[ v51 p52 ]
The decision of the Authority follows:
51 FLRA No. 6
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
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)
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 concerning the reclassification of the employees' positions to a lower grade was not arbitrable under section 5366(b). The fact that the Arbitrator relied on section 7121(c)(5) of the Statute, instead of 5 U.S.C. § 5366(b), does not render the award deficient as contrary to law. Accordingly, we deny this exception.
Having determined that the Arbitrator correctly concluded that the grievance was not arbitrable under law, we also deny the Union's exception contending that the award is arbitrary and capricious on the basis that the Arbitrator failed to resolve an arbitral matter.
The Union's exceptions are denied.
POSITION MANAGEMENT AND CLASSIFICATION
Section 1 - General
A. Each position covered by this Agreement that is established or changed must be accurately described, in writing, and classified to the proper occupational title, series, code, and grade.
B. The description must clearly and concisely state the principal and grade controlling duties, responsibilities, and supervisory relationships of the position.
C. Employees will be furnished a current, accurate copy of the description of the position to which assigned at the time of assignment and upon request.
D. The position/job description will be kept current and accurate. Significant changes to a position will be incorporated in the position description to assure that the position is correctly classified/graded to the proper title, series and grade. Incidental changes may be made in the form of pen and ink notations on the position description as requested by management.
E. An employee dissatisfied with the classification of his/her position should first discuss the problem with his/her supervisor. If the supervisor is unable to resolve the issue to the employee's satisfaction, the employee can discuss his/her dissatisfaction with the Personnel Officer or appropriate staff member who will explain the basis for the classification/job grading. An employee, upon request, will have access to his/her position description, evaluation report, if available, organizational and functional charts, and other pertinent information directly related to the classification of his/her position. This informal classification review process should be completed in a reasonable period of time. If the employee still believes there is an inequity, she/he may appeal to VA Central Office or OPM as appropriate. An employee may file a classification/job grading appeal at any time through appropriate channels whether or not this informal classification review process was followed.
F. Management will meet and confer with AFGE locally on procedures pertaining to systematic position classification and special maintenance reviews.
1. The text of Article 19, Section 1 of the parties' agreement is set forth in the Appendix to this decision.
2. Section 7121(c)(5) of the Statute excludes from coverage by a negotiated grievance procedure any grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee."
3. 5 U.S.C. § 5366(b) is part of a subchapter concerning grade and pay retention and states:
(b) For purposes of . . . any grievance procedure negotiated under the provisions of chapter 71 of this title--
(1) any action which is the basis of an individual's entitlement to benefits under this subchapter, and
(2) any termination of any such benefits under this subchapter,
shall not be treated as . . . grievable under such grievance procedure.