American Federation of Government Employees, Local 1513 and Naval Air Station, Whidbey Island (Authority decision, March 18, 1987)

Final FLRA decision. The Authority sets aside the arbitrator's ruling that a contracting grievance cannot be heard and allows further resolution of the grievance. The underlying dispute remains open. This decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 1513 challenged the Naval Air Station's decision to contract out base support services, claiming it violated procurement rules. An arbitrator refused to hear the grievance, citing management's contracting rights, OMB Circular A-76, and the absence of a specific contract promise to follow the circular. The Authority held that a grievance about compliance with procurement law and rules can proceed under the federal labor statute unless the parties specifically excluded it from their grievance process. It set aside the arbitrator's threshold ruling. The underlying contracting dispute remains to be resolved.

Decision snapshot

• Authority: Management contracting rights under 5 U.S.C. § 7106(a)(2)(B) and arbitration exceptions under § 7122(a).
• Outcome: Arbitrator's nonarbitrability ruling set aside; the grievance may proceed.
• Key point: A procurement compliance grievance can be heard without an express contract clause requiring compliance with OMB Circular A-76.

Full text (FLRA public release)

[ v26 p289 ]

26:0289(36)AR

The decision of the Authority follows:

26 FLRA No. 36

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1513
Union

and

NAVAL AIR STATION,
WHIDBEY ISLAND
Activity

Case No. 0-AR-1277

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator John H. Abernathy filed by the Union 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 claiming that the decision to contract out base operating support services 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 grievable or 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 precluded 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. The Arbitrator further ruled that the grievance was not grievable or arbitrable because the current collective bargaining agreement does not contain an express agreement by the Agency to comply with the requirements of OMB Circular A-76.

III. EXCEPTION

In its exception the Union essentially contends that by finding the grievance not to be grievable and 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 like the one in this case was grievable and arbitrable under the Statute. Citing EEOC, 10 FLRA 3, among other cases, we held that notwithstanding the view of the court in Defense Language Institute, a grievance claiming that a procurement action failed to comply with applicable procurement law and regulation is within the broad scope grievance procedure prescribed by the Statute and is not precluded by law or regulation, including section 7106(a)(2)(B) of the Statute and OMB Circular A-76. National Federation of Federal Employees, Local 1374 and Pacific Missile Test Center, 24 FLRA No. 9 (1986) and cases cited in the decision. Similarly, we have held that even in the absence of a specific negotiated contract provision requiring an agency to comply with the provisions of OMB Circular A-76, a grievance over whether a procurement action complies with the Circular is within the broad scope grievance procedure prescribed by the Statute unless the parties have specifically excluded the matter from the negotiated grievance procedure. 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).

In this case, 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, therefore, that his award ruling that the grievance was not grievable or arbitrable is deficient as contrary to the Statute and must be modified accordingly. See Pacific Missile Test Center.

V. DECISION

The Arbitrator's rulings that the grievance in this case is not grievable or arbitrable are set aside and are 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., March 18, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY