National Federation of Federal Employees, Local 1374 and Pacific Missile Test Center (Authority decision, November 19, 1986)

FLRA interlocutory decision. The Authority removes the arbitrator's ruling that a contracting out grievance cannot be heard, allowing further resolution of the grievance. The underlying procurement dispute remains unresolved. This decision does not present a final judicial review period under 5 U.S.C. § 7123(a).

Plain-English summary

NFFE Local 1374 grieved the Pacific Missile Test Center's decision to contract out fuel service work, alleging violations of procurement rules including OMB Circular A-76. An arbitrator dismissed the grievance as outside arbitration because of management's contracting authority. The Authority held that a grievance alleging noncompliance with procurement law and regulation falls within the statutory grievance procedure unless the parties negotiated a specific exclusion. It struck the arbitrator's nonarbitrability ruling and allowed further resolution of the grievance. It did not decide whether the contracting decision itself violated the cited rules.

Decision snapshot

• Authority: Contracting decisions under 5 U.S.C. § 7106(a)(2)(B) and arbitration review under § 7122(a).
• Outcome: Nonarbitrability ruling struck; grievance may proceed.
• Key point: Management's contracting right did not itself bar a grievance alleging procurement rule violations.

Full text (FLRA public release)

[ v24 p84 ]

24:0084(9)AR

The decision of the Authority follows:

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