26:0289(36)AR - AFGE, Local 1513, and Naval Air Station, Whidbey Island -- 1987 FLRAdec AR
[ v26 p289 ]
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.