File 2: Opinion of Member Armendariz

[ v61 p165 ]

Dissenting Opinion of Member Armendariz:

      I would find the award deficient as failing to draw its essence from the parties' agreements. Accordingly, I dissent.

      The parties' agreements in this case condition the furnishing of contractual benefits and performance awards on budgetary considerations. [n1]  There are several pertinent provisions that warrant some discussion -- provisions that are both general, in terms of overall considerations, and specific, in terms of particular benefits that are provided to employees.

      The general provision is set forth in Article 3, Section 9 and states, as relevant here, that "[i]n the event budgetary considerations seriously impair the Agency's ability effectively to achieve the mission and goals of the [Agency], the General Counsel will not be obligated to implement or continue a benefit of this Agreement which is expressly contingent on such considerations." Section 9 further allows the Agency's General Counsel "to defer benefits which are expressly contingent on budgetary considerations," in the event that the Agency's funding is authorized through a continuing resolution. Section 9 adds that "[u]pon enactment of the Agency's annual appropriation, absent a determination by the General Counsel that such deferred benefits will be curtailed under the above `seriously impaired' standard, the deferred benefits will be retroactively restored to the greatest extent possible, consistent with law."

      The specific contract provisions that are at issue here are: Article 7, which addresses educational development (training); Article 11, which addresses an employee exchange program; and Article 12, which governs incentive and performance awards. Each of these articles states that it is to be applied consistent with budgetary considerations. [n2]  Thus, the Agency's obligation to provide the benefits set forth in each of      these articles is "expressly contingent on" the budgetary considerations of Article 3, Section 9.

      As reflected in the award, the Agency initially deferred benefits under the training and exchange program provisions during the pendency of several continuing resolutions in fiscal year 2003. Following enactment of the Agency's appropriation on February 20, 2003, the Agency restored the training benefit on or about March 18, 2003. The Agency notified the Union of the reinstatement of the exchange program in April 2003, which recommenced in May 2003. As for the performance awards, the Arbitrator found that they were not issued from February 2003 to July 2003, and were ultimately restored on July 9, 2003. Prior to February 2003, however, the Agency had advised its managers and the Union that awards would be postponed based on uncertainties over the budget and the likelihood of a rescission of funds. [n3] 

      The Arbitrator concluded that the Agency's delay in restoring benefits after February 20, 2003, constituted a violation of the parties' agreements. While the Arbitrator stated that "it would be somewhat unreasonable to expect the Agency to restore the benefits immediately or the day after the enactment of the appropriations bill[,]" Award at 45, he nonetheless found that a delay of "26 calendar day" in restoring certain benefits was unacceptable. Id. at 47. In reaching this result, the Arbitrator rejected the Agency's contention that it was required to engage in a budgetary process subsequent to enactment of the Agency's authorization that involved certain approval authority from the Office of Management and Budget, which was received on March 25, 2003. The Arbitrator stated that "the C[ontinuing] R[esolution] deferral language `upon enactment' does not make the restoration of the benefits contingent on other budgetary factors . . . ." Id. at 42-43. The Arbitrator also rejected the Agency's claim that "since the contract language does not indicate `when benefits would be restored' the parties intended a `common sense' time frame for the actual restoration[.]" Id. at 42. The Arbitrator found, instead, that "immediate funding" of the deferred benefits was intended. Id. [ v61 p166 ]

      In my view, the Arbitrator's finding of a violation does not represent a plausible interpretation of the agreements. Following enactment of the Agency's budget in February 2003, the Agency took immediate steps to begin restoring and providing benefits -- first with respect to training and then followed by the exchange program. The passage of a short period of time in providing benefits is reasonable in these circumstances and is supported by the Arbitrator's finding that the Agency would be required to engage in some administrative activity in order to identify affected employees and provide the required benefits.

      For the same reason, the Arbitrator's finding that the granting of performance awards on July 9, 2003 was a violation of the agreements is not a plausible reading of the agreements. In my view, the Agency acted promptly in granting the awards once its budget concerns, particularly those related to the possibility of a significant rescission, were alleviated.

      My view here is consistent with NLRB. In that case, the Agency deferred awards for employees who are covered by a different collective bargaining agreement. The Authority upheld an award in which the arbitrator found that the Agency violated the parties' agreement by temporarily suspending the granting of performance awards during the period of continuing resolutions. There, as here, the parties' agreement allowed the Agency to defer contract benefits, based on budgetary considerations, insofar as those benefits were made contingent on budgetary considerations. Significantly, however, the provision in that case pertaining to performance awards did not contain any language making the granting of such awards contingent on budgetary considerations. The absence of such contractual language makes that case distinguishable from the instant case, in which Articles 7, 11 and 12 expressly make the furnishing of the benefits therein contingent on budgetary considerations.

      The Authority will find an award deficient as failing to draw its essence from a collective bargaining agreement when 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 collective bargaining 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 United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). In this case, the Arbitrator's award does not represent a plausible interpretation of the agreement for the reasons set forth above. See also United States Dep't of Homeland Sec., United States Customs & Border Prot., United States Border Patrol, El Paso, Tex., 60 FLRA 883 (2005) (wherein I dissented finding that an arbitrator's determination that a 31-day delay in proposing discipline was not a plausible interpretation of the agreement).

      In sum, I find the award deficient and would set it aside. [n4] 

File 1: Authority's Decision in 61 FLRA No. 31
File 2: Opinion of Member Armendariz

Footnote # 1 for 61 FLRA No. 31 - Opinion of Member Armendariz

   There are two collective bargaining agreements involved in this case -- one governing field office support staff employees and one governing field office professional employees. The language in the agreements is virtually identical in all relevant respects.

Footnote # 2 for 61 FLRA No. 31 - Opinion of Member Armendariz

   Article 7 obligates the Agency to provide training "to the extent funds are available."

        Article 11 states that "[c]onsistent with budgetary and staffing considerations, a minimum of . . . Washington Exchange Program assignments will be offered to employees during each fiscal year of this Agreement. . . ."

        Article 12 states that "[c]onsistent with . . . budgetary considerations . . . the General Counsel . . . shall recognize and reward employees appropriately and promptly for their contributions and performance."

Footnote # 3 for 61 FLRA No. 31 - Opinion of Member Armendariz

   In NLRB, Wash., D.C., 61 FLRA 41 (2005) (NLRB), which involved the same Agency and a deferral of awards for a different group of employees, the Authority noted that after the appropriation was enacted in February 2003, Congress imposed a 6.5% rescission. Later, in June 2003, the Agency learned that there would be no rescission. Id. Official notice of this matter is appropriately taken pursuant to § 2429.5 of the Authority's Regulations. See, e.g., United States Dep't of Homeland Sec., Border and Trans. Directorate, Bur. of Customs & Border Protection, 59 FLRA 910, 913 (2004).

Footnote # 4 for 61 FLRA No. 31 - Opinion of Member Armendariz

   In view of this result, I find it unnecessary to addressthe additional exceptions.