09:0926(130)AR - Justice, Bureau of Prisons, Raybrook, NY and AFGE, Council of Prison Locals -- 1982 FLRAdec AR

 9 FLRA No. 130
 
 U.S. DEPARTMENT OF
 JUSTICE, BUREAU OF
 PRISONS, RAYBROOK,
 NEW YORK
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 COUNCIL OF PRISON LOCALS
 Union
 
                                            Case No. O-AR-287
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR DAVID C. RANDLES 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.
 
    THIS MATTER CONCERNS THE SEPARATION OF THE GRIEVANT DURING HIS
 PROBATIONARY PERIOD.  A GRIEVANCE PROTESTING THE SEPARATION WAS FILED
 AND ULTIMATELY SUBMITTED TO ARBITRATION.  THE ACTIVITY CLAIMED THE
 MATTER WAS NOT ARBITRABLE.
 
    THE ARBITRATOR DETERMINED THAT THE LANGUAGE OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT EXCLUDED FROM COVERAGE BY THE NEGOTIATED
 GRIEVANCE PROCEDURE GRIEVANCES OVER THE SEPARATION OF PROBATIONARY
 EMPLOYEES.  ACCORDINGLY, AS HIS AWARD THE ARBITRATOR DISMISSED THE
 GRIEVANCE AS NOT BEING ARBITRABLE.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON A
 NONFACT.  IN SUPPORT THE UNION PRINCIPALLY ARGUES THAT THE ARBITRATOR
 MISUNDERSTOOD THE EFFECT OF EXECUTIVE ORDER NO. 11491 ON THIS CASE AND
 SUCH MISUNDERSTANDING RESULTED IN THE APPLICATION OF AN ERRONEOUS RULE
 OF CONTRACT CONSTRUCTION BUT FOR WHICH THE AWARD WOULD HAVE BEEN
 DIFFERENT.
 
    AS HAS BEEN NOTED, THE ARBITRATOR EXPRESSLY DETERMINED THAT THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT EXCLUDED GRIEVANCES OVER THE
 SEPARATION OF PROBATIONARY EMPLOYEES FROM COVERAGE BY THE NEGOTIATED
 GRIEVANCE PROCEDURE.  THUS, THE UNION'S EXCEPTION CONSTITUTES NOTHING
 MORE THAN DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION OF THE
 PARTIES' AGREEMENT TO FIND THAT THE GRIEVANCE BEFORE HIM WAS NOT
 ARBITRABLE, AND CONSEQUENTLY THE EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT.  SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE
 BASE, SAN ANTONIO, TEXAS AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1617, 9 FLRA NO. 44(1982);  U.S. DEPARTMENT OF
 LABOR AND NATIONAL COUNCIL OF FIELD LABOR LOCALS, LOCAL 644, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, 6 FLRA NO. 61(1981).  ACCORDINGLY,
 THE UNION'S EXCEPTION IS DENIED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY