Bureau of Prisons and AFGE Local 3696 (Authority decision, September 15, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

A grievance challenged procedures for filling a supervisory position at the federal correctional institute in Butner. The arbitrator held that the agreement excluded the dispute from its grievance procedure. AFGE Local 3696 argued that another contract provision covered promotion complaints. The Authority found the exceptions amounted to disagreement with the arbitrator’s interpretation and upheld the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; nonarbitrability award upheld.
• Key point: The arbitrator’s interpretation of the grievance clause was not shown deficient.

Full text (FLRA public release)

[ v10 p51 ]

10:0051(12)AR

The decision of the Authority follows:

10 FLRA No. 12

U.S. BUREAU OF PRISONS
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3696
Union

Case No. O-AR-251

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR C. ALLEN FOSTER FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE AGENCY FILED AN
OPPOSITION.

THE DISPUTE IN THIS MATTER CONCERNS THE PROCEDURES USED BY THE
FEDERAL CORRECTIONAL INSTITUTE, BUTNER, NORTH CAROLINA (THE ACTIVITY)
WHEN FILLING A SUPERVISORY POSITION. A GRIEVANCE WAS FILED AND THE
MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR DETERMINED THE ISSUES TO BE:

1. IS THE SUBJECT OF PROMOTIONS TO SUPERVISORY (NON-UNIT) POSITIONS
   ARBITRABLE UNDER THE

GRIEVANCE PROCEDURE SET FORTH IN THE COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE PARTIES?

2. IF SO, DID THE EMPLOYER VIOLATE THE MERIT PROMOTION PROVISIONS
   THEREOF IN ITS SELECTION

OF EMPLOYEES FOR PROMOTION AT THE FEDERAL CORRECTIONAL INSTITUTE AT
BUTNER, NORTH CAROLINA?

THE ARBITRATOR HELD THAT THE INSTANT GRIEVANCE WAS NOT SUBJECT TO THE
PARTIES' NEGOTIATED GRIEVANCE PROCEDURE BECAUSE THE COLLECTIVE
BARGAINING AGREEMENT SPECIFICALLY EXCLUDED FROM THE SCOPE OF THE
GRIEVANCE PROCEDURE MATTERS EXCLUDED FROM MANDATORY NEGOTIATIONS, A
CATEGORY WHICH WOULD INCLUDE PROMOTIONS OF UNIT EMPLOYEES TO
SUPERVISORY
POSITIONS. ACCORDINGLY, HE FOUND THE GRIEVANCE NOT ARBITRABLE.

IN ITS EXCEPTIONS, THE UNION CONTENDS THAT THE AWARD DOES NOT DRAW
ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT, IS BASED ON A
NONFACT, AND INVOLVES A MATTER SQUARELY WITHIN THE COLLECTIVE BARGAINING
AGREEMENT. THE UNION ARGUES IN ALL THREE EXCEPTIONS THAT THE ARBITRATOR
MISINTERPRETED THE COLLECTIVE BARGAINING AGREEMENT BY NOT GIVING THE
APPROPRIATE WEIGHT TO A SECTION OF THE COLLECTIVE BARGAINING AGREEMENT
WHICH STATES THAT MEMBERS OF THE BARGAINING UNIT WHO HAVE A COMPLAINT OR
GRIEVANCE ABOUT A PROMOTION SHOULD APPEAL UNDER THE PROVISIONS OF THE
NEGOTIATED GRIEVANCE PROCEDURE.

THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
DEFICIENT. THE THRUST OF THE EXCEPTIONS IS THAT THE ARBITRATOR FOUND
THE MATTER NONARBITRABLE WITHOUT ADDRESSING OTHER PROVISIONS OF THE
AGREEMENT WHICH THE UNION ARGUES SHOULD BE INTERPRETED SO AS TO MAKE THE
MATTER ARBITRABLE. HOWEVER, THE ARBITRATOR HAD THE ENTIRE AGREEMENT
BEFORE HIM AND SPECIFICALLY CONCLUDED THAT UNDER ITS TERMS THE MATTER
BEFORE HIM WAS NOT ARBITRABLE. THE AUTHORITY HAS PREVIOUSLY HELD THAT
AN ARBITRATOR NEED NOT DISCUSS THE SPECIFIC AGREEMENT PROVISIONS
INVOLVED, AND THE FACT THAT THE OPINION ACCOMPANYING AN AWARD DID NOT
MENTION SUCH PROVISIONS DOES NOT ESTABLISH THE ARBITRATOR DID NOT RULE
ON THEM. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2327 AND
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, 5 FLRA NO. 23(1981). THE UNION IS ESSENTIALLY
DISAGREEING WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE
AGREEMENT, WHICH DOES NOT CONSTITUTE A BASIS FOR FINDING THE AWARD
DEFICIENT. E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO)
LOCAL 1770 AND HEADQUARTERS XVIII AIRBORNE CORPS AND FORT BRAGG, FORT
BRAGG, N.C., 6 FLRA NO. 62 (1981).

ACCORDINGLY, THE UNION'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY