15:0894(167)AR - VA Data Processing Center, Hines, IL and SEIU Local 73 -- 1984 FLRAdec AR

[ v15 p894 ]
The decision of the Authority follows:

 15 FLRA No. 167
                                            Case No. O-AR-568
    This matter is before the Authority on exceptions to the award of
 Arbitrator George E. Larney 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.
    The dispute before the Arbitrator in this matter concerned whether
 the Activity has the right to invoke arbitration to resolve a grievance.
  The Arbitrator determined that under the parties' collective bargaining
 agreement which had been negotiated under Executive Order No. 11491 (the
 Order), the Activity did not have the right to invoke arbitration.
    As one of its exceptions, the Agency essentially contends that the
 award is contrary to the Statute.  Specifically, the Agency argues that
 management objected to the continuation of the agreement provisions
 denying it access to arbitration and that such objection provided
 management the right under the Statute to invoke arbitration.
    The Authority concludes that the award is contrary to the Statute.
 The Authority has specifically held that provisions of the Statute,
 primarily provisions of section 7121, require agency access to
 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).  However, 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 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 superseded, and pursuant to section 7135(b) of the Statute, are no
 longer in effect.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).  Thus, as to agreements negotiated under the Order with a
 provision effectively barring agency access to arbitration as in this
 case, the continuation of such a provision would be precluded by an
 objection from either party to the provision and the agency access
 required by the Statute would apply.  See id.  In the circumstances of
 this case, the Activity had expressed to the Union dissatisfaction with
 the arbitration procedure of the parties' agreement, had asserted that
 this expression was an objection to it, and had filed the grievance
 involved herein stating that arbitration was being invoked pursuant to
 the Statute.  The Authority finds that these actions constituted an
 objection to the continuation of the agreement provision barring the
 Activity access to arbitration.  Cf. Veterans Administration, Audie L.
 Murphy Memorial Veterans Hospital and American Federation of Government
 Employees, Local 3511, 15 FLRA No. 166 (1984) (wherein the agency
 confirmed that the parties continued in effect 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, and consequently the Authority found no actions
 which constituted an objection to the continuation of that negotiated
 grievance procedure so as to require the access to arbitration provided
 by the Statute).  Consequently, access to arbitration by the Activity
 over the unsettled grievance was required by provisions of the Statute,
 and the award barring the Activity that access is deficient as contrary
 to the Statute.  Accordingly, the award is set aside.
    Issued, Washington, D.C., August 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY