52:0085(8)AR - - AFGE, Council 215 and SSA, Office of Hearings and Appeals, Falls Church, Virginia - - 1996 FLRAdec AR - - v52 p85
[ v52 p85 ]
The decision of the Authority follows:
52 FLRA No. 8
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
FALLS CHURCH, VIRGINIA(*)
August 23, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Richard Trotter filed by the Union under section 7122(a)(2) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance claiming that the Agency failed to notify the Union about, and bargain over, the detailing of unit employees.
II. Background and Arbitrator's Award
The Union filed a grievance challenging the Agency's assignment of 13 unit members to work details. The grievance was denied and proceeded to arbitration. The Arbitrator stated the issue as:
[W]hether the Agency improperly bypassed the Union when [it] solicited volunteers from hearing offices to assist in writing decisions without bargaining with the Union in advance of soliciting volunteers for the details.
Award at 11.
At the close of the arbitration hearing, which was neither recorded nor transcribed, the Union moved that the Arbitrator disqualify himself on the ground that his "abusive misconduct" reflected bias and rendered the hearing unfair. Exceptions at 3. The Arbitrator denied the motion. The next day, the Union notified the Arbitrator and the Agency that it was terminating the Arbitrator's services. Neither the Arbitrator nor the Agency responded.
Thereafter, the Arbitrator issued an award denying the Union's grievance. Finding that the subject of work details was covered by the parties' collective bargaining agreement, the Arbitrator ruled that the Agency satisfied its duty to bargain during contract negotiations.
III. Union's Exceptions
The Union first claims that the Arbitrator was biased. According to the Union, the Arbitrator "belittled the Union representative[,]" "became pre-disposed with assisting the Agency in defending its position[,]" and engaged in "abusive misconduct" that "clearly prejudiced the rights of the Union" and was "destructive of the arbitration process of fairness." Id. at 2-3.
The Union next claims that the Arbitrator failed to conduct a fair hearing. Specifically, the Union asserts that the Arbitrator "refus[ed] to accept and consider . . . relevant evidence[,]" denied the Union's request to present rebuttal testimony "on the basis that he had heard enough[,]" and "interrupted and interfered with [the Union's] questioning of [the] Agency's witnesses[.]" Id. at 2-3.
Finally, the Union claims that its termination notice stripped the Arbitrator of authority to issue a decision and rendered the award "null and void." Id. at 3.
IV. Analysis and Conclusions
To demonstrate that an award is deficient because of bias on the part of an arbitrator, a party must show that the award was procured by improper means, that the arbitrator was partial or corrupt, or that the arbitrator engaged in misconduct that prejudiced the union's rights. National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 50 FLRA 236, 238 (1995).
Here, the Union has made no such showing. Despite the Union's strongly worded allegations, there is nothing in the record that demonstrates the Arbitrator was biased in any way. See 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, 1371 (1993).
The Union's fair-hearing argument is similarly unsubstantiated. An award will be found deficient on the ground that an 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 the union so as to affect the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).
Although the Union asserts that the Arbitrator failed to hear relevant evidence, the Union has not disclosed the nature of the evidence the Arbitrator refused to hear. Likewise, the Union challenges the Arbitrator's denial of its request to present rebuttal testimony, but does not explain what the testimony would have been, its relevance, or how its omission prejudiced the hearing. As for the Union's assertion that the Arbitrator interfered with its questioning of Agency witnesses, the Union has not revealed in what manner the Arbitrator interfered or how such interference rendered the hearing unfair. See American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 399 (1995).
The Union rests its final exception on the ground that the Arbitrator exceeded his authority. An arbitrator exceeds his authority when he fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his authority, or awards relief to persons not encompassed within the grievance. National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Southern California TRACON, 51 FLRA 993, 995 (1996).
An arbitrator does not exceed his authority by proceeding to decision after one party unilaterally has attempted to cancel the proceedings. Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri and American Federation of Government Employees, AFL-CIO, Local 3399, Columbia, Missouri, 6 FLRA 565, 567 (1981). Thus, the Union's contention that its termination notice stripped the Arbitrator of authority to issue a decision fails to provide a basis for finding the award deficient. Id. at 567.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ During the pendency of this case, the Social Security Administration, previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency.