U.S. Federal Labor Relations Authority

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16:0866(120)AR - AFGE Local 3369 and SSA, New York Region -- 1984 FLRAdec AR

[ v16 p866 ]
The decision of the Authority follows:

 16 FLRA No. 120
                                            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
                                       /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
    /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.