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The decision of the Authority follows:
49 FLRA No. 14
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY RESERVE PERSONNEL CENTER
ST. LOUIS, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 17, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Beryl M. Carlew 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 Rules and Regulations. The Union's opposition was untimely filed and will not be considered in this decision.(1)
The Union filed a grievance alleging that the Agency untimely processed several performance awards earned by the grievant. The Arbitrator sustained the grievance and awarded the grievant a cash award and ordered that the grievant's two Quality Step Increases (QSIs) and her within-grade increase (WIGI) remain in effect. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient. Therefore, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
In September 1990, the grievant received a performance appraisal of exceptional for the rating period of September 1989 to July 1990. On April 5, 1991, the grievant's supervisor nominated the grievant for a QSI for that rating period. In late April 1991, the Agency returned the nomination to the grievant's supervisor without action because the nomination failed to comply with the Agency's timeliness criterion (which provided that an award must be submitted within 60 days of the approval date of the rating) and the supervisor had failed to secure an appropriate waiver. In July or August 1991, the grievant's supervisor resubmitted the grievant's nomination for the QSI with a request that the time limit be waived.
On September 20, 1991, the Agency waived the 60-day time limit and approved the grievant's QSI for the September 1989 to July 1990 rating period. However, the Agency's computer system could not process the grievant's QSI because of the different fiscal years involved and "the issue was sent to [the Agency's] Dispute Resolution Board[.]"(2) Award at 7.
On November 21, 1991, the grievant was nominated and approved for a cash award for the period from September 1990 to September 1991. The recommendation for a cash award was subsequently changed to a recommendation for a second QSI. In December 1991, the grievant's WIGI became due and the recommendation for the second QSI was approved.
On January 7, 1992, based on the problems of processing the grievant's first QSI, the Agency offered the grievant a cash award of $642.00 in lieu of the first QSI. The Agency's offer would also have resulted in the grievant receiving a WIGI and the effectuation of her second QSI for the period from September 1990 to September 1991. The grievant rejected the Agency's offer.
Ultimately, the Agency processed both of the grievant's QSIs in May 1992. The effective dates of the QSIs were set retroactively to September 1991 and December 1991, respectively. The Agency did not process the cash award.
The Union filed a grievance on behalf of the grievant alleging that the Activity untimely processed the grievant's awards. The grievance was denied and submitted to arbitration. The parties stipulated to the following issues before the Arbitrator:
Did the Agency violate any law, rule, or regulation which would entitle the [g]rievant to any benefits, including any incentive award or [within grade] increase (WIGI)?
Id. at 1.
The Arbitrator found that the Agency's awards program "is to be administered within [Federal guidelines] and to be for the 'best interest of the employee.'" Id. at 8. The Arbitrator found that from the time the grievant's supervisor first nominated the grievant for an award on April 5, 1991, until the time of the arbitration hearing, the incentive awards program had not been administered in the best interest of the grievant. In this regard, the Arbitrator found that there was "an inordinately long time" between the initial nomination of the grievant for an award and the Agency's implementation of the award. Id. at 9. Specifically, the Arbitrator found that nothing had been done to effectuate the first QSI "for a period from [April 5, 1991, through] April 1993, a two (2) year period of time." Id. The Arbitrator stated that "[i]t is time that the employee receives her [c]ash [a]ward." Id. Therefore, the Arbitrator ordered that the Agency give the grievant a cash award of $642.00. The Arbitrator also ordered that the two QSIs and the WIGI "that are in place are to stay locked down." Id.
III. Agency's Exceptions
The Agency contends that the award is deficient because it violates a Government-wide regulation by granting the grievant a QSI and a performance award for the same rating period. According to the Agency, the FPM provides that a performance award and a QSI may be granted for the same time period only if the employee's performance was "so exceptional in one job aspect or assignment, or contributed so importantly to mission or national goals." Exceptions at 3, quoting FPM chapter 451, Incentive Awards, subchapter 6, Monetary Recognition for Performance, paragraph 6-3b(3). The Agency maintains that the Arbitrator did not find that the grievant met the "requirements for dual recognition as provided [for] in the FPM." Id. The Agency requests the Authority to set aside the portion of the award granting the grievant a performance award of $642.00.
