United States Department of the Navy, Naval Undersea Warfare Center, Newport, Rhode Island (Agency) and National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 (Union)

[ v56 p938 ]

56 FLRA No. 156

UNITED STATES DEPARTMENT OF THE NAVY
NAVAL UNDERSEA WARFARE CENTER
NEWPORT, RHODE ISLAND
(Agency)

and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
FEDERAL UNION OF SCIENTISTS
AND ENGINEERS
LOCAL R1-144
(Union)

0-AR-3094
(55 FLRA 687 (1999))

_____

DECISION

November 29, 2000

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Peter Florey filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The award results from the remand in United States Dep't of the Navy, Naval Undersea Warfare Center, Newport, R.I., 55 FLRA 687 (1999) (Dep't of the Navy). The Authority remanded the award to permit the Arbitrator to clarify the basis for his determination, in his initial award, that the grievant was entitled to a 2 percent performance award.

      For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      In Dep't of the Navy, 55 FLRA 687, the Authority reviewed the Agency's exceptions to the Arbitrator's initial award in this case. In that award, the Arbitrator concluded that the grievant had not been properly appraised, and he directed the Agency to provide the grievant an "Outstanding" summary performance rating. The Arbitrator further concluded that, under the Agency's Performance Appraisal Review System (PARS) regulation, the grievant was entitled to a performance award. [n2] 

      On review of the Agency's exceptions, the Authority found that: (1) the portion of the award raising the grievant's rating was not inconsistent with the PARS regulation or management's rights; and (2) the portion of the award granting the grievant a performance award was not inconsistent with 5 C.F.R. § 420.504(d) or based on a nonfact. In so doing, the Authority found that the PARS regulation constitutes an "applicable law," within the meaning of § 7106(a)(2) of the Statute. However, the Authority was unable to determine whether the portion of the award granting a performance award was inconsistent with the PARS regulation because the Arbitrator did not set out the facts on which he based his legal conclusion. Accordingly, the Authority remanded this aspect of the award for clarification.

      In the award on remand, the Arbitrator explained that his conclusion that the grievant was entitled to a performance award was based on the PARS regulation and the factual information contained in an investigative report prepared for the Agency (the Bain report) during the processing of the grievance. The Arbitrator specifically relied on § 9(e)(5) of the PARS regulation, which provides that the granting of awards "should be considered [ v56 p939 ] together where the employees have the same or similar performance standards and are working together in support of the same organizational requirements." The Arbitrator also relied on the findings in the Bain report that of the six employees working in the grievant's department, all received awards except for the grievant and another employee, "who was precluded by specific regulatory language." Award at 3. Because all of the employees in the grievant's department "had similar performance standards and were working together in support of the same organizational standards" and had received awards, the Arbitrator concluded that the grievant, like the other employees, was entitled to a performance award under the PARS regulation. Id.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency claims that the award is contrary to the PARS regulation because the Arbitrator ignored the clear language of the regulation providing that performance awards are optional. The Agency also claims that the award is based on a nonfact because performance awards are optional under the PARS regulation.

B.     Union's Opposition

      The Union asserts that the Arbitrator properly determined that the grievant was entitled to a performance award under § 9(e)(5) of the PARS regulation. The Union also asserts that the award is not based on a nonfact because the regulation provides that awards should be considered together when employees are working towards the same goal.

IV.     Preliminary Issue

      The time limit for filing an opposition to an exception is 30 days after the date of service of the exception. 5 C.F.R. § 2425.1(c). The date of service is the date the exception is deposited in the U.S. mail, delivered in person, or received from commercial delivery. 5 C.F.R. § 2429.27(d). Section 2429.23(b) of the Authority's Regulations permits the Authority to waive any expired time limit in "extraordinary circumstances."

      In this case, the Authority was unable to determine the due date for the Union's opposition because the Statement of Service accompanying the Agency's exceptions was not dated. Accordingly, the Authority issued an Order directing the Agency to furnish a statement indicating the date its exceptions were served on the Union. Based on the Agency's response to the Order, the Union's opposition was due July 24, 2000. The Union's opposition was filed on July 25, 2000 with a motion requesting the Authority to accept the opposition in the event it is not timely. In support of its motion, the Union asserts that it was not able to determine the date the opposition was due because the Statement of Service accompanying the Agency's exceptions was not dated.

      Neither the Union nor the Authority was able to determine the due date for the Union's opposition until after it was due. Moreover, the Union's opposition was filed only 1 day after that due date, and the Agency does not oppose the Union's motion. In these circumstances, we find extraordinary circumstances, waive the expired time limit, and grant the Union's motion to consider its opposition to the Agency's exceptions.

V.     Analysis and Conclusions

A.     The Award Is Not Contrary to the PARS Regulation

      The Agency argues that the award is inconsistent with the PARS regulation. Because we found in United States Dep't of the Navy, Naval Undersea Warfare Center, Newport, R.I., 55 FLRA 687, 690-91 (1999) (Dep't of the Navy), that the PARS regulation is an "applicable law," we review the Agency's exception de novo. In applying a standard of de novo review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the arbitrator's underlying factual findings. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the Arbitrator's underlying factual findings. Id.

      The PARS regulation provides that performance awards are optional, and that not every employee with an "Outstanding" rating is entitled to an award. However, it also provides that in making that determination, the Agency should consider whether other employees have been granted awards. See PARS Regulation, § 9(e)(5), supra note 2. Specifically, it provides that "[p]erformance awards should be considered together where the employees have the same or similar performance standards and are working together in support of the same organizational requirements." Id.

      Here, the Arbitrator specifically applied the PARS instruction that awards be considered "together." Award at 3. In so doing, the Arbitrator relied on findings contained in the Bain report regarding other employees in the grievant's department. In particular, the Arbitrator found that all eligible employees in the grievant's department, with the exception of the grievant, received awards. He also found that all of the employees who had received an "Outstanding" rating had also received awards. In addition, he found that the grievant and the [ v56 p940 ] employees receiving awards "had similar performance standards and were working in support of the same organizational standards." Id.

      The Agency does not dispute these factual findings, to which we defer. Consistent with these findings, the Arbitrator's decision to grant the grievant a 2 percent performance award is not inconsistent with the PARS regulation. By its plain terms, the regulation provides that awards are optional. Also by its plain terms, however, the regulation seeks consistency among awards involving employees who have similar performance standards and who work to support the same organizational requirements. The facts in this case establish that, absent the award, the grievant would be the only eligible employee in his department, and the only eligible employee with an "Outstanding" rating, who did not receive an award. No basis is provided for concluding that, in these circumstances, the PARS regulation bars an award to the grievant. Accordingly, we conclude that the award is not inconsistent with the PARS regulation.

B.     The Award Is Not Based on a Nonfact

      The Agency's nonfact argument is identical to that made in its exceptions to the initial award, which the Authority explicitly rejected. See Dep't of the Navy, 55 FLRA at 688-89, 692. In particular, the Authority found that the Agency failed to establish that the Arbitrator's conclusion that the grievant was entitled to a performance award under the Agency's PARS regulation constitutes a "fact" underlying the award. Id. at 692. The Authority found that the Arbitrator's conclusion resulted from his interpretation and application of the PARS regulation to the evidence presented and, as such, could not be challenged as a nonfact. See id. (citing NATCA, 54 FLRA 1354, 1361-62 (1998)).

      Applying the foregoing, the Agency's renewed claim that the award is based on a nonfact does not provide a basis for concluding that the award is deficient. See NATCA, 54 FLRA at 1361-62. Accordingly, we deny the Agency's nonfact exception.

VI.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 56 FLRA No. 156

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 156

   Sections 9(e)(5) and(6)(b) of the PARS regulation provide the following regarding performance awards:

(5) Granting of Awards. Granting of performance awards is optional. If one or more employees with an "O" rating is granted an award, it is not necessary that every "O" rated employee in that same grade and award pool be granted an award. Performance awards should be considered together where the employees have the same or similar performance standards and are working together in support of the same organizational requirements.
(6) Payment of Awards
. . . .
(b) When the decision to grant awards is made