Veterans Administration Medical Center and American Federation of Government Employees, Local 1843 (Authority decision, December 18, 1984)

Final FLRA decision. This is a final order setting aside an arbitration award. Court review of an order involving an arbitration award is excluded by 5 U.S.C. § 7123(a)(1) unless the order involves an unfair labor practice under § 7116; this order does not address an unfair labor practice.

Plain-English summary

A Veterans Administration Medical Center reclassified laboratory technician positions from GS-7 to GS-6 to correct a classification error. The affected employees qualified for grade and pay retention benefits, but their union filed a grievance challenging the downgrade. An arbitrator ruled that the grievance could proceed to a hearing on its merits. The Authority held that 5 U.S.C. § 5366(b) bars a negotiated grievance over an action that gives rise to those retention benefits, and set aside the arbitrator's ruling.

Decision snapshot

• Authority: Grade and pay retention grievance bar under 5 U.S.C. § 5366(b).
• Outcome: The award finding the grievance arbitrable was set aside.
• Key point: A reclassification downgrade that creates grade and pay retention benefits is excluded from the negotiated grievance procedure under the cited statute.

Full text (FLRA public release)

[ v16 p869 ]

16:0869(121)AR

The decision of the Authority follows:

16 FLRA No. 121

VETERANS ADMINISTRATION
MEDICAL CENTER
Activity

and

LOCAL 1843, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
Union

Case No. 0-AR-810

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Martin F. Scheinman 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 dispute in this matter concerns the downgrading of certain laboratory technician positions from GS-7 to GS-6 to correct a classification error. The employees affected by the downgrade were entitled to grade and pay retention benefits under 5 U.S.C. Sections 5362-5363. A grievance protesting the reduction-in-grade was filed and submitted to arbitration on the threshold issue of grievability and arbitrability. Rejecting the Activity's argument that this matter was not grievable under 5 U.S.C. Sec. 5366(B) /1/ and under Sec. 7121(c)(5)
/2/ of the Statute, the Arbitrator, as his award, ruled that the grievance was arbitrable and ordered the parties to proceed to arbitration on the merits.

As its exception the Agency contends that the award is contrary to 5 U.S.C. Sec. 5366(b). The Authority agrees.

As noted, section 5366(b) pertinently provides that an action which is the basis of an employee's entitlement to grade and pay retention benefits shall not be grievable under a grievance procedure negotiated under the Statute. The Authority and the courts have expressly recognized that reductions-in-grade made pursuant to position reclassification actions for which grade and pay retention benefits are available are not grievable under a grievance procedure negotiated under the Statute or appealable under statutory appeal procedures. E.g., American Federation of Government Employees, Local 3369, AFL-CIO and Social Security Administration, New York Region, 16 FLRA No. 120 (1984); Atwell v. MSPB, 670 F.2d 272, 285-86 (D.C. Cir. 1981); accord Knepp v. Department of the Navy, 709 F.2d 37 (9th Cir. 1983). In terms of this case, it is clear that the grievance concerns the downgrading action of the grievants' laboratory technician positions as a result of position reclassification for which grade and pay retention benefits were available. Consequently, the grievance is precluded by 5 U.S.C. Sec. 5366(b) and the Arbitrator's award finding the grievance arbitrable is therefore deficient. Accordingly, the award is set aside.

Issued, Washington, D.C., December 18, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ 5 U.S.C. Sec. 5366(b)(1) provides that "any action which is the basis of an individual's entitlement to benefits under (5 U.S.C. Sections 5362-5363)" is not grievable under a grievance procedure negotiated under the Statute.

/2/ Section 7121(c)(5) provides:

(c) The preceding subsections of this section shall not apply with respect to any grievance concerning--

. . . .

(5) the classification of any position which does not result in the reduction in grade or pay of an employee.