Veterans Administration, Regional Office (Activity) and Service Employees International Union, Local 556, AFL-CIO (Union)



[ v05 p463 ]
05:0463(59)AR
The decision of the Authority follows:


 5 FLRA No. 59
 
 VETERANS ADMINISTRATION
 REGIONAL OFFICE
 Activity
 
 and
 
 SERVICE EMPLOYEES INTERNATIONAL
 UNION, LOCAL 556, AFL-CIO
 Union
 
                                            Case No. 0-AR-25
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR R. CHARLES BOCKEN 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, THIS DISPUTE INVOLVED THE
 ACTIVITY'S SUSPENSION OF THE GRIEVANT.  THE ARBITRATOR EXPLAINED THE
 BACKGROUND AS CONCERNING A NEW PROCEDURE ESTABLISHED BY THE ACTIVITY FOR
 A MORE EQUITABLE ASSIGNMENT OF APPRAISALS FOR ITS LOAN GUARANTEE
 PROGRAM.  WHEN IT WAS DISCOVERED THAT THE GRIEVANT HAD NOT BEEN
 FOLLOWING THE NEW PROCEDURE, SHE WAS SUSPENDED FOR REFUSING TO OBEY A
 DIRECT ORDER.  SHE FILED A GRIEVANCE PROTESTING HER SUSPENSION AND THE
 GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE PARTIES SUBMITTED TO THE ARBITRATOR THE ISSUES OF WHETHER THE
 SUSPENSION WAS FOR A JUSTIFIABLE REASON AND, IF SO, WHETHER THE LENGTH
 OF THE SUSPENSION WAS APPROPRIATE PUNISHMENT.  THE ARBITRATOR FOUND THAT
 THE EVIDENCE WAS CLEAR AND CONVINCING THAT THE GRIEVANT HAD BEEN GIVEN
 INSTRUCTIONS CONCERNING THE NEW PROCEDURE AND THAT SHE HAD BEEN ORDERED
 TO FOLLOW THE NEW PROCEDURE.  HE NOTED THAT THE GRIEVANT'S DEFENSE WAS
 THAT WITHOUT THE NEW APPRAISAL PROCEDURE HAVING BEEN INCLUDED IN HER
 POSITION DESCRIPTION, SHE WAS NOT FAILING TO FOLLOW ANY ORDER, BUT WAS
 SIMPLY COMPLYING WITH HER POSITION DESCRIPTION.  HOWEVER, THE ARBITRATOR
 CONCLUDED THAT THIS DEFENSE WAS WITHOUT MERIT BECAUSE NO EVIDENCE WAS
 PRESENTED THAT THE NEW PROCEDURE HAD TO BE INCORPORATED IN THE
 GRIEVANT'S POSITION DESCRIPTION TO HAVE BEEN VALID.  THUS, HE FOUND THAT
 THE GRIEVANT WAS OBLIGATED TO FOLLOW THE INSTRUCTIONS AND ORDER OF HER
 SUPERVISORS.  HE FURTHER FOUND THAT THE GRIEVANT HAD BEEN GIVEN AMPLE
 OPPORTUNITY TO COMPLY WITH THE ORDER, BUT THAT SHE HAD WILLFULLY REFUSED
 TO DO SO.  ACCORDINGLY, THE ARBITRATOR RULED THAT THE GRIEVANT'S
 PERSISTENT REFUSAL TO CARRY OUT THE INSTRUCTIONS WAS UNREASONABLE AND
 INSUBORDINATE.
 
    AS TO THE PENALTY, THE ARBITRATOR RULED THAT THE LENGTH OF THE
 SUSPENSION WAS NOT UNREASONABLE.  IN THIS RESPECT, HE SPECIFICALLY NOTED
 THAT THE GRIEVANT'S CONDUCT EXTENDED OVER A PERIOD OF TIME AND WAS
 NEITHER THE RESULT OF A MISUNDERSTANDING NOR AN ISOLATED AND SPONTANEOUS
 OCCURRENCE;  THAT THE GRIEVANT WAS OFFERED EVERY OPPORTUNITY TO COMPLY
 WITH THE ORDER GIVEN HER;  AND THAT THERE WAS NO EXCUSE FOR HER FAILURE
 TO FOLLOW THE NEW APPRAISAL PROCEDURE WHICH HAD BEEN ESTABLISHED TO
 PROVIDE A MORE EQUITABLE TREATMENT OF ASSIGNMENTS TO APPRAISERS.
 
    THE ARBITRATOR ALSO SPECIFICALLY ADDRESSED THE UNION'S ARGUMENT THAT
 THE GRIEVANT HAD BEEN PREJUDICED BY THE ACTIVITY'S REFUSAL TO PROVIDE
 THE UNION WITH ADVANCE ACCESS TO SOME OF MANAGEMENT'S DOCUMENTARY
 EVIDENCE.  THE ARBITRATOR AGREED THAT MANAGEMENT SHOULD HAVE BEEN MORE
 OPEN WITH THE UNION.  HOWEVER, HE NOTED THAT THE ESSENTIAL WITNESSES TO
 THE ACTS OF INSUBORDINATION WERE PRESENT AT THE HEARING AND TESTIFIED;
 THAT THE GRIEVANT WAS PRESENT AT THE HEARING, TESTIFIED ON HER OWN
 BEHALF, AND HER UNION REPRESENTATIVE EXERCISED THE RIGHT OF CROSS
 EXAMINATION OF MANAGEMENT WITNESSES;  AND THAT THE UNION REPRESENTATIVE
 DID NOT REQUEST A CONTINUATION OF THE HEARING TO EXAMINE ANY DOCUMENTARY
 EVIDENCE AND FURTHER PREPARE FOR THE GRIEVANT'S DEFENSE.  THUS, THE
 ARBITRATOR CONCLUDED THAT THERE WAS NO INDICATION THAT ANY SUBSTANTIAL
 RIGHT OF THE GRIEVANT HAD BEEN PREJUDICED AT THE HEARING.  FOR ALL THESE
 REASONS, THE ARBITRATOR DENIED THE GRIEVANCE.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD WITH THE
 AUTHORITY.  THEREAFTER, THE UNION AND THE GRIEVANT FILED WITH THE
 ARBITRATOR A MOTION, OPPOSED BY THE ACTIVITY, TO HAVE THE ARBITRATOR
 REOPEN OR RECONSIDER HIS WARD.  THE ARBITRATOR DENIED THE MOTION,
 DETERMINING THAT HE WAS WITHOUT JURISDICTION PURSUANT TO THE PARTIES'
 NEGOTIATED AGREEMENT TO REOPEN OR RECONSIDER HIS AWARD.  THE UNION HAS
 ALSO FILED AN EXCEPTION TO THE ARBITRATOR'S DENIAL OF THE MOTION TO
 REOPEN.  /1/
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  /3/ THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION OR IS DEFICIENT ON OTHER
 GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION TO THE ARBITRATOR'S AWARD, THE PETITIONER /4/
 CONTENDS THAT THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION TO THE
 GRIEVANT AND THEREFORE THE AWARD MUST BE SET ASIDE.  IN SUPPORT OF THIS
 EXCEPTION, THE PETITIONER SPECIFICALLY IDENTIFIES NUMEROUS ACTS AND
 OMISSIONS BY THE UNION AND ITS REPRESENTATIVE BEFORE AND DURING THE
 ARBITRATION HEARING WHICH THE PETITIONER ASSERTS CONSTITUTE A BREACH OF
 THE DUTY OF FAIR REPRESENTATION.  THE PETITIONER MAINTAINS THAT THE
 REASONS EXPRESSED BY THE U.S. SUPREME COURT IN VACA V. SIPES /5/ AND
 HINES V. ANCHOR MOTOR FREIGHT, INC.  /6/ FOR FINDING A DUTY OF FAIR
 REPRESENTATION IN THE PRIVATE SECTOR ALSO APPLY TO THE FEDERAL SECTOR,
 AND THEREFORE THE AWARD SHOULD BE FOUND DEFICIENT.
 
    IN ACCORDANCE WITH SECTION 7122(A)(2) OF THE STATUTE AND PART 2425 OF
 THE AUTHORITY'S RULES, THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN
 AN EXCEPTION PRESENTS AND SUPPORTS A GROUND "SIMILAR TO THOSE APPLIED BY
 FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS (CASES)." 5
 U.S.C. 7122(A)(2);  5 CFR 2425.3.  FOR THE REASONS THAT FOLLOW, AN
 EXCEPTION ALLEGING THAT A UNION BREACHED ITS DUTY OF FAIR REPRESENTATION
 DOES NOT STATE A GROUND "SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS (CASES)" IN JUDICIALLY
 REVIEWING AN ARBITRATION AWARD AND THUS PROVIDES NO BASIS FOR FINDING AN
 AWARD DEFICIENT IN THE FEDERAL SECTOR.
 
    THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON CONFERENCE, IN
 EXPLAINING THE PROVISIONS FOR REVIEW OF ARBITRATION AWARDS, STATED IN
 THE CONFERENCE REPORT WHICH ACCOMPANIED THE BILL THAT WAS ENACTED AND
 SIGNED INTO LAW, AS FOLLOWS:  /7/
 
    THE AUTHORITY WILL ONLY 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.  CONSISTENT WITH CONGRESSIONAL INTENT, THE AUTHORITY, IN
 DETERMINING WHETHER A PARTICULAR ARBITRATION AWARD BEING REVIEWED IS
 DEFICIENT UNDER THE PROVISIONS OF SECTION 7122(A)(2) OF THE STATUTE,
 APPLIES ONLY GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR CASES IN WHICH AN ARBITRATION AWARD IS BEING DIRECTLY
 REVIEWED, SUCH AS IN CASES ARISING FROM AN ACTION TO ENFORCE, MODIFY, OR
 VACATE THE AWARD.  AN EXCEPTION THAT AN ARBITRATOR'S AWARD IS DEFICIENT
 BECAUSE THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION IS NOT
 SIMILAR TO ANY GROUND APPLIED BY FEDERAL COURTS TO FIND AN ARBITRATION
 AWARD DEFICIENT IN AN ACTION DIRECTLY REVIEWING THAT AWARD, SUCH AS IN
 AN ACTION TO ENFORCE, MODIFY, OR VACATE THE AWARD.
 
