26:0289(36)AR - AFGE, Local 1513, and Naval Air Station, Whidbey Island -- 1987 FLRAdec AR



[ v26 p289 ]
26:0289(36)AR
The decision of the Authority follows:


 26 FLRA No. 36
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1513
 Union
 
 and
 
 NAVAL AIR STATION, 
 WHIDBEY ISLAND
 Activity
 
                                            Case No. 0-AR-1277
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator John H. Abernathy filed by the Union 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 claiming that the decision to contract out base
 operating support services failed to comply with applicable procurement
 law and regulations including OMB Circular A-76.  The grievance was
 submitted to arbitration where the threshold issue was whether the
 grievance was grievable and arbitrable.  The Arbitrator as his award
 ruled that the grievance was not grievable or arbitrable.  In reaching
 this determination, he rejected the decisions of the Authority and the
 U.S. Court of Appeals for the District of Columbia Circuit in 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).  Instead,
 he agreed with the decision of the court in Defense Language Institute,
 Presidio of Monterey, California v. FLRA, 767 F.2d 1398 (9th Cir. 1985),
 denying enforcement of National Federation of Federal Employees, Local
 1263 and Defense Language Institute, Presidio of Monterey, California,
 14 FLRA 761 (1984).  Specifically, he held that the grievance was
 precluded by management's right under section 7106(a)(2)(B) of the
 Statute to make determinations with respect to contracting out and by
 the provisions of OMB Circular A-76.  The Arbitrator further ruled that
 the grievance was not grievable or arbitrable because the current
 collective bargaining agreement does not contain an express agreement by
 the Agency to comply with the requirements of OMB Circular A-76.
 
                              III.  EXCEPTION
 
    In its exception the Union essentially contends that by finding the
 grievance not to be grievable and arbitrable, the award is contrary to
 the Statute.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We agree with the Union.  In a series of recent decisions, we again
 addressed the issue of whether a grievance like the one in this case was
 grievable and arbitrable under the Statute.  Citing EEOC, 10 FLRA 3,
 among other cases, we held that notwithstanding the view of the court in
 Defense Language Institute, a grievance claiming that a procurement
 action failed to comply with applicable procurement law and regulation
 is within the broad scope grievance procedure prescribed by the Statute
 and is not precluded by law or regulation, including section
 7106(a)(2)(B) of the Statute and OMB Circular A-76.  National Federation
 of Federal Employees, Local 1374 and Pacific Missile Test Center, 24
 FLRA No. 9 (1986) and cases cited in the decision.  Similarly, we have
 held that even in the absence of a specific negotiated contract
 provision requiring an agency to comply with the provisions of OMB
 Circular A-76, a grievance over whether a procurement action complies
 with the Circular is within the broad scope grievance procedure
 prescribed by the Statute unless the parties have specifically excluded
 the matter from the negotiated grievance procedure.  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).
 
    In this case, the Arbitrator based his award on his view of the
 grievance procedure prescribed by the Statute rather than a specific
 exclusion from the grievance procedure negotiated by the parties.  We
 find, therefore, that his award ruling that the grievance was not
 grievable or arbitrable is deficient as contrary to the Statute and must
 be modified accordingly.  See Pacific Missile Test Center.