
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          March 19, 1996        [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                             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.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Cornelius J.  P. Sullivan, with  whom Brenda E.  W. Sullivan               _________________________             ______________________          and Sullivan & Walsh were on brief, for appellants.              ________________               Susan M.  Poswistilo, Assistant United States Attorney, with               ____________________          whom Donald K.  Stern, United States Attorney, R.  Andrew German,               ________________                          _________________          Chief Appellate Counsel, United  States Postal Service, and Brian                                                                      _____          M. Reimer, Attorney, United States Postal Service, were on brief,          _________          for appellees.                                 ____________________                                 ____________________                    Per  Curiam.    When Congress  established  the  Postal                    Per  Curiam                    ___________          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                                        ____________________               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.                                          2          motion for  summary judgment.  See American  Postal Workers Union                                         ___ ______________________________          v.  United States  Postal Serv.,  No. 92-10364-NG,  slip op.  (D.              ___________________________          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                                                  ___ _____________________          Plaza  Hotel  Fire  Litig., 989  F.2d  36,  38  (1st Cir.  1993).          __________________________          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                                                       ___ ______    ______          States Postal Serv.,  985 F.2d 9, 10 n.1 (1st  Cir. 1993).  Under          ___________________          either  scheme,  "courts are  not  authorized  to reconsider  the          merits  of arbitration  awards."   S.  D.  Warren Co.  v.  United                                             __________________      ______          Paperworkers'  Int'l Union, Local 1069, 845 F.2d 3, 7 (1st Cir.),          ______________________________________          cert. denied, 488 U.S. 992  (1988).  The exceptions to this  rule          _____ ______          are few  and far between.  See Advest, Inc. v. McCarthy, 914 F.2d                                     ___ ____________    ________                                          3          6, 8 (1st Cir. 1990) (limning exceptions); Bettencourt v.  Boston                                                     ___________     ______          Edison Co., 560 F.2d  1045, 1049 (1st Cir.  1977) (similar).   To          __________          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,                                                                ___________          United Food  & Commercial Workers v.  Stop & Shop Cos.,  776 F.2d          _________________________________     ________________          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.          _____________                   ______  ______________________          Local 27, United Paperworkers Int'l Union, 864 F.2d 940, 944 (1st          _________________________________________          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                                          4          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                                        ____________________               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                                          5          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                        _____________          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                                                  ___ _____________________          Firemen & Oilers, Local 261 v. Great Northern Paper Co., 765 F.2d          ___________________________    ________________________          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.                    ________   ___                                        ____________________          discrepancies.                                          6
