38:0626(58)NG - - AFGE Local 1770 and Army, HQ XVIII Airborne Corps and Ft. Bragg, Ft. Bragg, NC - - 1990 FLRAdec NG - - v38 p626

[ v38 p626 ]
The decision of the Authority follows:

38 FLRA No. 58




LOCAL 1770










November 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The Union is appealing the Agency head's disapproval, under section 7114(c) of the Statute, of a provision concerning performance awards that was included in the local agreement pursuant to a decision of the Federal Service Impasses Panel (the Panel or FSIP).

Because we find that the provision is inconsistent with 5 C.F.R. § 430.503(c), we conclude that the provision is nonnegotiable under section 7117(a)(1) of the Statute.

II. Procedural Issues

The Union claims that the "Agency's allegation should be denied because it doesn't meet the requirements set out" in section 2424.6 of the Authority's Rules and Regulations. In particular, the Union claims that: (1) the Agency's Statement of Position was untimely filed because the Union's appeal was mailed on October 2, 1989 and the Agency "should have" received it no later than October 6, 1989; (2) the Agency did not provide an explanation of the meaning attributed to the provision; (3) the Agency did not cite the law or regulation it relied on; and (4) the Agency did not provide a detailed statement supporting its rationale. The Union also contends that the Agency acted in bad faith by "distorting" the terms of the provision to avoid accepting the Panel's decision. Union's Response to Agency's Statement of Position (Union's Response) at 1.

Under section 2424.6(a) of the Authority's Rules and Regulations, an agency's statement of position must be filed with the Authority within 30 days of the date of "receipt" by the agency head of a union petition for review. The Agency states that it received the Union's petition for review on October 12, 1989. Agency's Statement at 1. The Agency's statement of position was filed with the Authority on November 7, 1989. Because the Agency's statement of position was timely filed based on the date on which it claims to have received the petition for review, we conclude, in the absence of any evidence submitted by the Union that the petition for review was not received by the Agency on that date, that the Agency's statement of position was timely filed.

We reject the Union's claim as to the other alleged procedural deficiencies. The Agency's statement of position explained the Agency's interpretation of the effect of the provision, specifically stated the legal and regulatory grounds on which the provision was claimed to be nonnegotiable, and provided detailed reasoning in support of the Agency's claims that the provision was nonnegotiable.

III. Provision

Performance awards will be granted to employees who are rated "Exceptional" or "Highly Successful" for the appraisal year for which award determinations are being made. Amounts will be distributed fairly and equitably within budgetary constraints.

IV. Positions of the Parties

1. Agency

The Agency claims, citing Department of the Air Force, Langley Air Force Base v. FLRA, 878 F.2d 1430 (4th Cir. 1989) (unpublished decision) (Langley Air Force Base), that the provision directly interferes with management's right, under section 7106(a)(1) of the Statute, to determine its budget. The Agency argues that, as with the proposal in the Langley Air Force Base case, by requiring the Agency to grant performance awards to employees who achieve a specified rating, the provision "forces the [A]gency to first consider the budgetary impact of the award monies mandated by the performance rating before the actual official rating is given to the employee." Agency's Statement at 2.

The Agency argues that the phrase "within budgetary constraints" in the second sentence of the provision does not change the effect of the first sentence. The Agency argues that, under the provision, if "no award money is available," it would be precluded from giving employees the rating that they deserve or, conversely, if the Agency gave the rating that the employee deserves, it would be unable to comply with the contractual requirement to pay the award. Id. at 3. The Agency concludes that "[p]reventing the [A]gency from assigning the proper level of performance rating because of budgetary constraints directly interferes with the [A]gency's ability to act." Id.

The Agency disputes the Panel's conclusion that the provision would boost morale and result in increased productivity. The Agency argues that because the budget does not always contain adequate funding for performance awards, when employees realize that the lower level of funding will result in lower ratings, "employee morale will . . . suffer" and "productivity will plummet[.]" Id.

The Agency also notes that, under the Federal Personnel Manual (FPM), employees who receive "exceptional or highly successful" ratings receive RIF credit for retention purposes and credit for promotion purposes. The Agency concludes that "[t]o deny the [A]gency's high performers these benefits only because of a limited awards budget would undoubtedly impact employee morale and productivity." Id. at 4.

The Agency also claims that the provision is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with law and regulation, specifically, 5 U.S.C. § 4302a(c)(1)(B), FPM Chapter 430, Subchapter 2-4, and 5 C.F.R. § 430.