General Services Administration and AFGE Council 236 (Authority decision, July 28, 1986)

Final FLRA decision. The Authority denies the exception to an arbitration award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitration award is generally excluded from ordinary judicial review unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

AFGE challenged a GSA custodial contracting action as inconsistent with OMB Circular A-76. The arbitrator found the grievance arbitrable but denied it on the merits. GSA appealed only the arbitrability ruling, arguing that arbitration conflicted with management's contracting out right. The Authority held that a grievance alleging noncompliance with the circular could be arbitrated and denied the exception.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(B), 5 U.S.C. § 7122(a).
• Outcome: Agency exception denied; arbitrability ruling left in place.
• Key point: A contracting out grievance alleging noncompliance with governing rules may be arbitrable.

Full text (FLRA public release)

[ v22 p736 ]

22:0736(84)AR

The decision of the Authority follows:

22 FLRA No. 84

GENERAL SERVICES ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 236
Union

Case No. 0-AR-905

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Ellen M. Bussey filed by 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

In one of two grievances filed in this case and submitted to arbitration, the Union contended that the Activity's determination to contract out a certain custodial activity to the National Institute of the Severely Handicapped pursuant to 41 U.S.C. Sections 46-48c /*/ was not in accordance with OMB Circular A-76 (which prescribes general policies for contracting out). The Arbitrator found that this grievance was arbitrable, but on the merits denied the grievance.

III. EXCEPTION

In its exception the Agency contends that the Arbitrator's finding that the grievance was arbitrable is contrary to management's right to make determinations with respect to contracting out pursuant to section 7106(a)(2)(B) of the Statute.

IV. 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 once again addressed the issue of whether a grievance claiming that a procurement action failed to comply with OMB Circular A-76 was grievable and arbitrable under the Statute. Citing 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), the Authority again held that such a grievance is within the broad scope grievance procedure prescribed by the Statute and is not precluded by management's right under section 7106(a)(2)(B) to make determinations with respect to contracting out. Consequently, we conclude that the Agency's exception provides no basis for finding the award deficient as contrary to section 1706(a)(2)(B) of the Statute. Furthermore, contrary to the arguments of the Agency, no basis is provided for reconsidering these decisions or finding them inapplicable because the procurement action in this case was pursuant to 41 U.S.C. Sections 46-48c. The Agency's argument that the procurement action was exempted by these statutory provisions from the disputed requirements of Circular A-76 bears on the resolution of the grievance on the merits and not on whether the grievance is grievable and arbitrable under the Statute. See Blytheville Air Force Base, slip op. at 6-7.

V. DECISION

Accordingly, the Agency's exception is denied. Issued, Washington, D.C., July 28, 1986.

/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(*) These provisions provide for procurement of commodities and services by the Federal Government from qualified nonprofit agencies for the blind and the severely handicapped.