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National Labor Relations Board, Washington, D.C. (Agency) and National Labor Relations Board Union (Union)

61 FLRA No. 6

 

NATIONAL LABOR RELATIONS BOARD WASHINGTON, D.C.

(Agency) and

NATIONAL LABOR RELATIONS BOARD UNION

(Union) 0-AR-3911

 

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DECISION June 10, 2005

 

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Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members [n1]

 

  1. Statement of the Case

    This matter is before the Authority on exceptions to an award of Arbitrator Edward J. O'Connell filed by the Agency under § 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 Agency's exceptions.

     

    The Arbitrator sustained a grievance alleging that the Agency's decision to suspend employees' performance awards violated the parties' collective bargaining agreement.

     

    For the reasons that follow, we deny the exceptions.

     

  2. Background and Arbitrator's Award

    The Union represents clerical employees working for the Agency's Board members and the General Counsel in the Washington Headquarters. There are two separate, almost identical collective bargaining agreements (CBAs), one covering the Board, which is involved here, and one covering the General Counsel employees. This case concerns clerical employees on the Board side.

     

    The Agency did not receive a Fiscal Year (FY) 2003 appropriation prior to October 1, 2002, but was instead funded from October 1, 2002 through February 20, 2003, by a series of eight continuing resolutions. In addition, the Agency was advised by the Office of Management and Budget (OMB) that even if a budget was ultimately approved for FY

    2003, it was likely that the appropriation would be reduced from $1.5 to $2.5 million dollars.

     

    In order to prepare for such a recission, the Agency decided in October 2002 that it would delay granting performance awards to all employees, including those bargaining unit employees represented by the Union. [n2] Since the Agency normally budgeted approximately $1.6 million annually for employee awards, "it believed that temporarily suspending this benefit for both management and Union employees would help the Agency get through the budget crisis." Award at 5. The "annual cost of employee awards for the clerical employees covered by the [CBA] was approximately $42,000." Id.

     

    On October 21, 2002, the Agency notified the Union of its decision to suspend the employee awards program. The Union responded immediately that it believed the parties' agreements did not authorize the Agency to suspend the awards and filed a grievance.

     

    The NLRBU allege[d] in th[e] grievance that the Agency's October [2]1, 2002, decision to suspend awards violate[d] Article 3, Section 8 and Article 18. The NLRBU also allege[d] that the decision to suspend benefits was an arbitrary and unreasonable act, in violation of Article 4, Section 7 of the Agreement [CBA].

     

    Id. at 1. [n3]

     

    The Agency ultimately received an appropriation in February 2003, [n4] but Congress imposed a 6.5% recission shortly thereafter. The Agency continued [ v61 p42 ] to suspend the awards program, "although it did lift the deferral of several other benefits that had also been suspended during the continuing resolution process[]." Id. at 5. Thereafter, in June 2003, the Agency learned that no further recission would be imposed and reinstituted the awards program. All employees who were eligible for performance awards in FY 2003, but whose awards were deferred, received their one- time cash awards by July and August 2003. Employees who were eligible for QSIs were awarded them retroactively to the date the employees became eligible for the awards.

     

    The parties were unable to resolve the grievance and the matter was submitted to arbitration. The Arbitrator stated the question to be resolved as follows:

     

    Whether the Agency violated the parties' [CBA] when it temporarily suspended employee performance awards for Union-represented employees during a series of continuing resolutions in fiscal year 2003, and if so, what is the appropriate remedy?

     

    Id. at 1.

     

    The Arbitrator found that the parties' CBA provides the Agency "with the right not to implement or not to continue certain benefits under the [CBA] if budgetary conditions warrant." Id. at 4. The Arbitrator found that this "language (the so-called 'budgeted-out' provision) is found in Article 3, Section 8 of the [CBA], and it applies to any benefit that is 'express[ly] contingent on [budgetary] considerations.'" [n5] Id. The Arbitrator determined that for the "Agency to succeed on its claim that it did not violate the [CBA] by deferring the awards it must establish both that there did exist a 'serious impairment' of the Agency's goals and missions and that the performance awards are 'expressly contingent on [budgetary] considerations.'" Id. at 11.

     

    The Arbitrator found that the Agency had not established by a preponderance of the evidence that performance awards are "'expressly contingent on [budgetary] considerations.'" Id. The Arbitrator found that there are over twenty different benefits identified elsewhere in the CBA that expressly provide that the particular benefit is subject to available funding or budgetary considerations. As to Article 18, which "sets forth the terms of the employee performance awards," the Arbitrator interpreted Article 18 and found that this provision "does not expressly contain language that . . . conditions the benefit on available funding or budgetary considerations." Id. at 4. The Arbitrator found that this interpretation of Article 18 was supported by the parties' bargaining history. The Arbitrator found that the parties' failure to include language in the employee awards provisions that conditions awards on available funding supported the Union's "argument that the [CBA] do[es] not provide the Agency with the right to withhold or defer performance awards for headquarter clerical employees." Id. at 12. The Arbitrator concluded, therefore, that the

    "awards benefits contained in Article 18 are not benefits that can be withheld or delayed at any time, including during a budget crisis."

    Id. at 11.

     

    In so concluding, the Arbitrator rejected the Agency's assertion that the continuing resolutions seriously impaired the Agency's mission, thereby warranting the suspension of performance awards. The Arbitrator found that the Union had established that "performance awards are not subject to the 'budgeted-out' provision of the [CBA], therefore the 'substantial impairment' issue is moot." [n6] Id. at 12.

     

    The Arbitrator found unpersuasive the Agency's contention that the Union's interpretation of the "budgeted-out" contract provision constitutes excessive interference with its right to determine its budget. The Arbitrator stated that "in light of the evidence establishing that the cost of the performance awards . . . for clerical employees was de minimis compared to the Agency's overall budget, it [could] not be concluded that providing the awards would have 'excessively' interfered" with management's right to determine its budget. Id. at 13. The Arbitrator also noted NAGE, Local R14-52, 48 FLRA 1198 (1993) (NAGE), where the Authority clarified the first part of the test for determining when management's right to determine its budget is affected under § 7106(a)(1) of the Statute, and found that Article 18 does not affect the Agency's right to determine its budget under the test set forth in NAGE because it merely requires the Agency to honor a contractual[ v61 p43 ] commitment it had already negotiated and does not prescribe an amount of money or a particular program to be included in the Agency's budget.

     

    Therefore, the Arbitrator found that the Agency violated the parties' CBA by deferring the implementation of performance awards. The Arbitrator found that employees had already received their awards/QSIs. The Arbitrator addressed the Union's request for interest on the awards. The Arbitrator found that absent express language in the CBA, arbitrators are reluctant to award interest on back pay or other monetary awards. The Arbitrator stated that a remedy might be appropriate where there is evidence of willful or repeated contract violations. However, in the Arbitrator's view, "such [was] not the case here." Award at 13. The Arbitrator stated that an "interest award would be appropriate if, in light of the instant award, the Agency again deferred or delayed performance awards during a future budget crisis or continuing resolution." Id.

     

    Accordingly, the Arbitrator sustained the grievance.

     

  3. Positions of the Parties

    1. Agency's Exceptions

      The Agency asserts that the award is contrary to law because it excessively interferes with its right to determine its budget. According to the Agency, the Arbitrator concluded that "'the awards benefits in Article 18 are not benefits that can be withheld or delayed at any time, including during budget crisis.'" Exceptions at 6 (quoting Award at 11).

       

      The Agency contends that under the Arbitrator's interpretation of the CBA, the parties have a "contract that forces the Agency to make recommendations [to] . . . fully fund, performance awards above and beyond other necessary budgetary recommendations and considerations--despite the fact that the [CBA] contains no entitlement to a performance award." Exceptions at 6. The Agency asserts that this is an "incorrect interpretation of the [CBA] that excessively interferes with management's right to [determine its] budget and that is contrary to law." Id.

