U.S. Army Communications Command Agency, Redstone Arsenal and AFGE Local 1858 (Authority decision, August 15, 1986)

Final FLRA decision. The Authority modifies the arbitration award. The order concerns an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review of an Authority arbitration order is generally unavailable unless it involves an unfair labor practice under § 7116.

Plain-English summary

At Redstone Arsenal, the Army did not give AFGE a bid solicitation package for telephone operator work when it sent the package to contractors. An arbitrator found that omission violated their agreement and ordered the procurement canceled until the Army complied. The Authority kept the contract violation but removed the cancellation remedy. It held that the arbitrator had identified no breach of a mandatory procurement rule that would support overturning or reconstructing the contracting decision. The revised award directs the Army to stop failing to comply with the agreement's solicitation package requirement.

Decision snapshot

• Authority: Contracting out and assignment rights under 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Award modified; agreement violation sustained, procurement cancellation removed.
• Key point: A late solicitation package did not authorize cancellation of the procurement without a specific procurement law violation.

Full text (FLRA public release)

[ 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