[ v16 p866 ]
The decision of the Authority follows:
16 FLRA No. 120 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3369, AFL-CIO Union and SOCIAL SECURITY ADMINISTRATION, NEW YORK REGION Activity Case No. O-AR-681 ORDER DISMISSING EXCEPTIONS This matter is before the Authority on exceptions to the award of Arbitrator Daniel G. Collins filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. For the reasons that follow, the Authority is without jurisdiction to review the Agency's exceptions, and therefore they must be dismissed. The dispute in this matter concerns the grievant's reduction-in-grade from GS-4 to GS-3. The grievant's position of mail and supply clerk, GS-4, had been downgraded as a result of position reclassification to GS-3. The incumbents of the mail and supply clerk position, including the grievant, were offered training for a new GS-4 position. The grievant however signed a statement stating that he did not wish to assume the duties of the new position and he understood that he would be placed in the GS-3 position with a resulting loss of pay. Thereafter, the grievant was "change(d) to (a) lower grade" with the personnel action stating that it was at the grievant's request. A grievance was filed and submitted to arbitration claiming that the grievant was not demoted at his own request and that therefore he was entitled to have received grade and pay retention benefits under 5 U.S.C. chap. 53, subchap. VI /1/ as a result of the reclassification action. The Arbitrator determined that the grievant's demotion was not at his own request within the meaning of section 5362(d) and 5 CFR 536.207(a) /2/ and ordered that the grievant be accorded retroactively those rights for a demotion not at his own request. The Authority has held that a reduction-in-grade is a matter covered under 5 U.S.C. 7512 /3/ and that therefore an award relating to a reduction-in-grade is a matter described in section 7121(f) of the Statute /4/ as to which no exceptions can be filed with the Authority under section 7122(a). E.g., Veterans Administration, Medical Center, Chillicothe, Ohio and American Federation of Government Employees, Local 1631, AFL-CIO, 15 FLRA No. 92 (1984). At the same time the Authority and the courts have recognized that under 5 U.S.C. 5366(b)(1) the reduction-in-grade action which is the basis of an employee's entitlement to grade and pay retention benefits is not grievable under a grievance procedure negotiated under the Statute or appealable under statutory appeal procedures. San Antonio Air Logistics Center (AFLC), Kelly Air Force Base, Texas and American Federation of Government Employees, AFL-CIO, Local 1617, 10 FLRA 157 (1982); Atwell v. MSPB, 670 F.2d 272 (D.C. Cir. 1981). The court in Atwell specifically addressed the reconciliation of section 7512 and 5366 with respect to a reduction-in-grade. The court reconciled these provisions by concluding that only reductions-in-grade for which grade and pay retention benefits are provided are not appealable or grievable under section 5366(b) and that a reduction-in-grade without grade and pay retention benefits is a matter covered under section 7512. In terms of this case with the grievant having been reduced-in-grade without the provision of grade and pay retention benefits, the Authority finds that the Arbitrator's award relates to a matter covered by section 7512. Thus, the award relates to a matter described in section 7121(f) and therefore is an award as to which exceptions may not be filed under the Statute. Accordingly, the Agency's exceptions are dismissed. /5/ Issued, Washington, D.C., December 18, 1984 /s/ Henry B. Frazier III Henry B. Frazier III, Acting Chairman /s/ Ronald W. Haughton Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 5362 provides for grade retention following a change of positions or reclassification and section 5363 provides for pay retention. /2/ These provisions both provide that eligibility for grade and pay retention benefits ceases when an employee is demoted at the employee's own request. /3/ Section 7512 enumerates the actions covered under 5 U.S.C. chap. 75, subchap. II. /4/ Section 7121(f) pertinently provides: In matters covered under section 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board. /5/ The Agency has also filed a request for a stay of the award under part 2429 of the Authority's Rules and Regulations. In view of this decision, the Agency's request is likewise dismissed.