16:0869(121)AR - VA Medical Center and Local 1843, AFGE -- 1984 FLRAdec AR
[ v16 p869 ]
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.