16:0869(121)AR - VA Medical Center and Local 1843, AFGE -- 1984 FLRAdec AR

[ v16 p869 ]
The decision of the Authority follows:

 16 FLRA No. 121
                                            Case No. 0-AR-810
    This matter is before the Authority on an exception to the award of
 Arbitrator Martin F. Scheinman 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.
    The dispute in this matter concerns the downgrading of certain
 laboratory technician positions from GS-7 to GS-6 to correct a
 classification error.  The employees affected by the downgrade were
 entitled to grade and pay retention benefits under 5 U.S.C. Sections
 5362-5363.  A grievance protesting the reduction-in-grade was filed and
 submitted to arbitration on the threshold issue of grievability and
 arbitrability.  Rejecting the Activity's argument that this matter was
 not grievable under 5 U.S.C. Sec. 5366(B) /1/ and under Sec.  7121(c)(5)
 /2/ of the Statute, the Arbitrator, as his award, ruled that the
 grievance was arbitrable and ordered the parties to proceed to
 arbitration on the merits.
    As its exception the Agency contends that the award is contrary to 5
 U.S.C. Sec. 5366(b).  The Authority agrees.
    As noted, section 5366(b) pertinently provides that an action which
 is the basis of an employee's entitlement to grade and pay retention
 benefits shall not be grievable under a grievance procedure negotiated
 under the Statute.  The Authority and the courts have expressly
 recognized that reductions-in-grade made pursuant to position
 reclassification actions for which grade and pay retention benefits are
 available are not grievable under a grievance procedure negotiated under
 the Statute or appealable under statutory appeal procedures.  E.g.,
 American Federation of Government Employees, Local 3369, AFL-CIO and
 Social Security Administration, New York Region, 16 FLRA No. 120 (1984);
  Atwell v. MSPB, 670 F.2d 272, 285-86 (D.C. Cir. 1981);  accord Knepp v.
 Department of the Navy, 709 F.2d 37 (9th Cir. 1983).  In terms of this
 case, it is clear that the grievance concerns the downgrading action of
 the grievants' laboratory technician positions as a result of position
 reclassification for which grade and pay retention benefits were
 available.  Consequently, the grievance is precluded by 5 U.S.C. Sec.
 5366(b) and the Arbitrator's award finding the grievance arbitrable is
 therefore deficient.  Accordingly, the award is set aside.
    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/ 5 U.S.C. Sec. 5366(b)(1) provides that "any action which is the
 basis of an individual's entitlement to benefits under (5 U.S.C.
 Sections 5362-5363)" is not grievable under a grievance procedure
 negotiated under the Statute.
    /2/ Section 7121(c)(5) provides:
          (c) The preceding subsections of this section shall not apply
       with respect to any grievance concerning--
                                .  .  .  .
          (5) the classification of any position which does not result in
       the reduction in grade or pay of an employee.