51:0052(6)AR - - AFGE, Local 2250 and VA Medical Center, Muskogee, OK - - 1995 FLRAdec AR - - v51 p52

[ v51 p52 ]
The decision of the Authority follows:

51 FLRA No. 6





LOCAL 2250










August 30, 1995


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Joe D. Woodward filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator found that a grievance over the downgrading of certain employees was not arbitrable under law.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

The Agency determined that certain employees whose positions were classified at the WG-11 grade level were performing duties at the WG-10 grade level and reclassified the positions to WG-10. The Union filed a grievance on behalf of the affected employees alleging that the Agency violated Article 19, Section 1 of the parties' agreement.(1) Subsequently, the Agency informed the employees that they would retain their WG-11 grade level for 2 years, at which time their grade level would be adjusted to WG-10 and they would retain their salary.

The Arbitrator stated that the threshold issue was whether the matter was arbitrable. Noting that the grievance concerned the grievants' downgrade and requested the restoration of their grade level to WG-11, the Arbitrator found that "it [was] clear that classification [was] the issue . . . ." Award at 7. The Arbitrator also found that the parties agreed that the Agency had notified the employees that their "current grade would be retained and that they would be adjusted in grade with retention of salary in two years." Award at 8 (emphasis in original). The Arbitrator concluded that the grievance was not arbitrable under section 7121(c)(5) of the Statute.(2)

III. Exceptions

A. Union's Contentions

The Union asserts that the award is contrary to law because: (1) section 7121(c)(5) permits the Union to file a grievance over a classification matter when, as in this case, a reduction in grade occurs; and (2) the grievance concerned the accuracy of the grievants' position descriptions, not the grade level of the positions. The Union also contends that the award is arbitrary and capricious because the Arbitrator failed to resolve an arbitral matter.

B. Agency's Opposition

The Agency contends that the Arbitrator properly found that the matter before him was not arbitrable, but asserts that the correct legal authority for that finding is 5 U.S.C. § 5366(b).(3)

IV. Analysis and Conclusions

The Union's first exception challenges the award's consistency with law; accordingly, we review the question raised by the exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). We find that the Arbitrator was correct in determining that the grievance was not arbitrable as a matter of law, but for reasons different from the Arbitrator.

An employee whose position is reclassified to a lower grade is entitled to grade retention. 5 U.S.C. § 5362(a)(2); Atwell v. MSPB, 670 F.2d 272, 275-76 (D.C. Cir. 1981). Under 5 U.S.C. § 5366(b), an action which is the basis of an employee's entitlement to grade and pay retention benefits is not grievable or arbitrable. Veterans Administration Medical Center and Local 1843, American Federation of Government Employees, 16 FLRA 869, 870-71 (1984). As it is undisputed that the grievants in this case received grade and pay retention, the grievance concernin