53:0029(7)AR - - Justice, Federal Bureau of Prisons, U.S Penitentiary, Leavenworth, KS and AFGE, Council of Prisons, Local 919 - - 1997 FLRAdec AR - - v53 p29
[ v53 p29 ]
The decision of the Authority follows:
53 FLRA No. 7
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISONS
June 18, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles E. Clark filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator sustained in part, the Union's grievance alleging that the Agency violated the parties' agreement when it failed to post for competitive bids the position of Drug Program Coordinator and, instead, reassigned a bargaining unit member to the position. The Arbitrator ordered the Agency to vacate the position and to post it for bids in accordance with the collective bargaining agreement. For the following reasons, we conclude that the Arbitrator's arbitrability determination is deficient because it fails to draw its essence from the parties' collective bargaining agreement. We set aside the award.
II. Background and Arbitrator's Award
The grievant, a GS-13 Staff Psychologist at the Department of Psychology Services, filed a grievance alleging that the Agency violated the parties' agreement and Agency Merit Promotion Regulations, incorporated by reference in the agreement, when it filled the position of Drug Program Coordinator, GM-13, by reassigning a bargaining unit member to the position. The grievant alleged that the Agency violated the collective bargaining agreement by failing to post the position "to allow any other Bargaining Unit Member the opportunity to compete" for the position. Award at 3. As a remedy, the grievant requested that the position be vacated and posted for bargaining unit members to compete and that the human resource manager be sent to merit promotion training. The grievance was not resolved, and the matter was submitted to arbitration. In the absence of a stipulation by the parties, the Arbitrator framed the issues as follows:
1. Whether the matter is arbitrable?
2. Whether the Employer violated the Agreement by failing to post the position of Drug Program Coordinator for competitive bids when it reassigned a bargaining unit member to this management position?
3. If [the Employer violated the Agreement], what is the remedy?
Id. at 2.
The Agency argued before the Arbitrator that the grievance was not arbitrable because it concerned the filling of a management position that could not be challenged under the negotiated grievance procedure. The Agency also argued that, even if such an action could be challenged under the negotiated grievance procedure, the Drug Program Coordinator's position was not a position with "promotion potential" and, therefore, a posting of the position was not required.
The Arbitrator stated that "[t]here was no factual showing that the Drug Program Coordinator['s] position was not in the universe covered by the Parties' Agreement." Id. at 13. Ruling on the threshold issue of arbitrability without specifically addressing the Agency's merit promotion plan, the Arbitrator concluded that the "matter [was] arbitrable." Id. at 20. Turning to the merits of the grievance, the Arbitrator found that the "Union introduced sufficient evidence that the Drug Program Coordinator position did have a known promotion potential, within the meaning of the [Agency's] Merit Promotion Plan." Id. at 19-20. As such, the Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by failing to post the position of Drug Program Coordinator for competitive bids.
Accordingly, the Arbitrator sustained the grievance. The Arbitrator ordered that Agency to take "such action as will vacate the position" and "to post the position for bids in accordance" with the parties' collective bargaining agreement. Id. at 20-21.
III. Agency's Exceptions
The Agency contends that the Arbitrator's determination that the grievance was arbitrable is contrary to a governing Agency regulation, the Merit Promotion Plan.(1) Because the Merit Promotion Plan was incorporated into Article 33 of the parties' collective bargaining agreement,(2) the Agency also contends that the Arbitrator's arbitrability determination fails to draw its essence from the parties' agreement. The Agency asserts that section 335.2(17) of the Merit Promotion Plan "expressly provides that grievances over the filling of . . . management position[s] m[ay] be filed under the procedures set forth in the agency grievance procedure . . . ."(3) Exceptions at 10. The Agency maintains that, in contrast, the negotiated grievance procedure is the procedure required for filing grievances related to unit positions under section 335.1(18) of the Plan. With regard to the essence claim, the Agency claims that the arbitrability determination conflicts with the express terms of Article 33 of the parties' agreement, which incorporates section 335.2 of the Agency's merit promotion plan. The Agency also sets forth two additional arguments: that the position of Drug Program Coordinator does not affect the "promotion potential" of the individual occupying the position and that the remedy violates section 7106 of the Statute.(4)
IV. Analysis and Conclusion
It is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284, 292-93 (1991). In this case, Article 33 of the collective bargaining agreement expressly incorporates the Agency's Merit Promotion Plan. Consequently, the issue before us is whether the Arbitrator's award draws its essence from the collective bargaining agreement. In particular, because Article 33 expressly incorporates the Merit Promotion Plan, we must examine the wording of that Agency regulation to determine whether the Arbitrator's award draws its essence from the agreement.
The Agency's Merit Promotion Plan establishes separate procedures for the filling of bargaining unit positions and supervisory/management positions. Section 335.1 of the plan "applies to the promotion of any employee to positions in the bargaining unit." Exceptions, Attachment 3 at 25, section 335.1(4) (emphasis added). Section 335.2 of the plan "applies to the promotion of any employee to supervisory/management positions." Id. at 39, section 335.2(3) (emphasis added). Grievances related to the filling of bargaining unit positions must be resolved under the "procedures contained in the Master Agreement." Exceptions, Attachment 3 at 37, section 335.1(18). In contrast, disputes related to the filling of supervisory/management positions are excluded from the negotiated grievance procedure and must be resolved "under the . . . agency grievance procedure." Id. at 51, section 335.2(17).
The parties do not dispute that the Drug Program Coordinator position is a management position, and there is nothing in the record to indicate otherwise. As the Agency's Merit Promotion Plan clearly provides that disputes over the filling of management positions are excluded from the scope of the parties' negotiated grievance procedure, the Arbitrator's conclusion that the matter was arbitrable is simply not compatible with a plausible interpretation of Article 33 of the agreement, which incorporates the plan. Therefore, the Arbitrator's assertion of jurisdiction over the grievance was in manifest disregard of the parties' collective bargaining agreement. As such, the arbitrability determination fails to draw its essence from the collective bargaining agreement, and we conclude that the Arbitrator's award is deficient. See U.S. Department of the Air Force, 42 Air Base Wing, Gunter Annex, Maxwell Air Force Base, Alabama and American Federation of Government Employees, Local 997, 51 FLRA 754, 760 (1996).
The award is set aside.
(If blank, the decision does not have footnotes.)
1. The Agency relies on two sections of the Merit Promotion Plan. Section 335.2, entitled "MERIT PROMOTION PLAN FOR SUPERVISORY/MANAGEMENT POSITIONS," provides:
17. QUESTIONS, COMPLAINTS AND GRIEVANCES
b. Grievance Procedures. If the employee believes the matter has not been resolved informally, he/she may file a grievance under the procedures contained in the agency grievance procedure.
Section 335.1, entitled "MERIT PROMOTION PLAN FOR BARGAINING UNIT POSITIONS," provides:
18. QUESTIONS, COMPLAINTS AND GRIEVANCES
b. Grievance Procedures. If the employee believes the matter has not been resolved informally, he/she may file a grievance under the procedures contained in the Master Agreement.
Exceptions, Attachment 3 at 37 (emphasis added).
2. Article 33, entitled "Merit Promotion" provides: "The Merit Promotion Plan is herein incorporated as part of this Agreement. These procedures will not be changed, to the extent they are negotiable, for the life of this Agreement except in writing and in accordance with Article 37." Exceptions, Attachment 2 at 4.
3. With respect to the use of the term "may," the Agency asserts, and the Union does not dispute, that the term refers to an employee's choice whether to file a grievance, not a choice of a forum in which to file