[ v56 p978 ]
56 FLRA No. 164
GENERAL SERVICES ADMINISTRATION
REGION 9, LOS ANGELES, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236
December 8, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1]
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exception to an award of Arbitrator Samuel A. Vitaro filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exception.
The Arbitrator mitigated a proposed ten-day suspension to a five-day suspension, and ordered the Agency to grant the grievant certain official time. For the following reasons, we conclude that the Agency has established that the award is deficient because the Arbitrator did not provide the Agency an opportunity to address the issue of official time. Accordingly, the award of official time is vacated and remanded to the parties.
II. Background and Arbitrator's Award
The Agency suspended the grievant for ten days for failing to submit certain work reports. The suspension was submitted to arbitration, where the parties stipulated the following issues:
(1) Was the grievance timely in alleging that a "new work procedure" . . . represented a negotiable change in working conditions?;
(2) If so, was there a duty to negotiate the "new work procedure" with the Union?; and
(3) If there was a duty to negotiate with the Union, was the suspension of the [g]rievant for failure to comply with the "new work procedure" as directed in his supervisor's . . . memo therefore improper?
Award at 2.
The Arbitrator found that: (1) the grievance was timely; (2) the Agency was not obligated to bargain with the Union; and (3) even if there was an obligation to bargain, a suspension of the grievant was proper. The Arbitrator reduced the suspension to five days.
The Arbitrator also found that the Agency improperly required the grievant to take annual leave for the morning of the arbitration hearing. In this regard, the Arbitrator stated that on the morning of the hearing, which was scheduled to begin at 10 a.m., the grievant did not report to work at his scheduled time of 7 a.m. but instead went to the airport to pick up the Union representative. According to the Arbitrator, the Union representative's flight was delayed and, as a result, the grievant and representative did not appear at the hearing until 12:30 p.m. The Arbitrator found that the grievant "had no control over [the Union representative's] delay" and that "it would not have made sense for [the grievant] to return to the office." Id. at 13. Based on the foregoing, the Arbitrator ordered the Agency to grant the grievant official time for the period from 7 a.m. until the end of the hearing.
III. Agency's Exception
The Agency excepts only to the Arbitrator's order granting the grievant official time. According to the Agency, "the Arbitrator purported to resolve a[n] issue which was not submitted to arbitration by the parties, and did not afford the [Agency] any opportunity to be heard on that issue." Exception at 1. The Agency asserts, in this regard, that the Union did not raise the matter of official time until its post-hearing brief, which the Agency did not receive until after the close of the record. As such, the Agency claims it was denied notice and an opportunity to address the issue.
IV. Analysis and Conclusion
The Arbitrator failed to conduct a fair hearing.
The Agency contends that the award is deficient because it was not afforded an opportunity to be heard on the official time issue. We construe this argument as a claim that the Arbitrator failed to conduct a fair hearing. [ v56 p979 ]
An award will be found deficient on the ground that an arbitrator failed to provide a fair hearing where a party demonstrates that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See AFGE, Local 1668, 50 FLRA 124, 126 (1995). It is well established that an arbitrator has considerable latitude in conducting a hearing and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, by itself, provide a basis for finding an award deficient. See AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996). In this regard, an arbitrator does not fail to conduct a fair hearing by accepting and considering additional information or memoranda submitted by a party with its post-hearing brief, where the opposing party had an adequate opportunity to respond to the additional information. See NATCA, MEBA, 47 FLRA 638, 647-48 (1993).
The stipulated issues in this case did not include the official time issue, and there is no dispute that the issue was raised only in the Union's post-hearing brief, which was filed contemporaneous with the Agency's post-hearing brief. There also is no dispute that the Agency had no opportunity to address the issue before the Arbitrator rendered his award. In these unique circumstances, we conclude that, by failing to provide the Agency with an opportunity to respond to the official time issue raised by the Union's post-hearing brief, the Arbitrator prejudiced the Agency in a manner that affected the fairness of the proceeding as to that issue. Therefore, we find that the Arbitrator failed to conduct a fair hearing.
The award of official time is vacated and remanded to the parties. Absent settlement, the award should be resubmitted to the Arbitrator for consideration of whether official time is warranted.
Footnote # 1 for 56 FLRA No. 164