53:0422(48)AR - - HHS, FDA, Kansas City District and NTEU, Chapter 254 - - 1997 FLRAdec AR - - v53 p422



[ v53 p422 ]
53:0422(48)AR
The decision of the Authority follows:


53 FLRA No. 48

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

FOOD AND DRUG ADMINISTRATION

KANSAS CITY DISTRICT

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 254

(Union)

0-AR-2782

_____

DECISION

September 24, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and

Donald S. Wasserman, Member.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Timothy J. Heinsz 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator found that the Agency violated the collective bargaining agreement by precluding consideration of certain employees for performance awards. As a remedy, the Arbitrator ordered that the Agency grant these employees the performance awards they otherwise would have received.

We conclude that the remedy is deficient. Accordingly, we modify the remedy to permit the Agency to review and approve in accordance with 5 C.F.R. § 430.504(d) the performance awards ordered by the Arbitrator. Otherwise, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

On the basis of agency directives restricting the number of performance awards for the appraisal period in dispute, the Agency was limited to granting no more than 59 performance awards to bargaining-unit employees. For the disputed period, 36 employees in the unit had been rated "outstanding" and 73 employees had been rated "excellent." The district director determined that awards would be granted only to employees who had been rated "outstanding." He determined that no awards would be granted to employees rated "excellent" because there was no way to fairly distinguish among them. The union filed a grievance disputing the director's determination.

The Arbitrator sustained the grievance. He found that the Agency violated the collective bargaining agreement by categorically precluding from consideration for performance awards employees who had been rated "excellent." As a remedy, the Arbitrator ordered that the Agency grant these employees the performance awards they otherwise would have received. He retained jurisdiction until the remedy had been implemented.

III. Exceptions

A. Agency's Contentions

First, the Agency contends that the Arbitrator exceeded his authority by retaining jurisdiction for unspecified reasons. Although the Agency acknowledges that arbitrators may properly retain jurisdiction to oversee the implementation of remedies, the Agency contends that the Arbitrator's retention is deficient because it is not defined.

Second, the Agency contends that the Arbitrator's remedy is contrary to 5 C.F.R. § 430.504(d).(1) The Agency argues that the remedy ignores its right to disapprove performance awards.

Third, the Agency contends that the remedy is contrary to management's right to determine its budget under section 7106(a)(1) of the Statute. The Agency claims that the Arbitrator's order conflicts with management's right because it prescribes a particular program or operation that the Agency must include in its budget.

B. Union's Opposition

First, the Union contends that the Arbitrator's retention of jurisdiction was proper because it was for the purpose of overseeing the implementation of the remedy. The Union maintains that the exception is nothing more than a dispute over semantics.

Second, the Union contends that the remedy does not conflict with section 430.504(d). In support, the Union relies on NTEU v. FLRA, 30 F.3d 1510 (D.C. Cir. 1994) and the decisions of the Authority in U.S. Department of Health and Human Services, Social Security Administration, Area II, New York Region and American Federation of Government Employees, 48 FLRA 370 (1993) (HHS); 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) (Hill AFB); and U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 46 FLRA 1126 (1993) (SSA). Third, the Union contends that the remedy does not conflict with section 7106(a)(1) because it does not address the Agency's budget.

IV. Analysis and Conclusions

A. The Arbitrator's Retention of Jurisdiction Is Not Deficient

The Agency fails to establish that the Arbitrator exceeded his authority by retaining jurisdiction. We agree with the Union that it is clear from the award that the purpose of the Arbitrator's retention of jurisdiction was to resolve any disputes over implementation of the award. As recognized by both parties, the Authority has uniformly upheld the retention of jurisdiction by arbitrators for the purpose of resolving any disputes over implementation of an award. E.g., U.S. Department of Defense, Army and Air Force Exchange Service, George Air Force Base, California and National Federation of Federal Employees, Local 977, 40 FLRA 79, 83 (1991); Overseas Education Association and Department of Defense Dependents Schools, Atlantic Region, 31 FLRA 80, 93 (1988). Therefore, we deny the Agency's exception.

B. Section 430.504(d)

As the Agency's exception that the Arbitrator's remedy is contrary to section 430.504(d) involves its consistency with regulation, we review this question de novo. U.S. Department of the Army, Headquarters, U.S. Army Aviation Center, Fort Rucker, Alabama and Wiregrass Metal Trades Council, 52 FLRA 89, 91 (1996) (Ft. Rucker). An arbitration award is deficient under section 7122(a)(1) of the Statute if it is contrary to an applicable Government-wide regulation. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 191 (1990). We find that the Arbitrator's remedy is contrary to section 430.504(d).

1. Section 430.504(d) Applies

In 1995, the provisions in 5 C.F.R. part 430 pertaining to performance awards, including section 430.504(d), were replaced by a revised 5 C.F.R. part 451. The revised part 451 does not contain the requirement for higher-level review and approval set forth in section 430.504(d).(2) However, we apply section 430.504(d) because it was in existence at all relevant times and the rights the Agency had under this provision would be impaired if we did not apply it in resolving the Agency's exception. Ft. Rucker, 52 FLRA at 91 n.3.

2. The Remedy Is Contrary to Section 430.504(d)

Section 430.504(d) is a Government-wide regulation that was promulgated by the Office of Personnel Management (OPM). Id. at 92. OPM provided the Authority with an advisory opinion concerning its interpretation in a case that was subsequently withdrawn.(3) In the opinion, OPM advised that section 430.504(d) requires review and approval of each individual performance award. Id.

We applied OPM's opinion in Ft. Rucker in finding deficient the arbitrator's order that the agency grant a performance award. Deferring to OPM's interpretation, we concluded that the order was deficient because it deprived the agency of its discretion to approve or disapprove the performance award ordered by the arbitrator. Id. at 93.

On the basis of OPM's opinion and its application in Ft. Rucker, we conclude that the Arbitrator's remedy in this case is contrary to section 430.504(d) because it deprives the Agency of its discretion to approve or disapprove the performance awards ordered by the Arbitrator. See id. Because employees who were rated "excellent" were never considered for awards as a result of the Agency's directives, we modify the award to permit the Agency to review in accordance with section 430.504(d) the Arbitrator's order to grant performance awards to the individual employees who were rated "excellent."

In finding the award deficient, we reject the Union's reliance on NTEU v. FLRA. OPM's interpretation of section 430.504(d) is authoritative and reasonable. See id. at 92-93. Consequently, as provided by the court's decision, OPM's opinion is controlling. 30 F.3d at 1516. We also reject the Union's reliance on the Authority's decisions in HHS, Hill AFB, and SSA. In view of OPM's opinion, those cases provide no basis for denying the Agency its right to review and approve all performance awards.

C. The Remedy Is Not Contrary to Section 7106(a)(1)