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