50:0172(32)AR - - AFGE, Local 1869 and Air Force, Charleston AFB, Charleston, SC - - 1995 FLRAdec AR - - v50 p172
[ v50 p172 ]
The decision of the Authority follows:
50 FLRA No. 32
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
CHARLESTON AIR FORCE BASE
CHARLESTON, SOUTH CAROLINA
February 24, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Roy D. Cromwell 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 filed an opposition to the exceptions.
The Arbitrator denied a grievance over the reprimand of the grievant.
We find that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant was reprimanded as the result of an altercation with a supervisor. The Arbitrator found that the reprimand was warranted because the grievant's resort to physical means to resolve the dispute with the supervisor was disruptive to the work place. Accordingly, the Arbitrator denied the grievance.
A. Union's Contentions
The Union contends that the Arbitrator failed to conduct a fair hearing by refusing to hear pertinent and material evidence concerning the supervisor who was involved in the altercation. The Union also contends that the Arbitrator's statements, that the grievant should have used the grievance procedure instead of self-help, are contradictory and render the award deficient because the grievant is not a subordinate of the supervisor and there was nothing the grievant could have grieved.
B. Agency's Opposition
The Agency asserts that the Union has not supported its exceptions. The Agency also asserts that the exceptions should be dismissed because the Union did not comply with the applicable regulatory requirements for exceptions within the statutory time period for filing exceptions.
IV. Analysis and Conclusions
The Union filed its exceptions to the award within the 30-day period specified by the Statute, but failed to provide a statement of service of the exceptions on the Agency's representative, a copy of the Arbitrator's award, and the address of the Arbitrator, as required by the Authority's Regulations, within that period. The Union cured these deficiencies within the time period specified in the Authority's order.
Under section 7122, Authority review of an award is based on the filing of an exception within 30 days of the date of service of the award. Section 7122 does not specify the content of an exception and contains no additional jurisdictional requirements. Accordingly, provided an exception is timely filed with the Authority, corrections of procedural deficiencies are permitted within whatever time period is specified in the Authority's order. American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1364 n.* (1993). As the exceptions were timely and the Union cured the procedural deficiencies within the time period specified in the Authority's order, we deny the Agency's request that we dismiss the exception.
B. Fair Hearing
The Authority will find an award deficient because the arbitrator failed to conduct a fair hearing when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA No. 25 (1995). We conclude that the Union has failed to establish that it was denied a fair hearing. The Arbitrator denied the grievance because he found that, regardless of the actions of the supervisor, the grievant's conduct could not be tolerated in the work place. In these circumstances, we find that the Arbitrator's exclusion of evidence regarding the supervisor did not affect the fairness of the proceeding as a whole, and the exception provides no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administration, Boston Region and American Federation of Government Employees, Local 1164, 48 FLRA 943