Federal Aviation Science and Technological Association (Union) and Federal Aviation Administration, Albuquerque Airway Facilities Sector (Activity) (Authority decision, February 21, 1980)

Final FLRA decision on an arbitration award. The Authority denied the union's petition for review, leaving the arbitrator's award in place. Under 5 U.S.C. § 7123(a), an order under section 7122 concerning an arbitration award is excluded from judicial review unless it involves an unfair labor practice under section 7118.

Plain-English summary

An FAA electronic technician delivered parts from an agency site to a bidder who had bought a surplus lathe. The FAA imposed a 20 day suspension for unauthorized receipt and disposal of government property. An arbitrator found cause for discipline but reduced the suspension to 10 days because the original penalty was too severe. The union argued that the arbitrator had to decide ownership of the parts before finding cause. The Authority treated that objection as disagreement with the arbitrator's reasoning, denied review, and left the reduced suspension in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union's petition for review denied; arbitrator's 10 day suspension award left in place.
• Key point: Disagreement with the arbitrator's factual reasoning did not establish a ground for review.

Full text (FLRA public release)

[ v02 p680 ]

02:0680(85)AR

The decision of the Authority follows:

2 FLRA No. 85

FEDERAL AVIATION SCIENCE AND
TECHNOLOGICAL ASSOCIATION
Union

and

FEDERAL AVIATION ADMINISTRATION,
ALBUQUERQUE AIRWAY FACILITIES
SECTOR, SOUTHWEST REGION
Activity

Case No. 0-AR-20

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
AWARD OF ARBITRATOR SANFORD COHEN FILED BY THE UNION UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)).

ACCORDING TO THE ARBITRATOR, THE GRIEVANT IS AN ELECTRONIC TECHNICIAN
AT THE ACTIVITY. THIS MATTER AROSE WHEN A SUCCESSFUL BIDDER ON CERTAIN
SURPLUS GOVERNMENT PROPERTY (A METAL LATHE) ATTEMPTED TO RECOVER SOME
PARTS WHICH HE BELIEVED HAD BEEN STOLEN FROM THE LATHE AFTER HE HAD
SUBMITTED THE SUCCESSFUL BID. IN AN EFFORT TO FIND THE PARTS, THE
BIDDER SOUGHT THE ASSISTANCE OF A FRIEND, THE GRIEVANT, WHO WAS ABLE TO
LOCATE THE MISSING PARTS OF THE LATHE AND DELIVER THEM TO THE BIDDER.
THE PARTS WERE ON THE PREMISES OF THE ACTIVITY. SUBSEQUENTLY, THE
GRIEVANT WAS NOTIFIED THAT THE ACTIVITY HAD MADE A FINAL DECISION TO
SUSPEND HIM FOR 20 DAYS FOR "UNAUTHORIZED RECEIPT AND DISPOSAL OF
GOVERNMENT PROPERTY." THE GRIEVANT ALLEGED THAT THE SUSPENSION WAS IN
VIOLATION OF THE PARTIES' NEGOTIATED AGREEMENT. THE MATTER ULTIMATELY
WAS SUBMITTED TO ARBITRATION.

THE PARTIES STIPULATED THAT THE ISSUE BEFORE THE ARBITRATOR WAS:

DID THE FAA SUSPEND THE GRIEVANT . . . FOR JUST AND SUBSTANTIAL CAUSE
AND, IF SO, WAS THE

SUSPENSION OF 20 WORK DAYS A PROPER PENALTY?

THE ARBITRATOR FOUND, ON THE BASIS OF THE EVIDENCE AND TESTIMONY
BEFORE HIM, THAT THE GRIEVANT DID NOT ACT WITH ANY INTENT TO DEFRAUD THE
GOVERNMENT. HOWEVER, HE STATED THAT AT THE TIME THE GRIEVANT BECAME
INVOLVED IN THE DISPUTE BETWEEN THE ACTIVITY AND THE SUCCESSFUL BIDDER,
THE PROPERTY AT ISSUE WAS IN THE POSSESSION OF THE AGENCY. THEREFORE,
ACCORDING TO THE ARBITRATOR, "IT WAS IMPROPER FOR THE GRIEVANT TO HAVE
EFFECTUATED A TRANSFER OF THE PROPERTY FROM THE FAA TO (THE SUCCESSFUL
BIDDER)." THUS THE ARBITRATOR FOUND THAT THE AGENCY HAD JUST AND
SUBSTANTIAL CAUSE TO DISCIPLINE THE GRIEVANT. HOWEVER, THE ARBITRATOR
FURTHER FOUND THAT THE PENALTY OF A 20 DAY SUSPENSION WAS TOO SEVERE,
AND THEREFORE REDUCED IT TO A 10 DAY SUSPENSION. THE ARBITRATOR'S AWARD
WAS:

1. THE FAA SUSPENDED THE GRIEVANT . . . FOR JUST AND SUBSTANTIAL
   CAUSE.

2. ON THE BASIS OF CONSIDERATIONS SET FORTH ABOVE, THE SUSPENSION OF
   20 WORK DAYS IS REDUCED TO A SUSPENSION OF 10 WORK DAYS.

THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R. PART 2411
(1978), WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION
7122(A) OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7122(A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES
AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
44741), REMAIN OPERATIVE WITH RESPECT TO THIS CASE. THE UNION SEEKS
AUTHORITY ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE EXCEPTION
DISCUSSED BELOW. THE AGENCY DID NOT FILE AN OPPOSITION.

PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
BECAUSE IT IS CONTRARY TO LAW OR REGULATION, OR ON OTHER GROUNDS SIMILAR
TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
RELATIONS.

