34:0533(89)AR - - FDA, Cincinnati District Office and AFGE Local 3831 - - 1990 FLRAdec AR - - v34 p533
[ v34 p533 ]
The decision of the Authority follows:
34 FLRA No. 89
FEDERAL LABOR RELATIONS AUTHORITY
FOOD AND DRUG ADMINISTRATION
CINCINNATI DISTRICT OFFICE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 24, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator George H. Brickhouse. The Arbitrator denied the grievance, which involved 2 days of absence without leave (AWOL).
The Union filed an exception under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Department of Health and Human Services (the Agency) filed an opposition to the exception on behalf of the Food and Drug Administration, Cincinnati District Office (the Activity).
We conclude that, contrary to its assertion, the Union has failed to establish that there were any ex parte communications or collusion between the Arbitrator and the grievant's supervisor. Accordingly, we will deny the Union's exception.
II. Background and Arbitrator's Award
On November 30 and December 1, 1987, the grievant telephoned his supervisor and requested sick leave for each day. The grievant's supervisor verbally granted him sick leave and informed him that he was required to sign a leave request form when he returned to work. When the grievant returned to work and refused numerous requests by his supervisor to sign the leave request form, the grievant was charged with 2 days of AWOL. He filed a grievance which was submitted to arbitration.
The Arbitrator found that the supervisor was within her authority to require the grievant to sign a leave request form and that the grievant was insubordinate in refusing to sign the form. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union
The Union contends that there were ex parte communications and collusion between the Arbitrator and the grievant's supervisor, who was a witness at the arbitration hearing. The Union bases these contentions on a disclosure by the Arbitrator that he knew the grievant's supervisor because they both attended a bridge class. The Arbitrator made this disclosure after opening statements by both parties and the Union's presentation of its case, but prior to management's presentation of its case. The Union claims that the Arbitrator should have disqualified himself as soon as he recognized the grievant's supervisor. The Union contends that "[t]he fact that he did not, and did not reveal his personal relationship with her until after the Union had presented its case was blatantly prejudicial." Exception at 1.
B. The Agency
The Agency contends that no ex parte communication occurred and no collusion existed between management, its witnesses, and the Arbitrator. The Agency notes that the grievant's supervisor was only acquainted with the Arbitrator as a result of being in the same bridge class. The Agency attaches a statement of the supervisor stating that she had no communications with the Arbitrator about the case.
In addition, the Agency notes that the Arbitrator advised the parties of his acquaintance with the grievant's supervisor and afforded the parties the opportunity at the hearing to raise any objections to this matter. No objections were raised. The Agency maintains that the Arbitrator did not advise the parties of his acquaintance with the grievant's supervisor until the start of the Activity's presentation of its case because the Arbitrator did not know until then that the grievant's supervisor would be a witness.
The Agency claims that the Arbitrator did not demonstrate bias as a result of his acquaintance with a management witness.
We conclude that the Union's exception provides no basis for finding the award deficient. The Union fails to establish that there were any ex parte communications or collusion between the Arbitrator and the grievant's supervisor. The Union's exception is not supported by "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 rights of any party were prejudiced . . . [and] provides no basis for finding the award deficient." Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18, 19 (1981).
We reject the Union's contention that the Arbitrator "should have disqualified himself." Exception at 1. We find, consistent with decisions of Federal courts in private sector labor relations cases, that an arbitrator is not automatically disqualified by a social or personal relationship with someone involved in the arbitration when that relationship is fully disclosed to the parties. See, for example, Toyota of Berkeley v. Automobile Salesmen's Union, Local 1095, 834 F.2d 751, 755 (9th Cir. 1987); see also Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150 (1968) (J. White concurring).
Furthermore, in the absence of exceptional circumstances, contentions of prejudice or bias on the part of an arbitrator provide no basis for finding an award deficient when (1) the arbitrator fully discloses a social or personal relationship with someone involved in the arbitration and (2) the party filing the exception failed to object to the arbitrator at the time of the disclosure. See, for example, Sheet Metal Workers Local 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 746 (9th Cir. 1985); Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds, 748 F.2d 79, 84 n.5 (2d Cir. 1984) ("[A] disgruntled party cannot object after an award has been made[.]"); Early v. Eastern Transfer, 699 F.2d 552, 558 (1st Cir. 1983) ("In the absence of exceptional circumstances, we will not entertain a claim of personal bias where it could have been but was not raised at the hearing to which it applies.").