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 denied.