IN ITS EXCEPTION, THE UNION ALLEGES THAT THE ARBITRATOR'S AWARD IS
CONTRARY TO THE EVIDENCE, IS ARBITRARY AND CAPRICIOUS, AND IS BASED ON
AN IMPROPER CONCLUSION. IN SUPPORT OF THIS EXCEPTION, THE UNION ASSERTS
THAT THE ARBITRATOR COULD NOT FIND THAT THE ACTIVITY HAD JUST AND
SUBSTANTIAL CAUSE TO DISCIPLINE THE GRIEVANT FOR "UNAUTHORIZED RECEIPT
AND DISPOSAL OF GOVERNMENT PROPERTY" ABSENT A THRESHOLD FINDING
CONCERNING THE OWNERSHIP OF THE PROPERTY. THE ARBITRATOR MADE NO SUCH
FINDING, NOTING THAT "LEGAL OWNERSHIP OF THE . . . PARTS IS NOT AT ALL
CLEAR. . . . " IN THE UNION'S VIEW, THE ARBITRATOR'S FINDING REGARDING
THE GRIEVANT'S CONDUCT IN EFFECTUATING THE TRANSFER OF THE PROPERTY "IS
COMPLETELY INCOMPETENT IN THE ABSENCE OF THE RESOLUTION OF THE THRESHOLD
QUESTION." THEREFORE, ACCORDING TO THE UNION, THE AWARD IS ARBITRARY AND
CAPRICIOUS, CONTRARY TO THE EVIDENCE, AND BASED ON AN IMPROPER
CONCLUSION.

WITHOUT DECIDING WHETHER SUCH ASSERTIONS PRESENT A BASIS FOR REVIEW
OF AN ARBITRATOR'S AWARD IN THE FEDERAL SECTOR, THE UNION HAS NOT
DEMONSTRATED IN ITS PETITION IN WHAT WAY THE AWARD IS CONTRARY TO THE
EVIDENCE, IS ARBITRARY AND CAPRICIOUS, AND IS BASED ON AN IMPROPER
CONCLUSION. THE THRUST OF THE UNION'S EXCEPTION TO THE AWARD IS THAT
THE ARBITRATOR FAILED TO DECIDE THE QUESTION OF OWNERSHIP OF THE
PROPERTY IN ISSUE AND THAT SUCH A FAILURE SOMEHOW NEGATES THE
ARBITRATOR'S DETERMINATION, IN ANSWER TO THE QUESTION SUBMITTED TO HIM
AND BASED ON THE TESTIMONY AND EVIDENCE BEFORE HIM, THAT THE ACTIVITY'S
SUSPENSION OF THE GRIEVANT WAS FOR JUST AND SUFFICIENT CAUSE. THE
UNION'S EXCEPTION, IN EFFECT, REPRESENTS A DISAGREEMENT WITH THE
REASONING EMPLOYED BY THE ARBITRATOR ON THE MERITS OF THE ISSUE BEFORE
HIM. IT IS SETTLED LAW IN THE PRIVATE SECTOR THAT AN ARBITRATOR'S AWARD
IS NOT OPEN TO REVIEW ON THE MERITS. UNITED STEELWORKERS OF AMERICA V.
ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593 (1960); INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, LOCAL UNION NO.
874 V. ST. REGIS PAPER CO., 362 F.2D 711 (5TH CIR. 1966); CRIGGER V.
ALLIED CHEMICAL CORPORATION, SEMET-SOLUARY DIVISION, 500 F.2D 1218 (4TH
CIR. 1974). AND THE MERITS EMBRACE "NOT ONLY ASSERTED ERRORS IN
DETERMINING THE CREDIBILITY OF WITNESSES, THE WEIGHT TO BE GIVEN THEIR
TESTIMONY, AND THE DETERMINATION OF FACTUAL ISSUES, BUT ALSO THE
CONSTRUCTION AND APPLICATION OF THE COLLECTIVE BARGAINING AGREEMENT. .
. . " INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL
WORKERS, LOCAL UNION NO. 874, 362 F.2D AT 714. THIS PRINCIPLE APPLIED
BY FEDERAL COURTS IN PRIVATE SECTOR CASES IS LIKEWISE APPLICABLE TO
AUTHORITY REVIEW OF ARBITRATION AWARDS IN THE FEDERAL SECTOR. /1/ THUS,
THE AUTHORITY WILL NOT GRANT A PETITION FOR REVIEW WHERE, AS IN THIS
CASE, IT APPEARS FROM THE FACTS AND CIRCUMSTANCES PRESENTED THAT THE
UNION IS DISAGREEING WITH THE REASONING EMPLOYED BY THE ARBITRATOR ON
THE MERITS OF THE ISSUE BEFORE HIM. THEREFORE, THE UNION'S EXCEPTION
PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32
OF THE AMENDED RULES.

ACCORDINGLY, THE UNION'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE AMENDED RULES OF PROCEDURE.

ISSUED, WASHINGTON, D.C., FEBRUARY 21, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE LEGISLATIVE HISTORY TO THE STATUTE MAKES IT CLEAR THAT THE
SCOPE OF THE AUTHORITY'S REVIEW OF ARBITRATION AWARDS IS TO BE A LIMITED
ONE:

THE AUTHORITY WILL NOT BE AUTHORIZED TO REVIEW THE AWARD OF THE
ARBITRATOR ON VERY NARROW

GROUNDS SIMILAR TO THE SCOPE OF JUDICIAL REVIEW OF AN ARBITRATOR'S
AWARD IN THE PRIVATE

SECTOR. S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 153 (1978).