[ v15 p783 ]
The decision of the Authority follows:
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shall provide for binding arbitration and that the policies of the Order permitting advisory arbitration had been superseded.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.