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 8 FLRA No. 81
 
 HEADQUARTERS, FORT SAM HOUSTON,
 DEPARTMENT OF THE ARMY
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2154
 Union
 
                                            Case No. O-AR-119
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR ERNEST E. MARLATT FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 (5 U.S.C. 7122(A)) AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION DID NOT FILE AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR THE DISPUTE IN THIS MATTER AROSE WHEN THE
 UNION FILED FIVE UNFAIR LABOR PRACTICE CHARGES AGAINST THE ACTIVITY
 WITHOUT SUBMITTING THEM IN ADVANCE TO TOP MANAGEMENT FOR POSSIBLE
 RESOLUTION.  THE ACTIVITY FILED A GRIEVANCE CLAIMING THE UNION'S ACTIONS
 VIOLATED THE TERMS OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  /1/
 THE GRIEVANCE WAS NOT RESOLVED AND WAS SUBMITTED TO ARBITRATION ON THE
 ISSUE OF WHETHER THE UNION WAS OBLIGATED TO HAVE SUBMITTED THESE CHARGES
 TO TOP MANAGEMENT FOR POSSIBLE RESOLUTION BEFORE FILING THEM WITH THE
 AUTHORITY.
 
    IT WAS THE UNION'S POSITION BEFORE THE ARBITRATOR THAT ITS AGREEMENT
 OBLIGATION HAD BEEN SUPERCEDED BY THE AUTHORITY'S REGULATIONS
 IMPLEMENTING THE STATUTE.  THE ACTIVITY ARGUED TO THE CONTRARY THAT THE
 AGREEMENT PROVISION WAS ENTIRELY CONSISTENT WITH THE ENCOURAGEMENT OF
 SETTLEMENTS SET FORTH IN SECTION 2423.2(A) OF THE AUTHORITY'S
 REGULATIONS.  IN RESPONSE TO THESE CONTENTIONS, THE ARBITRATOR
 CONSIDERED THE DISPOSITIVE QUESTION TO BE WHETHER THE AGREEMENT
 PROVISION WAS "REPUGNANT TO ANY FEDERAL LAW OR REGULATION, FOR IN SUCH
 CASE, THE ARTICLE MAY NOT BE ENFORCED AGAINST THE UNION." ALTHOUGH HE
 AGREED WITH THE ACTIVITY THAT THE AGREEMENT PROVISION WAS FULLY
 CONSISTENT WITH THE AUTHORITY'S REGULATIONS, THE ARBITRATOR NEVERTHELESS
 QUESTIONED WHETHER THE AUTHORITY HAD THE POWER TO ADOPT A POLICY
 CONTRARY TO THE STATUTE.  DETERMINING THAT THE ACTIVITY AND THE UNION
 COULD NOT ABRIDGE THE STATUTORY RIGHT OF EMPLOYEES TO FILE UNFAIR LABOR
 PRACTICE CHARGES WITH THE AUTHORITY, THE ARBITRATOR RULED THAT THE
 AGREEMENT PROVISION, DESPITE ITS SUPPORT IN THE AUTHORITY'S REGULATIONS,
 VIOLATED THE STATUTE AND ACCORDINGLY WAS "NULL, VOID AND UNENFORCEABLE."
 CONSEQUENTLY, AS HIS AWARD, THE ARBITRATOR DENIED THE GRIEVANCE.
 
    IN ITS EXCEPTIONS TO THE AWARD, THE AGENCY CONTENDS THAT BY REFUSING
 TO ENFORCE THE PARTIES' AGREEMENT PROVISION, THE AWARD IS INCONSISTENT
 WITH THE AUTHORITY'S REGULATIONS.  THE AGENCY AGREES WITH THE ARBITRATOR
 THAT AN AGENCY AND A UNION CANNOT BY AGREEMENT ABRIDGE THE STATUTORY
 RIGHTS OF EMPLOYEES, BUT EMPHASIZES THAT THE UNFAIR LABOR PRACTICE
 CHARGES IN THIS CASE WERE FILED BY THE UNION AND NOT BY INDIVIDUAL
 EMPLOYEES.  THE AGENCY THEREFORE ARGUES THAT THE AWARD IS DEFICIENT BY
 DENYING THE GRIEVANCE ON THE ERRONEOUS BASIS THAT THE AGREEMENT
 PROVISION REQUIREMENT WAS CONTRARY TO THE STATUTE AS AN ABRIDGMENT OF
 THE RIGHTS OF EMPLOYEES.
 