    HINES V. ANCHOR MOTOR FREIGHT, INC., /8/ WHICH THE PETITIONER HAS
 CITED AS GENERAL SUPPORT FOR HIS EXCEPTION, INVOLVED AN ACTION BROUGHT
 BY CERTAIN DISCHARGED EMPLOYEES (WHOSE DISCHARGES HAD BEEN UPHELD IN
 ARBITRATION) UNDER SECTION 301 OF THE LABOR-MANAGEMENT RELATIONS ACT (29
 U.S.C. 185) CHARGING THE EMPLOYER WITH A BREACH OF THE COLLECTIVE
 BARGAINING AGREEMENT (THAT DISCHARGES SHALL ONLY BE FOR JUST CAUSE) AND
 THE UNION WITH A BREACH OF ITS DUTY OF FAIR REPRESENTATION.
 CHARACTERIZING THE ACTION AS ONE FOR "WRONGFUL DISCHARGE," THE SUPREME
 COURT RULED THAT THE EMPLOYEES COULD OBTAIN JUDICIAL REVIEW OF THE
 PROPRIETY OF THEIR DISCHARGES, DESPITE THE ADVERSE FINAL AND BINDING
 ARBITRATION AWARD, BUT ONLY IF THEY FIRST DEMONSTRATED THAT THEIR UNION
 BREACHED ITS DUTY OF FAIR REPRESENTATION IN CONNECTION WITH THE
 ARBITRATION PROCEEDING.  ON THE BASIS OF HINES, IT HAS BEEN HELD THAT
 SUCH A CLAIM THAT THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION IS
 NOT IN THE NATURE OF AN ACTION TO VACATE OR MODIFY THE ARBITRATION AWARD
 BECAUSE IT IS NOT DIRECTLY CONCERNED WITH OBTAINING FEDERAL COURT REVIEW
 OF THE ARBITRATION AWARD AND A FEDERAL COURT ORDER VACATING THE AWARD.
 SMART V. ELLIS TRUCKING CO., INC., 580 F.2D 215, 219 (6TH CIR. 1978),
 CERT. DENIED 440 U.S. 958 (1979).  ALTHOUGH IT HAS BEEN RECOGNIZED THAT
 SUCH CLAIMS MAY IN SOME CASES ULTIMATELY RESULT IN A JUDGMENT THAT
 EFFECTIVELY NULLIFIES THE ARBITRATION AWARD INVOLVED, THESE CLAIMS OF A
 BREACH OF THE DUTY OF FAIR REPRESENTATION ARE VIEWED AS DISTINCT FROM
 AND INDEPENDENT OF THE GRIEVANCE AND ARBITRATION PROCESS.  ID. AT 219.
 /9/
 
    ACCORDINGLY, THE EXCEPTION THAT THE ARBITRATOR'S AWARD IS DEFICIENT
 BECAUSE THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION DOES NOT
 STATE A GROUND ON WHICH THE AUTHORITY MAY FIND AN ARBITRATION AWARD
 DEFICIENT UNDER THE STATUTE.  THEREFORE, THIS FIRST EXCEPTION PROVIDES
 NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND
 SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.  /10/
 
    IN ITS SECOND EXCEPTION, THE UNION CONTENDS THAT THE ARBITRATOR
 FAILED TO CONDUCT A FAIR HEARING BY FAILING TO CONSIDER MITIGATING
 CIRCUMSTANCES AND BY FAILING TO EXCLUDE ERRONEOUS AND IMPROPER EVIDENCE.
  WITH RESPECT TO THE ARBITRATOR'S ASSERTED FAILURE TO CONSIDER
 MITIGATING CIRCUMSTANCES, THE UNION CLAIMS THAT MANAGEMENT WITNESSES
 TESTIFIED THAT THE GRIEVANT DID NOT REFUSE TO PERFORM IN ACCORDANCE WITH
 THE NEW PROCEDURE AND THAT THE GRIEVANT DID NOT STATE THAT SHE WOULD NOT
 PERFORM IN ACCORDANCE WITH THE NEW PROCEDURE.  THE UNION ALSO ARGUES
 THAT THERE WAS TESTIMONY AS TO CONFUSION REGARDING THE NEW PROCEDURE
 WHICH, CONTRARY TO THE FINDINGS OF THE ARBITRATOR, INDICATED THAT THERE
 WAS NO "WILLFUL" OR "DELIBERATE" REFUSAL BY THE GRIEVANT TO FOLLOW THE
 PROCEDURE.
 
    ALTHOUGH THE AUTHORITY WILL FIND AN ARBITRATOR'S AWARD DEFICIENT ON
 THE GROUND THAT THE ARBITRATOR FAILED TO CONDUCT A FAIR HEARING BY
 REFUSING TO HEAR PERTINENT AND MATERIAL EVIDENCE, NATIONAL BORDER PATROL
 COUNCIL AND NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND
 UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
 SERVICE, 3 FLRA NO. 62 (1980), THE UNION'S CONTENTION THAT THE
 ARBITRATOR FAILED TO CONDUCT A FAIR HEARING BY FAILING TO CONSIDER
 MITIGATING CIRCUMSTANCES PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  AS WAS INDICATED IN NATIONAL BORDER PATROL COUNCIL, FEDERAL
 COURTS FIND ARBITRATION AWARDS DEFICIENT AS DENYING A FAIR HEARING
 PRIMARILY WHEN AN ARBITRATOR'S CHALLENGED RULINGS HAD PRECLUDED
 CONSIDERATION OF ALL THE PERTINENT AND MATERIAL EVIDENCE.  IN THIS CASE,
 HOWEVER, THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR REFUSED TO
 HEAR CERTAIN TESTIMONY OR REFUSED TO ACCEPT CERTAIN PROFFERED EVIDENCE.
 INSTEAD, THE UNION'S ARGUMENT IS SOLELY THAT THE ARBITRATOR FAILED, IN
 ITS VIEW, TO PROPERLY CONSIDER TESTIMONY THAT WAS ACTUALLY HEARD.  THUS,
 THE UNION'S CONTENTION THAT THE ARBITRATOR FOR THIS REASON FAILED TO
 CONDUCT A FAIR HEARING IN EFFECT REPRESENTS A DISAGREEMENT WITH THE
 ARBITRATOR'S EVALUATION OF THE EVIDENCE AND TESTIMONY BEFORE HIM AND IS
 AN ATTEMPT TO RELITIGATE THE MERITS OF THIS CASE BEFORE THE AUTHORITY.
 THIS CONTENTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND FEDERAL
 AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR, SOUTHWEST
 REGION, 2 FLRA NO. 85 (1980);  VETERANS ADMINISTRATION HOSPITAL, PERRY
 POINT, MARYLAND AND LOCAL 331, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, 3 FLRA NO. 34 (1980).
 
    THE UNION HAS ALSO CONTENDED THAT THE ARBITRATOR FAILED TO CONDUCT A
 FAIR HEARING BY NOT EXCLUDING ERRONEOUS AND IMPROPER EVIDENCE.  THE
 UNION ASSERTS THAT THE ARBITRATOR ERRED IN ADMITTING INTO EVIDENCE
 MATTERS THAT RELATED TO PRIOR GRIEVANCES AND DISPUTES BETWEEN THE
 GRIEVANT AND MANAGEMENT OFFICIALS BECAUSE THEY WERE NOT RELEVANT TO THE
 SUBJECT MATTER OF THE GRIEVANCE.  IT ALSO ASSERTS THAT THE ARBITRATOR
 ERRED IN ADMITTING EVIDENCE AS TO CERTAIN REQUIREMENTS OF THE NEW
 PROCEDURE BECAUSE THIS WAS EVIDENCE WHICH THE ARBITRATOR ACKNOWLEDGED
 THAT THE UNION SHOULD HAVE BEEN PROVIDED ADVANCE ACCESS TO, BUT WAS NOT.
 
    THE AUTHORITY HAS PREVIOUSLY ADDRESSED, IN NATIONAL BORDER PATROL
 COUNCIL, SUPRA, THE CONTENTION THAT AN ARBITRATOR'S AWARD WAS DEFICIENT
 BECAUSE THE ARBITRATOR FAILED TO CONDUCT A FAIR HEARING BY NOT EXCLUDING
 CERTAIN EVIDENCE.  IN THAT CASE THE AUTHORITY DETERMINED THAT SUCH A
 CONTENTION PROVIDED NO BASIS FOR FINDING THE AWARD DEFICIENT BY
 EMPHASIZING THAT ALTHOUGH REFUSAL TO HEAR EVIDENCE MAY CONSTITUTE A
 DENIAL OF A FAIR HEARING, FEDERAL COURTS HAVE LONG RECOGNIZED AND
 ACCEPTED THE ARBITRATION PRACTICE OF LIBERAL ADMISSION BY ARBITRATORS OF
 BOTH TESTIMONY AND EVIDENCE.  THUS, THE UNION'S ASSERTION THAT IT WAS
 ERROR FOR THE ARBITRATOR TO ADMIT MATTERS ASSERTEDLY NOT RELEVANT TO THE
 GRIEVANCE FAILS TO SUPPORT ITS CONTENTION THAT THE ARBITRATOR FAILED TO
 CONDUCT A FAIR HEARING.  THE UNION'S FURTHER ASSERTION THAT IT WAS ERROR
 TO ADMIT EVIDENCE AS TO THE REQUIREMENTS OF THE NEW PROCEDURE BECAUSE
 THIS WAS EVIDENCE TO WHICH THE UNION SHOULD HAVE BEEN PROVIDED ADVANCE
 ACCESS LIKEWISE FAILS TO SUPPORT ITS CONTENTION THAT THE ARBITRATOR
 FAILED TO CONDUCT A FAIR HEARING.  IN THIS RESPECT, AS WAS NOTED, THE
 ARBITRATOR SPECIFICALLY ADDRESSED THE QUESTION OF WHETHER MANAGEMENT'S
 ACTIONS OF REFUSING THE UNION ADVANCE ACCESS TO THIS EVIDENCE PRECLUDED
 A FAIR HEARING.  HE EXPRESSLY CONCLUDED AFTER CAREFUL CONSIDERATION OF
 THE CONDUCT OF THE ENTIRE HEARING THAT THE PRESENTATION OF THIS EVIDENCE
 DID NOT PREJUDICE ANY SUBSTANTIAL RIGHT OF THE GRIEVANT.  THEREFORE, THE
 UNION'S SECOND EXCEPTION THAT THE ARBITRATOR FAILED TO CONDUCT A FAIR
 HEARING BY FAILING TO CONSIDER MITIGATING CIRCUMSTANCES AND BY FAILING
 TO EXCLUDE ERRONEOUS AND IMPROPER EVIDENCE PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES AND REGULATIONS.
 
