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61 FLRA No. 172
OF FEDERAL EMPLOYEES
DEPARTMENT OF THE ARMY
LETTERKENNY ARMY DEPOT
November 8, 2006
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This case is before the Authority on an exception to an award of Arbitrator Louis Dene filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition.
The grievance alleged that the Agency violated the parties' collective bargaining agreement (agreement) by contracting out work. The Arbitrator denied the grievance.
For the reasons set forth below, we deny the Union's exception.
II. Background and Arbitrator's Award
The Letterkenny Army Depot (Depot) repairs and overhauls "electronic components, missile systems, and other related military hardware." Arbitrator's Award (Award) at 4. In order to address the increased workload resulting from the military operations in Iraq and Afghanistan, management of the Depot added contract workers to the workforce. The addition of the contract personnel did not result in the displacement of any unit employees. When the Union discovered that a contract worker was performing bargaining unit work, it filed a [ v61 p858 ] grievance alleging violations of the agreement and the Statute. [n1] The grievance was not resolved and was referred to arbitration.
B. Arbitrator's Award
The Arbitrator framed the issue as follows:
Whether the Employer violated the terms of the Collective Bargaining Agreement when contract employees were hired on or about July 20, 2004. If so, what is the remedy?
Award at 3.
At the outset, the Arbitrator noted that "[t]he burden of proof . . . rests with the Union." Id. at 7. Based on his review of § 7106 of the Statute, and Articles 6 and 35 of the parties' agreement, the Arbitrator found that Agency management has "the unlimited right to contract-out work." [n2] Id. at 8. More specifically, he found that "there are no explicit or implied limitations" on the right to contract out "contained in" the parties' agreement." Id. at 9.
Addressing the Union's claim that, under Article 4 of the agreement, the Agency did not comply with law and regulation in exercising its right to contract out, the Arbitrator found that the Union provided "no testimony to support or explain" the legal provisions on which it relied. Id. at 13. Specifically, the Arbitrator found that the Union provided no evidence to support its claim that the Agency violated the regulation set forth in Union Exhibit 7 (5 C.F.R. Chapter 300, Subpart E concerning the use of private sector temporaries). The Arbitrator found that the first part of Union Exhibit 8 (10 U.S.C. § 2461 concerning commercial or industrial type functions in the Department of Defense) "is not applicable during a war or in emergencies." Id. He also found that the Union provided no evidence to support the applicability of the second part of that exhibit (10 U.S.C. § 2464 concerning core logistics facilities) to the case at arbitration. As to Union Exhibit 9 (Circular A-76), the Arbitrator noted that Section 5.f. of that regulation provides that it "shall not be construed to alter any law, executive order, rule, regulation, treaty, or international agreement." Exception, Attachment 3. The Arbitrator concluded, therefore, that Circular A-76 "does not amend, modify or otherwise alter" § 7106 of the Statute "or the pertinent contract language vesting the Agency with the authority to contract out." Id. at 14. He found that Union Exhibits 10 and 11 (Federal Acquisition Regulations (FAR) § 37-104 and 5 U.S.C. § 3109) "apply to consultants and experts." Id. The Arbitrator noted that the Agency conceded that it had not complied with the laws and regulations cited by the Union and that the Deputy Commander of the Depot claimed he had authority to make the contracting out decision. The Arbitrator found that, taken together, those laws and regulations "cannot be construed to limit the Agency's authority to contract-out bargaining unit work." Id.
Finally, the Arbitrator rejected the Union's claim that previous instances in which the Agency failed to bargain, or provide requested information, supported a finding that the Agency violated Articles 5 and 9 of the agreement and §§ 7114(b)(4) and 7116(a)(1) and (5) of the Statute. The Arbitrator found that the previous instances did not come "within the scope or time frame" of the grievance. Id. at 16. He also found that the Union did not provide "sufficient evidence" to establish the claimed violations. Id.
Accordingly, having rejected all of the Union's claims, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exception
The Union claims that the Arbitrator's award is contrary to law, rule, and regulation, specifically, 10 U.S.C. §§ 2461 and 2464, Circular A-76, 5 C.F.R. Chapter 300, Subpart E, FAR § 37-104, and 5 U.S.C. § 3109. According to the Union, these laws and regulations "are all limitations placed on management in the exercise of [its] right to make decisions with respect to contracting out bargaining unit work." Exception at 1. [ v61 p859 ] The Union states that "[o]nce the Agency [r]epresentative stipulated that these laws had not been followed in exercising their right [to contract out], the Union felt it was not necessary . . . to support [their] contention[s]." Id. at 3.
The Union argues specifically that 5 C.F.R. Chapter 300, Subpart E limits the use of private sector temporaries to 240 days and claims that the contract workers are continuing to work two years after they started. Moreover, the Union asserts that the Agency concedes that contract personnel are performing "core workload," which, according to the Union, is prohibited by title 10. Id. at 3. The Union also asserts that authority to make the decision to hire contract personnel to perform core workload lies at a higher level within the Agency than the Deputy Commander of the Depot.