       

      The Agency asserts that the Arbitrator failed to apply the analysis required by the excessive interference test of whether the benefits afforded employees under Article 18 and Article 3 outweigh the intrusion of the exercise of management's right, and inappropriately interjected a de minimis standard into the excessive interference test. The Agency asserts that, if allowed to stand, the award would "require the Agency to budget performance awards[,]" and would "constrain [its] ability to manage its budget and direct its mission during a time of serious financial impairment[.]" Id. at 8.

      The Agency further asserts that the Arbitrator failed to properly analyze Article 18. The Agency contends that this Article "contains only a procedure for performance awards, not an entitlement[.]" Id. at 10.

       

      The Agency contends that the Anti-Deficiency Act, 31 U.S.C. § 1341, "prohibits an officer or employee of the United States from involving the [G]overnment in an obligation for the payment of money before an appropriation is made unless required by law." Id. at 4. The Agency contends that the CBA "must be construed in a manner that empowers the Agency to make a decision[] on when to suspend funding for the proper functioning of the Agency, comporting with the right of the Agency to determine its budget under [§] 7106(a)(1) and to take such actions as are necessary during emergencies under [§] 7106(a)(2)(D)." Id. at 11-12.

       

      The Agency asserts that the award exceeds the Arbitrator's authority because the Arbitrator decided an issue not submitted to him--that an award of future interest would be appropriate. The Agency refers to the Arbitrator's statement that "'[a]n interest award would be appropriate if, in light of the instant award, the Agency again deferred or delayed performance awards during a future budget crisis or continuing resolution.'" Id. at 12 (quoting Award at 13). According to the Agency, by this statement the Arbitrator's remedy "went beyond [FY] 2003 and forecast potential remedies for the Union based on his speculation about an unestablished pattern of recidivism by the Agency." Exceptions at 13. The Agency asserts that neither party requested the Arbitrator to "examine the Agency's potential for recidivism and forecast potential remedies for contract violations beyond the . . . stipulated circumstances presented by [FY] 2003." Id.

       

      The Agency also asserts that the Arbitrator's "declaration that future interest would be appropriate" is not based on an evaluation of whether the Back Pay Act, 5 U.S.C. § 5596, applied, but rather on his determination that such a remedy might be appropriate where there is evidence of willful or repeated contract violations. Id. The Agency claims that this "legal standard is . . . inappropriate to waivers of sovereign immunity under the Back Pay Act[.]" Id.(footnote omitted).

       

    2. Union's Opposition

    The Union asserts that the Agency's excessive interference argument is "misplaced" because the Arbitrator's [ v61 p44 ] interpretation of the parties' agreement does not affect a management right under § 7106(a)(1) of the Statute.

    Opposition at 2. The Union contends that, as the Arbitrator found that the contractual awards benefit under Article 18 did not affect management's right to determine its budget under § 7106(a)(1), no analysis of arrangements or excessive interference was required.

     

    The Union also contends that the Agency's reliance on the Anti-Deficiency Act is not "substantiat[ed]." Id. at 8. The Union asserts that the award does not require the Agency to exceed its appropriated funding. Referring to Agency testimony, the Union contends that despite the Agency's references to furloughs and multi-million dollar rescission threats, even the Agency's "own testimony confirmed that the fiscal situation in FY '03 was not significantly distinguishable from that of prior years." Id. at 1. The Union asserts that during FY 2003, the Agency was given the authority to operate under the appropriated funding for the previous fiscal year. The Union contends that the Agency was "fully authorized to implement . . . its contractual financial obligations under the continuing resolutions of FY 2003

    -- as it has for years[.]" Id. at 8.

     

    The Union asserts that the Arbitrator did not resolve an issue not submitted to arbitration, but rather his statement concerning interest in the future was "speculative[]." Id. at 9.