    IN ITS THIRD EXCEPTION TO THE ARBITRATOR'S AWARD, THE UNION CONTENDS
 THAT THE AWARD IS BASED ON NON-FACTS.  IN SUPPORT THE UNION ASSERTS THAT
 THE CENTRAL FACTS UNDERLYING THE AWARD ARE CLEARLY ERRONEOUS AND IN FACT
 ARE A GROSS MISTAKE BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
 REACHED.  IN THIS RESPECT, IT IS MAINTAINED THAT THE AWARD RESTS ON TWO
 CENTRAL DETERMINATIONS:  (1) THAT THE GRIEVANT WAS GUILTY OF MULTIPLE,
 REPEATED INFRACTIONS AND THEREFORE THE SUSPENSION WAS NOT UNREASONABLE;
 AND (2) THAT THE ACTIVITY HAD SPECIFICALLY FOUND THAT THE GRIEVANT'S
 MANNER OF ASSIGNING LOAN APPRAISAL WORK VIOLATED AGENCY REGULATION,
 POLICY, OR OTHER AUTHORITY.  THE UNION CLAIMS THAT BOTH OF THESE
 DETERMINATIONS WERE ERRONEOUS AND THAT THE ARBITRATOR WOULD HAVE
 REACHED
 A DIFFERENT DECISION IF THESE CENTRAL FACTS HAD BEEN PROPERLY
 DETERMINED.
 
    THE AUTHORITY WILL FIND AN ARBITRATION AWARD DEFICIENT ON THE GROUND
 THAT THE CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY ERRONEOUS AND
 IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT
 WOULD HAVE BEEN REACHED.  UNITED STATES ARMY MISSILE MATERIEL READINESS
 COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1858, AFL-CIO, 2 FLRA NO. 60 (1980).  HOWEVER, IN THIS CASE THE
 UNION HAS FAILED TO DEMONSTRATE THAT THE ALLEGED "NON-FACTS" WERE THE
 CENTRAL FACTS UNDERLYING THE ARBITRATOR'S AWARD, THAT THEY WERE
 CONCEDEDLY ERRONEOUS, AND THAT THEY WERE GROSS MISTAKES OF FACT BUT FOR
 WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED BY THE ARBITRATOR.
 
    UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND.  MORE
 PARTICULARLY, THE UNION HAS NOT DEMONSTRATED THAT THE ARBITRATOR NOT
 ONLY ERRED IN HIS VIEW OF THE FACTS, BUT THAT THE ARBITRATOR'S
 ARTICULATED BASIS FOR RENDERING THE AWARD WAS CONCEDEDLY AND
 INDISPUTABLY IN ERROR.  FURTHER, THE UNION HAS NOT DEMONSTRATED THAT THE
 EVIDENCE IN THIS CASE DISCLOSES A GROSS MISTAKE OF FACT AND THAT BUT FOR
 THE ARBITRATOR'S MISAPPREHENSION WITH RESPECT TO THIS FACT, AND IN
 ACCORDANCE WITH HIS EXPRESSED RATIONALE, HE WOULD HAVE REACHED A
 DIFFERENT RESULT IN HIS AWARD.  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 987 AND WARNER ROBINS AIR LOGISTICS CENTER,
 ROBINS AIR FORCE BASE, GEORGIA, 3 FLRA NO. 89 (1980).  INSTEAD, THE
 UNION'S ASSERTIONS, WHICH ARE DIRECTED TO THE ARBITRATOR'S ALLEGED
 "ERRONEOUS DETERMINATIONS," CONSTITUTE NOTHING MORE THAN DISAGREEMENT
 WITH THE ARBITRATOR'S FINDINGS OF FACT AND WITH HIS SPECIFIC REASONING
 AND CONCLUSIONS BASED ON THE EVIDENCE AND TESTIMONY BEFORE HIM.  SUCH
 ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD DEFICIENT.  UNITED
 STATES ARMY MISSILE MATERIEL READINESS COMMAND.  ACCORDINGLY, THE
 UNION'S THIRD EXCEPTION THAT THE AWARD IS BASED ON NON-FACTS PROVIDES NO
 BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    IN ITS FOURTH EXCEPTION, THE UNION CONTENDS THAT THE AWARD
 CONSTITUTES AN ERRONEOUS INTERPRETATION AND APPLICATION OF LAW,
 REGULATION, AND POLICY.  PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE,
 THE AUTHORITY WILL FIND AN AWARD DEFICIENT IF THE AWARD IS CONTRARY TO
 LAW, RULE, OR REGULATION.  HOWEVER, THE UNION HAS FAILED TO DEMONSTRATE
 IN WHAT MANNER THIS AWARD IS CONTRARY TO LAW OR REGULATION.  AS WAS
 NOTED, THE ARBITRATOR DENIED THE GRIEVANCE (THAT QUESTIONED WHETHER THE
 GRIEVANT'S SUSPENSION WAS FOR A JUSTIFIABLE REASON AND, IF SO, WHETHER
 THE LENGTH OF THE SUSPENSION WAS APPROPRIATE PUNISHMENT) ON THE BASIS OF
 THE EVIDENCE AND TESTIMONY BEFORE HIM WHICH HE FOUND TO BE CLEAR AND
 CONVINCING THAT THE GRIEVANT'S REFUSAL TO CARRY OUT THE INSTRUCTIONS
 GIVEN HER WAS UNREASONABLE AND INSUBORDINATE AND ON THE BASIS OF HIS
 FINDING THAT SUCH INSUBORDINATION JUSTIFIED THE LENGTH OF SUSPENSION
 GIVEN HER.  THE UNION'S CITATION TO VARIOUS LAWS AND REGULATIONS ARE
 MADE IN CONNECTION WITH ITS EXCEPTIONS REGARDING THE ALLEGED BREACH OF
 THE DUTY OF FAIR REPRESENTATION AND THE ARBITRATOR'S FAILURE TO EXCLUDE
 CERTAIN EVIDENCE.  HOWEVER, AS PREVIOUSLY INDICATED, THESE EXCEPTIONS
 PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.  FURTHER, THE UNION
 HAS NOT OTHERWISE DEMONSTRATED IN WHAT MANNER THE AWARD ITSELF IS
 CONTRARY TO ANY SPECIFIC LAW, RULE, OR REGULATION.  ACCORDINGLY, THE
 UNION'S FOURTH EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.
 
