23:0199(26)AR - Army, Oakland Army Base and AFGE Local 1157 -- 1986 FLRAdec AR



[ v23 p199 ]
23:0199(26)AR
The decision of the Authority follows:


 23 FLRA No. 26
 
 DEPARTMENT OF THE ARMY
 OAKLAND ARMY BASE
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1157
 Union
 
                                            Case No. 0-AR-896
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Robert C. Schubert 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
 
    A grievance was filed in this case challenging management's
 determination to contract out certain activities.  The grievance alleged
 that the Activity had violated an agency regulation pertaining to
 contracting out and several provisions of the parties' collective
 bargaining agreement.  The Union argued that it was deprived of an
 opportunity to affect the decision of whether to contract out.  The
 Union claimed that if it had been permitted to participate in the
 procurement process as required by the agreement, it could have
 precluded the Activity's determination to contract out.  The Arbitrator
 found that the Activity violated the agreement by its failure to provide
 the Union with a copy of the revised statement of work and a copy of the
 bid solicitation and by its failure to notify the Union of certain
 meetings relating to the proposed procurement action.  With respect to a
 remedy the Arbitrator rejected the Activity's argument that to cancel
 the procurement action the Union had to establish that but for the
 violations of the agreement, the decision of whether to contract out
 would have been different.  The Arbitrator stated that it was difficult
 to prove that the violations actually changed the result.  Instead, he
 determined that it was sufficient that the Union had established that it
 was more likely than not that the decision to contract out would have
 been different if the Activity had not violated the agreement.  The
 Arbitrator therefore sustained the grievance and, as a remedy, directed
 the Activity to cancel the procurement action and to reinstate any
 employees removed as a result of the action to their former positions
 with backpay.  The Arbitrator also awarded the Union attorney fees.
 
                           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 contended in its grievance that in deciding to contract out the
 Activity had violated agency procurement regulations.  Primarily, the
 Union also contended that had the agreement not been violated, the
 Activity's determination to contract out would 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.  The Arbitrator's order that the Activity reinstate with
 backpay any employees removed as a result of the procurement action is
 also deficient because it follows directly from the cancellation.  See
 Naval Air Station, Whiting Field and American Federation of Government
 Employees, Local Union No. 1954, 22 FLRA No. 102 (1986).  Similarly,
 without an award of backpay, the Arbitrator's award of reasonable
 attorney fees is likewise deficient.  See U.S. Army Missile Command,
 Redstone Arsenal, Alabama and Local 1858, American Federation of
 Government Employees, AFL-CIO, 18 FLRA No. 50 (1985).
 
    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 the agreement not been violated, 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 difficult to prove that but for the violations of the
 collective bargaining agreement, the decision to contract out could not
 have properly occurred and that it was sufficient to conclude that more
 likely than not the decision to contract out would have been precluded.
 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
 agreement by its failure to provide the Union with a copy of the revised
 statement of work and a copy of the bid solicitation and by its failure
 to notify the Union of certain meetings relating to the proposed
 procurement action.  Nor was the Arbitrator precluded from sustaining
 the grievance to the extent of the claimed violations 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 follows:
 
          The grievance is sustained to the extent of the claimed
       violations of Article XXIX of the applicable collective bargaining
       agreement.  The Activity shall cease and desist from failing to
       comply with the requirements of that article.
 
    Issued, Washington, D.C. August 15, 1986.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) The Agency also requested a stay of the Arbitrator's award which
 request the Authority granted.  The Union filed an opposition to the
 Agency's exceptions and stay request.  The Union subsequently filed a
 request for oral argument concerning the Authority's Order granting the
 Agency's request for a stay of the award.  Because no basis is presented
 for reconsidering, by oral argument or otherwise, the Authority's Order
 granting the stay, the Union's request is deni