Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky (Activity) and American Federation of Government Employees, Local 2022 (Union) (Authority decision, October 15, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

A Fort Campbell commissary employee received a three day suspension for discourteous conduct toward patrons and improper purchasing or receipt of commissary items. The arbitrator found both charges supported and denied the grievance. The union alleged arbitrator bias and a conflict with the disciplinary statute. The Authority found the allegations unsupported and denied the exceptions, leaving the suspension award in place.

Decision snapshot

• Authority: 5 U.S.C. § 7503, 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; suspension award upheld.
• Key point: Unsupported allegations of bias and statutory error did not justify setting aside the award.

Full text (FLRA public release)

[ v07 p18 ]

07:0018(6)AR

The decision of the Authority follows:

00.041300 Test$ 7 FLRA 6; FLRA 0-AR-147; OCTOBER 15, 1981.

7 FLRA No. 6

DEPARTMENT OF THE ARMY,
HEADQUARTERS, 101ST AIRBORNE
DIVISION (AIR ASSAULT) AND
FORT CAMPBELL, FORT CAMPBELL,
KENTUCKY
Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2022
Union

Case No. O-AR-147

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR WALTER G. SEINSHEIMER FILED BY THE UNION UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)) (THE STATUTE).

ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER CONCERNS THE
GRIEVANT'S SUSPENSION FOR THREE DAYS ON CHARGES OF "DISCOURTEOUS CONDUCT
TO COMMISSARY PATRONS" AND OF "WRONGFUL PURCHASING/RECEIVING OF
COMMISSARY ITEMS." A GRIEVANCE WAS FILED DISPUTING THE CHARGES AND IT
WAS ULTIMATELY SUBMITTED TO ARBITRATION.

ON THE BASIS OF THE EVIDENCE PRESENTED, THE ARBITRATOR FOUND THAT THE
ACTIVITY HAD SUPPORTED BOTH OF ITS CHARGES AGAINST THE GRIEVANT.
ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR SUSTAINED THE SUSPENSION AND
DENIED THE GRIEVANCE. IN ARRIVING AT THIS AWARD, THE ARBITRATOR
SPECIFICALLY ADDRESSED THE UNION'S ARGUMENT THAT THE SUSPENSION COULD
NOT BE SUSTAINED UNDER 5 U.S.C. 7503 /1/ BECAUSE THE DISCOURTEOUS
CONDUCT CHARGE INVOLVED ONLY THREE INSTANCES OF SUCH CONDUCT RATHER
THAN
THE FOUR REFERRED TO IN SECTION 7503. THE ARBITRATOR REJECTED THIS
ARGUMENT RULING THAT THE THREE INSTANCES OF DISCOURTEOUS CONDUCT ONLY
CONSTITUTED ONE OF THE CHARGES AGAINST THE GRIEVANT AND THAT THE TWO
CHARGES TOGETHER SUPPORTED THE ACTIVITY'S DISCIPLINARY ACTION.

THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE AGENCY FILED AN OPPOSITION.

