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











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,