10:0157(31)AR - San Antonio Air Logistics Center (AFLC), Kelly AFB, TX and AFGE Local 1617 -- 1982 FLRAdec AR

 10 FLRA No. 31
 
 SAN ANTONIO AIR LOGISTICS
 CENTER (AFLC), KELLY AIR
 FORCE BASE, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1617
 Union
 
                                            Case No. O-AR-186
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR JACK JOHANNES FILED BY THE AGENCY 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 AND THE OFFICE OF PERSONNEL MANAGEMENT (OPM) FILED A BRIEF AS
 AN AMICUS CURIAE.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE PAY OF A GROUP OF EMPLOYEES
 AT THE ACTIVITY WHO WERE COMPETITIVELY SELECTED FOR AN UPWARD MOBILITY
 TRAINING PROGRAM AND WERE PLACED IN THE PROGRAM ON AND AFTER JANUARY 28,
 1979.  /1/ ALL THE EMPLOYEES VOLUNTARILY ACCEPTED A REDUCTION IN GRADE
 TO GS-5, STEP 10 FROM HIGHER LEVEL WAGE GRADE POSITIONS.  THE ACTIVITY
 DETERMINED THAT THE EMPLOYEES WERE ENTITLED TO CERTAIN PAY RETENTION
 BENEFITS AND SET THEIR PAY RATES ACCORDINGLY.  AFTER THE SUBSEQUENT
 ISSUANCE BY OPM OF INTERIM REGULATIONS IMPLEMENTING THE GRADE AND PAY
 RETENTION PROVISIONS OF TITLE VIII OF THE CIVIL SERVICE REFORM ACT, 5
 U.S.C.  5361-5366, THE ACTIVITY DETERMINED THAT THE EMPLOYEES WERE
 RECEIVING RATES OF PAY IN EXCESS OF THE AMOUNT PERMITTED UNDER THE OPM
 REGULATIONS.  CONSEQUENTLY, THE ACTIVITY PROSPECTIVELY REDUCED THE RATES
 OF PAY FOR THESE EMPLOYEES TO THE RATES PRESCRIBED BY REGULATION.  /2/
 AT THE SAME TIME AND IN ACCORDANCE WITH THE PAY RETENTION PROVISIONS OF
 TITLE VIII, THE ACTIVITY ONLY GRANTED THE EMPLOYEES A PARTIAL AMOUNT OF
 THE OCTOBER 1979 COMPARABILITY INCREASE IN SCHEDULED PAY RATES.  A
 GRIEVANCE WAS FILED PROTESTING THESE ACTIONS THAT WAS ULTIMATELY
 SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR DETERMINED THAT THESE GRIEVANTS ARE ENTITLED TO
 RECEIVE GRADE RETENTION BENEFITS PURSUANT TO 5 U.S.C. 5362.  /3/
 ACCORDINGLY, THE ARBITRATOR AWARDED THE GRIEVANTS BACKPAY FOR THE
 ACTIVITY'S FAILURE TO PROVIDE THEM WITH GRADE RETENTION AND FOR ITS
 FAILURE TO PROVIDE THEM WITH THE FULL COMPARABILITY INCREASE IN
 SCHEDULED PAY RATES SINCE OCTOBER 1979.
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS
 DEFICIENT BECAUSE THE ARBITRATOR WAS WITHOUT JURISDICTION IN THIS
 MATTER.  SPECIFICALLY, THE AGENCY CLAIMS THAT THIS CASE CONCERNS
 QUESTIONS OF GRADE AND/OR PAY RETENTION ENTITLEMENTS AND ACCORDINGLY IS
 A MATTER WHICH IS EXPRESSLY BARRED FROM GRIEVANCE ARBITRATION BY 5
 U.S.C. 5366(B)(1).  /4/ HOWEVER, THE AGENCY'S EXCEPTION DOES NOT PROVIDE
 A BASIS FOR FINDING THE AWARD DEFICIENT.
 
    SECTION 5366(B)(1) EXPRESSLY PRECLUDES A GRIEVANCE OVER ANY ACTION
 WHICH IS THE BASIS OF AN INDIVIDUAL'S ENTITLEMENT TO GRADE AND/OR PAY
 RETENTION BENEFITS.  ALTHOUGH THE AGENCY CLAIMS THAT THE GRIEVANCE IN
 THIS CASE RELATES TO SUCH AN ACTION, THE ACTION THAT ENTITLED THE
 GRIEVANTS TO RETENTION BENEFITS WAS THEIR PLACEMENT IN THE UPWARD
 MOBILITY TRAINING PROGRAM.  AS NOTED, THE GRIEVANCE ESSENTIALLY
 CHALLENGES THE PRECISE COMPUTATION OF BENEFITS TO WHICH THE GRIEVANTS
 ARE ENTITLED AS A RESULT OF THEIR PLACEMENT IN THE UPWARD MOBILITY
 TRAINING PROGRAM;  IT DOES NOT CHALLENGE THE ACTIVITY'S ACTION IN
 PLACING THEM IN THAT PROGRAM WHICH CONCEDEDLY ENTITLED THE GRIEVANTS TO
 RETENTION BENEFITS.  THUS, THE AGENCY FAILS TO ESTABLISH IN ITS
 EXCEPTION THAT THE GRIEVANCE PERTAINS TO THE ACTION WHICH WAS THE BASIS
 OF THE GRIEVANTS' ENTITLEMENT TO BENEFITS, AND ACCORDINGLY THIS
 EXCEPTION IS DENIED.
 
    IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD IS
 CONTRARY TO 5 U.S.C. CHAPTER 53 (SUPPL IV 1980) AND IMPLEMENTING
 REGULATIONS, 5 CFR PART 536.  SPECIFICALLY, THE AGENCY MAINTAINS THAT
 UNDER 5 U.S.C. 5362 AND 5 CFR 536.103 THE GRIEVANTS ARE NOT ENTITLED TO
 GRADE RETENTION BENEFITS AND THAT CONSEQUENTLY THE AWARD OF BACKPAY FOR
 THE ACTIVITY'S FAILURE TO PROVIDE GRADE RETENTION BENEFITS IS DEFICIENT.
  THE AGENCY STATES THAT THE GRIEVANTS ARE ONLY ENTITLED TO PAY RETENTION
 BENEFITS UNDER 5 U.S.C. 5363 AND UNDER THAT SECTION THEY ARE NOT
 AUTHORIZED THE FULL ANNUAL COMPARABILITY INCREASE IN SCHEDULED PAY
 RATES.  THUS, THE AGENCY CLAIMS THAT THE AWARD OF BACKPAY FOR THE
 ACTIVITY'S FAILURE TO GRANT THE FULL INCREASES IS ALSO DEFICIENT.  IN
 OPPOSITION THE UNION PRINCIPALLY ARGUES THAT THESE EMPLOYEES ARE
 ENTITLED TO GRADE RETENTION BENEFITS AS AWARDED BY THE ARBITRATOR AND
 THAT THEREFORE THE AWARD IS CONSISTENT WITH CONTROLLING LAW AND
 REGULATION.
 
