Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky (Activity) and American Federation of Government Employees, Local 2022 (Union) 

 
 
 00.041300 Test$  7 FLRA 6;  FLRA 0-AR-147;  OCTOBER 15, 1981.
 
 7 FLRA No. 6
 
 DEPARTMENT OF THE ARMY,
 HEADQUARTERS, 101ST AIRBORNE
 DIVISION (AIR ASSAULT) AND
 FORT CAMPBELL, FORT CAMPBELL,
 KENTUCKY
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 2022
 Union
 
                                            Case No. O-AR-147
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR WALTER G. SEINSHEIMER FILED BY THE UNION UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER CONCERNS THE
 GRIEVANT'S SUSPENSION FOR THREE DAYS ON CHARGES OF "DISCOURTEOUS CONDUCT
 TO COMMISSARY PATRONS" AND OF "WRONGFUL PURCHASING/RECEIVING OF
 COMMISSARY ITEMS." A GRIEVANCE WAS FILED DISPUTING THE CHARGES AND IT
 WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    ON THE BASIS OF THE EVIDENCE PRESENTED, THE ARBITRATOR FOUND THAT THE
 ACTIVITY HAD SUPPORTED BOTH OF ITS CHARGES AGAINST THE GRIEVANT.
 ACCORDINGLY, AS HIS AWARD, THE ARBITRATOR SUSTAINED THE SUSPENSION AND
 DENIED THE GRIEVANCE.  IN ARRIVING AT THIS AWARD, THE ARBITRATOR
 SPECIFICALLY ADDRESSED THE UNION'S ARGUMENT THAT THE SUSPENSION COULD
 NOT BE SUSTAINED UNDER 5 U.S.C. 7503 /1/ BECAUSE THE DISCOURTEOUS
 CONDUCT CHARGE INVOLVED ONLY THREE INSTANCES OF SUCH CONDUCT RATHER
 THAN
 THE FOUR REFERRED TO IN SECTION 7503.  THE ARBITRATOR REJECTED THIS
 ARGUMENT RULING THAT THE THREE INSTANCES OF DISCOURTEOUS CONDUCT ONLY
 CONSTITUTED ONE OF THE CHARGES AGAINST THE GRIEVANT AND THAT THE TWO
 CHARGES TOGETHER SUPPORTED THE ACTIVITY'S DISCIPLINARY ACTION.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /2/ 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 ESSENTIALLY CONTENDS THAT THE
 ARBITRATOR WAS BIASED.  THE UNION STATES THAT THE ARBITRATOR WAS
 CHALLENGED BECAUSE OF HIS CONTRACT WITH THE ACTIVITY PRIOR TO THE
 HEARING, BUT HE REFUSED TO DISQUALIFY HIMSELF.  WITHOUT DISCUSSION OF
 THE SUBSTANCE OF THAT CONTACT, THE UNION ARGUES THAT IT IS "OBVIOUS"
 THAT THE ARBITRATOR HAD REACHED HIS DECISION PRIOR TO THE HEARING
 "APPARENTLY BASED ON HIS ILLEGAL CONTACTS WITH THE AGENCY." HOWEVER, THE
 AGENCY SPECIFICALLY DISPUTES THAT THERE WAS ANY BIAS ON THE PART OF THE
 ARBITRATOR AND EXPRESSLY MAINTAINS THAT THE ARBITRATOR HAD SIMPLY
 COMMUNICATED WITH AN ACTIVITY EMPLOYEE CONCERNING A HEARING DATE AND
 TRANSPORTATION ARRANGEMENTS AND THAT THE ARBITRATOR SO ADVISED THE UNION
 WHEN CHALLENGED.  BECAUSE THE UNION'S EXCEPTION IS TOTALLY DEVOID OF ANY
 SUBSTANTIATION THAT THE ARBITRATOR'S AWARD WAS PROCURED BY CORRUPTION,
 FRAUD, OR UNDUE MEANS;  THAT THERE WAS PARTIALITY OR CORRUPTION ON THE
 PART OF THE ARBITRATOR;  OR THAT THE ARBITRATOR WAS GUILTY OF MISCONDUCT
 BY WHICH THE RIGHTS OF ANY PARTY WERE PREJUDICED, THIS EXCEPTION
 PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.  SEE JOURNAL TIMES V.
 MILWAUKEE TYPOGRAPHICAL UNION NO. 23, 409 F.SUPP. 24 (D. WIS.  1976);
 AMERADA HESS CORP. V. LOCAL 1078, UAW V. ANACONDA AMERICAN BRASS CO.,
 256 F.SUPP.  686 (D. CONN. 1966).
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE AWARD IS CONTRARY
 TO 5 U.S.C. 7503.  IN SUPPORT THE UNION REPEATS ITS ARGUMENT MADE BEFORE
 THE ARBITRATOR THAT THE SUSPENSION WAS IMPROPER BECAUSE SECTION 7503
 REQUIRES FOUR OR MORE INSTANCES OF DISCOURTEOUS CONDUCT AND THE GRIEVANT
 WAS ONLY CHARGED WITH THREE INSTANCES.  HOWEVER, THE UNION FAILS TO
 ESTABLISH IN WHAT MANNER THE ARBITRATOR'S AWARD SUSTAINING THE
 GRIEVANT'S SUSPENSION IS CONTRARY TO 5 U.S.C. 7503.  AS HAS BEEN NOTED,
 THE GRIEVANT WAS NOT SUSPENDED MERELY FOR THREE INSTANCES OF
 DISCOURTEOUS CONDUCT.  RATHER, THAT DISCOURTEOUS CONDUCT CONSTITUTED BUT
 ONE CHARGE AGAINST HIM.  HE WAS ALSO CHARGED WITH "WRONGFUL PURCHASING
 RECEIVING OF COMMISSARY ITEMS." IT WAS ON THE BASIS OF BOTH CHARGES THAT
 HE WAS SUSPENDED AND IT WAS EXPRESSLY ON THE BASIS OF BOTH CHARGES THAT
 THE ARBITRATOR SUSTAINED THE GRIEVANT'S SUSPENSION AND DENIED THE
 GRIEVANCE.  CONSEQUENTLY, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE ARBITRATOR'S AWARE DEFICIENT.
 
    FOR THE FOREGOING REASONS, THE UNION'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 7503 PROVIDES IN PERTINENT PART:
 
    (A) UNDER REGULATIONS PRESCRIBED BY THE OFFICE OF PERSONNEL
 MANAGEMENT, AN EMPLOYEE MAY BE SUSPENDED FOR 14 DAYS OR LESS FOR SUCH
 CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE (INCLUDING
 DISCOURTEOUS CONDUCT TO THE PUBLIC CONFIRMED BY AN IMMEDIATE
 SUPERVISOR'S REPORT OF FOUR SUCH INSTANCES WITHIN ANY ONE-YEAR PERIOD OR
 ANY OTHER PATTERN OF DISCOURTEOUS CONDUCT).
 
    /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. 
                     ========== Opinion$ ========== 
                        [Not Certified True Copy]
 
 ----- FULL TEXT OF DECISION NOT AVAILABLE ----- [ NOTAVAILABLE$ ]