52:0089(9)AR - - HQ, Army Aviation Center, Fort Rucker, AL and Wiregrass Metal Trades Council - - 1996 FLRAdec AR - - v52 p89

[ v52 p89 ]
The decision of the Authority follows:

52 FLRA No. 9














August 26, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James E. Fulford 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 Regulations. The Union filed an opposition to the exceptions.

The Arbitrator sustained a grievance over the Agency's refusal to give the grievant a performance-related cash award.

For the following reasons, we conclude that the award is contrary to a Government-wide regulation and, therefore, is deficient under section 7122(a) of the Statute. Accordingly, we set aside the award.

II. Background and Arbitrator's Award

The Union filed a grievance after the Agency refused to give the grievant a performance-related cash award. The Agency had notified the grievant that he would not receive a cash award because the Superior Performance Award Program for the fiscal year had been terminated due to the unavailability of funds. The parties stipulated that the Arbitrator decide the following issue: "Did the Center violate the Labor Agreement when it failed to give the [g]rievant a cash award? If so, what shall the remedy be?" Award at 1.

The Arbitrator found, based upon the evidence presented, that Agency employees "who receive exceptional ratings usually get monetary awards to go along with the rating." Id. at 2. In light of this finding, the Arbitrator concluded that the Agency had established a past practice that amounted to a promise to give employees who receive exceptional ratings a cash award. Noting the absence of an express collective bargaining agreement provision addressing performance award criteria, the Arbitrator determined that the grievant was entitled to a cash award based on the Agency's past practice. As his award, the Arbitrator stated in relevant part: "If no money is available to pay a cash award during the present fiscal year, the amount of money promised to the [g]rievant by his immediate supervisor, will be taken from next year's incentive award funding and paid to the [g]rievant." Id. at 4.

III. Exceptions

A. Agency's Contentions

The Agency argues that the award is contrary to 5 C.F.R. § 430.504(d).(1) In this connection, the Agency states that compliance with the award's mandate that it pay the grievant a cash award from either the present or next fiscal year's budget is contrary to the regulatory requirement that performance awards be approved or disapproved by a higher level authority. The Agency distinguishes two Authority decisions, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 46 FLRA 1297 (1993) (Hill Air Force Base) and U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 46 FLRA 1126 (1993) (SSA), wherein the Authority upheld arbitrators' awards granting performance awards as a remedy to enforce bargaining agreement provisions which mandate that certain monetary awards be given based upon the receipt of a certain level of performance appraisal.

In response to an Authority Order requesting that the Agency submit comments concerning the Office of Personnel Management's (OPM) interpretation of 5 C.F.R. § 430.504(d) the Agency states that: (1) OPM's advisory opinion supports the Agency's exception, and (2) application of 5 C.F.R. § 430.504(d), not its replacement, 5 C.F.R. § 451.103(c) (1996), is appropriate in this case.(2)

B. Union's Opposition

The Union states that in awarding an incentive award to the grievant to be paid from next year's funds the Arbitrator followed past Agency practice. The Union did not respond to the Agency's contention that the award is inconsistent with 5 C.F.R. § 430.504(d). The Union also did not respond to the Authority's Order requesting its views on OPM's advisory opinion concerning 5 C.F.R. § 430.504(d).

IV. Analysis and Conclusion

As the Agency's exception that the award is contrary to 5 C.F.R. § 430.504(d) involves the award's consistency with law, we must review the questions of law raised by the Arbitrator's award and the Agency's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). An arbitration award is deficient under section 7122(a) of the Statute if it is contrary to law, rule or regulation. For the following reasons, we find that the award is contrary to 5 C.F.R. 430.504(d).(3)

Because 5 C.F.R. § 430.504(d) is a Government-wide regulation that was promulgated by OPM, it is proper to consider OPM's advisory opinion in this case. See 5 U.S.C. § 7105(i); National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA 843, 844-45 (1996) (Department of Agriculture) (Authority sought OPM advisory opinion concerning interpretation of 5 C.F.R. § 610.121), petition for review filed as to other matters, No. 96-1106 (D.C. Cir. Apr. 4, 1996). In this regard, OPM advises that the plain