35:0841(91)AR - - Naval Air Station, Kingsville, TX and AFGE Local 1735 - - 1990 FLRAdec AR - - v35 p841
[ v35 p841 ]
The decision of the Authority follows:
35 FLRA No. 91
FEDERAL LABOR RELATIONS AUTHORITY
U.S. NAVAL AIR STATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 30, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Michael B. Huston. The Arbitrator determined that the grievance which challenged a procurement action by the Activity was not arbitrable under the parties' collective bargaining agreement.
The Union filed an exception to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition to the Union's exception.
We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and the Arbitrator's Award
The Union filed a grievance contending that the Activity did not comply with Office of Management and Budget (OMB) Circular No. A-76 in preparing the cost comparison for a procurement action concerning supply services. The parties submitted the grievance to arbitration on the issue of whether the grievance was arbitrable.
The Arbitrator found that the grievance was not arbitrable. The Arbitrator determined that Article XXXIII, Section 7 of the parties' collective bargaining agreement prohibits grievances over disputes concerning contracting out. The Arbitrator interpreted the collective bargaining agreement as providing that the Union was restricted to procurement appeal procedures and that the grievance and arbitration process could not be used to dispute determinations to contract out.
The Union contends that the award is contrary to law and regulation.
The Union maintains that it has a statutory right to file grievances over disputes concerning contracting out. The Union further maintains that any waiver of the right must be clear and unmistakable. The Union argues that Article XXXIII, Section 7 does not clearly and unmistakably provide that the Union would be restricted only to procurement appeal procedures. Consequently, the Union asserts that the Arbitrator erroneously interpreted the parties' collective bargaining agreement as prohibiting grievances over disputes concerning contracting out.
The Union also argues that the award is contrary to decisions of the Authority. The Union states that the Authority has repeatedly determined that grievances over disputes concerning contracting out are grievable under the Statute.
IV. Analysis and Conclusion
We find that the Union fails to establish that the award is deficient.
Section 7121(a)(2) of the Statute provides that a collective bargaining agreement "may exclude any matter from the application of the grievance procedures which are provided for in the agreement." The parties may agree to exclude any matter, including disputes concerning contracting out, from the scope of their negotiated grievance procedure. See American Federation of Government Employees, Locals 225, 1504, and 3723 v. FLRA, 712 F.2d 640, 649 (D.C. Cir. 1983) (court affirmed the Authority's holding that the scope of a negotiated grievance procedure is a "mandatory subject of bargaining").
The Arbitrator found that the parties excluded disputes concerning contracting out from the scope of their negotiated grievance procedure. Accordingly, the Union's assertion that the award conflicts with its "statutory right" to arbitrate contracting-out disputes is incorrect. Because the Union has no statutory right to arbitrate contracting-out disputes, its assertion that the collective bargaining agreement does not constitute a clear and unmistakable waiver of its right is also incorrect. Accordingly, we reject the Union's exception that the award is contrary to law.
The Union's contention that the Arbitrator erroneously interpreted the parties' collective bargaining agreement constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement. Such a contention provides no basis for finding an arbitration award deficient under the Statute. For example, Illinois Air National Guard, 182nd Tactical Air Support Group and Association of Civilian Technicians, Illinois Chapter 34, 34 FLRA 591 (1990).
Accordingly, we will deny the exception.
The Union's exception is denied.(*)
(If blank, the decision does not have footnotes.)
*/ During the pendency of this case before the Authority, the U.S. Supreme Court issued its decision in Department of the Treasury, IRS v. FLRA, 58 U.S.L.W. 4447 (U.S. Apr. 17, 1990), reversing the Authority's determination that a proposal which would subject claims that the agency had failed to comply with OMB Circular No. A-76 to the grievance and arbitration procedures was negotiable. The Court remanded the case for further consideration.
In our view, the determination in this case to deny the Union's exception is unaffected by the Court's decision. The Arbitrator determined that the parties' collective bargaining agreement prohibited grievances over disputes concerning contracting out and we note that, under section 7121()(2) of the Statute, parties may exclude any matter from the coverage of their negotiated grievance procedure. Consequently, whether the Statute may also be found to prohibit grievances over contracting out disputes as a result of the remand in Department of the Treasury, IRS does not affect our decision in this case.