24:0084(9)AR - NFFE Local 1374 and Pacific Missile Test Center -- 1986 FLRAdec AR

 24 FLRA No. 9
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1374
 Union
 
 and
 
 PACIFIC MISSILE TEST CENTER
 Activity
 
                                            Case No. 0-AR-1185
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Anthony Miller filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Regulations 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
 certain fuel service functions 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 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
 foreclosed 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.
 
                              III.  EXCEPTION
 
    In its exception the Union essentially contends that by finding the
 grievance not to be 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 claiming that a procurement
 action failed to comply with applicable procurement law and regulation,
 including OMB Circular A-76, was grievable and arbitrable under the
 Statute.  Citing EEOC, 10 FLRA 3, among other cases, we held that a
 grievance claiming that a procurement action failed to comply with
 applicable procurement law and regulations is within the broad scope
 grievance procedure prescribed by the Statute and is not precluded by
 law or regulation, including management's right under section
 7106(a)(2)(B) to make determinations with respect to contracting out.
 United States Army Communications Command, Fort McClellan and Local No.
 1941, American Federation of Government Employees, AFL-CIO, 23 FLRA No.
 23 (1986);  General Services Administration and America 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).  Furthermore, we specifically adhered
 to this view while noting that this approach had been rejected by the
 court in Defense Language Institute.  See Headquarters, 97th Combat
 Support Group (SAC), slip op. at 2 n.2.; American Federation of
 Government Employees, AFL-CIO, Local 1923 and Department of Health and
 Human Services, Office of the Secretary, Office of the General Counsel,
 Baltimore, Maryland, 22 FLRA No. 106 (1986), slip op. at 4 n. 2.
 Consequently, because 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 that his award ruling that the grievance was not arbitrable is
 deficient as contrary to the Statute and must be modified accordingly.
 
                               V.  DECISION
 
    The Arbitrator's ruling that the grievance in this case is not
 arbitrable under the grievance procedure prescribed by the Statute is
 struck.  Accordingly, this ruling is removed as a bar to further
 resolution of the grievance.  This resolution must be in accordance with
 the Statute and decisions of the Authority pertaining to grievances
 disputing determinations by agencies to contract out agency work.
 
    Issued, Washington, D.C., November 19, 1986.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY