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








LOCAL 2612




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