10:0051(12)AR - Bureau of Prisons and AFGE Local 3696 -- 1982 FLRAdec AR

 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 EXCEPTION