American Postal v. U.S. Postal Service

Opinion

USCA1 Opinion

March 19, 1996        [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                              _________________________



          No. 95-1865


AMERICAN POSTAL WORKERS UNION, ETC., ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                        UNITED STATES POSTAL SERVICE, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                      [Hon. Nancy Gertner, U.S. District Judge]
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                                 ____________________



                                        Before



                                Selya, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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               Cornelius J.  P. Sullivan, with  whom Brenda E.  W. Sullivan
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          and Sullivan & Walsh were on brief, for appellants.
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               Susan M.  Poswistilo, Assistant United States Attorney, with
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          whom Donald K.  Stern, United States Attorney, R.  Andrew German,
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          Chief Appellate Counsel, United  States Postal Service, and Brian
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          M. Reimer, Attorney, United States Postal Service, were on brief,
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          for appellees.



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Per  Curiam.    When Congress  established  the  Postal
                    Per  Curiam
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          Service (the Service) in  1970, it set in place a labor relations



          format  patterned after  the private  sector.   See 39  U.S.C.   
                                                          ___



          1201-1209  (1994).    Under  that  framework, appellant  American



          Postal Workers Union, AFL-CIO (the  Union) entered into a  series



          of collective bargaining agreements with the Service.  During the



          currency  of one such agreement, the Service discharged a trio of



          postal  workers  (Dennis  Daniels,   Jonathan  Davis,  and  Karen



          Johnson) for cause.



                    The  three       all of  whom  worked at  the  Sudbury,



          Massachusetts post office      were members of a  bargaining unit



          represented by  the Union.   The Union  prosecuted grievances  on



          their  behalf.   Following  a five-day  evidentiary hearing,  the



          arbitrator found that the grievants committed the acts with which



          they  had been charged, and  that the Service  had just cause for



          the disciplinary actions which  it took in first  suspending, and



          later ousting, the grievants.



                    The Union filed an action in the federal district court



          with a view toward  vacating the arbitral award.1   Its complaint



          claimed  that  the  award "did  not  draw  its  essence from  the



          collective  bargaining agreement"  because it  was "not  based on



          sufficient evidence to  sustain a finding of  just cause."  In  a



          well-reasoned opinion,  the district court granted  the Service's



                              
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               1For ease in reference, we  treat the case if the Union  and

          the  Service were the sole protagonists.  In the circumstances at

          hand,   the  presence  of  other  parties  adds  nothing  of  any

          consequence.



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motion for  summary judgment.  See American  Postal Workers Union
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          v.  United States  Postal Serv.,  No. 92-10364-NG,  slip op.  (D.
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          Mass. June 28, 1995).  The Union appeals.  We summarily affirm.



                    There  is no need to tarry.  Having read the voluminous



          record,  considered the  parties'  briefs, and  entertained  oral



          argument, we find no  basis to disturb either the  arbitral award



          or  the district court's decision.   To the  precise contrary, we



          regard this as a paradigmatic case  in which to put into practice



          our oft-stated  belief that, when  lower courts have  done first-



          rate  work, an  appellate  tribunal should  not wax  longiloquent



          simply to hear its own words resonate.  See In re San Juan Dupont
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          Plaza  Hotel  Fire  Litig., 989  F.2d  36,  38  (1st Cir.  1993).
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          Consequently,  we  affirm  the  judgment  for  substantially  the



          reasons elucidated in the opinion below.  We add only a few brief



          comments.



                    The  statute  that  confers  a right  to  challenge  an



          arbitral  award in a postal employment case, 39 U.S.C.   1208(b),



          is an analog  to section  301 of the  Labor Management  Relations



          Act, 29  U.S.C.   185(a), and  therefore, the case law  under the



          two statutes is generally interchangeable.   See Miller v. United
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          States Postal Serv.,  985 F.2d 9, 10 n.1 (1st  Cir. 1993).  Under
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          either  scheme,  "courts are  not  authorized  to reconsider  the



          merits  of arbitration  awards."   S.  D.  Warren Co.  v.  United
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          Paperworkers'  Int'l Union, Local 1069, 845 F.2d 3, 7 (1st Cir.),
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          cert. denied, 488 U.S. 992  (1988).  The exceptions to this  rule
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          are few  and far between.  See Advest, Inc. v. McCarthy, 914 F.2d
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6, 8 (1st Cir. 1990) (limning exceptions); Bettencourt v.  Boston
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          Edison Co., 560 F.2d  1045, 1049 (1st Cir.  1977) (similar).   To
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          make a long story short, a challenger must show that the award is



          "(1)  unfounded in  reason and  fact; (2)  based on  reasoning so



          palpably faulty that  no judge,  or group of  judges, ever  could



          conceivably have made such a ruling; or (3) mistakenly based on a



          crucial assumption that is  concededly a non-fact."   Local 1445,
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          United Food  & Commercial Workers v.  Stop & Shop Cos.,  776 F.2d
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          19,  21 (1st Cir. 1985).  These exceptions are narrowly construed



          and,  unless one of them applies, even "a court's conviction that



          the arbitrator made a serious mistake or committed grievous error



          will not furnish a satisfactory basis for undoing  the decision."



