23:0184(23)AR - Army Communications Command, Fort McClellan and Local 1941, AFGE -- 1986 FLRAdec AR



[ v23 p184 ]
23:0184(23)AR
The decision of the Authority follows:


 23 FLRA No. 23
 
 UNITED STATES ARMY COMMUNICATIONS
 COMMAND, FORT McCLELLAN
 Activity
 
 and
 
 LOCAL NO. 1941, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-633
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Jack Clarke 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 Union
 filed a grievance claiming that the Activity violated the parties'
 collective bargaining agreement by failing to provide the Union with a
 copy of the pertinent statement of work and other acquisition
 information prior to issuance of the bid solicitation.  The Union
 alleged that this failure deprived it of any viable and meaningful
 opportunity to affect management's determination of whether to contract
 out.  In particular, the Union contended that had it been timely
 provided with the specification of contractor wages, it might have been
 able to preclude the Activity's determination to contract out.  The
 Arbitrator found that the grievance was arbitrable and that the Activity
 had violated the parties' agreement by not providing the Union president
 or her designee timely access to the statement of work involved in the
 commercial activities review of telephone services.  In discussing a
 remedy, the Arbitrator stated in response to the arguments of the Union
 that it could not be concluded that but for the breach of the collective
 bargaining agreement, the contracting out of telephone services could
 not have properly occurred.  He also rejected the argument of the
 Activity that the procurement action could not be cancelled.  He noted
 that this argument presumed that contracting out was more economical,
 and he stated that until the agreement is complied with, the correctness
 of this assumption cannot be known.  Accordingly, as a remedy, the
 Arbitrator ordered the Activity to cease contracting out the disputed
 functions and implementing a reduction-in-force because of the
 contracting out until the Activity complied with the requirements of the
 collective bargaining agreement.  The Arbitrator further ordered the
 Activity to restore to their jobs any employees affected by a
 reduction-in-force caused by the disputed procurement action.
 
                           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 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 cease
 contracting out telephone services constitutes a cancellation of the
 procurement action and therefore is clearly deficient under section 7106
 (a)(2)(B) of the Statute.  The award directing the Activity to cease any
 reduction-in-force (RIF) and to reinstate any employees affected by the
 RIF is also deficient because it follows directly from the cancellation.
 
    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 specification of contractor
 wages, it might have been able to preclude, in accordance with
 procurement law and regulation, the Activity's determination to contract
 out.  However, the Arbitrator specifically stated that it could not be
 concluded that but for the breach of the collective bargaining
 agreement, the contracting out of telephone services could not have
 occurred consistent with procurement law and regulation.  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 providing the Union
 president or her designee timely access to the statement of work for the
 commercial activities review of telephone services.  Nor was the
 Arbitrator precluded from sustaining the grievance to the extent of the
 claimed violation of the agreement and from awarding a proper and
 appropriate remedy for that violation.  Because the Arbitrator awarded a
 remedy for this violation without the guidance that has now been
 provided by Blytheville AFB, we find that the award should be modified
 to provide an appropriate remedy.  The Activity bargained and agreed to
 these provisions as part of the collective bargaining agreement.  We
 admonish the Activity to abide by these provisions and will order a
 remedy accordingly.
 
                               V.  DECISION
 
    For the reasons stated above, the Arbitrator's award is modified to
 provide as fo