The Union notes that the Agency conceded that it had: (1) supplemented the bargaining unit; and (2) failed to bargain over the decision to add contract personnel to its workforce, despite the adverse effect on the bargaining unit. In this regard, given the Agency's concessions, the Union contends that the Arbitrator erred in failing to find a violation of Articles 1, 5, and 9 of the agreement.
B. Agency's Opposition
As to the Union's claim that the award is contrary to 5 C.F.R. Chapter 300, Subpart E, the Agency maintains that the "regulation is not applicable" because "the employees were not hired under this regulation." Opposition at 3.
With respect to 10 U.S.C. §§ 2461 and 2464, the Agency notes that the Arbitrator found that these provisions were not applicable in this case. In particular, the Agency argues that, as found by the Arbitrator, § 2161 does not apply in a war or emergency. According to the Agency, the Union provided no evidence to support its claim that the Agency violated § 2464. In this regard, the Agency asserts that "an exception claiming a violation of law must contain a description of facts and circumstances" that support the exception and a "general assertion . . . is not sufficient[.]" Id. at 5.
The Agency argues that the Arbitrator properly found that, by its terms, A-76 does not amend or modify § 7106 of the Statute. In this regard, the Agency asserts that the Union has not demonstrated that A-76 is an "applicable law" governing the exercise of management's right to contract out. Id. at 4. As to FAR, § 37-104, the Agency claims that this section applies to personal services contracts. According to the Agency, the personnel at issue in this case were employed under non-personal service contracts and, as a result, FAR, § 37-104 "is not relevant." Id. at 4. With respect to 5 U.S.C. § 3109, the Agency contends that the Arbitrator properly found that this provision applies to employment of experts or consultants, and, since the contract personnel involved are not experts or consultants, the law is not applicable.
In sum, the Agency argues that it did not comply with the provisions relied on by the Union "because they were not applicable[.]" Id.
IV. Analysis and Conclusions
The Union contends that the Arbitrator erred as a matter of law by failing to find that the Agency's decision to supplement its workforce with contract personnel violated legal and regulatory limitations on that decision. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the Arbitrator's underlying factual findings. See id.
Even assuming that the legal and regulatory provisions relied on by the Union constitute enforceable "applicable laws" within the meaning of § 7106(a)(2), see United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-53 (1997), the Union has failed to demonstrate that the Agency violated those laws and regulations. In this regard, the Union's primary argument is that the Agency's stipulation that it did not comply with the laws and regulations relied on by the Union is sufficient to demonstrate that the award is deficient. However, the Union has not demonstrated that those laws and regulations apply in the facts and circumstances of this case and, if the disputed law or regulation does not apply, then whether the Agency complied with it is irrelevant.
"The Authority has long held that an exception claiming a violation of law must contain a description of facts and circumstances to support its exception. A general assertion, absent more, is not sufficient to support a contention that an award is contrary" to law. United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Ctr., Charleston, S.C., 57 FLRA 489, 492 (2001) (citing Nat'l Border Patrol Council, and Nat'l Immigration and Naturalization Service Council, 3 FLRA 401, 403 (1980)). See also United States Dep't of the Treasury, U.S. Customs Serv., El Paso, Tex., [ v61 p 860 ] 55 FLRA 553, 558 n.3 (1999) (failure to offer any argument or evidence insufficient to demonstrate award is contrary to law). In the absence of any argument showing that the laws and regulations on which it relies apply in the facts and circumstances of this case, the Union's argument with respect to the Agency's non-compliance constitutes a bare assertion that is insufficient to establish that the award is deficient. See AFGE, Local 217, 60 FLRA 459, 460 (2004) (Authority denies union exception as bare assertion where union provides no argument as to how award violates cited regulation).
The Union's exception is denied.
Footnote # 1 for 61 FLRA No. 172 - Authority's Decision
The grievance alleged violations of: (1) Article 1, which sets forth the purpose of the agreement; (2) Article 4, which incorporates applicable law and regulation, on the ground that portions of Office of Management and Budget Circular A-76 (Circular A- 76) were not followed; (3) Article 5, regarding consultation and negotiation, because the Agency did not inform the Union of the contracting out action; (4) Article 9, which requires labor-management cooperation, because the Union was not afforded an opportunity to bargain; (5) Articles 12 and 20, which cover overtime and details, on the ground that employees were deprived of overtime work and/or experience-enhancing details; (6) Article 35, Section 5, which requires the parties to economize operations, on the ground that the work could have been done more inexpensively by bargaining unit employees; and (7) the Statute, on the ground that the contracting out action involved a unilateral change in working conditions without negotiations. Union Grievance, Attachment 7 to the Union's Exceptions (Exceptions); Agreement, Attachment 9 to the Exceptions.
Footnote # 2 for 61 FLRA No. 172 - Authority's Decision
As relevant herein, Article 6, Section 1 provides, in pertinent part, that "[m]anagement officials of the agency retain the right, in accordance with applicable laws, to . . . (3) . . . make determinations with respect to contracting out . . . ." Article 35, Section 5 provides, in pertinent part, that "it is understood by both the Union and the Employer that the Employer has the ultimate decision to contract out[.]"