    IN ITS FIFTH EXCEPTION TO THE ARBITRATOR'S AWARD, THE UNION CONTENDS
 THAT NEW PERTINENT AND MATERIAL EVIDENCE JUSTIFIES REVERSING THE AWARD.
 IT APPEARS FROM THE UNION'S ASSERTIONS IN SUPPORT OF ITS EXCEPTION THAT
 THE "NEW EVIDENCE" INCLUDES BOTH EVIDENCE IN EXISTENCE AT THE TIME OF
 THE ARBITRATION HEARING THAT WAS NOT PRESENTED TO THE ARBITRATOR AND
 EVIDENCE THAT HAS COME INTO EXISTENCE SINCE THE ARBITRATION HEARING.
 
    AS PREVIOUSLY NOTED, THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN
 AN EXCEPTION PRESENTS AND SUPPORTS A GROUND SIMILAR TO THOSE APPLIED BY
 FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.
 HOWEVER, FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS
 CASES HAVE CONSISTENTLY HELD THAT ARBITRATION AWARDS ARE NOT SUBJECT TO
 REVIEW ON THE BASIS EITHER OF EVIDENCE IN EXISTENCE AT THE TIME OF THE
 ARBITRATION HEARING BUT NOT PRESENTED TO THE ARBITRATOR OR OF EVIDENCE
 THAT HAS COME INTO EXISTENCE ONLY SINCE THE ARBITRATION HEARING.  E.G.,
 WASHINGTON-BALTIMORE NEWSPAPER GUILD, LOCAL 35 V. WASHINGTON POST CO.,
 442 F.2D 1234 (D.C. CIR. 1971);  BRIDGEPORT;  ROLLING MILLS CO. V.
 BROWN, 314 F.2D 885 (2D CIR.), CERT. DENIED 375 U.S. 821;  (1963);
 PAPERHANDLERS UNION NO. 1 V. U.S. TRUCKING CORP., 441 F.SUPP. 469
 (S.D.N.Y. 1977).  EVEN WHEN NEW EVIDENCE OR TESTIMONY IS DISCOVERED
 WHICH WOULD HAVE RESULTED IN A DIFFERENT AWARD IF IT HAS BEEN PRESENTED
 AT THE ARBITRATION HEARING, IT HAS BEEN EXPRESSLY HELD THAT THIS IS NOT
 A SUFFICIENT GROUND FOR "VITIATING THE REQUIRED FINALITY OF THE ORIGINAL
 AWARD." PAPERHANDLERS UNION, 441 F.SUPP. AT 475.  LIKEWISE, IN
 BRIDGEPORT ROLLING MILLS CO., 314 F.2D AT 885-86, THE COURT STATED:
 
    THAT THE EMPLOYER. . . MAY HAVE HAD, OR MAY NOW HAVE, SUFFICIENT
 EVIDENCE TO JUSTIFY (A
 
    DIFFERENT RESULT) IS IRRELEVANT TO THE ISSUES THE ARBITRATOR HEARD
 AND HAS NO BEARING UPON THE
 
    ARBITRATOR'S DETERMINATION. . .
 
   .          .          .          .
 
