19:0740(90)AR - Commerce, Bureau of Census, Data Preparation Division and NFFE Local 1438 -- 1985 FLRAdec AR
[ v19 p740 ]
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 complaint from the grievant reported in November 1983: "Since these correction actions made changes in his position and grade . . . confusion on the part of (the grievant) or on the part of anyone else who reviews his records is readily understandable." /4/ Under 5 U.S.C. 7511, "grade" means a level of classification under a position classification system and "pay" means the rate of basic pay fixed by law or administrative action for the position held by the employee. /5/ Under 5 U.S.C. 7511(a): (1) "employee" means-- (A) an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less; and (B) a preference eligible in an Executive agency in the excepted service . . . who has completed 1 year of current continuous service in the same or similar positions.