23:0179(22)AR - Army Communications Command Agency, Redstone Arsenal and AFGE Local 1858 -- 1986 FLRAdec AR
[ v23 p179 ]
23:0179(22)AR
The decision of the Authority follows:
23 FLRA No. 22
U.S. ARMY COMMUNICATIONS COMMAND
AGENCY, REDSTONE ARSENAL
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858
Union
Case No. 0-AR-573
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Lloyd L. Byars 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
The dispute before the Arbitrator concerned management's
determination to contract out telephone operator functions. The
grievance alleged that the Activity had violated the parties' collective
bargaining agreement by not providing a copy of the bid solicitation
package, which included a prevailing wage to prospective contractors.
The Union argued that it was deprived of a meaningful opportunity to
affect the decision of whether to contract out. In support of its
argument, the Union claimed that if it had received the bid solicitation
package when the package was sent to the contractors, the Union might
have persuaded the Department of Labor to direct a new prevailing wage
survey which could have precluded the Activity's decision to contract
out. The Arbitrator found that the Activity had violated the parties'
agreement by not timely providing the Union a copy of the solicitation
package. With respect to a remedy, the Arbitrator rejected the
Activity's argument that to cancel the procurement the Union had to
establish that but for the Activity's failure to timely provide the
Union with a copy of the solicitation package, the decision of whether
to contract out would have been different. The Arbitrator stated that
it was impossible to know what the result would have been if the
agreement had not been violated. Instead, he determined that it was
sufficient for the Union to establish that the Activity violated the
parties' agreement. The Arbitrator therefore sustained the grievance
and, as a remedy, ordered that the procurement action be cancelled until
the provisions of the parties' agreement were fulfilled.
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 ultimately contended with respect to the procurement action that
had the agreement not been violated, the Activity's determination to
contract out might 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. 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 it been timely provided with the prevailing
wage determination, 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 impossible to
conclude whether the contracting out of telephone services could have
occurred consistent with procurement law and regulation if the agreement
had not been violated. 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
parties' collective bargaining agreement by not timely providing the
Union a copy of the solicitation package. Nor was the Arbitrator
precluded from sustaining the grievance to the extent of the claimed
violation 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
violation of Article 65, Section g of the applicable collective
bargaining agreement. The Activity shall cease and desist from
failing to comply with the requirements of that section.
Issued, Washington, D.C., August 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY