19:0740(90)AR - Commerce, Bureau of Census, Data Preparation Division and NFFE Local 1438 -- 1985 FLRAdec AR



[ v19 p740 ]
19:0740(90)AR
The decision of the Authority follows:


 19 FLRA No. 90
 
 U.S. DEPARTMENT OF COMMERCE,
 BUREAU OF CENSUS,
 DATA PREPARATION DIVISION
 Activity
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1438
 Union
 
                                            Case No. O-AR-945
 
                        ORDER DISMISSING EXCEPTIONS
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator David L. Beckman filed by the Activity under 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.  For the reasons that follow, the
 Authority is without jurisdiction to review the Activity's exceptions
 and, therefore, the exceptions must be dismissed.
 
    The dispute before the Arbitrator concerned the Activity's actions
 with regard to the grievant's permanent grade and position.  The
 Activity claimed that it had made an error when it appointed the
 grievant as a WG-2 Laborer, under the Veterans Readjustment Act (VRA)
 /1/ in February 1979 and that it acted to correct the error in July 1980
 by changing the grievant's permanent grade and position to GG-3 Clerk
 /2/ retroactive to February 1979.  The Activity subsequently converted
 the grievant's VRA appointment to a career-conditional appointment and
 took numerous other actions with respect to the grievant's grade and
 position, including a number of "correction" actions cancelling or
 rescinding other previous actions, /3/ and a series of four actions in
 January 1984 which were effective retroactively to 1979 and 1981 and
 which gave rise to the grievance before the Arbitrator.  The Union
 maintained, based upon the February 1979 appointment action and a number
 of the other subsequent personnel actions, that the grievant's permanent
 grade is WG-2 Laborer.  The Union further argued in that regard that if
 the Activity effectively changed the grievant from WG-2 Laborer to GG-3
 Clerk as it asserted, then the grievant was improperly downgraded and
 not afforded his adverse action appeal rights.  The Arbitrator found, in
 pertinent part, that the grievant's permanent status was that of WG-2
 Laborer by reason of the February 1979 appointment action;  that the
 Union was correct in contending that the grievant was never properly
 notified of any change in that status;  that the Activity failed to
 satisfactorily explain what the error was that gave it the right to
 change the grievant's status to GG-3 Clerk;  and, in effect, that the
 Activity had acted improperly in its use of error correction procedures
 as a means of changing the grievant's fundamental employment status.
 The Arbitrator therefore sustained the grievance and prohibited the
 Activity from using its administrative correction authority to
 retroactively change the appointment the grievant received in February
 1979.  The Activity then filed the instant exceptions to the
 Arbitrator's award with the Authority.
 
    Section 7122(a) of the Statute provides, in pertinent part:
 
          Either party to arbitration under this chapter may file with
       the Authority an exception to any arbitrator's award pursuant to
       the arbitration (other than an award relating to a matter
       described in section 7121(f) of this title) . . . .
 
    As relevant to this case, the matters described in section 7121(f) of
 the Statute include those covered under 5 U.S.C. 7512 which, in turn,
 applies to specified adverse actions, including reductions in grade or
 pay.  /4/ As indicated above, the Activity claimed that it changed the
 grievant's grade and position from WG-2 Laborer to GG-3 Clerk in July
 1980 and the Union claimed that if the Activity effected such a change
 at that time or subsequently, the grievant was improperly downgraded in
 violation of his rights as an employee /5/ in such an adverse action.
 Thus, the essence of the grievance presented to and resolved by the
 Arbitrator involved an allegation of a reduction in grade or pay.
 
    Since the Arbitrator's award relates to a matter covered by 5 U.S.C.
 7512, i.e., an alleged reduction in grade or pay of a covered employee,
 under section 7122(a) of the Statute, exceptions to the award may not be
 filed with the Authority.  Consequently, the Authority is without
 jurisdiction to review the Activity's exceptions.  See, e.g., American
 Federation of Government Employees, Local 3369, AFL-CIO and Social
 Security Administration New York Region, 16 FLRA No. 120 (1984).
 
    Accordingly, the Activity's exceptions are dismissed.  /6/ Issued,
 Washington, D.C., August 15, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ A Veterans Readjustment Act appointment is an excepted
 appointment to a position otherwise in the competitive service of a
 veteran who served during the Vietnam era and is made under the
 authority of 38 U.S.C. 2014, as amended.  5 CFR 307.101(c).
 
 
    /2/ GG is the designation the Agency uses to denote a cyclical tour
 of duty and corresponds to the general schedule designation of GS.
 
 
    /3/ An investigator from the Office of Personnel Management
 investigating a compl