Federal Aviation Science and Technological Association (Union) and Federal Aviation Administration, Albuquerque Airway Facilities Sector, Southwest Region (Activity) 



[ 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