    THE AUTHORITY FINDS THAT THE AWARD WITH RESPECT TO THESE EMPLOYEES IS
 CONTRARY TO GOVERNING LAW AND REGULATION.  SECTION 5362 AND 5 CFR PART
 536 GOVERN THE ENTITLEMENT OF EMPLOYEES TO GRADE RETENTION BENEFITS.
 THESE PROVISIONS PERTINENTLY PROVIDE THAT AN EMPLOYEE IS ENTITLED TO
 GRADE RETENTION ONLY IF THE EMPLOYEE HAS BEEN PLACED IN A LOWER GRADE AS
 A RESULT OF REDUCTION-IN-FORCE PROCEDURES OR AS A RESULT OF A
 RECLASSIFICATION PROCESS.  HOWEVER, UNDER SECTION 5363 AND APPLICABLE
 REGULATIONS, PAY RETENTION MUST BE GRANTED TO AN EMPLOYEE WHOSE RATE OF
 BASIC PAY WOULD OTHERWISE BE REDUCED AS A RESULT OF PLACEMENT IN AN
 UPWARD MOBILITY PROGRAM.  THUS, GOVERNING LAW AND REGULATION DO NOT
 AUTHORIZE GRADE RETENTION AS A RESULT OF PLACEMENT IN AN UPWARD MOBILITY
 PROGRAM.  /5/ RATHER, THESE GRIEVANTS ARE INSTEAD ENTITLED TO PAY
 RETENTION BENEFITS BECAUSE THEIR PREVIOUS RATES OF BASIC PAY WOULD HAVE
 BEEN REDUCED UPON PLACEMENT IN THE UPWARD MOBILITY TRAINING PROGRAM.
 WITH THE PROVISION OF PAY RETENTION BENEFITS TO THE GRIEVANTS MANDATORY
 UNDER LAW, THE ACTIVITY THEREFORE PROPERLY ESTABLISHED THE PAY RATES OF
 THESE EMPLOYEES UPON THEIR PLACEMENT IN THE PROGRAM IN ACCORDANCE WITH
 THE REGULATIONS APPLICABLE AT THE TIME FOR PAY RETENTION BENEFITS AND
 SUBSEQUENTLY PROPERLY ADJUSTED THOSE RATES TO THE RATES PRESCRIBED BY
 THE REGULATIONS IMPLEMENTING THE PAY RETENTION PROVISIONS OF 5 U.S.C.
 5363.  CONSEQUENTLY, THE ARBITRATOR'S AWARD OF BACKPAY FOR THE
 ACTIVITY'S FAILURE TO PROVIDE THESE EMPLOYEES WITH GRADE RETENTION
 BENEFITS IS DEFICIENT AS CONTRARY TO 5 U.S.C. 5362-5363 AND 5 CFR PART
 536.  SIMILARLY, 5 U.S.C. 5363 EXPRESSLY LIMITS THE AMOUNT OF AN
 INCREASE IN THE SCHEDULED RATES OF PAY THAT EMPLOYEES ENTITLED TO PAY
 RETENTION MAY PROPERLY RECEIVE.  THUS, THE ACTIVITY PROPERLY DENIED
 THESE GRIEVANTS THE FULL AMOUNT OF THE OCTOBER 1979 COMPARABILITY
 INCREASE, AND CONSEQUENTLY THE ARBITRATOR'S ORDER OF BACKPAY FOR THE
 ACTIVITY'S FAILURE TO GRANT THE FULL INCREASES IS ALSO DEFICIENT AS
 CONTRARY TO 5 U.S.C. 5363 AND 5 CFR PART 536.  ACCORDINGLY, THE
 ARBITRATOR'S AWARD IS MODIFIED BY PRECLUDING ITS APPLICATION TO THE 31
 GRIEVANTS WHO WERE PLACED IN THE PROGRAM ON OR AFTER JANUARY 28, 1979.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 28, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE AGENCY STATES THAT ITS EXCEPTIONS ONLY PERTAIN TO THE 31
 EMPLOYEES WHO WERE PLACED IN THE PROGRAM ON AND AFTER JANUARY 28, 1979,
 AND NOT TO THE NINE EMPLOYEES WHO WERE PLACED IN THE PROGRAM BEFORE THE
 EFFECTIVE DATE OF THE CIVIL SERVICE REFORM ACT AND WHO RECEIVED SALARY
 RETENTION BENEFITS UNAFFECTED BY THE ACTIVITY'S DISPUTED ACTIONS.
 
    /2/ ALTHOUGH THE REGULATIONS WERE EFFECTIVE RETROACTIVELY, THE
 ACTIVITY WAIVED RECOUPMENT OF OVERPAYMENTS.
 
    /3/ 5 U.S.C. 5362 PROVIDES FOR GRADE RETENTION FOLLOWING A CHANGE OF
 POSITIONS OR RECLASSIFICATION.
 
    /4/ 5 U.S.C. 5366(B)(1) PROVIDES THAT "ANY ACTION WHICH IS THE BASIS
 OF AN INDIVIDUAL'S ENTITLEMENT TO BENEFITS UNDER (5 U.S.C. 5362-5363)"
 IS NOT GRIEVABLE UNDER A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE
 STATUTE.
 
    /5/ IN ADDITION, CONTRARY TO THE DETERMINATION OF THE ARBITRATOR AND
 THE CONTENTION OF THE UNION, NO SAVINGS PROVISION OPERATES TO OTHERWISE
 ENTITLE THESE EMPLOYEES TO GRADE RETENTION.  THUS, EVEN PRIOR TO
 ENACTMENT OF THE CSRA, THE PAY SAVINGS PROVISION IN 5 U.S.C. 5337 (WHICH
 WAS REPEALED BY TITLE VIII OF THE CSRA) AND IMPLEMENTING REGULATIONS
 ONLY PROVIDED FOR THE RETENTION OF PAY, NOT GRADE, FOR EMPLOYEES WHOSE
 RATES OF PAY WOULD OTHERWISE BE REDUCED BY ENTERING AN UPWARD MOBILITY
 PROGRAM.