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54 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

LEWIS RESEARCH CENTER

CLEVELAND, OHIO

(Agency)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS

LOCAL 28

LEWIS ENGINEERS AND SCIENTISTS ASSOCIATION

(Union)

0-AR-2962

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DECISION

July 31, 1998

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Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Gerald B. Chattman filed by the Agency under section 7122(a) of the Federal Service Labor Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. The Authority directed the Agency to show cause why the exceptions should not be dismissed because the Authority lacks jurisdiction. The Agency responded to the Order to Show Cause, and the Union filed a reply to the Agency's response.

For the following reasons, we conclude that the Authority lacks jurisdiction over the exceptions under section 7121(f) of the Statute. Accordingly, we dismiss the exceptions.

II. Background and Arbitrator's Award

The Agency's Senior Promotion Review Board approved the grievants for "dual ladder promotions" to GS-14.⁽¹⁾ A few months after the approvals, the Agency announced a freeze on promotions. The Center Director of the Agency assured those whose promotions had been approved that the promotions would be "processed" as soon as the freeze was lifted. Award at 3. When the freeze was lifted, other promotions were processed, but the dual ladder promotions were not. The Agency announced that it was instituting new criteria for dual ladder promotions, and that all those who had previously been approved for the promotions would have to reapply.

The Union filed a grievance over the Agency's failure to process the dual ladder promotions and, when the grievance was not resolved, it was submitted to arbitration, where the Arbitrator framed the issues as follows:

I Arbitrability Issue: Whether the revocation of the grievants' promotions constituted a reclassification pursuant to Article 16.02(e) so as to exclude this matter from the grievance procedure contained in Article 16 of the collective bargaining agreement.

II Whether the dual ladder promotions are career promotions within the meaning of Article 24.10 of the collective bargaining agreement so as to be reviewable under an arbitrary and capricious standard.

III Whether the remedy in this case is limited by the manner of filing the grievance.

Id. at 13 (emphasis in the original).

The Arbitrator stated that there was "no doubt" that the grievants' dual ladder promotions had been "made and completed" prior to the Agency's freeze on promotions. Id. at 16, 17. In this regard, the Arbitrator noted testimony that the disputed dual ladder promotions had been approved by the Senior Promotion Review Board and that, following such approval, a Standard Form (SF) 52 was issued.⁽²⁾ The Arbitrator found it "obvious," in this regard, that the SF-52 forms "were completed and the promotions made." Id. at 16. According to the Arbitrator, "[t]he fact that [an SF] 50 was never actually generated [was] a mere technicality" that did not provide a basis for denying the promotions. Id.⁽³⁾ The Arbitrator concluded that, as the grievants had been promoted, "revoking [the] promotion[s] must necessarily result in a . . . reduction in grade . . . ." Id. at 17. Based on the Arbitrator's findings that the Agency's actions violated the parties' collective bargaining agreement, the Arbitrator ordered the Agency to reinstate the grievants to GS-14 with full back pay and seniority as of the date the promotions were revoked.

III. Positions of the Parties

Neither party raised the issue of jurisdiction in briefs to the Authority. The following summarizes the parties' responses to the Authority's Order to Show Cause why the exceptions should not be dismissed for lack of jurisdiction.

A. Agency

The Agency makes two arguments in its response to the Order to Show Cause.

First, the Agency asserts that the Arbitrator made an incorrect factual finding that SF-52s had been issued to the grievants. According to the Agency, this finding is unsupported by the testimony presented at the hearing.

Second, the Agency contends that, even if SF-52s were issued, the Agency had authority to revoke the promotions because the promotions had not yet become effective. The Agency cites National Treasury Employees Union v. Reagan, 663 F.2d 239 (D.C. Cir. 1981) (Reagan) and Dalbey v. Department of the Navy, 9 MSPR 51 (1991) (Dalbey) in support of this argument.

B. Union

The Union replied to the Agency's response with two arguments.

First, the Union argues that the Agency's response merely reiterates its factual dispute with the Arbitrator that no SF-52s were issued. The Union also asserts that the case law, upon which the Agency relies, does not support the Agency's assertion that the Agency could revoke the promotions before they became effective.

Second, the Union argues that the Agency failed to comply with the Order to Show Cause because the Agency has not demonstrated that the Authority has jurisdiction over the Agency's exceptions. According to the Union, the Agency has argued only that the Arbitrator erred in his finding that the Agency revoked the grievants' promotions.

IV. Analysis and Conclusions

Under section 7122(a) of the Statute,⁽⁴⁾ the Authority lacks jurisdiction to resolve exceptions to arbitration awards that relate to a matter described in section 7121(f) of the Statute. The matters described in section 7121(f) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems.⁽⁵⁾

The Arbitrator found, and the Agency disputes, that the Agency's actions in this case resulted in the grievants' reduction in grade. Reductions in grade are matters covered by 5 U.S.C. § 7512. Accordingly, although not raised by the parties, a jurisdictional issue is presented concerning whether the Arbitrator's award is an award relating to a matter described in section 7121(f).⁽⁶⁾ For the reasons that follow, we conclude that the Authority does not have jurisdiction over the Agency's exceptions.

Under 5 U.S.C. § 7512(3), the MSPB has statutory jurisdiction over cases concerning reductions in grade. The MSPB has defined "reduction in grade," within the meaning of 5 U.S.C. § 7512, to include a cancellation of a promotion. See Russell v. Department of the Navy, 6 M.S.P.R. 698, 709 (1981). In Barnes v. U.S. Postal Service, 71 MSPR 337 (1996), the MSPB stated that:

In order to establish Board jurisdiction in an appeal from the cancellation of a promotion, the appellant must raise a nonfrivolous allegation that the promotion actually occurred; that is, that the promotion was approved by an authorized appointing official aware that he was making the promotion, and that some action denoting acceptance of the promotion was taken. The promotion must not have been revoked prior to appellant's performance in the higher grade.

Id. at 340 (Barnes). The MSPB concluded that the appellant in Barnes satisfied these requirements, thereby establishing a nonfrivolous allegation of a reduction in grade, by submitting evidence that "there was a promotion, that there was an authorizing official, that the appellant accepted the promotion, and that the appellant was demoted." Id.

In this case, the Arbitrator found "no doubt" that the grievants had been promoted. Award at 16. The Arbitrator also found that the Senior Promotion Review Board had reviewed and approved the promotions and that, in recognition of the appointments, the Agency had issued SF-52s to the grievants. The Arbitrator concluded that the Agency's "attempt at revocation of vested promotions" was improper and ineffective. Id. at 19. Consistent with Barnes, these findings and conclusions, although disputed in part by the Agency, support a conclusion that a nonfrivolous allegation has been made that reductions in grade occurred. Indeed, the Arbitrator reached the conclusion that reductions in grade had occurred. In this regard, the Agency's reliance on Reagan and Dalbey is misplaced. In Reagan, the U.S. Court of Appeals for the District of Columbia Circuit held that the issuance of an SF-52 by an authorized official, along with performance at the higher grade, established appointment to a position, regardless of whether an SF-50 has been issued. In Dalbey, the MSPB stated that it will look at the totality of the circumstances in order to determine whether there has been an appointment. These decisions do not call into question the Arbitrator's findings, on which our conclusion that there is a nonfrivolous allegation of a reduction in grade, is based.

The Agency cites 5 U.S.C. §§ 4302 and 7512 as bases for its exceptions in this case. However, the Authority does not have jurisdiction over matters covered under section 4302 and 7512. Instead, Section 7121(f) states that judicial review of matters covered under these sections, including reductions in grade under section 7512, "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." As such, the proper forum for this appeal was the U.S. Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1).

Based on the foregoing, we find that the Authority does not have jurisdiction to review the Agency's exceptions to the award.

V. Decision

The Agency's exceptions are denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Arbitrator stated that "a dual ladder promotion is a different animal than either pure merit or pure career promotions, perhaps being a third category of its own comprised of elements from both merit and career promotions." Award at 18.

2. An SF-52 is a request for a personnel action. See Thomas v. Department of Housing and Urban Development, 124 F.3d 1439, 1440 (Fed. Cir. 1997) (SF-52 is a "Request for Personnel Action").

3. An SF-50 is a notification of a personnel action that has been taken. Jakubiak v. Perry, 101 F.3d 23, 26 (4th Cir. 1996) (SF-50 is a "Notification of Personnel Action").

4. Section 7122(a) of the Statute provides in pertinent part that:

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).

Section 7121(f) provides in pertinent part that:

In matters covered under sections 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 [Merit Systems Protection] Board. . . .

5. 5 U.S.C. § 4303 covers removals and reductions-in-grade for unacceptable performance. 5 U.S.C. § 7512 covers removals, suspensions for more than 14 days, reductions either in grade or pay, or furloughs for 30 days or less.

6. A determination that the Authority does not have jurisdiction does not depend on whether the parties have raised the issue of jurisdiction. See, e.g., U.S. Department of the Army, Army Reserve Personnel Center and American Federation of Government Employees, Local 900, 34 FLRA 319 (1990).

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