 
    (P)ARTIES, HAVING AGREED TO AN ARBITRATION OF THEIR DIFFERENCES, ARE
 BOUND BY THE
 
    ARBITRATION AWARD MADE UPON THE TESTIMONY BEFORE THE ARBITRATOR.
 SIMILARLY, IN UPHOLDING THE DISTRICT COURT JUDGE'S ORDER, THE COURT IN
 WASHINGTON-BALTIMORE NEWSPAPER GUILD, 442 F.2D AT 1238, APPROVINGLY
 CITED THE JUDGE'S CONCLUSION THAT
 
    (U)NLESS PARTIES ARE BOUND BY THE RECORDS MADE BEFORE THE
 ARBITRATORS, THE PIECEMEAL OR
 
    STAGGERED SUBMISSION OF EVIDENCE WOULD BE LIKELY TO ERODE THE
 EFFECTIVENESS OF ARBITRATION AS
 
    A SPEEDY AND EFFICIENT FORUM FOR RESOLVING LABOR DISPUTES.  THESE
 PRINCIPLES APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR CASES ARE
 LIKEWISE APPLICABLE TO AUTHORITY REVIEW OF ARBITRATION AWARDS IN THE
 FEDERAL SECTOR.  THEREFORE, THE UNION'S FIFTH EXCEPTION THAT NEW
 EVIDENCE JUSTIFIES REVERSING THE AWARD PROVIDES NO BASIS FOR FINDING THE
 AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES AND REGULATIONS.
 
    AS NOTED, THE UNION HAS ALSO FILED AN EXCEPTION TO THE ARBITRATOR'S
 DENIAL OF THE UNION'S MOTION TO HAVE THE ARBITRATOR REOPEN OR RECONSIDER
 HIS AWARD DENYING THE GRIEVANCE.  IN ITS EXCEPTION TO THIS AWARD, THE
 UNION CONTENDS THAT THE ARBITRATOR'S DECISION THAT HE WAS WITHOUT
 AUTHORITY UNDER THE PARTIES' AGREEMENT TO REOPEN OR RECONSIDER HIS AWARD
 DENYING THE GRIEVANCE IS CONTRARY TO CASE LAW.  IN SUPPORT OF THIS
 EXCEPTION, THE UNION EMPHASIZES THAT THE PRINCIPAL GROUNDS FOR
 REQUESTING THAT THE ARBITRATOR REOPEN OR RECONSIDER HIS AWARD WERE THAT
 THE GRIEVANT WAS NOT AFFORDED A FAIR HEARING AND THAT NEW PERTINENT AND
 MATERIAL EVIDENCE DICTATED THAT THE MATTER SHOULD BE REOPENED TO HEAR
 ADDITIONAL TESTIMONY.  IN THESE CIRCUMSTANCES, THE UNION CLAIMS THAT
 COURTS HAVE STATED THAT RECONSIDERATION IS PROPER TO COMPLETELY RESOLVE
 MATTERS THAT HAVE BEEN SUBMITTED TO ARBITRATION FOR DETERMINATION.
 THUS, THE UNION ARGUES THAT THE ARBITRATOR'S REFUSAL TO REOPEN OR
 RECONSIDER HIS AWARD DENYING THE GRIEVANCE IS CONTRARY TO RELEVANT CASE
 LAW.
 
    WITHOUT DECIDING WHETHER ANY ARBITRATOR'S AWARD OR DECISION DECLINING
 TO REOPEN OR RECONSIDER A PRIOR AWARD MAY BE FOUND DEFICIENT UNDER THE
 STATUTE, THE UNION'S ASSERTIONS IN THIS CASE PROVIDE NO BASIS FOR
 FINDING THE ARBITRATOR'S DENIAL DEFICIENT.  IN REFUSING TO REOPEN OR
 RECONSIDER HIS AWARD, THE ARBITRATOR DID NOT RULE THAT AN ARBITRATION
 AWARD COULD NEVER BE REOPENED OR RECONSIDERED, BUT RATHER THAT HE WAS
 WITHOUT JURISDICTION PURSUANT TO THE PARTIES' AGREEMENT BEFORE HIM IN
 THIS CASE TO REOPEN OR RECONSIDER HIS AWARD.  THUS, IN EFFECT, THE
 UNION'S EXCEPTION REPRESENTS A DISAGREEMENT WITH THE ARBITRATOR'S
 INTERPRETATION OF THE NEGOTIATED AGREEMENT AND IT IS WELL ESTABLISHED
 THAT AN ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT IS NOT SUBJECT TO REVIEW.  LOCAL 2532,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND UNITED STATES
 SMALL BUSINESS ADMINISTRATION, CENTRAL OFFICE, 3 FLRA NO. 86 (1980).
 MOREOVER, THE UNION HAS CITED NO CASES THAT SUPPORT ITS CONTENTION THAT
 THE ARBITRATOR'S REFUSAL TO REOPEN OR RECONSIDER HIS AWARD IS CONTRARY
 TO RELEVANT CASE LAW.  THE UNION HAS CITED NO CASES IN WHICH AN
 ARBITRATOR'S REFUSAL TO REOPEN OR RECONSIDER A PRIOR AWARD OF THAT
 ARBITRATOR WAS FOUND TO BE DEFICIENT UNDER ANY CIRCUMSTANCES.  RATHER,
 THE CASES CITED BY THE UNION APPEAR TO STAND, AT BEST, FOR THE
 PROPOSITION THAT AN ARBITRATOR IS NOT BARRED FROM REOPENING OR
 RECONSIDERING A PRIOR AWARD, BUT RATHER IS PERMITTED IN THE ARBITRATOR'S
 DISCRETION TO REOPEN OR RECONSIDER A PRIOR AWARD.  FURTHERMORE, FOR THE
 SAME REASONS THAT THE UNION'S CONTENTIONS THAT THE GRIEVANT WAS DENIED A
 FAIR HEARING AND THAT NEW EVIDENCE JUSTIFIED REVERSING THE AWARD FAILED
 TO PROVIDE A BASIS FOR FINDING THE AWARD DEFICIENT, THEY PROVIDE NO
 BASIS FOR FINDING DEFICIENT, UNDER 5 U.S.C.  7122(A) AND SECTION 2425.3
 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S REFUSAL TO
 REOPEN OR RECONSIDER HIS INITIAL AWARD.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., APRIL 17, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE UNION'S EXCEPTIONS FILED TO BOTH THE ARBITRATOR'S AWARD
 DENYING THE GRIEVANCE AS WELL AS TO HIS DENIAL OF THE MOTION TO REOPEN
 WILL BE TREATED AS ONE APPEAL FOR PURPOSES OF THIS DECISION.  THE
 AGENCY'S OPPOSITION TO EACH WILL BE SIMILARLY TREATED.
 
