[ v15 p891 ]
The decision of the Authority follows:
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.