American Federation of Government Employees, Local 4044, Council of Prisons Local 33 (Union) and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Three Rivers, Texas (Agency)

[ v57 p98 ]

57 FLRA No. 27

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 4044
COUNCIL OF PRISONS LOCAL 33
(Union)

and

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
THREE RIVERS, TEXAS
(Agency)

0-AR-3314

_____

DECISION

April 30, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

Decision by Member Pope for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Harry L. Johnson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the Union's grievance, finding that the Agency did not violate the parties' agreement by requiring the grievant to wear dress shirts to work.

II.     Background and Arbitrator's Award

      Because of a skin irritation, the grievant, a Drug Treatment Specialist at a federal correctional institution, started wearing large, untucked, polo-type shirts at work, rather than the customary dress shirt and tie. After questioning the grievant about his change in attire, the grievant's supervisor requested that he provide documentation from his physician. Upon receiving the doctor's note, the grievant's supervisor asked him to wear a dress shirt without a tie until his skin cleared up.

      The grievant filed a grievance that, when not resolved, was submitted to arbitration, where the Arbitrator adopted the Union's articulation of the issues, as follows:

1.     Did [the] manage[er] . . . violate the Master Agreement specifically when she failed to negotiate the [i]mpact and [i]mplementation [under] Article three of the Master Agreement, concerning the implementation of a dress code?
2.     Did [the manager] violate Article six of the Master Agreement by restricting or limiting a bargaining member from wearing Polo shirts . . . ?

Award at 20-21. [n1] 

      The Arbitrator found that management did not violate the parties' agreement by failing to negotiate the impact and implementation of a dress code because "no management person desired or attempted to require a new dress code." Id. at 20. The Arbitrator found that the relevant past practice was professional dress, and that the male staff members traditionally wore a dress shirt and tie at work. The Arbitrator further found that when the grievant began wearing untucked, polo-type shirts, the grievant's supervisor did not "order" the grievant to change his attire, but simply requested him to do so. Id. at 19.

      The Arbitrator found that the doctor's note submitted by the grievant to the Agency, and other evidence, "cast great doubt on [the] [g]rievant's credibility[,] sincerity and mental health." Id. at 16. Further, the Arbitrator stated, the grievant's attitude and demeanor "indicate[d] a lack of respect for those in authority [and were] symptomatic of a mental health problem identified [ v57 p99 ] as Narcissistic Personality Disorder." Id. at 19. Based on the foregoing, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union claims that the Arbitrator failed to address all of the material issues, and also failed to consider pertinent evidence showing that the Agency did not have a dress code. The Union further claims that the Arbitrator relied on hearsay evidence. According to the Union, the Arbitrator did not allow the Union to present its case and showed bias by assessing the grievant's mental health and attitude toward authority.

      The Union asserts that the Arbitrator violated the Privacy Act by accepting in evidence, over the Union's objection and without the grievant's consent, a doctor's note from the grievant's medical records. The Union further asserts that the award is based on a nonfact in that the Arbitrator found that the Agency requested the grievant to wear a dress shirt, when in fact the Agency ordered him to do so. The Union claims that the Arbitrator also relied on facts not in evidence.

      According to the Union, the Arbitrator did not comply with the parties' agreement because he did not enforce the provision requiring negotiation prior to implementation. Finally, the Union argues that the Arbitrator erred by failing to find that there was a past practice of allowing employees to wear polo-type shirts.

B.     Agency's Opposition

      The Agency argues that the Arbitrator's determination of the issues should be given substantial deference because the parties did not stipulate the issues before the Arbitrator. The Agency further argues that the Arbitrator was "free to rely on hearsay." Opposition at 14. In this regard, the Agency asserts that the Union's disagreement with the Arbitrator's evaluation of the evidence does not demonstrate that the award is deficient.

      According to the Agency, the Privacy Act was not violated because use of an employee's personal information in an arbitration proceeding is permitted as a "routine use" under 5 U.S.C. § 552(b)(3). [n2]  Moreover, the Agency asserts that the award is not based on a nonfact. The Agency argues that the award draws its essence from the parties' agreement because the Arbitrator specifically found that management did not implement a dress code that would require bargaining on impact and implementation. Finally, the Agency asserts that the Arbitrator correctly rejected the grievant's past practice claim.

IV.     Analysis and Conclusions

A.     The Arbitrator Did Not Exceed His Authority

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See United States Dep't of the Army Corps of Eng'rs, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997).

      The Union asserts that the Arbitrator exceeded his authority by failing to address material issues in the case. However, the Union does not state which issues the Arbitrator failed to address. Because the parties did not stipulate the issues, the Arbitrator formulated the issues in the case. As the Union has not shown why the Authority should not defer to the Arbitrator's formulation of the issues, and the award is directly responsive to those issues, we conclude that the Arbitrator did not exceed his authority in this regard.

