File 2: Opinion of Member Pope
[ v59 p317 ]
Member Pope, dissenting in part:
I agree with the majority that 5 C.F.R. § 430.504(d) applies in this case and that the award is deficient because it is contrary to that regulation. I do not agree, however, that the award should be set aside. I believe that the award should be modified to permit the Agency to review the performance awards directed by the Arbitrator under § 430.504(d).
Modifying -- not setting aside -- the award would be consistent with FDA, the Authority's most recent decision applying § 430.504(d) to an award providing a remedy nearly identical to that in this case. The majority refuses to apply FDA on the ground that it is "inconsistent with the intent of" § 430.504(d), claiming that "the intent of the regulation was to allow an agency to determine on an individualized basis whether to grant performance awards; it did not mean that improperly ordered performance awards should remain intact unless the agency later acted to disapprove them." Majority Opinion at 12 n.14. The majority prefers to apply the Authority's earlier decision in Fort Rucker, which set aside a similar award.
The majority is wrong. Nothing in § 430.504(d) or OPM's interpretation of it suggests that the award in this case may not be modified. In this regard, under the plain wording of § 430.504(d), "[t]he decision to grant a performance award, including the amount of such award, shall be reviewed and approved by an official of the agency who is at a higher level than the official who made the initial decision, unless there is no official at a higher level in the agency." See Fort Rucker, 52 FLRA at 90 n.1. Consistent with its wording, OPM interpreted the regulation as requiring agency review and approval of performance awards and vesting agency reviewing officials with discretion to approve or disapprove the awards. See id. at 92. See also FDA, 53 FLRA at 426.
Here, the Arbitrator granted performance awards to remedy the Agency's violation of the parties' collective bargaining agreement. Applying FDA, the Arbitrator's award would be modified to recognize the Agency's right under § 430.504(d) to review the performance awards. It is perfectly clear that modifying the award to permit the Agency to exercise its regulatory right to review the performance awards is not -- and cannot be -- inconsistent with the Agency's regulatory right to review the performance awards. The majority's conclusion to the contrary is bewildering. It also evidences a troubling hostility to providing employees with remedies in cases where unions have successfully prosecuted grievances on their behalf and the arbitrator's only error concerns the remedy fashioned in response. [n1]
Modifying the award would be consistent not only with FDA, but also with other longstanding Authority precedent providing that the Authority will modify a deficient remedy when doing so renders the remedy consistent with law and regulation. [n2] See, e.g., United States Dep't of Veterans Affairs, Med. Ctr., Cincinnati, Ohio, 57 FLRA 782, 783 (2002) (modifying award of overtime compensation to provide only for compensation permitted by law); United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057, 1075-76 (2001) (modifying award requiring an allotment to provide for consideration of the allotment by the "head of the agency" as required by regulation) (Army Depot); United States Dep't of the Navy, Naval Air Warfare Ctr., Aircraft Div., Patuxent River, Md., 54 FLRA 1182, 1189 (1998) (modifying award requiring priority placement to provide placement only at level permitted under regulation); United States Dep't of Veterans Affairs, Reg'l Office, Boston, Mass., 51 FLRA 1769, 1775 (1996) (modifying award consistent with § 7106(a)(2)(C) of the Statute); Local R-1-185, NAGE, 25 FLRA 509, 512 (1987) (same). The practice of modifying an award to render it lawful is intended to "give effect, in accordance with law and regulation, to [an a]rbitrator's order" remedying an underlying violation. Army Depot, 56 FLRA at 1076.
In view of this longstanding precedent favoring modification, it is evident that Fort Rucker -- not FDA -- was wrongly decided.
Because I do not believe it is proper to set aside the award based on its conflict with § 430.504(d), I believe it is necessary to address the Agency's second exception. In this regard, I would find that the award recognizes the budgetary cap on performance awards imposed by the relevant appropriations provisions. See Award at 50-51 (finding that the Agency is required to issue awards "to the extent permitted by legitimate budgetary [ v59 p318 ] considerations and limitations" and directing the Agency "to the extent possible, to return to the status quo ante" with respect to performance awards). Accordingly, I would deny the exception.
Based on the foregoing, I would modify the award to permit the Agency to review and approve in accordance with § 430.504(d) the performance awards encompassed by the award.
File 1: Authority's Decision in 59 FLRA No. 48
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 48 - Opinion of Member Pope
This is the fourth case in which the majority has found arbitral remedies deficient but refused to remand or modify the award so as to permit the possibility of a remedy for employees. In the other three -- SSA, 59 FLRA No. 39 (Sept. 29, 2003); United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA No. 38 (Sept. 29, 2003) and SSA, Lansing, Mich., 58 FLRA 93 (2002)-- the majority refused, over my dissents, to remand the awards. The majority's determination to deprive employees of remedies, and permit agencies to evade all liabilities for their violations, is evident from these decisions.
Footnote # 2 for 59 FLRA No. 48 - Opinion of Member Pope
The Authority also modifies awards when a remedy is deficient but an underlying violation remains and the modification effectuates a remedy that is mandated by law or contract. See, e.g., AFGE, Local 446, 58 FLRA 361, 362 (2003); SSA, Office of Hearings and Appeals, Paducah, Ky., 58 FLRA 124, 126-27 (2002).