NTEU has filed a national grievance against HHS for violations of Article 27 of the CBA regarding Office of Medicare Hearings and Appeals (OMHA) performance awards. NTEU alleges that in 2018, OMHA failed to properly allocate funds for performance and incentive awards, failed to follow the committee process, and failed to distribute awards fairly and equitably.
In the national grievance, NTEU alleges that OMHA circumvented the awards committee and the process set forth in the CBA to divert money away from performance awards and into incentive awards for the purpose of funding an agency-controlled On-The-Spot (OTS) awards program. In February 2018, before the awards pool for OMHA was even calculated, the agency declared that it planned to fund an OTS program through the performance awards allocation. NTEU objected and informed the agency that OTS awards should be funded through the incentive awards monies. When the awards committee met, it was provided a calculation of the OMHA awards budget with 15% set aside for incentive awards and an additional 10% set aside for OTS awards. During the entire awards committee process, and over the objections of NTEU, OMHA continued to press for more money to fund its OTS program, thereby lowering the performance awards allocation from 85% of the total awards budget to 75%.
In addition, NTEU alleges that the Deciding Official’s decision to modify the committee’s awards recommendation violated the CBA because she did not provide supporting rationale. She did not explain or provide any information regarding whether the percentage payouts she chose would maximize the awards moneys available in the performance awards pool. She also did not indicate whether the percentage payouts were based on an allocation of 75% or 85% for performance awards. Despite follow up questions by NTEU committee members, the agency failed to provide information to support the Deciding Official’s decision and any information to clarify how much awards money would be paid to employees. Article 27 requires fair and equitable administration of the awards program.
As a remedy, NTEU has requested that HHS:
- cease and desist from violating Article 27 of the CBA;
- provide a make whole remedy for all bargaining unit employees who have suffered a monetary loss on account of the agency’s violations to include but not limited to back pay under the Back Pay Act;
- reconvene the OMHA awards committee to make awards recommendations at the 85% performance pool level, with complete calculations;
- pay NTEU attorney’s fees in accordance with the Back Pay Act; and
- grant any other remedies that may be deemed appropriate under law, rule, and regulation.
As part of the grievance, NTEU also filed an information request to find out how the OMHA awards pool was calculated, what total percentage of the pool was set aside for performance and incentive awards (including OTS), a copy of the committee member votes related to awards recommendations, all information relied upon by the Deciding Official to make the final award decision, and a copy of all communications between OMHA management regarding the awards budget and how it should be distributed. NTEU believes this information will help in prosecuting the national grievance.
If you have questions or comments, please contact your chapter president.