      The Union also claims that the Arbitrator exceeded his authority by changing the issue from a question of whether the Agency violated the parties' agreement to a question of the grievant's mental health. This argument, however, is without merit as there is no indication that the Arbitrator resolved any issues other than those he formulated. Comments made by the Arbitrator about the grievant's mental health are merely incidental to the award and neither amount to a resolution of an issue not before the Arbitrator, nor disregard specific limitations on the Arbitrator's authority. Accordingly, we deny the Union's exception. [ v57 p100 ]

B.     The Arbitrator Did Not Deny the Grievant a Fair Hearing

      The Union makes two assertions challenging the Arbitrator's conduct of the hearing. First, the Union claims that the Arbitrator failed to consider evidence admitted into the record concerning the Agency's dress code. Second, the Union claims that the Arbitrator improperly considered hearsay evidence. The Authority has construed similar arguments as assertions that the Arbitrator failed to conduct a fair hearing. See, e.g., NFFE, Local 1904, 56 FLRA 196, 201 (2000); United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000) (Dep't of the Navy); AFGE, Local 22, 51 FLRA 1496, 1497 (1996).

      The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated 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 GSA, Region 9, L.A., Cal., 56 FLRA 978, 979 (2000) (citing AFGE, Local 1668, 50 FLRA 124, 126 (1995)). Further, 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 id. (citing AFGE, Local 22, 51 FLRA at 1497-98).

      According to the Union, the Arbitrator failed to consider pertinent evidence showing that the Agency did not have a policy requiring employees to wear a tie or any specific type of shirt. However, the Union did not point to any evidence in the record, or provide a transcript of the hearing supporting these allegations. A union's "unsubstantiated allegations cannot establish that the Arbitrator . . . denied it a fair hearing." AFGE, Local 1406, 54 FLRA 150, 155 (1998). Consequently, the Union's allegations do not support a finding that the Arbitrator denied the grievant a fair hearing.

      The Union further argues that the Arbitrator improperly relied on hearsay testimony of the warden. However, the Authority has held that "the liberal admission by arbitrators of testimony and evidence is a permissible practice." See United States DOD, Def. Mapping Ag., Hydrographic/Topographic Ctr., 44 FLRA 103, 109 (1992) (citing Veterans Admin. and VA Med. Ctr. Register Office, 34 FLRA 734, 738 (1990)). Consistent with the Authority's precedent, this argument also does not demonstrate that the award is deficient.

C.     The Award Is Not Deficient Because the Arbitrator Was Biased

      To demonstrate that an award is deficient because the arbitrator was biased, "a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party." Dep't of the Navy, 56 FLRA at 850 (citing United States Dep't of Veterans Affairs Med. Ctr., N. Chi., Ill., 52 FLRA 387, 398 (1996)). The Authority has denied bias exceptions in cases where an arbitrator's statements were critical of a party. See id. (citing United States DOD, Def. Mapping Ag., Hydrographic/Topographic Ctr., Wash., D.C., 47 FLRA 1187, 1203-05 (1993)). Moreover, the Authority has denied exceptions based on an arbitrator's remarks indicating concern with a party's conduct. See id. (citing DHHS, SSA, 26 FLRA 6, 7-8 (1987)).

      The Union claims that the Arbitrator displayed bias by diagnosing the grievant with Narcissistic Personality Disorder, by making reference to the grievant's behavior toward authority figures, and by slandering, defaming, and denouncing the grievant in the award. Our review of the record leads to the conclusion that certain of the Arbitrator's comments were clearly intemperate. Nevertheless, the comments do not demonstrate that the award was procured by improper means or that there was partiality or corruption on the part of the Arbitrator. Accordingly, the Union has not shown that the Arbitrator engaged in any misconduct that prejudiced its rights or that he was biased.

D.     The Award Is Not Inconsistent with the Privacy Act

      Generally, unless the employee consents, the Privacy Act prohibits the disclosure of a federal employee's personal information that is maintained by an agency in a system of records. See United States Dep't of the Treasury, IRS, 51 FLRA 310, 311 (1995). One exception to this general rule is for a routine use as defined in the Privacy Act. See 5 U.S.C. § 552a(b); see also, supra note 2. The Office of Personnel Management's (OPM) issuance concerning routine uses of protected information permits disclosure of such information, according to the particular system of records in which the information is contained.

      While the Agency concedes that the doctor's note is part of a system of records subject to the Privacy Act, it is not clear which system of records would appropriately contain the doctor's note. In this regard, both the Arbitrator and the Union refer to "medical files," which [ v57 p101 ] would be covered by the OPM/GOVT-10 system of records. See Privacy Act of 1974; Publication of Notices of Systems of Records and a Proposed New Routine Use, 61 Fed. Reg. 36919, 36938 (July 15, 1996). The Agency, on the other hand, cited OPM's routine uses relevant to employees' general personnel files, which would be covered by the OPM/GOVT-1 system of records. See id. at 36919.

      The routine use statements for the OPM/GOVT-1 and OPM/GOVT-10 systems of records are, in pertinent part, identical. In particular, both routine use statements permit disclosure "in a proceeding before a court, adjudicative body, [or] other administrative body" when the agency "has an interest in such litigation, and the use of such records . . . is deemed by the agency to be relevant and necessary to the litigation, provided however, that . . . the disclosure is compatible with the purpose for which the records were collected." Id. at 36919, 36938. The list of proceedings in which disclosure of protected information is permitted, is sufficiently broad to encompass an arbitration proceeding. Further, it is apparent that the Agency, as a party to the arbitration proceeding, deemed the grievant's doctor's note relevant and necessary to the arbitration proceeding.