          Advest,  Inc., 914  F.2d at  9; accord  Georgia-Pacific  Corp. v.
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          Local 27, United Paperworkers Int'l Union, 864 F.2d 940, 944 (1st
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          Cir. 1988).



                    As the district court recognized, the instant case does



          not  fit  within  the confines  of  any  of  the three  long-odds



          exceptions.   The linchpin  of the  Union's position,  as counsel



          made  clear at  oral  argument, is  that  the arbitral  award  is



          irrational because  the three grievants  were all audited  on the



          same day and only  minor discrepancies were found in  their stamp



          stock.  Therefore, the Union's thesis runs, it is impossible that



          any of  the trio  could have stolen  stamp stock  (from which  it



          follows that  the arbitrator  based his  decision  on facts  that



          could not have been true).



                    To  be sure,  this  is one  possible interpretation  of


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selected  items of evidence.  But the arbitrator faced a golconda



          of conflicting testimony regarding  specific dates, and the Union



          has simply  woven together the  timeline most  beneficial to  its



          view  of  the  universe.    The  arbitrator  apparently  chose  a



          different  timeline after  hearing  the witnesses  and  carefully



          considering the surrounding circumstances.  The record supports a



          finding that Daniels was  audited for the second time  on Monday,



          April  16, 1990,  when Davis  was absent  from work,  and not  on



          Tuesday, April 17; that  Davis and Johnson were then  audited the



          next day (April 17); and that, although no substantial amounts of



          stamp stock were found  to be missing, some form of  deception or



          sleight of hand  was being practiced by the  three clerks to hide



          the fact     incontrovertibly proven     that Davis had stolen as



          much as $6,000 by unauthorized withdrawals from his stock.



                    We add  two further observations.   First, even  if the



          three grievants all had been audited on the same day as the Union



          contends, the arbitrator's conclusion of just cause for discharge



          would remain  soundly based.2   Second,  while the  exceptions we

                              
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               2The  postmaster (Packard)  sealed the  safe containing  the

          clerks'  cash drawers  on Saturday  evening, April  14, and  upon

          returning  to work on Monday morning noticed signs of a break-in.

          When audits  were conducted on  Monday and  Tuesday, Daniels  and

          Johnson  showed an  unusual  loss of  large denomination  stamps,

          while  Davis had an inexplicable surplus of $2 stamps.  Moreover,

          Johnson's fingerprints  were found on  seven sheets of  stamps in

          Davis'  stock.    In   May,  postal  inspectors  determined  that

          $1,153.30 of  Johnson's stamp  stock had originated  from sources

          other than  authorized postal  channels.   Given  this and  other

          evidence  (including admissions  by  Daniels  and  Johnson),  the

          arbitrator easily could conclude  that the three clerks purchased

          stamps from  outside sources to  replenish Davis' stock  prior to

          his  audit.    On that  hypothesis,  the  three  audits, even  if

          conducted  on  the   same  day,  would  likely  reveal  no  major



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have described can take hold on a showing that the arbitral award



          was "mistakenly based on a  crucial assumption that is concededly



          a  non-fact," Advest,  Inc., 914  F.2d at  8-9, that  doctrine is
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          limited to cases in which no competent evidence of an adjudicated
                                    __



          fact appears in  the record.  The doctrine has  no bearing where,



          as here, there is evidence both ways as to the pivotal facts.



                    We  need go no further.   Refined to  bare essence, the



          Union's claim is that the arbitrator found the facts in a clearly



          erroneous  manner,  largely  because   he  believed  the  "wrong"



          witnesses and credited the "wrong" bits of conflicting testimony.



          Even if  this claim were well-founded      and there  is not very



          much in the record to suggest  any egregious factual error     we



          could not grant the  requested relief.  See International  Bhd of
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          Firemen & Oilers, Local 261 v. Great Northern Paper Co., 765 F.2d
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          295, 296 (1st Cir.  1985) (explaining that "courts are  precluded



          from  interfering  with arbitration  awards  for  mere errors  in



          assessing the credibility of  witnesses").  It follows inexorably



          that we must uphold the district court's rejection of the Union's



          challenge to the arbitral award.


Affirmed.  See 1st Cir. R. 27.1.
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          discrepancies.



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