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60 FLRA No. 74
U. S. Dept. of Health and Human Services Food and Drug Administration and National Treasury Employees Union Chapter 282 (Vitaro, Arbitrator) 0-AR-3827 (Decided October 22, 2004)
The Arbitrator sustained a grievance alleging that the Agency violated the Peer Review promotion procedures contained in Article 59 of the parties' agreement and ordered the Agency to reevaluate the grievant in accordance with his Opinion and Award. The Authority found that the grievance concerned a classification matter that was not arbitrable under § 7121(c)(5) and set aside the award.
Under § 7121(c)(5) of the Statute, a grievance concerning the classification of any position which does not result in the reduction of grade or pay of an employee is removed from the scope of the negotiated grievance procedure. The Authority has held that where the substance of a grievance concerns the grade level of the duties permanently assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of § 7121(c)(5) of the Statute.
This case involved a peer review process whereby an Agency scientist may petition for a permanent upgrade from a GS-13 to a GS-14 or a GS-15. The peer review process essentially consists of a committee analyzing the permanent duties of a scientist and then making a recommendation to a specialist who makes a final determination as to the appropriate GS level of the scientist. As such, the peer review process concerns the classification of a position within the meaning of § 7121(c)(5). The Authority found that the Arbitrator's award evaluated the classification process and ordered the Agency to reevaluate the grievant thus, the award was deficient under § 7121(c)(5) of the Statute.