Aberdeen Lodge No. 2424, International Association of Machinists and Aerospace Workers (Union) and Aberdeen Proving Ground Command, Department of the Army (Activity) (Authority decision, June 18, 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

An Aberdeen employee grieved his nonselection for a railroad repairer job after the agency chose another best qualified applicant. The arbitrator found no contract breach. The Authority rejected the union’s challenges to the evidence and the selection ruling and sustained the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; nonselection award upheld.
• Key point: The union did not show that the arbitrator exceeded his authority or that the award was deficient.

Full text (FLRA public release)

[ v06 p129 ]

06:0129(25)AR

The decision of the Authority follows:

6 FLRA No. 25

ABERDEEN LODGE NO. 2424,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
Union

and

ABERDEEN PROVING GROUND COMMAND,
DEPARTMENT OF THE ARMY
Activity

Case No. O-AR-185

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR JACOB SEINDENBERG 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'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE ACTIVITY FAILED TO SELECT A WG-4 EMPLOYEE (THE GRIEVANT) FOR A
VACANT WG-6 RAILROAD REPAIRER POSITION. WHEN THE VACANCY WAS FIRST
POSTED, THE GRIEVANT WAS THE ONLY APPLICANT AND HE WAS RATED AS "BEST
QUALIFIED" FOR THE POSITION. THE SELECTING OFFICIAL DECIDED NOT TO
SELECT THE GRIEVANT AND INSTEAD REQUESTED THAT A CERTIFICATE CONTAINING
MORE NAMES BE RESUBMITTED TO HIM.

EVENTUALLY, A SECOND CERTIFICATE WAS ISSUED CONTAINING THE NAMES OF
THE GRIEVANT AND ANOTHER APPLICANT. BOTH CANDIDATES ON THE CERTIFICATE
WERE RATED AS "BEST QUALIFIED," BUT THE OTHER APPLICANT WAS SELECTED FOR
THE POSITION. A GRIEVANCE WAS FILED WHICH WAS SUBMITTED TO ARBITRATION
CLAIMING THAT THE ACTIVITY VIOLATED THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT WHEN IT FAILED TO SELECT THE GRIEVANT FOR THE POSITION.

AFTER REVIEWING THE AGREEMENT, THE ARBITRATOR FOUND THAT THERE WAS NO
VIOLATION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT IN NOT
SELECTING THE GRIEVANT FOR THE RAILROAD REPAIRER POSITION. IN
PARTICULAR, THE ARBITRATOR FOUND THAT IT WAS NOT A BREACH OF THE
AGREEMENT FOR A SELECTING OFFICIAL TO CONSIDER AN APPLICANT'S "CHARACTER
AND MORAL PROBITY." IN THIS RESPECT THE ARBITRATOR EXPRESSLY CONCLUDED
THAT THE SELECTING OFFICIAL HAD VALID AND REASONABLE GROUNDS FOR NOT
SELECTING THE GRIEVANT AND SELECTING INSTEAD ANOTHER BEST QUALIFIED
APPLICANT. THE ARBITRATOR NOTED THAT THE RECORD REVEALED THAT BEFORE
THIS DISPUTE AROSE THE GRIEVANT HAD BEEN APPREHENDED FOR A LARCENOUS
TAKING OF GOVERNMENT PROPERTY AND HAD APPEARED BEFORE A U.S. MAGISTRATE
WHO DEFERRED PROSECUTION OF THE CHARGE CONDITIONED ON THE AVOIDANCE BY
THE GRIEVANT OF ANY ADDITIONAL WRONGDOING. AT THE END OF THAT YEAR THE
CHARGE WAS DISMISSED BECAUSE THE GRIEVANT HAD NOT BEEN INVOLVED IN ANY
OTHER WRONGDOING. HOWEVER, IT WAS DURING THE PERIOD OF THIS CONTINGENT
DEFERRAL OF PROSECUTION THAT THE GRIEVANT WAS NOT SELECTED AND FILED THE
GRIEVANCE IN THIS CASE. THE ARBITRATOR DETERMINED ON THIS RECORD THAT
THE SELECTING OFFICIAL'S ACTION WAS BASED ON OBJECTIVE EVIDENCE AND THAT
THE OFFICIAL WAS NOT ARBITRARY OR UNREASONABLE IN HIS DECISION THAT "HE
DID NOT WANT TO BRING INTO HIS SECTION, AN EMPLOYEE WHO HAD BEEN
CONVICTED FOR A LARCENOUS TAKING OF GOVERNMENT PROPERTY, ESPECIALLY WHEN
HE ALREADY HAD AN ACUTE PROBLEM WITH (AN)OTHER EMPLOYEE, WHO ALSO HAD
BEEN CONVICTED ON THE SAME SERIOUS OFFENSE." ACCORDING, THE ARBITRATOR
DENIED THE GRIEVANCE.

THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
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 CONTENDS THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY BY ADMITTING INTO EVIDENCE A MANAGEMENT
MEMORANDUM NOTING THAT THE GRIEVANT HAD BEEN ADVISED OF THE SERIOUSNESS
OF THE LARCENY CHARGE AGAINST HIM AND A NOTICE FROM THE U.S. MAGISTRATE
OF THE FINAL DISPOSITION OF THAT CHARGE. IN SUPPORT OF THIS EXCEPTION,
THE UNION ARGUES THAT THE ADMISSION OF THIS EVIDENCE VIOLATED THE
COLLECTIVE BARGAINING AGREEMENT'S PROVISION GUARANTEEING THE
AVAILABILITY TO EACH PARTY OF INFORMATION PERTAINING TO A GRIEVANCE AND
VIOLATED A SECOND PROVISION BARRING AN ARBITRATOR FROM MODIFYING THE
AGREEMENT. HOWEVER, THE UNION FAILS TO DEMONSTRATE IN WHAT MANNER THE
ADMISSION OF THIS EVIDENCE BY THE ARBITRATOR WAS IN EXCESS OF HIS
AUTHORITY UNDER THE AGREEMENT PROVISIONS CITED BY THE UNION.
CONSEQUENTLY, NO BASIS IS PROVIDED FOR FINDING THE ARBITRATOR'S AWARD
DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
RULES AND REGULATIONS.

IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE AWARD IS
DEFICIENT UNDER SECTION 7122(A) OF THE STATUTE BECAUSE THE ARBITRATOR
SUBJECTED THE GRIEVANT TO A "DOUBLE JEOPARDY STANDARD PENALTY." IN
SUPPORT THE UNION CLAIMS THAT THE ARBITRATOR DENIED THE GRIEVANCE
BECAUSE HE CONCLUDED THAT THE GRIEVANT HAD BEEN CONVICTED OF A LARCENOUS
TAKING OF GOVERNMENT PROPERTY. MAINTAINING THAT IN FACT THE CHARGE WAS
DISMISSED, THE UNION ARGUES THAT THE ARBITRATOR IMPROPERLY IMPOSED A
DOUBLE JEOPARDY PENALTY ON THE GRIEVANT. HOWEVER, THE UNION FAILS TO
DEMONSTRATE IN WHAT MANNER THE AWARD IS DEFICIENT UNDER SECTION 7122(A)
OF THE STATUTE AS CONTRARY TO LAW, RULE, OR REGULATION OR ON GROUNDS
SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS CASES. AS NOTED, THE ARBITRATOR ACCURATELY
DESCRIBED THE DISPOSITION OF THE LARCENY CHARGE AGAINST THE GRIEVANT AS
INITIALLY DEFERRED AND ULTIMATELY DISMISSED. THE SOLE REFERENCE IN THE
AWARD TO A "CONVICTION" WAS IN THE ARBITRATOR'S RESTATEMENT OF THE
SELECTING OFFICIAL'S ARTICULATION OF WHY HE DID NOT SELECT THE GRIEVANT
AT A TIME THE LARCENY CHARGE AGAINST THE GRIEVANT WAS STILL
CONDITIONALLY DEFERRED. ALTHOUGH THE OFFICIAL IMPRECISELY CHARACTERIZED
THE GRIEVANT'S STATUS, WHAT THE ARBITRATOR FOUND DISPOSITIVE WAS THAT
CONSISTENT WITH THE COLLECTIVE BARGAINING AGREEMENT AN APPLICANT'S
CHARACTER COULD PROPERLY BE CONSIDERED AND THAT THE OFFICIAL'S JUDGMENT
THAT THE GRIEVANT WAS NOT A "SUITABLE CANDIDATE" WAS VALID AND
REASONABLE. IT WAS FOR THESE REASONS THAT THE ARBITRATOR FOUND NO
VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT WHEN THE SELECTING
OFFICIAL CHOSE A BEST QUALIFIED APPLICANT OTHER THAN THE GRIEVANT.
THUS, CONTRARY TO THE ASSERTIONS OF THE UNION, THE ARBITRATOR DID NOT
"IN FACT FIND THE GRIEVANT CONVICTED" AND DID NOT "RUL(E) AGAINST THE
GRIEVANT'S GRIEVANCE" ON THAT BASIS. MOREOVER, THE UNION FAILS TO
ESTABLISH IN TERMS OF THIS CASE ANY PENALTY OF DOUBLE JEOPARDY, WHICH
PERTAINS EXCLUSIVELY TO CRIMINAL PROSECUTIONS, BY THE ARBITRATOR'S
RULING THAT IT WAS NOT IMPROPER FOR THE SELECTING OFFICIAL TO CONSIDER
THE GRIEVANT'S CHARACTER IN MAKING A SELECTION BETWEEN BEST QUALIFIED
APPLICANTS FOR THE PROMOTION. CONSEQUENTLY, THE UNION'S SECOND
EXCEPTION PROVIDES NO BASIS FOR FINDING THE ARBITRATOR'S AWARD DEFICIENT
UNDER SECTION 7122(A) OF THE STATUTE AND SECTION 2425.3 OF THE
AUTHORITY'S RULES.

FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.

ISSUED, WASHINGTON, D.C., JUNE 18, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ 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.