19:0725(87)AR - AFGE Local 547 and Tampa VA Hospital -- 1985 FLRAdec AR

 19 FLRA No. 87
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 547
 Union
 
 and
 
 TAMPA VETERANS ADMINISTRATION
 HOSPITAL
 Activity
 
                                            Case No. O-AR-916
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Lawrence Kanzer filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition.
 
    The grievance in this case concerned the grievant's failure to
 receive a cash award for superior performance.  According to the
 Arbitrator, the grievant in 1984 received an overall performance
 appraisal rating of "outstanding," the highest rating.  On the basis of
 this rating, the grievant was recommended for and received a performance
 award certificate.  He was not recommended for and did not receive a
 cash award and as a result filed a grievance that was ultimately
 submitted to arbitration.  The Arbitrator framed the issue as follows:
 
          Did the (Activity) violate Article 32, Section 6 of the Master
       Agreement by failing to automatically consider the grievant for a
       monetary award under the provisions of the incentive awards
       program intended for employees rated by their supervisors as
       outstanding or superior?
 
 In this respect the Arbitrator specifically noted the issue as framed by
 the parties.  The Union framed the issue as whether management
 considered the grievant for a monetary award fairly and equitably and
 whether management changed procedures on performance awards without the
 knowledge of the Union or the grievant.  The Activity framed the issue
 as whether the grievant was considered for a monetary award in
 accordance with Article 32, Section 6B of the agreement.  Quoting
 Article 32, Section 6C of the parties' master agreement providing that
 "(a)wards for performance will be distributed in a fair and equitable
 manner," the Arbitrator ruled that the Activity's "decision not to give
 Grievant a monetary award was both unfair and inequitable." Accordingly,
 as his award, the Arbitrator directed that the Activity issue the
 necessary form awarding the grievant a monetary award not to exceed 3%
 of his salary, that the Hospital Director review such award and enter
 his concurrence or modification of the award as to amount only, and that
 the grievant be paid the amount of such award.
 
    As one of its exceptions, the Agency contends that the award does not
 draw its essence from the collective bargaining agreement.  In support
 of this exception, the Agency notes that Article 13, Section 2 of the
 parties' collective bargaining agreement pertinently provides:
 
          Section 2-- A grievance means any complaint:
 
          A. By an employee(s) or the Union concerning any matter
       relating to employment;  or
 
          B.  By an employee, the Union or management concerning the
       interpretation or application of this Agreement and any
       supplements or any claimed violation, misinterpretation or
       misapplication of law, rule or regulation affecting conditions of
       employment.
 
          Except that it shall not include a grievance concerning;
 
                                .  .  .  .
 
          6.  Decisions on Incentive Awards.
 
 Thus, the Agency argues that by examining the decision not to grant the
 grievant an incentive award, in addition to the issue of the
 consideration of the grievant, and by directing a decision granting the
 grievant an incentive award, the award is plainly inconsistent with the
 agreement and is therefore deficient as failing to draw its essence from
 that agreement.
 
    Under section 7122(a)(2) of the Statute, the Authority will find an
 award deficient when it is established that the award does not draw its
 essence from the collective bargaining agreement.  United States Army
 Missile Materiel Readiness Command (USAMIRCOM) and American Federation
 of Government Employees, Local 1858, AFL-CIO, 2 FLRA 432 (1980).
 
    Specifically, in Overseas Education Association and Office of
 Dependents Schools, Department of Defense, 4 FLRA 98 (1980), the
 Authority found a portion of the arbitrator's award deficient as failing
 to draw its essence from the collective bargaining agreement when it was
 established that this portion of the award evidenced a manifest
 disregard of the agreement.  In terms of this case, the Authority finds
 that the award evidences a manifest disregard of the parties' collective
 bargaining agreement.  As noted, the Arbitrator and the parties all
 framed the issue involved in the grievance as concerning the
 consideration, or lack of it, provided the grievant with respect to a
 monetary performance award.  By expanding that issue to directly concern
 the decision not to grant the grievant an incentive award, despite the
 Activity's contention that decisions on incentive awards are excluded
 from the coverage of the negotiated grievance procedure under Article
 13, Section 2 of the parties' collective bargaining agreement, and by
 directing a decision to grant the grievant an incentive award, the
 Arbitrator clearly subjected to grievance and arbitration a
 "(d)ecisio(n) on (an) Incentive Awar(d)" in manifest disregard of the
 parties' collective bargaining agreement which expressly excludes such a
 matter from coverage by the negotiated grievance procedure.
 Consequently, the award is deficient as failing to draw its essence from
 the collective bargaining agreement and must be modified.  In this
 respect, the Agency in its exception in effect concedes in view of the
 award as it pertains to the consideration of the grievant that it would
 be appropriate for the Activity to be ordered to properly consider the
 grievant for a monetary performance award.  With the Arbitrator having
 found that grievant was not properly considered for a monetary
 performance award, the Authority agrees with the Agency that the award
 should be modified to provide an appropriate remedy.  Accordingly, the
 award is modified to substitute the following in place of the
 Arbitrator's award;  /1/
 
          The Activity is directed to reconsider the grievant for a
       monetary performance award for his 1983-84 appraisal period.  Such
       reconsideration shall be in accordance with applicable law,
       regulation, and the parties' collective bargaining agreement.
 
 Issued, Washington, D.C., August 12, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Contrary to the argument of the Union in its opposition that this
 exception should not be sustained because the grievability issue should
 have been raised at step 3 of the grievance procedure, the Authority
 finds that at step 3 of the grievance procedure the grievance was framed
 in terms of consideration of the grievant and unilateral change of
 incentive award procedures and not a direct challenge of the decision on
 the incentive award.  Thus, the Activity properly raised the
 grievability issue before the Arbitrator and its exception properly
 provides a basis on which to find the award deficient.  In addition, in
 view of this decision, it is unnecessary to address the Agency's other
 exceptions to the award.