23:0179(22)AR - Army Communications Command Agency, Redstone Arsenal and AFGE Local 1858 -- 1986 FLRAdec AR



[ v23 p179 ]
23:0179(22)AR
The decision of the Authority follows:


 23 FLRA No. 22
 
 U.S. ARMY COMMUNICATIONS COMMAND
 AGENCY, REDSTONE ARSENAL
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1858
 Union
 
                                            Case No. 0-AR-573
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Lloyd L. Byars filed by the Department of the Army (the
 Agency) under section 7122(a) of the Federal Service Labor-Management
 Relations Statute and part 2425 of the Authority's Rules and
 Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The dispute before the Arbitrator concerned management's
 determination to contract out telephone operator functions.  The
 grievance alleged that the Activity had violated the parties' collective
 bargaining agreement by not providing a copy of the bid solicitation
 package, which included a prevailing wage to prospective contractors.
 The Union argued that it was deprived of a meaningful opportunity to
 affect the decision of whether to contract out.  In support of its
 argument, the Union claimed that if it had received the bid solicitation
 package when the package was sent to the contractors, the Union might
 have persuaded the Department of Labor to direct a new prevailing wage
 survey which could have precluded the Activity's decision to contract
 out.  The Arbitrator found that the Activity had violated the parties'
 agreement by not timely providing the Union a copy of the solicitation
 package.  With respect to a remedy, the Arbitrator rejected the
 Activity's argument that to cancel the procurement the Union had to
 establish that but for the Activity's failure to timely provide the
 Union with a copy of the solicitation package, the decision of whether
 to contract out would have been different.  The Arbitrator stated that
 it was impossible to know what the result would have been if the
 agreement had not been violated.  Instead, he determined that it was
 sufficient for the Union to establish that the Activity violated the
 parties' agreement.  The Arbitrator therefore sustained the grievance
 and, as a remedy, ordered that the procurement action be cancelled until
 the provisions of the parties' agreement were fulfilled.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception, the Agency contends that by finding the
 grievance to be arbitrable, the award is deficient as contrary to law
 and regulation.
 
                       B.  Analysis and Conclusions
 
    The Authority concludes that the Agency fails to establish that by
 finding the grievance to be arbitrable, the award is deficient.  To the
 extent that the grievance claimed a violation of the collective
 bargaining agreement, the Agency fails to establish that the matter of
 the Activity's compliance with the terms of the agreement was not
 properly grievable and arbitrable.  To the extent that the grievance
 subjected the disputed procurement action to arbitral review, the Agency
 likewise fails to establish that the award is deficient.  As noted, the
 Union ultimately contended with respect to the procurement action that
 had the agreement not been violated, the Activity's determination to
 contract out might have been precluded by applicable procurement law and
 regulation.
 
    The Authority has previously indicated that a grievance claiming that
 a procurement action was not in accordance with applicable procurement
 law and regulation is grievable and arbitrable under the Statute and is
 not precluded by law or regulation.  See General Services Administration
 and American Federation of Government Employees, AFL-CIO, Council 236,
 22 FLRA No. 84 (1986);  Headquarters, 97th Combat Support Group (SAC),
 Blytheville Air Force Base, Arkansas and American Federation of
 Government Employees, AFL-CIO, Local 2840, 22 FLRA No. 72 (1986);
 American Federation of Government Employees, Local 1904, AFL-CIO and
 United States Army Communications and Electronics Materiel Readiness
 Command, 16 FLRA 358 (1984);  American Federation of Government
 Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment
 Opportunity Commission, 10 FLRA 3 (1982) (Proposal 1), enforced sub nom.
 EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 106 S. Ct.
 1678 (1986) (per curiam).  Further, our decision in Congressional
 Research Employees Association and The Library of Congress, 23 FLRA No.
 15 (1986), where we found a grievance challenging a procurement action
 on the basis of a provision of the collective bargaining agreement not
 to be arbitrable, is distinguishable.  In contrast to that case, the
 Union in this case is not seeking to enforce a provision which is
 inconsistent with the Activity's right to contract out.  Accordingly,
 because the grievance challenged the propriety under procurement law and
 regulation of the disputed procurement action, the grievance was
 arbitrable.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    In its second exception, the Agency primarily contends that the
 Arbitrator's award ordering cancellation of the procurement action is
 contrary to section 7106(a)(2)(B) of the Statute.
 
                       B.  Analysis and Conclusions
 
    In Headquarters, 97th Combat Support Group (SAC), Blytheville Air
 Force Base, Arkansas and American Federation of Government Employees,
 AFL-CIO, Local 2840, 22 FLRA No. 72 (1986), the Authority addressed for
 the first time the remedial authority of an arbitrator in resolving
 grievances disputing determinations by agencies to contract out agency
 work.  In sum, the Authority held that under the Statute and procurement
 law and regulation, arbitrators are not authorized to cancel a
 procurement action.  We also held that arbitrators are authorized to
 sustain grievances challenging a decision to contract out and direct
 agencies to reconstruct the actions on specific grounds only.
 
    Applying our decision in Blytheville AFB to this case, we conclude
 that the Arbitrator was not authorized either to cancel the procurement
 action or to sustain the grievance to the extent that it directly
 challenged the action.  The Arbitrator's order that the Activity cancel
 the procurement action is clearly deficient under section 7106(a)(2)(B)
 of the Statute.  We also find that the Arbitrator was not authorized to
 sustain the challenge to the disputed procurement action and could not
 have properly directed reconstruction in this case.  The Union
 essentially claimed that had it been timely provided with the prevailing
 wage determination, it might have been able to preclude, in accordance
 with procurement law and regulation, the Activity's determination to
 contract out.  However, the Arbitrator stated that it was impossible to
 conclude whether the contracting out of telephone services could have
 occurred consistent with procurement law and regulation if the agreement
 had not been violated.  Accordingly, his award sustaining the challenge
 to the procurement action is deficient.
 
    We decided in Blytheville AFB, slip op. at 6, that an arbitrator can
 sustain a challenge to a procurement action and order reconstruction
 only on the basis that the agency failed to comply with mandatory and
 nondiscretionary provisions of applicable procurement law or regulation.
  Since the Arbitrator made no such specific finding in this case, he was
 not authorized to sustain the grievance to the extent that it directly
 challenged the procurement action, and he could not have properly
 directed reconstruction.
 
    We note, however, that nothing in Blytheville AFB precluded the
 Arbitrator from finding, as he did, that the Activity violated the
 parties' collective bargaining agreement by not timely providing the
 Union a copy of the solicitation package.  Nor was the Arbitrator
 precluded from sustaining the grievance to the extent of the claimed
 violation of the agreement and from a