36:0207(23)AR - - Veterans Affairs, Medical Center, Buffalo, NY and SEIU Local 200-C - - 1990 FLRAdec AR - - v36 p207
[ v36 p207 ]
The decision of the Authority follows:
36 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
BUFFALO, NEW YORK
SERVICE EMPLOYEES INTERNATIONAL UNION
ORDER DISMISSING EXCEPTIONS
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Judith A. La Manna. A grievance was filed and submitted to arbitration contesting the grievant's demotion and reassignment for medical reasons and the Agency's refusal to give him salary retention and comparable position placement. The Arbitrator determined that the grievance was arbitrable and found that the Agency had not violated either the parties' collective bargaining agreement or applicable law concerning salary retention and comparable position placement. The Arbitrator, therefore, denied the grievance.
The Union filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
For the following reasons, we find that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. Therefore, we will dismiss the Union's exceptions.
II. Background and Arbitrator's Award
The grievant has been employed by the Agency since 1967. He served in a part-time capacity until 1987, when he became a full-time Housekeeping Aide in the Agency's Building Management Service.
In February 1988, while performing his duties, the grievant began to experience an adverse reaction to solutions containing chlorine. The Agency reassigned the grievant to the laundry, where his adverse reactions to chlorine solutions continued.
The grievant then filed a grievance, which was held in abeyance pending a change in his job duties. Subsequently, having determined that the grievant could not be reasonably accommodated by placement in a position in the Building Management Service, the Agency placed the grievant in a light duty status and temporarily assigned him to work in the file room in the Medical Administration Service. The grievant was paid at his regular WG-2/5 salary level during this period.
In December 1988, the Agency proposed to demote and reassign the grievant and gave him a choice between two positions. "Both of these positions were at the GS-3/10 level and were, accordingly, demotions for [the] [g]rievant." Award at 5. The grievant accepted one of the offered positions--Nursing Assistant--"under duress." Id. In April 1989, the Agency effected the grievant's demotion and reassignment.
The grievance regarding the demotion was submitted to arbitration where the Arbitrator framed the issue as follows:
Is this matter grievable? If so, did the Agency violate the collective bargaining Agreement and/or any laws[,] rules and regulations that apply to salary retention and comparable position placement? If so, what shall the remedy be?
Id. at 2.
The Arbitrator determined that the grievance was arbitrable under the parties' agreement. On the merits, the Arbitrator noted that "the gravamen of the Union's complaint is that the Grievant's demotion in salary resulted in the potential lowering of his regular retirement benefit based on the highest three years of service." Id. at 8. The grievant will be eligible for regular retirement in February 1991. The Arbitrator found that the Union had not established that the Agency violated law, rule and regulation by failing to afford the grievant salary retention and comparable position placement rights. The Arbitrator stated that "the potential impact on retirement calculation cannot be seen as the purposes of the 'laws, rules and regulations that apply to salary retention and comparable position placement.'" Id. at 8-9.
The Arbitrator determined that the grievant's salary was protected by the combination of OWCP benefits and his current salary. She stated that the law cited by the Union to support its position indicated that the Agency was required to "make 'every reasonable effort' to reassign [the grievant] to work that [he] could do 'efficiently and safely' before separation from employment for total disability." Id. at 10. The Arbitrator determined that the Agency had fulfilled this requirement.
The Arbitrator found that the Agency, in deciding that there were only two vacant positions for which the grievant was qualified, had met its responsibility of determining the grievant's suitability for comparable positions available in the Agency. She also determined that the Union did not demonstrate that the grievant was qualified for other available vacancies.
The Arbitrator made the following award:
Grievance is arbitrible [sic]. It is denied on the merits as the Union did not show that the Agency violated the collective bargaining Agreement and/or any laws, rules and regulations that apply to salary retention and comparable position placement.
Id. at 11.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award must be reversed because it is inconsistent with law, rule, and regulation. The Union claims that the award is inconsistent with: (1) the Federal Personnel Manual (FPM)--chapter 306, subchapter 9; chapter 339, subchapter 1; and chapter 531, subchapter 5; (2) FPM Supplement 831-1, subchapter 10; and (3) 5 C.F.R. § 831.502. Moreover, because the grievant's retirement annuity will be based on an amount less than the combination of his current salary and the OWCP payments he receives, the Union states that "the Agency had a forward responsibility, in accordance with law, rules and regulations, to either institute salary retention, or offer the grievant a position of equal grade and/or pay." Exceptions at 2.
B. Agency's Opposition
The Agency contends that the Union's exceptions do not comply with the Authority's Rules and Regulations because the exceptions "fail to state the grounds upon which review is sought." Opposition at 1-2. According to the Agency, even though the Union states that the award is contrary to law, rule and regulation, the Union's exceptions are not related "to any specific determination or law or fact made by the [A]rbitrator." Id. at 2. The Agency also argues that the Union's exceptions "raise argument[s] concerning the issue of salary retention for the grievant" and, therefore, the grievance is nongrievable under 5 U.S.C. § 5366. Id. at 4.
The Agency asserts that the Arbitrator correctly determined that: (1) management had complied with the requirements for the accommodation of the grievant's work-related illness; and (2) the grievant's salary was protected. The Agency contends that the issues of grade and pay retention are not applicable when, as here, an employee is partially disabled because of an occupational disease or illness.
IV. Analysis and Conclusions
We conclude that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.
Section 7122(a) of the Statute provides, in pertinent part, as follows:
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).
The matters described in section 7121(f) include adverse actions covered under 5 U.S.C. chapter 75, subchapter II. To be an adverse action covered under chapter 75, subchapter II, the action must be covered under 5 U.S.C. § 7512 and must have been taken against an employee as defined in 5 U.S.C. § 7511. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703.
We find that the award in this case relates to an adverse action covered under 5 U.S.C. chapter 75, subchapter II and, therefore, relates to a matter described in section 7121(f) of the Statute. The Arbitrator determined that the Agency had not violated applicable law, rule or regulation by denying the grievant salary retention rights. We conclude, therefore, that the grievant's reduction in grade was without pay retention benefits and, thus, that it is covered by 5 U.S.C. § 7512. See, for example, U.S. Department of Veterans Affairs, William Jennings Bryan Dorn Veterans Hospital and American Federation of Government Employees, Local No. 1915, 34 FLRA 580 (1990) (William Jennings Bryan Dorn Veterans Hospital) (a reduction in grade without grade and pay retention benefits is a matter within the coverage of 5 U.S.C. § 7512).
Further, the record in this case indicates that the grievant is a nonprobationary, competitive service employee and, therefore, is an employee within the meaning of 5 U.S.C. § 7511. See Award at 3. Because the award relates to a matter described in section 7121(f), exceptions to the award may not be filed with the Authority under section 7122(a) of the Statute. Consequently, we are without jurisdiction to review the Union'