39:0471(38)AR - - Air Force, Griffis AFB, NY and AFGE Local 2612 - - 1991 FLRAdec AR - - v39 p471
[ v39 p471 ]
The decision of the Authority follows:
39 FLRA No. 38
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
GRIFFISS AIR FORCE BASE, NEW YORK
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 8, 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 David C. Randles filed by the Union 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 exceptions.
A grievance was filed over the Agency's decision to suspend the grievant for 1 day for making false and malicious statements against other employees and for using abusive and offensive language. The Arbitrator denied the grievance.
For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant was suspended for 1 day for making false and malicious statements against fellow employees and for using abusive and offensive language. In particular, the Agency suspended the grievant for making certain statements in the presence of, and regarding, certain military personnel (hereinafter the airmen). A grievance was filed over the suspension and when the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:
Was the suspension of [the] grievant . . . based on just cause, initiated promptly and administered in a fair and equitable manner?
If not, what shall be the remedy?
Award at 2.
As relevant here, the Arbitrator determined that the grievant did, in fact, make the statements and use the language for which he was suspended. In making this determination, the Arbitrator evaluated the testimony of Agency and Union witnesses including the grievant, the airmen, and the grievant's supervisor. The Arbitrator stated that the testimony of the airmen was straightforward, did not appear to have been rehearsed, and was consistent with written statements made by the airmen at the time of the incident. The Arbitrator stated that, on the other hand, "the grievant, at times, was illusive, vague, manipulative to his advantage and not responsive to the questions on cross-examination." Id. at 6.
As an example of the grievant's credibility, the Arbitrator noted the grievant's testimony that he did not recall having been counseled for use of abusive language. The Arbitrator contrasted the grievant's testimony with that of the grievant's supervisor, who testified that she had counselled the grievant for use of profanity and that the grievant had been disciplined for insolence. The Arbitrator stated that there "was not a scintilla of evidence to conclude that [the supervisor] had concocted her assertions; in fact, she substantiated her testimony by contemporaneous notes." Id.
The Arbitrator stated that "the credibility of the [Agency's] witness testimony survives the tests of credibility and that of the grievant and the Union witnesses does not." Id. Accordingly, the Arbitrator concluded that the conclusion was "inescapable" that "the grievant did, in fact, make false and malicious statements against other employees and used abusive and offensive language." Id. Based on his findings concerning the grievant's statements and use of abusive and offensive language, as well as other findings not relevant here, the Arbitrator upheld the 1-day suspension and denied the grievance.
III. The Union's Exception
The Union argues that the award is deficient because the Arbitrator denied it a fair hearing. The Union asserts that the supervisor's notes on which the Arbitrator relied in finding the supervisor's testimony credible were not properly entered into evidence at the arbitration hearing. The Union states, in this regard, that it objected to the introduction of the notes into evidence and that it believed that the Arbitrator had returned the notes to the Agency. As the Arbitrator relied on notes that were not properly entered into evidence, the Union argues that it was denied its rights to contest the notes and cross-examine the witness. The Union argues that by considering the notes, the Arbitrator "prejudiced himself against the [g]rievant" and violated 29 C.F.R. º 1404.14. Exception at 1.(*)
IV. Analysis and Conclusions
Under section 7122(a)(2) of the Statute, the Authority may find an arbitration award deficient on "grounds similar to those applied by Federal courts in private sector labor-management relations[.]" Consistent with the grounds applied in the private sector, the Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing. See generally U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees,Local 1592, 39 FLRA No. 7 (1991).
For example, an award will be found deficient on the basis that an arbitrator denied parties a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence. See id., slip op. at 4. It must also be demonstrated, however, that the refusal to hear or consider pertinent and material evidence affected the fairness of the proceeding as a whole. Id. See also, for example, National Post Office Mailhandlers, Watchmen, Messengers and Group Leaders Division, Laborers International Union of North America, AFL-CIO v. United States Postal Service, 751 F.2d 834, 841 (6th Cir. 1985) ("the standard for review of arbitration procedures is merely whether a party . . . has been denied a fundamentally fair hearing."). Moreover, it is clear, in this regard, that arbitrators are not bound by formal rules of procedure and evidence. See, for example, id.
Applying these principles, we conclude that the Union has not demonstrated that the Arbitrator denied it a fair hearing. We note two things.
First, the Union states that it objected to the inclusion of the notes in a joint exhibit that was entered into evidence at the arbitration hearing. The Union states that the Arbitrator did not inform the Union that, following its objection, the notes were not taken out of the joint exhibit. The Union does not assert, however, that it was prevented in any way from examining the exhibit at the hearing or was prevented from verifying that the joint exhibit contained only the documents agreed upon by the parties. Moreover, the Union does not assert, and there is no other basis on which to conclude, that the Arbitrator intentionally misled the Union or otherwise acted improperly so as to prejudice the Union's rights. Instead, it appears that any improper retention of the disputed notes by the Arbitrator was inadvertent.
Second, even if the notes were not properly made part of the record before the Arbitrator, the Union has not demonstrated that the impropriety affected the overall fairness of the arbitration proceeding. The Arbitrator referred to the notes in the context of his overall discussion of the credibility of witnesses. The Arbitrator found that the grievant's testimony was "illusive, vague, manipulative to his advantage and not responsive to the questions on cross-examination." Award at 6. As an example of the grievant's testimony, the Arbitrator contrasted the grievant's denial that he had been counselled for using abusive language with the supervisor's testimony that the grievant had been counselled. The Arbitrator referred to the disputed notes only in the context of that example, and only as one of the bases on which he found the supervisor's testimony credible.
Moreover, it is apparent from the award that the matter about which the notes were referenced, the prior counselling of the grievant, was testified to by the supervisor. In fact, both the grievant and the supervisor testified as to the matter. It is clear, therefore, that the Union was aware that the matter of the grievant's prior counselling was before the Arbitrator.
Accordingly, based on the record as a whole, we conclude that the Union has not demonstrated that the Arbitrator's sole reference to the disputed notes, even if the notes were not properly entered into evidence, denied the Union a fair hearing. As such, there is similarly no basis on which to conclude that the award is inconsistent with 29 C.F.R. º 1404.14. Instead, the Union's exception constitutes disagreement with the Arbitrator's credibility determinations. Such disagreement provides no basis for finding an award deficient. See, for example, Veterans Administration Medical Center, Kansas City, Missouri and American Federation of Government Employees, Local 2663, 29 FLRA 889, 890 (1987). See also, for example, International Brotherhood of Fireman & Oilers Local 261 v. Great Northern Paper Co., 765 F.2d 295, 296 (1st Cir. 1985) ("courts are precluded from interfering with arbitration awards for mere errors in assessing the credibility of witnesses.") (citations omitted).
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
*/ 29 C.F.R. º 1404.14, promulgated by the Federal Mediation and Conciliation Service (FMCS) and applicable to arbitrators selected pursuant to FMCS rosters, concerns the conduct of hearings and provides in pertinent part:
All proceedings conducted by the arbitrator shall be in conformity with the contractual obligations of the parties. The arbitrator is also expected to conduct all proceedings in conformity with º 1404.4(b). The conduct of the arbitration proceeding is under the arbitrator's jurisdiction and control and the arbitrator's decision is to be based upon the evidence and testimony presented at the hearing or otherwise incorporated in the record of the proceeding. . . .
29 C.F.R. º 1404.4(b) provides that arbitrators listed on FMCS rosters must comply with FMCS rules and regulations and are "expected to conform to the ethical standards and procedures set forth in the Code of Professional Responsibility for Arbitrators of Labor Management Disputes[.