and
FEDERAL BUREAU OF PRISONS,
Employer.
________________________________/
Jodi Thomason
Local 3981 President
AFGE Local 3981
PO Box 702
Jesup, GA 31598
Cynthia Blanks
US Department of Justice
Federal Bureau of Prisons
Labor Management Relations
Specialist
320 First Street NW, Rm 236c
Washington, DC 20534
The Parties
This is a case between Local No. 3981 of the American Federation of
Government Employees (Union) and the Federal Bureau of Prisons (Employer or
Agency). It arose at the Federal Correctional Institution in Jesup, Georgia. Relations
between the parties are governed by the Master Agreement between the Federal
Bureau of Prisons and Council of Prison Locals, American Federation of Government
Employees, which initially covered the period of March 9, 1998 - March 8, 2001, and
which since has been extended (CBA).
Pertinent Provisions from the CBA
Pertinent provisions of the CBA are the following found in Article 32
Arbitration:
Section b. When arbitration is invoked, the parties (or the grieving party) shall,
within three (3) working days, request the Federal Mediation and Conciliation
Service (FMCS) to submit a list of seven (7) arbitrators.
Section f. The Union and the Agency will exchange initial witness lists no later
than seven (7) days prior to the arbitration hearing. Revised witness lists can be
exchanged between the Union and the Agency up to the day prior to the
arbitration.
Section h. The arbitrator's award shall be binding on the parties. The
arbitrator shall have no power to add to, subtract from, disregard, alter, or
modify any of the terms of:
1. this Agreement; or
2. published Federal Bureau of Prisons policies and regulations.
Also Article 32 of the Master Agreement section d (1) states "the Employer will
pay travel and per diem expenses for: a) employee witnesses who have been
transferred away from the location where the grievance arose: b) employee
witnesses who were temporarily assigned to the location where the grievable
action occurred; and c) employee witnesses where the parties mutually agree to
hold the hearing at a site outside the commuting area".
If the employee were prior employees at FCI Jesup the Agency is responsible to
get them back for the hearing. If the hearing was outside the commuting area of
the Institution then we would have to get employees at the Institution to the
hearing.
Both have agree to testify by phone, it is not possible for them to travel due to
job requirements, but as I stated earlier video conference for testimony is also an
option.
I will call the number you listed below
Jul 07/02/14 2:20 PM.
The Agency followed up with an email regarding efforts to contact witnesses:
I have contacted the witness outside of FCI Jesup.
A travel authorization has been submitted for Mr. D.K. L[]. Please note he is
scheduled ADO next week. Mr. L[] is requesting for his testimony if need to be
via telephone due to demands in newly assigned position. Please advise as soon
as possible!
I do not have contact information for [G C] (Retired)
[M R], Deputy General Counsel Central Office (deceased)
[M T], Grand Prairie ( Was at 2010 LMR as a Benefits Expert ONLY, not
relevant to this case - On travel at Benefits training next week does not have a
black berry)
[D E], Procurement Central Office (e-mailed - at 2010 LMR as Contracting
Expert ONLY, not relevant to this case)
[S K], Jesup
[S H], Jesup
[DK L], McCreary
[K H], Jesup
[F S], Jesup
[E C], Jesup
[G C], Jesup
[E M], Jesup
[J G], Jesup
[D D], Jesup
[D B], Jesup
[A A], Jesup
[C W], Chief LMR Central Office
[E Y], National CPL 33 President
[M C], AFGE Rep
[S, R] SER VP CPL 33
[M M], Western VP CPL 33
[B L], Texarkana
Jul 07/06/14 9:26 AM.
Analysis
Inasmuch as the Agency has known about the July 9 hearing date for more than
4 months, its predicament is largely self-inflicted. In the short time available, the
arbitrator has been able to find little authority on the issue. He previously encountered
it in AFGE Local 3509 and Social Security Administration, 2012 WL 11047337, 114
LRP 30124 (Arb 2012),2 a copy of which is transmitted to the parties with this opinion.
In that case, the arbitrator allowed testimony via video conference.
In Employer and Utility Workers Union of America, 2013 LA Supp 148255,
arbitrator John E. Sands wrote:
2
Available at http://www.scribd.com/doc/232684255/AFGE-Local-3509-and-Social-Security-Administration.
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http://www.fmcs.gov/internet/itemDetail.asp?categoryID=247&itemID=17942.
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The arbitrator has reviewed the CBA and concludes that it does not sufficiently
outline hearing procedures or rules of evidence so as to preclude the use of video
testimony. However, the arbitrator is skeptical about mere telephonic testimony. The
Agency surely has technical staff that can arrange a video conference. Indeed, any
private parties could do so on Skype.4
While the arbitrator, at this stage of the proceedings, does not completely rule
out telephonic testimony, he strongly cautions that the testimony of any witness who
testifies without affording the arbitrator the opportunity to observe his demeanor risks
having his testimony discounted. This is especially so if the witness purports to testify
about a disputed factual issue or his credibility is questioned. Forewarned is forearmed.
For the foregoing reasons, the arbitrator interprets the CBA in a manner that
allows a determination of the case to be made on the merits without procedural rules
being an insurmountable obstacle.
The parties should continue to confer about the issue presented. Any agreement
they reach supersedes anything said in this opinion.
________________________________
E. Frank Cornelius, PhD, JD, Arbitrator
http://www.skype.com/en/.
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