Number 138                    December 2000

COURT DECISIONS  |   FLRA   |   MSPB

General Services Administration, Region 9, Los Angeles, California and American Federation of Government Employees, Council 236, 0-AR-3298, December 8, 2000, 56 FLRA No. 164.

FLRA vacated that portion of the award granting official time because the arbitrator did not conduct a fair hearing with respect to that issue. "[B]y failing to provide the Agency with an opportunity to respond to the official time issue raised [for the first time] 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."

A 10-day suspension for failing to submit certain work reports was submitted to arbitration, at which the parties stipulated a number of issues, none of which involved official time. Although the arbitrator found that the suspension of the grievant was proper, he reduced the suspension from ten to five days.

He went on to find that the agency improperly required the grievant to take annual leave on the morning of the arbitration hearing, which was scheduled to begin at 10 a.m. It seems the grievant, instead of reporting to work at his scheduled time of 7 a.m., instead went to the airport to pick up his representative, whose flight was delayed, with the result that the grievant and his representative didn't appear at the hearing until 12:30 p.m. Finding that the grievant had no control over the union's representative's delay, the arbitrator ordered the agency to grant official time for the period 7 a.m. until the end of the hearing.

The agency excepted only to that portion of the award ordering official time, claiming that the arbitrator purported to resolve an issue that was not submitted to arbitration. It asserted that the union didn't raise the matter of official time until it filed its post-hearing brief, and that the agency wasn't given an opportunity to be heard on that issue.

FLRA construed the agency's argument as a claim that the arbitrator failed to conduct a fair hearing and concluded that there was no fair hearing with respect to the official time issue. It noted that the stipulated issues in the case didn't include the official time matter, which was only mentioned in the union's post-hearing brief--a brief which was filed contemporaneous with the agency's post-hearing brief. Nor was there any dispute that the Agency had no opportunity to address the official time issue before the arbitrator rendered his award. FLRA accordingly vacated that portion of the award and indicated that, absent settlement, the award was to be resubmitted to the arbitrator for consideration of whether official time is warranted.