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

 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).