[ v19 p740 ]
19:0740(90)AR
The decision of the Authority follows:
19 FLRA No. 90
U.S. DEPARTMENT OF COMMERCE,
BUREAU OF CENSUS,
DATA PREPARATION DIVISION
Activity
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1438
Union
Case No. O-AR-945
ORDER DISMISSING EXCEPTIONS
This matter is before the Authority on exceptions to the award of
Arbitrator David L. Beckman filed by the Activity under 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 Activity's exceptions
and, therefore, the exceptions must be dismissed.
The dispute before the Arbitrator concerned the Activity's actions
with regard to the grievant's permanent grade and position. The
Activity claimed that it had made an error when it appointed the
grievant as a WG-2 Laborer, under the Veterans Readjustment Act (VRA)
/1/ in February 1979 and that it acted to correct the error in July 1980
by changing the grievant's permanent grade and position to GG-3 Clerk
/2/ retroactive to February 1979. The Activity subsequently converted
the grievant's VRA appointment to a career-conditional appointment and
took numerous other actions with respect to the grievant's grade and
position, including a number of "correction" actions cancelling or
rescinding other previous actions, /3/ and a series of four actions in
January 1984 which were effective retroactively to 1979 and 1981 and
which gave rise to the grievance before the Arbitrator. The Union
maintained, based upon the February 1979 appointment action and a number
of the other subsequent personnel actions, that the grievant's permanent
grade is WG-2 Laborer. The Union further argued in that regard that if
the Activity effectively changed the grievant from WG-2 Laborer to GG-3
Clerk as it asserted, then the grievant was improperly downgraded and
not afforded his adverse action appeal rights. The Arbitrator found, in
pertinent part, that the grievant's permanent status was that of WG-2
Laborer by reason of the February 1979 appointment action; that the
Union was correct in contending that the grievant was never properly
notified of any change in that status; that the Activity failed to
satisfactorily explain what the error was that gave it the right to
change the grievant's status to GG-3 Clerk; and, in effect, that the
Activity had acted improperly in its use of error correction procedures
as a means of changing the grievant's fundamental employment status.
The Arbitrator therefore sustained the grievance and prohibited the
Activity from using its administrative correction authority to
retroactively change the appointment the grievant received in February
1979. The Activity then filed the instant exceptions to the
Arbitrator's award with the Authority.
Section 7122(a) of the Statute provides, in pertinent part:
Either party to arbitration under this chapter may file with
the Authority an exception to any arbitrator's award pursuant to
the arbitration (other than an award relating to a matter
described in section 7121(f) of this title) . . . .
As relevant to this case, the matters described in section 7121(f) of
the Statute include those covered under 5 U.S.C. 7512 which, in turn,
applies to specified adverse actions, including reductions in grade or
pay. /4/ As indicated above, the Activity claimed that it changed the
grievant's grade and position from WG-2 Laborer to GG-3 Clerk in July
1980 and the Union claimed that if the Activity effected such a change
at that time or subsequently, the grievant was improperly downgraded in
violation of his rights as an employee /5/ in such an adverse action.
Thus, the essence of the grievance presented to and resolved by the
Arbitrator involved an allegation of a reduction in grade or pay.
Since the Arbitrator's award relates to a matter covered by 5 U.S.C.
7512, i.e., an alleged reduction in grade or pay of a covered employee,
under section 7122(a) of the Statute, exceptions to the award may not be
filed with the Authority. Consequently, the Authority is without
jurisdiction to review the Activity's exceptions. See, e.g., American
Federation of Government Employees, Local 3369, AFL-CIO and Social
Security Administration New York Region, 16 FLRA No. 120 (1984).
Accordingly, the Activity's exceptions are dismissed. /6/ Issued,
Washington, D.C., August 15, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ A Veterans Readjustment Act appointment is an excepted
appointment to a position otherwise in the competitive service of a
veteran who served during the Vietnam era and is made under the
authority of 38 U.S.C. 2014, as amended. 5 CFR 307.101(c).
/2/ GG is the designation the Agency uses to denote a cyclical tour
of duty and corresponds to the general schedule designation of GS.
/3/ An investigator from the Office of Personnel Management
investigating a complaint from the grievant reported in November 1983:
"Since these correction actions made changes in his position and grade .
. . confusion on the part of (the grievant) or on the part of anyone
else who reviews his records is readily understandable."
/4/ Under 5 U.S.C. 7511, "grade" means a level of classification
under a position classification system and "pay" means the rate of basic
pay fixed by law or administrative action for the position held by the
employee.
/5/ Under 5 U.S.C. 7511(a):
(1) "employee" means--
(A) an individual in the competitive service who is not serving
a probationary or trial period under an initial appointment or who
has completed 1 year of current continuous employment under other
than a temporary appointment limited to 1 year or less; and
(B) a preference eligible in an Executive agency in the
excepted service . . . who has completed 1 year of current
continuous service in the same or similar positions.
/6/ In view of this decision, the Activity's request for a stay of
the Arbitrator's award is likewise dismissed.