15:0783(148)AR - IRS, Brookhaven Service Center and NTEU Chapter 99 -- 1984 FLRAdec AR

 15 FLRA No. 148
 
 INTERNAL REVENUE SERVICE,
 BROOKHAVEN SERVICE CENTER
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 99
 Union
 
                                            Case No. O-AR-297
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator James P. Whyte filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Agency filed an opposition.
 
    The Arbitrator as his award sustained the grievance insofar as he
 found the grievant entitled to restoration of her priority
 consideration.  However, under the parties' collective bargaining
 agreement which had been negotiated under the provisions of Executive
 Order No. 11491 (the Order), the Arbitrator determined that the award
 must be advisory rather than binding.  Consequently, the award only
 "advised" management to restore the grievant's priority consideration
 for the next appropriate vacancy.
 
    In one of its exceptions, the Union contends on the basis of
 Interpretation and Guidance, 2 FLRA 273 (1979) that the award is
 deficient as contrary to section 7121(b)(3)(C) of the Statute /1/ to the
 extent that it is advisory rather than binding.  In support of this
 exception, the Union has submitted a copy of a January 10, 1979 letter
 from the Union to the head of the Agency objecting to the continuation
 of the advisory arbitration provisions of the parties' collective
 bargaining agreement.  /2/ On this basis the Union maintains that, as
 stated by the Authority in the Interpretation and Guidance, all
 grievances thereafter not satisfactorily settled shall be subject to
 binding arbitration.
 
    The Authority concludes that the award is contrary to the Statute.
 The Authority specifically recognized in the Interpretation and Guidance
 that section 7121 mandates that negotiated grievance procedures shall
 provide for binding arbitration and that the policies of the Order
 permitting advisory arbitration had been superseded.  Id. at 278 n. 7.
 Thus, as to agreements negotiated under the Order with provisions for
 advisory arbitration, the Authority held that on objection by either
 party to the continuation of such a provision, "the negotiated grievance
 procedure shall provide for binding arbitration of grievances not
 satisfactorily settled under the negotiated procedure." Id.  In terms of
 this case, the Union has substantiated that it objected to the
 continuation of the parties' agreement provisions for advisory
 arbitration prior to the grievance in this case.  Consequently, binding
 arbitration of the grievance was mandated by section 7121 of the
 Statute, and the award to the extent that it is advisory is deficient as
 contrary to the Statute and must be modified.
 
    Accordingly, the award is modified by substituting "ordered" for
 "advised." /3/
 
    Issued, Washington, D.C., August 29, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7121(b)(3)(C) provides in pertinent part:
 
          (b) Any negotiated grievance procedure referred to in
       subsection (a) of this section shall--
 
                                .  .  .  .
 
          (3) include procedures that--
 
                                .  .  .  .
 
          (C) provide that any grievance not satisfactorily settled under
       the negotiated grievance procedure shall be subject to binding
       arbitration which may be invoked by either the exclusive
       representative or the agency.
 
 
    /2/ In its opposition the Agency states that the January 10 letter
 was not introduced into the record before the Arbitrator and maintains
 that under section 2429.5 of the Authority's Rules and Regulations the
 letter cannot be considered by the Authority.  Section 2429.5 provides,
 in pertinent part, that the Authority will not consider evidence which
 was not presented at the proceedings before the Arbitrator.  The
 Authority finds that the January 10 letter relates to whether the
 continuation of the provisions of the parties' agreement with respect to
 advisory arbitration was prevented by the Union's actions and whether
 the requirement of binding arbitration of section 7121(b)(3)(C) applied.
  As such, it concerns a legal matter of the operation of law;  the
 letter does not concern a factual or evidentiary element of the priority
 consideration dispute before the Arbitrator.  Consequently,
 consideration by the Authority of the January 10 letter is not precluded
 by section 2429.5 of the Authority's Rules.
 
 
    /3/ In view of this decision, it is not necessary to address the
 other exception to the award.