24:0968(95)AR - Warner Robins Air Logistics Center, Air Force, Warner Robins, GA and AFGE Local No. 987 -- 1986 FLRAdec AR
[ v24 p968 ]
The decision of the Authority follows:
24 FLRA No. 95 WARNER ROBINS AIR LOGISTICS CENTER DEPARTMENT OF THE AIR FORCE WARNER ROBINS, GEORGIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL No. 987 Union Case No. O-AR-1129 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Cary J. Williams filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Rules and Regulations. The Activity did not file an opposition. II. BACKGROUND AND ARBITRATOR'S AWARD The grievance in this case concerns the Activity's five-day suspension of the grievant for leaving his work area without permission and for threatening a supervisor. The dispute was submitted to arbitration on February 6, 1986. At the hearing, the Union requested a continuance because the Union representative who had prepared the case had not been able to obtain official time or leave without pay in order to present the grievant's case. The Activity opposed a continuance. It asserted that the Union had been notified well in advance, by letter dated January 24, 1986, that the usual Union representative might not be able to obtain the necesssary leave and that the Union could have easily made arrangements for another representative to take his place. The Arbitrator denied the continuance as not warranted by the circumstances because the Union had ample time to make other arrangements for the grievant's representation. The grievant and Union representative, refused to participate in the hearing. The Arbitrator then heard evidence presented by the Activity pertaining to the suspension. Noting that there was no evidence to rebut the testimony and evidence presented by the Activity, the Arbitrator found that the suspension was for just cause and denied the grievance. III. EXCEPTIONS The Union contends, generally, that the award is deficient because the Arbitrator held the hearing without the grievant and Union representative and thereby violated the principles of fairness and due process. As a result, it asserts that the award is deficient because it was "procured by 'ex part'" and constituted harmful error. The Union also argues that the Activity's actions violated the parties' collective bargaining agreement and constituted an unfair labor practice under the Statute. IV. ANALYSIS AND CONCLUSIONS We conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient. Although the Authority will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by refusing to hear pertinent and material evidence, for example, National Border Patrol Council and National Immigration and Naturalization Service Council and United States Department of Justice, Immigration and Naturalization Service, 3 FLRA 400 (1980), the Union does not establish that the award is deficient on this basis. The Authority has recognized that an arbitrator has considerable latitude in the conduct of the hearing, see id. at 404. The Union fails to substantiate that it was denied a fair hearing by the Arbitrator's finding that it had a reasonable opportunity to make other arrangements for an alternative Union representative to appear at the arbitral hearing. See U.S. Department of Labor and American Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA 639, 641 (1983). Moreover, the award was not procured by ex parte contacts with the arbitrator since the hearing was conducted with the knowledge of the Union and its absence was by choice. Also, awards resulting from ex parte hearings have been enforced by Federal courts based upon the rationale that since the losing party had a chance to be heard and refused to participate it should not now complain that the award is invalid because it chose to stay away. Amal. Meat Cutters & Butcher Workmen v. Penobscot Poultry Co., 200 F. Supp. 879 (D. Me. 1961); see also Joint Board of Cloak, Skirt and Dressmakers Union v. Senco, Inc., 289 F. Supp. 513 (D. Mass. 1968). There is no basis upon which to conclude that the Arbitrator's denial of the continuance constituted "harmful error." This rule does not apply to suspensions for 14 days or less instituted under section 7503 and reliance on the rule in this five-day suspension case is misplaced. Immigration and Naturalization Service and American Federation of Government Employees, Local 505, 22 FLRA No. 70 (1986). Finally, the Union's arguments that the Activity's actions constitute a violation of the parties' agreement and an unfair labor practice provide no basis for finding the Arbitrator's award deficient. See American Federation of Government Employees, Local 3272 and Social Security Administration Areas VIII and XIV, Chicago Region, Branch Office, Holland, Michigan, 10 FLRA 310 (1982). V. DECISION For these reasons, the Union's exceptions are denied. Issued, Washington, D.C. December 31, 1986.