    /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.
 
    /3/ ALTHOUGH THE UNION'S EXCEPTIONS WERE FILED AT THE TIME THE
 AUTHORITY'S TRANSITION RULES AND REGULATIONS WERE IN EFFECT, NO HARDSHIP
 OR INJUSTICE TO THE UNION RESULTS FROM CONSIDERATION OF THIS CASE UNDER
 THE AUTHORITY'S FINAL RULES AND REGULATIONS, 5 CFR PART 2425 (1980), AND
 THEREFORE THE FINAL RULES AND REGULATIONS WILL BE APPLIED.
 
    /4/ BECAUSE OF THE POSTURE OF THIS CASE BEFORE THE AUTHORITY, THE
 TERM "PETITIONER" WILL BE USED TO AVOID CONFUSION IN THE DISCUSSION OF
 THE FIRST EXCEPTION.  THE EXCEPTIONS IN THIS CASE HAVE BEEN FILED WITH
 THE AUTHORITY ON BEHALF OF THE UNION, SEIU LOCAL 556, BY A PRIVATE
 ATTORNEY WHO IS BOTH THE "DESIGNATED REPRESENTATIVE" OF THE UNION AND
 THE ATTORNEY FOR THE GRIEVANT.  THE DESIGNATED REPRESENTATIVE HAS
 ADVISED THE AUTHORITY AS FOLLOWS:
 
    AT THE OUTSET, IT IS NECESSARY TO POINT OUT THAT THIS APPEAL
 SPECIFIES ERRORS AND
 
    VIOLATIONS BY ALL THREE PARTICIPANTS TO THE ARBITRATION PROCESS:  THE
 ARBITRATOR, THE AGENCY
 
    AND THE UNION.  IT IS PRECISELY BECAUSE SOME OF THE SPECIFICATIONS
 HEREIN RELATE TO THE
 
    UNION'S ACTIONS IN PROSECUTING THE UNDERLYING GRIEVANCE AND
 ARBITRATION, THAT THE UNDERSIGNED
 
    PRIVATE ATTORNEY WAS RETAINED BY THE GRIEVANT IN THIS CASE . . .  TO
 REPRESENT HER.
 
    THE UNION IS, THUS, ONLY NOMINALLY THE APPELLANT;  IT WOULD BE NAMED
 AS AN APPELLEE, BUT FOR
 
    THE REQUIREMENT THAT ONLY THE AGENCY OR THE UNION CAN FILE SUCH AN
 APPEAL.  THE AGENCY HAS ARGUED THAT THIS IS A SUBTERFUGE TO PERMIT THE
 GRIEVANT, WHO ASSERTEDLY HAS NO LEGAL STANDING BEFORE THE AUTHORITY, TO
 APPEAL THE ARBITRATOR'S AWARD.  HOWEVER, THE PETITIONER HAS BEEN CLEARLY
 DESIGNATED AS REPRESENTATIVE OF THE UNION FOR PURPOSES OF THIS APPEAL BY
 LETTER FROM THE PRESIDENT OF SEIU LOCAL 556, AND THEREFORE THE MATTER IS
 PROPERLY BEFORE THE AUTHORITY.  BECAUSE THE FIRST EXCEPTION CONCERNS THE
 UNION'S CONDUCT, HOWEVER, SHE DESIGNATED REPRESENTATIVE WHO HAS FILED
 THE EXCEPTIONS WILL BE TERMED "THE PETITIONER."
 
    /5/ 386 U.S. 171 (1967).
 
    /6/ 424 U.S. 554 (1976).
 
    /7/ S. RE