      In these circumstances, assuming that the doctor's note is maintained in one of the systems of records described above, the Agency's disclosure of the grievant's doctor's note was an authorized routine use under the Privacy Act. Accordingly, without deciding which system of records is appropriate, the Union's exception provides no basis for finding the award deficient.

E.     The Award Is Not Based on Nonfacts

      The Union claims that the Arbitrator relied on facts not in evidence when he misconstrued a witness' testimony. The Authority has construed an argument that the Arbitrator relied on facts not in evidence as an assertion that the award is based on a nonfact. See United States Dep't of the Army, Aviation Ctr., Fort Rucker, Ala., 39 FLRA 1113, 1116 (1991).

      "To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator." NFFE, Local 1984, 56 FLRA 38, 41 (2000). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id.

      The Union asserts that the Arbitrator incorrectly stated that the grievant's supervisor testified that "the grievant wore his shirt out of his trousers and the shirt came down to his knees." Exceptions at 2. According to the Union, the grievant's supervisor never testified to this. However, the Union does not dispute that, in fact, the grievant wore "a polo shirt with the tail out, which came to his knees." Award at 17. Accordingly, the Union has not shown that, in this respect, the award is based on a nonfact.

      The Union also challenges as a nonfact the Arbitrator's finding that the Agency's instruction to the grievant to wear dress shirts was a request rather than an order. However, because this issue was clearly disputed below, the Union's argument does not establish that the award is deficient.

F.     The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

      The Union asserts that because there was a past practice of allowing employees to dress casually, the Agency was required to negotiate the impact and implementation of a new dress policy. Therefore, the Union claims that the Arbitrator violated Article 3, sections a and c, Article 6, section e and Article 32, section h of the parties' agreement by not requiring the Agency to so negotiate. [n3] 

      In the context where the Union argues that the award is deficient because the Arbitrator failed to recognize a past practice, the Authority considers the Union's assertion regarding past practice a matter of contract interpretation. See PASS, 56 FLRA 124, 125 (2000). In reviewing an Arbitrator's interpretation of an agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See United States DOJ, Fed. BOP, Mgmt. and Specialty Trng. Ctr., Aurora, Colo., 56 FLRA 943, 944 (2000); AFGE, Local 3369, 55 FLRA 1074, 1077 (1999). Under this standard, the Authority will review the award to determine whether it is deficient as failing to draw its essence from the parties' agreement. See id. The award will be found deficient on this ground when the appealing party establishes one of the following: (1) the award cannot in any rational way be derived from the agreement; (2) the award is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity [ v57 p102 ] to the obligation of the arbitrator; (3) the award does not represent a plausible interpretation of the agreement; or (4) the award evidences a manifest disregard of the agreement. See id.

      The Union has provided no support for its assertions that there was a past practice of allowing casual dress, and that the Agency implemented a new dress policy. In this regard, the Union simply disagrees with the Arbitrator's factual findings. The Arbitrator specifically found that the past practice at the prison consisted of professional dress, and that "no [m]anagement person desired or attempted to require a new dress code." Award at 14, 20. Consistent with his findings, the Arbitrator concluded that the Agency did not violate the parties' agreement by failing to negotiate the impact and implementation of a dress code. Consequently, the Union has failed to establish that the Arbitrator's determinations are irrational, unfounded, or implausible, or that they otherwise disregard the parties' agreement.

V.     Decision

      As the Union has failed to establish that the award is deficient on any of the grounds asserted, the Union's exceptions are denied.



Footnote # 1 for 57 FLRA No. 27 - Authority's Decision

   In pertinent part, Article 3 states:

Section a. . . . [T]his Agreement takes precedence over any Bureau policy, procedure, and/or regulation which is not derived from higher government-wide laws, rules, and regulations.
. . . .
Section c. The Union and Agency representatives . . . will meet and negotiate on any and all policies, practices, and procedures which impact conditions of employment . . . prior to implementation of any policies, and/or procedures.

Award at 5.

In pertinent part, Article 6 states:
Section e. . . . Employees will maintain a neat appearance and dress, considering the correctional environment, and such appearance and dress will not interfere with the security or safe running of the institution . . . . In the event of disputes, and prior to an employee being required to change [his] dress or appearance, alternatives will be explored. Id.

Footnote # 2 for 57 FLRA No. 27 - Authority's Decision

   "[T]he term `routine use' means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected." 5 U.S.C. § 552a(a)(7). The Privacy Act requires each agency to "publish in the Federal Register . . . each routine use of the records contained in the system [of records.]" 5 U.S.C. § 552a(e)(4)(D).


Footnote # 3 for 57 FLRA No. 27 - Authority's Decision

   Article 3, sections a and c, and Article 6, section e are set forth supra, note 1. Article 32, section h states, in relevant part: "[t]he arbitrator shall have no power to add to, subtract from, disregard, alter, or modify any of