U.S. Army Communications Command, Fort McClellan and AFGE Local 1941 (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

Fort McClellan contracted out telephone operator work without giving AFGE timely access to a statement of work required by their agreement. An arbitrator found a contract violation and ordered the Army to stop the contracting action and related reduction in force, and to restore affected employees to their jobs. The Authority kept the agreement violation but removed those procurement and staffing remedies. It found no specific violation of a mandatory procurement rule that would justify a challenge to the contracting decision. The revised award orders the Army to stop failing to comply with the agreement's information 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 and staffing remedies removed.
• Key point: A contract information breach did not itself authorize an arbitrator to stop a procurement action.

Full text (FLRA public release)

[ v23 p184 ]

23:0184(23)AR

The decision of the Authority follows:

23 FLRA No. 23

UNITED STATES ARMY COMMUNICATIONS
COMMAND, FORT McCLELLAN
Activity

and

LOCAL NO. 1941, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Union

Case No. 0-AR-633

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Jack Clarke 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 Union filed a grievance claiming that the Activity violated the parties' collective bargaining agreement by failing to provide the Union with a copy of the pertinent statement of work and other acquisition information prior to issuance of the bid solicitation. The Union alleged that this failure deprived it of any viable and meaningful opportunity to affect management's determination of whether to contract out. In particular, the Union contended that had it been timely provided with the specification of contractor wages, it might have been able to preclude the Activity's determination to contract out. The Arbitrator found that the grievance was arbitrable and that the Activity had violated the parties' agreement by not providing the Union president or her designee timely access to the statement of work involved in the commercial activities review of telephone services. In discussing a remedy, the Arbitrator stated in response to the arguments of the Union that it could not be concluded that but for the breach of the collective bargaining agreement, the contracting out of telephone services could not have properly occurred. He also rejected the argument of the Activity that the procurement action could not be cancelled. He noted that this argument presumed that contracting out was more economical, and he stated that until the agreement is complied with, the correctness of this assumption cannot be known. Accordingly, as a remedy, the Arbitrator ordered the Activity to cease contracting out the disputed functions and implementing a reduction-in-force because of the contracting out until the Activity complied with the requirements of the collective bargaining agreement. The Arbitrator further ordered the Activity to restore to their jobs any employees affected by a reduction-in-force caused by the disputed procurement action.

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 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 cease contracting out telephone services constitutes a cancellation of the procurement action and therefore is clearly deficient under section 7106 (a)(2)(B) of the Statute. The award directing the Activity to cease any reduction-in-force (RIF) and to reinstate any employees affected by the RIF is also deficient because it follows directly from the cancellation.

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 specification of contractor wages, it might have been able to preclude, in accordance with procurement law and regulation, the Activity's determination to contract out. However, the Arbitrator specifically stated that it could not be concluded that but for the breach of the collective bargaining agreement, the contracting out of telephone services could not have occurred consistent with procurement law and regulation. 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 providing the Union president or her designee timely access to the statement of work for the commercial activities review of telephone services. 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 Section 25.2 of the 1982 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
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY