Veterans Administration Data Processing Center, Hines, Illinois and Service Employees International Union Local 73 (Authority decision, August 31, 1984)

Final FLRA decision. The Authority sets aside an arbitration award that barred agency access to arbitration. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An arbitrator ruled that the VA Hines Data Processing Center could not invoke arbitration under a labor agreement negotiated before the federal labor statute took effect. The Authority held that the statute requires agencies to have access to negotiated grievance and arbitration procedures once a party objects to continuing an old agreement provision that bars that access. It found that the center had objected through its statements about the procedure and its invocation of arbitration for this grievance. The Authority set aside the award, allowing the agency to arbitrate its grievance.

Decision snapshot

• Authority: Grievance and arbitration access under 5 U.S.C. § 7121; arbitration review under § 7122(a).
• Outcome: Agency exception sustained; award barring arbitration set aside.
• Key point: The agency's objection ended the effect of a continued pre-statute agreement term denying it arbitration access.

Full text (FLRA public release)

[ v15 p894 ]

15:0894(167)AR

The decision of the Authority follows:

15 FLRA No. 167

VETERANS ADMINISTRATION
DATA PROCESSING CENTER,
HINES, ILLINOIS
Activity

and

SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO, LOCAL 73
Union

Case No. O-AR-568

DECISION

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