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

 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.