43:1271(103)AR - - Transportation, FAA and National Air Traffic Controllers Association - - 1992 FLRAdec AR - - v43 p1271
[ v43 p1271 ]
The decision of the Authority follows:
43 FLRA No. 103
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
ORDER DISMISSING EXCEPTIONS
January 31, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to awards of Arbitrator Robert G. Williams filed by both parties 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 Union filed an opposition to the Agency's exceptions. The Agency did not file an opposition to the Union's exceptions.(1)
The Union filed a grievance alleging that the grievant's reduction in grade was not for just cause. In his original award, the Arbitrator sustained the grievance and ordered the Agency to reinstate the grievant to his former position. In a supplemental award, the Arbitrator dismissed the grievance.
For the following reasons, we conclude that we are without jurisdiction under section 7122(a) of the Statute to review the parties' exceptions.
II. Background and Arbitrator's Award
After the grievant, an air traffic control specialist, was informed by the Agency that he would be removed from his position pursuant to 5 U.S.C. § 8335(a), he accepted a reduction in grade to an air traffic assistant position.(2) The Union filed a grievance over the reduction in grade and, when the grievance was not resolved, it was submitted to arbitration. As relevant here, the issue before the arbitrator was:
Was the [g]rievant's change in position for just cause and, if not, what shall be the remedy?
Award at 2.
The Arbitrator noted that, under a "grandfather clause," the mandatory separation provisions of 5 U.S.C. § 8335 do not apply to controllers who were hired by the Agency before May 16, 1972. The Arbitrator concluded that, although the grievant was hired after that date, "[a]s long as controllers are 'grandfathered' or 'exempted' the Grievant is entitled to the same exclusion." Id. at 14. Accordingly, the Arbitrator sustained the grievance and directed the Agency to reinstate the grievant, with backpay, to his former position "until the Agency adopts an age limitation policy that meets equal treatment and protection standards or he is otherwise removed for just cause." Id.
Subsequently, the Office of Personnel Management (OPM) petitioned the Arbitrator to reconsider his award pursuant to 5 U.S.C. § 7703(d).(3) In his supplemental award, the Arbitrator concluded that "various legal barriers" prohibited him from "rendering the initial award in his case." Supplemental Award at 2. Accordingly, the Arbitrator vacated his award and dismissed the grievance.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency contends that the Arbitrator's original award is deficient because it is inconsistent with 5 U.S.C. § 8335. According to the Agency, the award both impermissibly expands the grandfather clause of that provision and improperly requires the Secretary of Transportation to grant an exemption from it. The Agency also claims that the award is deficient because: (1) the grievance involves a voluntary downgrade that is not appealable to the Merit Systems Protection Board (MSPB) or grievable; and (2) the remedy extends to employees other than the grievant.
B. The Union's Opposition
The Union claims that the original award does not conflict with 5 U.S.C. § 8335 and is not otherwise deficient. The Union disputes the Agency's claim that the grievant's reduction in grade is not appealable to the MSPB or grievable under the parties' agreement. According to the Union, the reduction in grade was not voluntary and an employee "has the right to a hearing if he makes a non-frivolous allegation of involuntariness." Opposition at 6.
C. The Union's Exceptions
The Union asserts that the Arbitrator was not authorized to issue a supplemental award because, after issuance of the original award, the Arbitrator was functus officio. In addition, according to the Union, the Arbitrator had no contractual authority to issue the supplemental award because, after the original award, he was removed from the parties' panel of arbitrators.
IV. Analysis and Conclusions
We find that the Authority is without jurisdiction under section 7122(a) of the Statute to review the parties' exceptions.
Section 7122(a) 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) of the Statute include serious adverse actions covered under 5 U.S.C. § 7512, such as reductions in grade. Although voluntary reductions in grade are not covered by 5 U.S.C. § 7512, "ostensibly voluntary" actions which result from "agency coercion . . . must be treated the same as an adverse action." Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987) (citation omitted). Review of arbitration awards relating to such matters, like review of decisions of the MSPB, 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. See U.S. Department of the Navy, Navy Resale Activity, Guam and American Federation of Government Employees, Local 1689, 40 FLRA 30, 32 (1991).
The Arbitrator's awards relate to the grievant's reduction in grade and, according to the Union, the reduction in grade was not voluntary. Consequently, we are without jurisdiction to review the parties' exceptions and we will dismiss them. See, for example, U.S. Department of Veterans Affairs, William Jennings Bryan Dorn Veterans Hospital and American Federation of Government Employees, Local 1915, 34 FLRA 580, 583 (1990).
The Agency's and the Union's exceptions are dismissed.
(If blank, the decision does not have footnotes.)
1. The Office of Personnel Management (OPM) filed an opposition to the Union's exceptions. In view of our decision, we find it unnecessary to consider OPM's opposition and do not address whether OPM has standing to file it.
2. 5 U.S.C. § 8335(a) provides, in relevant part:
(a) An air traffic controller shall be separated from the service on the last day of the month in which he becomes 56 years of age. The Secretary, under such regulations as he may prescribe, may exempt a controller having exceptional skills and experience as a controller from the automatic separation provisions of this subsection until that controller becomes 61 years of age.
3. 5 U.S.C. § 7703(d) provides, in pertinent part:
The Director of the [OPM] may obtain review of any final order or decision of the [Merit Systems Protection] Board by filing a petition for judicial review in the United States Court of Appeals for the Federal Circuit . . . . If the Director did not intervene in a matter before the Board, the Director may not petition for review . . . under this section unless the Director first petitions the Board for reconsideration of its decision, and such petition is denied. . . .