IN ITS FIRST EXCEPTION THE UNION ESSENTIALLY CONTENDS THAT THE
ARBITRATOR WAS BIASED. THE UNION STATES THAT THE ARBITRATOR WAS
CHALLENGED BECAUSE OF HIS CONTRACT WITH THE ACTIVITY PRIOR TO THE
HEARING, BUT HE REFUSED TO DISQUALIFY HIMSELF. WITHOUT DISCUSSION OF
THE SUBSTANCE OF THAT CONTACT, THE UNION ARGUES THAT IT IS "OBVIOUS"
THAT THE ARBITRATOR HAD REACHED HIS DECISION PRIOR TO THE HEARING
"APPARENTLY BASED ON HIS ILLEGAL CONTACTS WITH THE AGENCY." HOWEVER, THE
AGENCY SPECIFICALLY DISPUTES THAT THERE WAS ANY BIAS ON THE PART OF THE
ARBITRATOR AND EXPRESSLY MAINTAINS THAT THE ARBITRATOR HAD SIMPLY
COMMUNICATED WITH AN ACTIVITY EMPLOYEE CONCERNING A HEARING DATE AND
TRANSPORTATION ARRANGEMENTS AND THAT THE ARBITRATOR SO ADVISED THE UNION
WHEN CHALLENGED. BECAUSE THE UNION'S EXCEPTION IS TOTALLY DEVOID OF ANY
SUBSTANTIATION THAT THE ARBITRATOR'S AWARD WAS PROCURED BY CORRUPTION,
FRAUD, OR UNDUE MEANS; THAT THERE WAS PARTIALITY OR CORRUPTION ON THE
PART OF THE ARBITRATOR; OR THAT THE ARBITRATOR WAS GUILTY OF MISCONDUCT
BY WHICH THE RIGHTS OF ANY PARTY WERE PREJUDICED, THIS EXCEPTION
PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT. SEE JOURNAL TIMES V.
MILWAUKEE TYPOGRAPHICAL UNION NO. 23, 409 F.SUPP. 24 (D. WIS. 1976);
AMERADA HESS CORP. V. LOCAL 1078, UAW V. ANACONDA AMERICAN BRASS CO.,
256 F.SUPP. 686 (D. CONN. 1966).

IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE AWARD IS CONTRARY
TO 5 U.S.C. 7503. IN SUPPORT THE UNION REPEATS ITS ARGUMENT MADE BEFORE
THE ARBITRATOR THAT THE SUSPENSION WAS IMPROPER BECAUSE SECTION 7503
REQUIRES FOUR OR MORE INSTANCES OF DISCOURTEOUS CONDUCT AND THE GRIEVANT
WAS ONLY CHARGED WITH THREE INSTANCES. HOWEVER, THE UNION FAILS TO
ESTABLISH IN WHAT MANNER THE ARBITRATOR'S AWARD SUSTAINING THE
GRIEVANT'S SUSPENSION IS CONTRARY TO 5 U.S.C. 7503. AS HAS BEEN NOTED,
THE GRIEVANT WAS NOT SUSPENDED MERELY FOR THREE INSTANCES OF
DISCOURTEOUS CONDUCT. RATHER, THAT DISCOURTEOUS CONDUCT CONSTITUTED BUT
ONE CHARGE AGAINST HIM. HE WAS ALSO CHARGED WITH "WRONGFUL PURCHASING
RECEIVING OF COMMISSARY ITEMS." IT WAS ON THE BASIS OF BOTH CHARGES THAT
HE WAS SUSPENDED AND IT WAS EXPRESSLY ON THE BASIS OF BOTH CHARGES THAT
THE ARBITRATOR SUSTAINED THE GRIEVANT'S SUSPENSION AND DENIED THE
GRIEVANCE. CONSEQUENTLY, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING
THE ARBITRATOR'S AWARE DEFICIENT.

FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., OCTOBER 15, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ 5 U.S.C. 7503 PROVIDES IN PERTINENT PART:

(A) UNDER REGULATIONS PRESCRIBED BY THE OFFICE OF PERSONNEL
MANAGEMENT, AN EMPLOYEE MAY BE SUSPENDED FOR 14 DAYS OR LESS FOR SUCH
CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE (INCLUDING
DISCOURTEOUS CONDUCT TO THE PUBLIC CONFIRMED BY AN IMMEDIATE
SUPERVISOR'S REPORT OF FOUR SUCH INSTANCES WITHIN ANY ONE-YEAR PERIOD OR
ANY OTHER PATTERN OF DISCOURTEOUS CONDUCT).

/2/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT
THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND
MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERS
NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR REGULATIONS.
========== Opinion$ ==========
[Not Certified True Copy]

----- FULL TEXT OF DECISION NOT AVAILABLE ----- [ NOTAVAILABLE$ ]