     

  4. Analysis and Conclusions

    1. The Award Is Not Contrary to Law

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In

      applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

       

      Where a party files exceptions alleging that an award violates management's rights under § 7106 of the Statute, the Authority first assesses whether the award "affects the rights being relied on." United States Dep't of Justice, Fed.

      Bureau of Prisons, Fed. Corr. Inst., Otisville, N.Y., 58 FLRA 307, 308 (2003) (DOJ, Bureau of Prisons). If the award affects such rights, then the Authority applies the two-prong test set forth in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 151-54 (BEP). See DOJ, Bureau of Prisons, 58 FLRA at

      308. If the award does not affect the rights, then the BEP analysis is not required and the exception is denied. See id.

       

      1. The Agency Has Not Demonstrated that the Award Affects Management's Right to Determine its Budget under § 7106(a)(1) of the Statute

         

        The Agency asserts that the award is contrary to law because it excessively interferes with its right to determine its budget under § 7106(a)(1). The Agency asserts that the award would require it to budget performance awards and would constrain its ability to manage its budget.

         

        The Authority's test for determining whether a proposal affects management's right to determine its budget under

        § 7106(a)(1) of the Statute is set forth in AFGE, AFL-CIO, 2 FLRA 604 (1980), enforced as to other matters, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (Wright-Patterson). See also, NAGE, 48 FLRA at 1202-08;NTEU, 47 FLRA 980, 996-998 (1993) (second part of the budget test set forth in Wright-Patterson refined).

         

        Under the Wright-Patterson test, if a proposal prescribes either the particular programs to be included in the agency's budget, or the amount to be allocated in the budget, the proposal would affect the agency's right to determine its budget. Alternatively, if the agency makes a substantial demonstration that an increase in costs is significant and unavoidable and is not offset by compensating benefits, the Authority will find that the proposal affects the agency's right to determine its budget.

         

        United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 557-58 (1999) (Customs, El Paso).

         

        In this case, the Agency has provided no basis for finding that the Arbitrator's award is contrary to management's right to determine its budget under § 7106(a)(1). The record does not establish that the award would require the inclusion of a particular program or amount in the Agency's budget or that the award would result in significant and unavoidable increases in costs to the Agency. The Arbitrator's factual findings show that the Agency had already included an amount in its budget for employee awards and had given employees their awards "by July and

        August 2003" sometime before the arbitration hearing. [n7] Award at 6.

         

        The award does not prescribe a program, operation, or dollar amount to be included in the Agency's [ v61 p45 ] budget with regard to performance awards or result in significant and unavoidable increases in costs to the Agency. Rather, the award only requires the Agency to provide awards, as provided in its CBA, to qualified employees. Based on the above, we find that the award does not affect management's right to determine its budget under § 7106(a)(1) of the Statute.See, e.g., Customs, El Paso, 55 FLRA at 557-58 (award requiring overtime backpay with interest to employees did not prescribe a program, operation or dollar amount to be included in agency's budget with regard to overtime and thus did not affect the agency's right to determine its budget under § 7106(a)(1) of the Statute); United States Dep't of the Treasury, Internal Revenue Serv., Brookhaven Serv. Ctr., 37 FLRA 1176, 1183-86 (1990) (award finding grievant was entitled to performance award in excess of the 5 percent he received did not affect agency's right to determine its budget under § 7106(a)(1) because award did not require the inclusion of a particular program or amount in the agency's budget or result in significant and unavoidable increases in costs to the agency).

         

        As the award does not affect management's right to determine its budget under § 7106(a)(1) of the Statute, the BEP analysis is not required. See DOJ, Bureau of Prisons, 58 FLRA at 308; United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Fed. Satellite Low, La Tuna, Tex., 59 FLRA 374, 375-376 (2003) (Member Pope concurring).

        As such, it was not necessary for the Arbitrator to apply an excessive interference test. Accordingly, it is unnecessary to address the Agency's contention that the Arbitrator interjected a de minimis standard into the excessive interference test.

         

      2. The Agency Has Not Demonstrated that the Award Affects Management's Right to Take Actions During Emergencies under § 7106(a)(2)(D) of the Statute

         

        The Agency contends that the award affects its right "to take whatever action may be necessary during emergencies under [§] 7106(a)(2)(D) [of the Statute]." Exceptions at 12. The Agency provides no support for its assertion.

        Consistent with Authority precedent, the Agency's claim is a bare assertion and is denied. See, e.g., AFGE, Local 217, 60 FLRA 459, 460 (2004) (citing AFGE, Local 1858, 56 FLRA 1115, 1116 (2001).

         

        To the extent that the Agency asserts that Article 18 constitutes only a procedure for performance awards and, not an entitlement, this is construed as an essence assertion that is addressed below in Section IV.B.

         

      3. The Agency Has Not Demonstrated that the Award Is Contrary to the Anti-Deficiency Act, 31 U.S.C. § 1341

         

        The Agency contends that the Anti-Deficiency Act "prohibits an officer or employee of the [Government] from involving the [G]overnment in an obligation for the payment of money before an appropriation is made unless required by law." Exceptions at 11. The Anti-Deficiency Act precludes an agency from expending funds: (1) in excess of those appropriated for the fiscal year in which the expenditure is made; and (2) prior to their appropriation. 31 U.S.C. § 1341(a)(1)(A) and (B). See, e.g., Ass'n of Civilian Technicians, Evergreen and Rainier Chapters, 57 FLRA 475, 483 (2001). Nothing in the award requires the expenditure of funds for the payment of the subject employees' awards in excess of, or prior to, the Agency's appropriation that covered performance awards. Accordingly, the Agency has not demonstrated that the award is contrary to the Anti-Deficiency Act.

         

      4. The Agency Has Not Demonstrated that the Award Is Contrary to the Back Pay Act

       

      According to the Agency, the Arbitrator's statement indicating that "future interest" might be appropriate as a remedy is not based on an application of the Back Pay Act. Exceptions at 13. The Agency misconstrues the Arbitrator's statement. The Arbitrator found that the employees involved here "all received their awards and quality step increases" as appropriate. Id. While the Arbitrator found that the Agency violated the parties' CBA, the Arbitrator rejected the Union's request that the employees also receive interest on the awards to be made whole. The Arbitrator's statement as to what might be appropriate in the future constitutes mere dicta. See, e.g., United States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Office of Marine & Aviation Operations, Marine Operations Ctr., Va., 57 FLRA 430, 434 (2001) (arbitrator's comments concerning agency's future assignment of work and the grievability and arbitrability of such assignments constituted dicta and provided no basis for finding the award deficient); United States Dep't of Defense, Def. Contract Audit Agency, Cent. Region, 51 FLRA 1161, 1165 (1996) (comments on appropriateness of possible disciplinary actions no basis for finding award deficient). Therefore, as the Arbitrator did not direct or award any monetary remedy, it is unnecessary to decide whether the award is contrary to the Back Pay Act. [ v61 p46 ]

       

    2. The Agency Has Not Demonstrated that the Award Fails to Draws its Essence from the Parties' CBA

      The Agency's assertion that Article 18 constitutes a procedure for performance awards and not an entitlement is construed as an essence assertion.

       

      In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or

      (4) evidences a manifest disregard of the agreement. United States Dep't of Labor, (OSHA), 34 FLRA 573, 575 (1990).

       

      By its terms, Article 18, in part, provides that "[w]henever [m]anagement identifies an employee whose performance, as reflected in his or her current annual appraisal, merits a performance award, it shall, as expeditiously as possible after a determination is made to recommend an award, take the action necessary to implement the award." Award at 3. Interpreting Article 18, the Arbitrator found that the record revealed that "[h]istorically, employees have received the awards contemporaneously with or shortly after their appraisal dates." Id. at 4. The Arbitrator further determined, based on his factual findings and interpretation of the parties' agreement, that the Agency had a "contractual commitment . . . to provide awards to qualified employees[,]" and that by delaying the implementation of those awards, the Agency violated the parties' CBA, including Article 18. Id. at 13. The Agency has not demonstrated that the Arbitrator's interpretation is an implausible interpretation of the agreement. Nor has the Agency demonstrated that the award is deficient under any of the other elements of the essence test. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' CBA.

       

    3. The Agency Has Not Demonstrated the Award Exceeds the Arbitrator's Authority

    An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).

     

    We reject the Agency's claim that the Arbitrator exceeded his authority by deciding an issue not submitted to him, that is, by awarding future interest. As discussed above, the Arbitrator did not award or direct future interest. The issues, as framed by the Arbitrator, were whether the Agency violated the parties' CBA when it temporarily suspended employee performance awards for Union represented employees during a series of continuing resolutions in fiscal year 2003, and if so, what is the appropriate remedy. The Arbitrator resolved the issues before him and found that the Agency violated the parties' CBA by delaying the payment of employees' performance awards. The Arbitrator's award is directly responsive and confined to the issues. Accordingly, the Agency has failed to demonstrate that the Arbitrator exceeded his authority.

     

  5. Decision

The Agency's exceptions are denied.

 

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APPENDIX

ARTICLE 3

 

PRECEDENCE OF LAW AND REGULATION AND MANAGEMENT RIGHTS AND OBLIGATION

 

. . . .

 

Section 8. In the event budgetary conditions seriously impair the Agency's ability effectively to achieve the mission and goals of the National Labor Relations Act, the [Board] [General Counsel] will not be obligated to implement or continue a benefit of this Agreement which is expressly contingent on such considerations.

 

Except in dire circumstances, the [Board] [General Counsel] will notify the NLRBU in advance of any decision to limit or discontinue such benefits so as to provide a reasonable opportunity, under all the

circumstances, for meaningful consultations regarding the decision.

 

Further, the [Board] [General Counsel] will bargain, to the extent required by law, over the effects of such decision, including restoration. In the event the parties undertake bargaining pursuant to this section, the NLRBU will not utilize Article 9 (Grievance Procedure) or Article 10 (Arbitration) on such matters. [ v61 p47 ]

 

ARTICLE 18

 

INCENTIVE AND PERFORMANCE AWARDS

 

Section 1. General. Consistent with applicable law, governmentwide rule and regulation, and this Agreement the [Board] [General Counsel] shall continue to encourage all employees to share actively in [i]mproving Government operations and shall recognize and reward employees appropriately and promptly for their contributions and performance.

 

Section 2. Types of Awards.

 

  1. Incentive Awards.

     

    1. Employee contributions such as meritorious suggestions, special acts or services, and other superior accomplishments may be recognized and rewarded with an incentive award consisting of cash or time-off. Such awards are not dependent upon any certain performance standard ratings.

       

    2. Funds for cash incentive awards, including awards for special acts or services, meritorious suggestions, and other superior accomplishments shall be separate from the performance awards fund.

     

    . . . .

     

    1. Incentive awards may be granted alone or in addition to a performance award (including a quality step increase).

       

    2. As part of the Agency's Employee Recognition Program under this Section, any employee or the NLRBU, may nominate, in writing, employee(s) for such awards through the appropriate supervisory channels.

     

  2. Performance Awards. Employees with performance standard ratings of "Fully Successful" or higher in all critical elements are eligible for a performance award. To be eligible for a quality step increase, employees must have a rating of record of "Outstanding."

     

    Section 3. (a) It shall be the responsibility of Management to continuously be aware of employee contributions and/or performance, and whether based on such contributions and/or performance an employee is eligible for an incentive or performance award.

     

    (b)(1) Whenever Management identifies employees or groups of employees whose contributions and/or performance merit an incentive award, it shall, as expeditiously as possible, make a determination as to whether to recommend the employee(s) for an appropriate award.

     

    (2) Whenever Management identifies an employee whose performance, as reflected in his or her current annual appraisal, merits a performance award, it shall, as expeditiously as possible after a determination is made to recommend an award, take the action necessary to implement the award.

     

  3. Recommendations for incentive and/or performance awards will be granted or denied within a reasonable period of time after a fully supported recommendation has been submitted to the approving official. The Agency will advise the employee within a reasonable period of time of final action with

regard to his or her award recommendation.

 

Section 4. The names of employee recipients of incentive awards and performance awards, including quality within-grade increases, will be periodically published in an Agency newsletter or other writing.

 

Section 5. Management will provide the NLRBU with a monthly report of performance awards, including quality step increases, and incentive awards granted to employees.

 

. . . .

 

Award at 2-3.

 

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Footnote # 1 for 61 FLRA No. 6 - Authority's Decision

 

The Union requests that the case caption be corrected to reflect the "National Labor Relations Board Union" (NLRBU) rather than the "NLRBU, Washington Local" because the NLRBU, rather than one of its locals, filed, processed and arbitrated the grievance involved in this case. See Opposition at 1 n.1. We grant the Union's request.

 

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Footnote # 2 for 61 FLRA No. 6 - Authority's Decision

 

The performance awards at issue in this case fall into two categories: one-time lump sum cash awards and quality step increases (QSIs). Both are awarded based on the performance rating received by the employee during the employee appraisal process. The amount of the one-time cash award is based on the rating received and the employee's pay grade. The QSI is a salary increase awarded to an employee who receives an Outstanding rating. "Historically, employees have received the awards contemporaneously with or shortly after their appraisal dates." Award at 4.

 

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Footnote # 3 for 61 FLRA No. 6 - Authority's Decision

 

The pertinent text of the relevant contract articles is set forth in the Appendix to this decision.

 

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Footnote # 4 for 61 FLRA No. 6 - Authority's Decision

 

The Agency's appropriation totaled $237.4 million, an increase of more than $11 million over FY 2002.

 

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Footnote # 5 for 61 FLRA No. 6 - Authority's Decision

 

The Arbitrator specifically noted the following language in Article 3, Section 8:

 

In the event budgetary conditions seriously impair the Agency's ability effectively to achieve the mission and goals of the NLRA, the [Agency] will not be obligated to implement or continue a benefit of this Agreement which is expressly contingent on such considerations.

 

Award at 11 (emphasis added by Arbitrator).

 

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Footnote # 6 for 61 FLRA No. 6 - Authority's Decision

 

"Budgeted-out" is the term the Arbitrator uses to refer to provisions in the parties' CBA that contain language, consistent with Article 3, Section 8, stating the "conditions under which the Agency may discontinue certain benefits provided by the contract due to budgetary considerations." Award at 11.

 

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Footnote # 7 for 61 FLRA No. 6 - Authority's Decision

 

The Arbitrator found that the Agency "normally budgeted approximately $1.6 million annually for employee awards" and that the "cost of . . . awards for the clerical employees covered by the [CBA] was approximately $42,000." Award at 5.

nt which is expressly contingent on such considerations. Award at 11 (emphasis added by Arbitrator). Footnote # 6 for 61 FLRA No. 6 - Authority's Decision "Budgeted-out" is the term the Arbitrator uses to refer to provisions in the parties' CBA that contain language, consistent with Article 3, Section 8, stating the "conditions under which the Agency may discontinue certain benefits provided by the contract due to budgetary considerations." Award at 11. Footnote # 7 for 61 FLRA No. 6 - Authority's Decision The Arbitrator found that the Agency "normally budgeted approximately $1.6 million annually for employee awards" and that the "cost of . . . awards for the clerical employees covered by the [CBA] was approximately $42,000." Award at 5.