failed to demonstrate that the award is deficient on the ground that it is contrary to Authority precedent. The cases relied on by the Agency are inapposite to this case. In Naval Underwater Systems Center we found that a proposal concerning a union president's eligibility for performance awards under 5 U.S.C. § 4302(a) and 5 C.F.R. § 430.203 was nonnegotiable. In particular, we concluded that under 5 U.S.C. chapter 43 and its implementing regulations, job performance may not encompass duties and responsibilities performed on official time on behalf of a labor organization but, instead, is intended to encompass an employee's performance of agency-assigned duties and responsibilities. We specifically found that 5 U.S.C. § 4302 requires that elements and standards encompass only agency-assigned duties. See Naval Underwater Systems Center, 42 FLRA at 1293. In this case, the Arbitrator did not find that the grievants were entitled to performance awards based on the performance of duties performed on behalf of the Union while on official time. Instead, the Arbitrator found that the grievants were entitled to performance awards based on their carried-over performance appraisals based on the duties of their Agency positions. We find nothing in Naval Underwater Systems Center that would render the award in this case deficient.

Similarly, in Norfolk Naval Shipyard, we held that the section of a bargaining proposal requiring that an employee's most recent rating of record on file be used to determine eligibility for performance awards was inconsistent with a Government-wide regulation which provides that a performance award "shall be based on the employee's rating of record for the current appraisal period for which performance awards are being paid." 5 C.F.R. § 430.503(b). We held that the disputed section of the proposal was nonnegotiable because it did not require that the rating of record for the current appraisal period be used for performance awards and that it appeared to encompass the use of ratings of record covering periods prior to the current rating period. See Norfolk Naval Shipyard, 37 FLRA at 942. However, that case does not render the Arbitrator's award deficient in this case because the Arbitrator in this case merely required the Agency to follow its agreed-upon practice of making the carried-over ratings of Union officials granted 100 percent official time the current rating of record for purposes of performance awards. The Arbitrator found that under the parties' agreement, the LOU, and established past practice, the carried-over appraisal for Union officials granted 100 percent official time was the current appraisal for an appraisal year. Therefore, the Agency has not demonstrated that the award is deficient on the basis that it is contrary to Norfolk Naval Shipyard.

Likewise, in Hawaii FEMTC, we found nonnegotiable a proposal which provided that employees who could not be rated on the performance of the duties of their positions, such as certain union officials, would receive a rating that reflected the average of all employees and was normally not less than fully successful. We found that the proposal was inconsistent with 5 C.F.R. § 430.206(e) because it required the agency to give employees who had not performed work in their assigned positions for a minimum appraisal period a rating of fully successful or higher, instead of extending the appraisal period. See Hawaii FEMTC, 34 FLRA at 875-76. That case has no bearing on the Arbitrator's award in the present case, because the Arbitrator did not require the Agency to give the grievants specific performance ratings for work in their assigned positions that they did not perform. Rather, the Arbitrator merely required the Agency to comply with its agreed-upon practice of carrying over the performance appraisals of Union officials granted 100 percent official time.

Finally, we find no merit in the Agency's claim that the award is deficient because it discriminates against employees who are not Union officials and is contrary to section 7116(a)(2) of the Statute. The issue before the Arbitrator was whether the Agency had discriminated against the grievants on account of their Union activities by refusing to pay them cash performance awards and a QSI based on their carried-over performance appraisals. The Arbitrator found that the Agency had committed an unwarranted personnel action when it unilaterally changed its policy and did not comply with the parties' agreement, the LOU, and past practice. There is nothing in the Arbitrator's award that gives the grievants, as Union officials, more in the way of performance awards than other employees. The award merely ensures that the grievants receive that to which they are entitled by agreement and past practice, as found by the Arbitrator. 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 1297 (1993) (arbitration award ordering payment of a performance award not deficient where 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 also Department of Health and Human Services, Regional Personnel Office, Seattle, Washington, 47 FLRA 1338, 1342-43 (1993) (policy of crediting union officers' union experience in determining their qualifications for positions would not penalize unit employees who exercise their right to refrain from assisting the Union). Accordingly, the Agency's exception in this regard will be denied.

B. The Award Draws Its Essence from the Agreement

The Agency also claims that the award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award fails to draw its essence from the agreement, the Union must show 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 purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, 499 (1992).

The Agency has not demonstrated that the Arbitrator's award is deficient under any of these tests. The Arbitrator's award was based on his interpretation of the relevant provisions of the parties' agreement and the LOU. He concluded that the Agency had intended in those provisions to carry over the last performance appraisals of Union officials granted 100 percent official time and that those carried-over appraisals were a proper basis for the granting of performance awards. We have no basis on which to conclude that the Arbitrator's interpretation of the agreement and the LOU in this manner is implausible, irrational, or unconnected to the wording of the agreement. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the agreement and we will deny this exception.

V. Decision

For the foregoing reasons, the Agency's exceptions are denied.

APPENDIX

Article 3 of the parties' collective bargaining agreement provides in relevant part:

Section 1 - Right to Unionism

Each employee shall have the right to join or assist the Union, or to refrain from such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right . . . .

Award at 16.

The parties' "Letter of Understanding," dated July 20, 1988, signed by the Chief Negotiator for the Agency and the two Co-Chief Negotiators for the Union, states the following:

1. It is understood that union representatives who, as a result of their full time union representation, have never been appraised under the CSRA-a