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