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FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between


AFGE LOCAL NO. 3981,
Union,
FMCS No. 14-00888
Union Grievance

and
FEDERAL BUREAU OF PRISONS,
Employer.
________________________________/

OPINION OF THE ARBITRATOR ON ELECTRONIC TESTIMONY


July 7, 2014
Via Email and US Mail

For the Union:

For the 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.

The Pre-Hearing Issue


A hearing date of July 9, 2014 was set during the third week of February 2014.
A pre-hearing issue arose on July 1, 2014, when the Union sent the following email to
the Agency:
Please accept this correspondence with the listed staff as the Union's Witness
List (per our CBA Article 32) for the arbitration scheduled for July 9 and July
10th, 2014 at FCI Jesup. We are requesting the Agency properly schedule BOP
staff for the hearing. Also, is the Agency requesting a transcription of the
hearing?
Union Witness List:
[J T], Jesup
[R S], Jesup
[S H], Jesup
[A T], Jesup
[M C], Jesup
[T J], Jesup
[T M], Jesup
[J B], Jesup
[S K], Jesup
[S H], Jesup
[D E], 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
[M R], Deputy General Counsel Central Office
[M T], Grand Prairie
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[D E], Procurement Central Office


[F S], Assistant Dir 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
We will update you all with any changes.
Tue, Jul 01, 2014 05:06 PM.
The Agency responded with its much shorter witness list:
Mrs. [S H], Warden
Mr. [M B], Chief PDP Correctional Programs (Telephone Witness)
Ms. [J B], Human Resource Manager
Mr. [C W], Chief Labor Relations Management (Telephone Witness)
Jul 07/02/14 1:57 PM.
The Agencys witness list prompted this response from the Union:
I am in receipt of the Witness List, thank you. I am concerned about the
notation you made (telephone witness). The Union has not agreed to any
telephonic witnesses and the Master Agreement is clear in the process the
agency will follow in producing the witnesses. Have I missed something in this
regard? My telephone number is 912-427-0870 ext 1120. I am in the Staff HR
Computer Lab.
Jul 07/02/14 2:04 PM.
The Agency explained the need for telephonic testimony as follows:
The Agency two witnesses are both unable to travel next week due to office
personnel shortages. Mr. B[] is the only one in his office next week. Mr. W[] is
scheduled to conduct training although video conference is a possibility if
available.

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)

[C W], Chief LMR Central Office


[F S], Assistant Dir Central Office (at 2010 LMR for Article 18 Expert ONLY,
not relevant to this case)
Have both been notified and request to know a time as soon as possible.
7/3/2014 11:08 AM.
The Unions last relevant email in this exchange was the following:
I am just receiving this notice as I told you when we spoke on Wednesday
July 2 that I was off work July 3 through July 5, 2014. Our witness list is
clear. Although the employees you state are not relevant may have been in the
proceeding as experts on other matters, they were present nonetheless and may
have a recollection of the content of the proceedings. I believe that it is the
Union's right to determine based on their testimony.1 However, to be fair to
those employees and the fact they are being notified so late in the stage, I will
agree to remove them as I feel we will have sufficient testimony regarding our
case without them. However, Mr. L[] and Mr. W[] will need to appear for the
arbitration. They had sufficient notice and the Agency certainly has numerous
staff to utilize for ADO at McCreary. The agency also had ample time to
request a mutual agreement with the Union prior to assuming that telephonic
witnesses was appropriate, yet no such contact was made with us. Below please
see the Union's revised Witness List. We should be able to agree to stipulate to
the fact that several of them may provide similar testimony at the hearing and
remove them for timeliness as well.
Union Witness List:
[J T], Jesup
[R S], Jesup
[S H], Jesup
[A T], Jesup
[M C], Jesup
[T J], Jesup
[T M], Jesup
[J B], Jesup
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It is the arbitrators job to determine relevancy. Footnote by arbitrator.


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[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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Pursuant to my authority under the parties' collective bargaining agreement, I


conducted hearings on February 19, 2013 and by telephone conference on
February 27, 2013. Both parties appeared by counsel and had full opportunity to
adduce evidence, to cross examine each other's witnesses, and to make
argument in support of their respective positions. Neither has raised any
objection to the fairness of this proceeding. (Emphasis supplied.)
However, the opinion is not specific as to what aspect of the proceeding was conducted
by telephone. In the CBA under consideration here, there is no express authority for
or prohibition againstthe arbitrator allowing video testimony.
In Service Employees International Union (SEIU) and Employer, 2013 LA
Supp 148171, arbitrator Elliott D. Shriftman stated:
A hearing was held at Employer, Address, Jamaica, New York, on August 28,
2013. The parties appeared; were represented, as noted; and, were given a full
opportunity to present evidence and make arguments. At the close of the
hearing, the record was left open for thirty days in order for the Employer to
submit additional documentation concerning W___'s (W___ or Grievant)
criminal record and for counsel thereafter to make their closing statements. On
September 12, 2013, the hearing was continued, via a telephone conference,
wherein additional documentation was received into the record; W___ gave
additional testimony; and, counsel made closing statements. (Emphasis
supplied.).
However, the opinion does not explain the authority for the telephone conference.
In upholding a lower courts confirmation of an arbitration award, the court in
In the Matter of the Arbitration between United Public Workers, AFSCME, Local 646,
AFL-CIO v County of Hawai`i-Holiday Pay, 264 P3d 655, 125 Haw 476 (Interm Ct
App 2011) recited:
The motion for summary disposition came on for hearing on July 18, 2008 at
the UPW Hall with both parties and the Arbitrator present. On January 30,
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2009, the Arbitrator conducted a hearing via teleconference regarding a final


arbitration award and motions for discovery sanctions. On June 1, 2009, the
Arbitrator held a third hearing via telephone conference with UPW and County
on holiday pay for certain classes of employees. Based on the hearings of
January 30, 2009 and June 1, 2009, the Arbitrator issued the Arbitration Award
on July 9, 2009. 264 P3d 655@ 662.
The judge determined that the instant arbitration was properly held in Honolulu,
where the Arbitrator was located. Judge McKenna likened arbitration hearings
to court proceedings, where the location of the proceeding is considered to be
wherever the fact finder is, even if witnesses or parties participate via telephone
or video conference from another location. Id. @ 662-663; emphasis supplied.
In In re Farmers Insurance Exchange Claims Representatives' Overtime Pay
Litigation, 300 F Supp 2d 1020, 1029 (D Or 2003), the court extoled the virtues of
technology:
By effectively using our available courtroom technology, which included
electronic presentation of exhibits, live testimony taken via video-conference,
and presentation of excerpts of videotaped depositions, the parties were able to
fully present their Power Point assisted opening statements, their witnesses,
evidence, and Power Point assisted closing arguments in fourteen trial days,
three weeks less than the anticipated minimum of six weeks.
Because the parties use the Federal Mediation and Conciliation Service (FMCS)
for selecting an arbitrator, this arbitrator consulted the FMCS website. On the FMCS
website, under the heading FMCS Arbitrator and Hearing Rules and Regulations, that
agency states:3
There are no specific hearing rules for FMCS arbitrators. The arbitrator
determines the manner in which the hearing will be conducted and is totally
responsible for determining evidentiary and other matters related to the hearing,
unless these matters are outlined in the parties' collective bargaining agreement.
3

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.

Dated July 7, 2014

________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

http://www.skype.com/en/.
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