39:0103(7)AR - - Air Force, Hill AFB, UT and AFGE Local 1592 - - 1991 FLRAdec AR - - v39 p103

[ v39 p103 ]
The decision of the Authority follows:

39 FLRA No. 7








LOCAL 1592




January 25, 1991

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 Gerald Cohen. The grievant was suspended for 1 day for failing to perform his work in a timely manner. The Arbitrator denied the grievance.

The Union filed an exception to the award 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 Agency did not file an opposition to the Union's exception.

We conclude that the award is deficient because the Arbitrator denied the Union a fair hearing. Accordingly, we will vacate the award and remand the case for further proceedings.

II. Background and Arbitrator's Award

The grievant was suspended for 1 day for failing to perform his work in a timely manner. A grievance was filed contending that the Agency did not have just cause to suspend the grievant. The grievance was submitted to arbitration under Section 7.08 of the parties' collective bargaining agreement providing for expedited arbitration.

Before the Arbitrator, the Agency maintained that the grievant had failed to perform his work in a timely manner as charged and that a 1-day suspension was warranted. The Union maintained that the grievant had been singled out by a vindictive supervisor. The Union also argued that the grievant's performance plan, on which the charge of failing to perform work in a timely manner was based, was deficient because the performance standards were not measurable or objective. In addition, the Union argued that the grievant's suspension was defective under the holding in Lovshin v. Department of the Navy, 767 F.2d 826 (Fed. Cir. 1985), cert. denied, 475 U.S. 1111 (1986) (Lovshin) because "the Agency had confused actions taken under Title V of the U.S. Code, Chapters 43 and 75." Arbitrator's Award at 4-5. Consequently, the Union claimed that the suspension should be set aside.

At the outset, the Arbitrator reminded the parties that this was an expedited arbitration case. The Arbitrator also noted that under the parties' agreement, expedited arbitrations are to be handled speedily and with a minimum of hearing and that he was "required to render an Opinion within three days of the hearing." Id. at 5. Consequently, the Arbitrator stated, as follows:

[T]here is no time nor any reason, in view of the fact that the Opinion has no precedential value, to pass on the Union's arguments regarding the requirement that the performance plan must have measurable standards. Nor is there time to consider the Union's argument that Lovshin v. Dept. of the Navy, [767] F.2d 826, makes the Agency's conduct improper, regardless of the fact that on a superficial basis there appears to be enough merit to the Union's position to warrant serious consideration of it. These two items alone would require extensive research and consideration. There simply is not time to do this.

I have only the time and, I believe, the mandate under Chapter 7.08 of the Collective Bargaining Agreement, to consider the simple question of whether Grievant, in the words of the decision to suspend, committed "the offense of failure to carry out assigned work in a reasonable period of time."

Id. at 5-6. Focusing on only this question, the Arbitrator concluded that the grievant had committed the offense, and he denied the grievance.

III. The Union's Exception

The Union contends that the award is deficient because the Arbitrator refused to consider issues raised by the Union.

The Union notes that during the hearing the Union raised two legal arguments: (1) the grievant's performance standards were invalid because there were no measurable standards as required by law; and (2) the Agency's action was improper under Lovshin. The Union states that the Arbitrator "did not simply fail to consider the Union's arguments, he absolutely refused to do so." Exceptions at 2. The Union notes the Arbitrator's explanation in his award for refusing to consider the Union's arguments and maintains that the Arbitrator's participation in this case was entirely voluntary and that the Arbitrator knew the terms and conditions of expedited arbitrations before he accepted this case. The Union points out that once the Arbitrator found out about the complexities of this case, he did not seek to withdraw or to renegotiate the terms of expedited arbitration; instead, he simply stated there was not enough time to consider all of the Union's arguments. The Union emphasizes that the requirement to issue an award within 3 days of the hearing is a requirement that can be waived by agreement of the parties.

The Union asserts that the Arbitrator's conduct is all the more unjustified because he explicitly recognized that the Union's position appears to have enough merit to warrant serious consideration. The Union also claims that the Arbitrator's statement that the case would have no precedential value is no justification for his refusal to consider the arguments because if the Union's arguments proved persuasive, the grievant would have prevailed and the suspension would have been rescinded.

Accordingly, the Union contends that the Arbitrator has failed to provide a fair hearing and that, consequently, the award is deficient.

IV. Analysis and Conclusions

The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by refusing to consider 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 401, 404 (1980) (INS). Although the Authority has recognized this ground, the Authority has never found an arbitration award deficient because the arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence. However, cases cited by the Authority in INS discuss the standards commonly applied by Federal courts to determine whether an award is deficient when an arbitrator has refused to consider evidence.

Among the cases cited by the Authority in INS were Harvey Aluminum v. United Steelworkers of America, 263 F. Supp. 488 (C.D. Calif. 1967) (Harvey Aluminum) and Newark Stereotypers' Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594 (3d Cir.), cert. denied, 393 U.S. 954 (1968) (Newark Morning Ledger). In Harvey Aluminum the court framed the issue to be decided as whether the arbitrator considered all pertinent and relevant evidence offered in arriving at his award and whether from an overall perspective the hearing was fair to both parties. 263 F. Supp. at 494. The arbitrator had refused to consider pertinent and material testimony on the basis that the testimony was not proper rebuttal under the rules of evidence. The court held that the refusal denied the company a fair hearing. The court noted that arbitration proceedings are informal in nature and that the liberal admission of evidence and testimony is the customary practice in arbitration. Thus, the court ruled that the arbitrator was not justified in refusing to hear the testimony because the parties were not on notice that the rules of evidence would be applied by the arbitrator.

In Newark Morning Ledger the court held that in order to be deficient, the refusal to consider pertinent and material evidence must affect the fairness of the proceeding as a whole. 397 F.2d at 600. In Hoteles Condado Beach v. Union De Tronquistas Local 901, 763 F.2d 34, 40 (1st Cir. 1985) (Hoteles Condado Beach), the court similarly held that a court may vacate an award because of an arbitrator's refusal to hear pertinent and material evidence only when the refusal prejudices the rights of a party to the proceeding. In Hoteles Condado Beach, the arbitrator accepted into evidence the transcript of criminal proceedings concerning an event that was in dispute in the arbitration, but refused to give any weight to the evidence. The court found that the evidence the arbitrator failed to consider was both "central and decisive" to the company's position. Id. Thus, the court vacated the award because the refusal was destructive of the company's right to present its case.

In this case, we conclude that under these standards commonly applied by Federal courts in private sector labor relations cases, the award is deficient because the Arbitrator denied the Union a fair hearing. We find that the Arbitrator refused to consider evidence that was pertinent and material to the issue of whether the suspension of the grievant was for just cause. We also find that the refusal prejudiced the right of the Union to fully and completely present its case and affected the fairness of the arbitration. In our view, the prejudicial effect on the fairness of the proceedings is confirmed by the Arbitrator's statement that the Union's position with respect to one of the two issues that he refused to consider appeared to have "enough merit to . . . warrant serious consideration of it." Award at 5. To have denied the Union the serious consideration its position warranted denied the Union a fair hearing.