    THE AUTHORITY FINDS IN THE CIRCUMSTANCES OF THIS CASE THAT THE
 ARBITRATOR'S AWARD IS DEFICIENT AND MUST BE SET ASIDE.  AS NOTED, THE
 ARBITRATOR DENIED THE GRIEVANCE BECAUSE HE DETERMINED THAT THE AGREEMENT
 PROVISION REQUIREMENT IN DISPUTE WAS PROHIBITED BY THE STATUTE AS AN
 ABRIDGMENT OF THE STATUTORY RIGHT OF EMPLOYEES TO FILE UNFAIR LABOR
 PRACTICE CHARGES WITH THE AUTHORITY.  HOWEVER, CONTRARY TO THE
 DETERMINATION BY THE ARBITRATOR, THE STATUTE IN NO MANNER PROHIBITS A
 UNION FROM EXPRESSLY AGREEING IN A COLLECTIVE BARGAINING AGREEMENT THAT
 IT WILL SUBMIT POTENTIAL UNFAIR LABOR PRACTICE CHARGES IN WHICH IT WILL
 BE THE CHARGING PARTY TO MANAGEMENT FOR POSSIBLE RESOLUTION BEFORE IT
 FILES THE CHARGES WITH THE AUTHORITY.  THUS, IN AGREEMENT WITH THE
 AGENCY, THE AUTHORITY FINDS THAT THE ARBITRATOR'S DENIAL OF THE
 GRIEVANCE WAS ON THE ERRONEOUS BASIS THAT THE AGREEMENT PROVISION WAS
 UNENFORCEABLE AS AN ABRIDGEMENT OF THE STATUTORY RIGHTS OF EMPLOYEES
 WHEN SUCH RIGHTS WERE NOT IMPLICATED.  AS HAS BEEN EMPHASIZED THE
 AGREEMENT PROVISION PERTAINED TO THE ACTIVITY AND THE UNION AND THE
 ACTIVITY'S GRIEVANCE ONLY CLAIMED THAT WHEN THE UNION FILED ITS FIVE
 UNFAIR LABOR PRACTICE CHARGES WITHOUT SUBMITTING THEM FOR POSSIBLE
 RESOLUTION, THE UNION VIOLATED ITS COLLECTIVE BARGAINING AGREEMENT
 OBLIGATION.  MOREOVER, THE AUTHORITY FINDS THAT SUCH AN AGREEMENT
 BETWEEN AN AGENCY AND A UNION IS SPECIFICALLY ENCOURAGED BY THE
 AUTHORITY'S REGULATIONS.  ALTHOUGH THE AUTHORITY'S REGULATIONS DID NOT
 RETAIN THE MANDATORY, INFORMAL PRECHARGE PROCEDURES THAT HAD BEEN
 REQUIRED BY REGULATION UNDER EXECUTIVE ORDER 11491, THE AUTHORITY DID
 EXPRESSLY ADOPT A POLICY OF ENCOURAGING PARTIES TO RESOLVE INFORMALLY
 AND VOLUNTARILY AND ALLEGATIONS OF UNFAIR LABOR PRACTICES.  5 CFR
 2433.2:  45 FED.REG. 3483 (1980).  CONSEQUENTLY, THE AWARD DENYING THE
 GRIEVANCE IN THIS CASE IS INCONSISTENT WITH THE STATUTE AND THE
 AUTHORITY'S REGULATIONS AND IS THERFORE DEFICIENT UNDER SECTION 7122(A)
 OF THE STATUTE.  ACCORDINGLY, THE ABRITRATOR'S AWARD IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., APRIL 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ACCORDING TO THE ARBITRATOR, THE DISPUTE AROSE UNDER A NEGOTIATED
 AGREEMENT BETWEEN THE PARTIES DATED AUGUST 6, 1976, AND WHICH HAD
 EXPIRED BY ITS OWN TERMS ON AUGUST 6, 1979.  HOWEVER, THE ARBITRATOR
 EXPRESSLY FOUND THAT THE AGREEMENT "HAS BEEN RECOGNIZED BY THE PARTIES
 AS REMAINING IN FULL FORCE AND EFFECT PENDING ITS RENEGOTIATION." 
 
 
 

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