15:0891(166)AR - VA, Audie L. Murphy Memorial Veterans Hospital and AFGE Local 3511 -- 1984 FLRAdec AR

 15 FLRA No. 166
 
 VETERANS ADMINISTRATION,
 AUDIE L. MURPHY MEMORIAL
 VETERANS HOSPITAL
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 3511
 Union
 
                                            Case No. O-AR-397
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator J. Earl Williams filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  /1/
 
    The parties submitted to the Arbitrator the issue of whether
 management has the right to file a grievance.  The Arbitrator determined
 that under the parties' collective bargaining agreement which had been
 negotiated under the provisions of Executive Order No. 11491 (the
 Order), management did not have the right to file a grievance.
 
    In its exception the Agency essentially contends that the award is
 contrary to the Statute.  The position of the Agency in support of its
 exception is that the Arbitrator was required to interpret the parties'
 agreement to provide for the right of management to file grievances in
 order for his award to be consistent with the Statute.  The Agency
 maintains that section 7135 of the Statute only permits the continuation
 of a lawful agreement, and the parties presumed that the collective
 bargaining agreement they agreed to continue was lawful.  Thus, the
 Agency argues that the Arbitrator was therefore required to interpret
 the agreement to provide for management's right to file grievances
 because to interpret the agreement as the Arbitrator did precludes it
 from being lawful within the meaning of section 7135.  In this respect
 the Agency contends that in order to be a lawful agreement, the
 agreement must comply with the mandate of the Statute requiring agency
 access to the negotiated grievance and arbitration procedures.
 
    The Authority concludes that the Agency's exception fails to
 establish that the award is contrary to the Statute.  Although the
 Agency is correct in its assertion that the Statute mandates agency
 access to the negotiated grievance and arbitration procedures, Laborers'
 International Union of North America, AFL-CIO-CLC, Local 1267 and
 Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14
 FLRA No. 91 (1984) (proposals 8-9), the Agency's assertion that this
 mandate precludes continuation of the terms of an agreement entered into
 before the effective date of the Statute that does not provide for
 management's right to file grievances cannot be sustained.  Under
 section 13 of the Order, it was not mandatory to provide agency access
 to the negotiated grievance and arbitration procedures, and consequently
 those policies of the Order have been superseded and pursuant to section
 7135(b) of the Statute are no longer in effect.  See Interpretation and
 Guidance, 2 FLRA 273, 278 n.7 (1979).  However, contrary to the Agency's
 assertion, when the parties to an agreement entered into before the
 effective date of the Statute have not provided for agency access to the
 negotiated grievance and arbitration procedures, they may jointly agree
 to renew or continue that agreement under the provisions of section
 7135(a)(1) of the Statute.  It is only when one of the parties objects
 to the continuation of the negotiated grievance procedure insofar as it
 precludes agency access that continuation of that provision would be
 prohibited and the agency access required by the Statute would apply.
 See id.
 
    Thus, nothing in the Statute precludes the parties in this case from
 continuing the terms of their collective bargaining agreement, which
 terms do not provide for management's right to file grievances.  Here,
 the Agency confirms that the parties have continued the collective
 bargaining agreement they entered into before the effective date of the
 Statute and that neither party objected to the continuation of the
 negotiated grievance procedure.  In these circumstances the Authority
 finds no actions which constitute an objection to the continuation of
 that negotiated grievance procedure so as to require the access to
 arbitration provided by the Statute.  Cf. Veterans Administration Data
 Processing Center, Hines, Illinois and Service Employees International
 Union, AFL-CIO, Local 73, 15 FLRA No. 167 (1984) (wherein the Authority
 found that the Agency's actions constituted an objection to the
 continuation of the agreement provision barring it from access to
 arbitration and, consequently, held that access to arbitration by the
 Agency was required by the Statute).
 
    Therefore, nothing in the Statute required the Arbitrator to
 interpret the parties' agreement to provide for management's right to
 file grievances.  To the contrary, the question of whether management
 had the right to file grievances was solely a question of the
 interpretation and application of the parties' collective bargaining
 agreement.  Thus, the Agency's exception constitutes nothing more than
 disagreement with the Arbitrator's interpretation of the agreement and
 does not otherwise establish that the award is contrary to the Statute.
 Accordingly, the exception is denied.
 
    Issued, Washington, D.C., August 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union filed an opposition which was untimely requesting that
 the expired time limit be waived.  Because the extraordinary
 circumstances required by section 2429.23 of the Authority's Rules and
 Regulations have not been substantiated, the request is denied and the
 opposition has not been considered.