The Agency also contends that the award violates an Agency regulation, Army Regulation (AR) 672-20, Incentive Awards, Chapter 6, Quality Step Increases, Subchapter 6-5c, which provides that "'[a]n employee may not receive a QSI if the employee has previously received a [p]erformance [a]ward based in whole or in part on the performance currently being recommended for recognition.'" Id. at 4. The Agency interprets the regulation to mean that an employee cannot receive a QSI for the same performance for which he or she received a performance award.
IV. Analysis and Conclusions
We will find an award deficient under section 7122(a)(1) of the Statute when it is contrary to law, rule, or regulation. For the following reasons, we find that the portion of the Arbitrator's award that directs the Agency to pay the grievant a $642.00 cash award in addition to a QSI is not deficient.
On December 31, 1993, the FPM was abolished and succeeded by a Provisional System which will "sunset" on December 31, 1994. See FPM Sunset Document at 1. The FPM Sunset Document outlines the FPM material that was abolished and the FPM material that is being provisionally retained through December 31, 1994. The material relied on by the Agency--FPM chapter 451, Incentive Awards, subchapter 6--was abolished by the FPM Sunset Document. Id., Summary Table at 8.
The Authority applies the law as it is at the time it makes a decision. See, for example, U.S. Department of Transportation and Federal Aviation Administration and Professional Airways Systems Specialists, MEBA, AFL-CIO, 40 FLRA 690, 710 (1991). We find that the provision of the FPM relied on by the Agency is no longer in effect and, therefore, cannot be used as a basis for finding the award deficient.
We also reject the Agency's contention that the award violates AR 672-20, Incentive Awards, chapter 6, Quality Step Increases, subchapter 6-5c. Section 7122(a) of the Statute provides that an award is deficient if it conflicts with a governing rule or 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 (1990). AR 672-20 provides that an employee may not receive a QSI if the employee has previously received a performance award based on the performance currently being recommended for recognition. However, AR 672-20 does not preclude an employee from receiving other awards in addition to a QSI that has already been approved for the same rating period. Therefore, we find that the Agency has not shown that the award is deficient on the basis that it conflicts with AR 672-20.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. By an order dated July 23, 1993, the Authority directed the Union to show cause why its opposition should be considered. In its response, the Union contends that it received the Agency's exceptions by certified mail on June 17, 1993, through the Agency's mail system and, therefore, that its opposition was due on July 17, 1993. Under section 2229.27(d) of our Rules and Regulations, the date of service is the day when the matter served is deposited in the U.S. mail or is delivered in person, not when the exceptions are received. The certificate of service that accompanied the Agency's exceptions states that the exceptions were served on the Union by mail on June 9, 1993. Therefore, any Union opposition to the Agency's exception had to be either postmarked by the U.S. Postal Service or personally delivered to the Authority no later than July 14, 1993, in order to be considered timely. See 5 C.F.R. §§ 2425.1(c), 2429.21(b) and 2429.22. The Union's opposition was postmarked on July 15, 1993. We find that the Union has not established extraordinary circumstances under section 2429.23(b) of our Rules and Regulations so as to warrant a waiver of the expired time limit for filing its opposition. See, for example, Department of the Army, Aberdeen Proving Ground and I.A.M. and A.W., Aberdeen Lodge No. 2424, 34 FLRA 521 (1990) (delay caused by agency's mailing procedure does not constitute extraordinary circumstances sufficient to toll filing deadline). We find, therefore, that the Union's opposition was untimely.
2. The record does not set forth the composition of the Dispute Resolution Board or its functions.