IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60695
Summary Calendar
GLENN A. HERRINGTON,
Petitioner,
versus
FEDERAL AVIATION ADMINISTRATION,
Respondent.
On Petition for Review from a Final Order
of the Federal Aviation Administration
(97-SW-08)
August 28, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
This is a petition for review brought by Glenn Herrington
following an adverse ruling of the FAA Appeals Panel. The FAA
reassigned Herrington and downgraded him in pay based upon his
alleged falsification of time records, failure to attend a
mandatory meeting, and possession of a conflict of interest.
Herrington appealed, and the Appeals Panel found sufficient
evidence to sustain only the record falsification and attendance
charges, but it upheld the penalty imposed by the FAA. Herrington
now seeks review from this court.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
In his original brief, Herrington does not explicitly
challenge the findings of the Appeals Panel, which we find amply
supported by the record anyway. Rather, Herrington raises a number
of procedural challenges. He first complains that he was denied
union representation at the Appeals Panel hearing, a right which is
provided to certain FAA employees under a federal collective
bargaining agreement. Although he was demoted to a position that
carries with it a right to union representation, at the time his
demotion was imposed, Herrington was a supervisory employee without
union-representation rights. Because Herrington was not a member
of the bargaining unit at the time the adverse employment action
was taken against him, he is not entitled to rely upon the
grievance procedures of the collective bargaining agreement. See
Devine v. Levin, 739 F.2d 1567, 1572 (Fed. Cir. 1984). Indeed, if
Herrington were covered by the collective bargaining agreement,
then he would not be entitled to an appeal with the FAA Appeals
Panel, which he himself sought.
Herrington also cites several errors in the manner in which
his Appeals Panel hearing was conducted. Our review of the record
reveals that Herrington failed to object to these purported errors
during the hearing and, in fact, expressly acquiesced in many of
them. Having failed to object, Herrington waived these purported
errors. See 49 U.S.C. § 46110. We are convinced that the Appeals
Panel hearing was conducted in a fair manner and produced a
reliable result.
PETITION DENIED.
2