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 ]
53:0029(7)AR
The decision of the Authority follows:


53 FLRA No. 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

UNITED STATES PENITENTIARY

LEAVENWORTH, KANSAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISONS

LOCAL 919

(Union)

0-AR-2771

_____

DECISION

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)

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