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57 FLRA No. 27
AFGE, Local 4044, Council of Prisons Local 33 and U.S. Dept. of Justice, Federal Bureau of Prisons Federal Correctional Institution, Three Rivers, Texas (Johnson, Arbitrator), 0-AR-3314 (Decided April 30, 2001)
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. The Authority found that the Arbitrator did not exceed his authority . The Authority noted that 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. Additionally, the Authority noted that in the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. The Authority found that the Arbitrator's conclusions were responsive to the issues he formulated.
Likewise, the Authority concluded that the Arbitrator did not deny the grievant a fair hearing. The Authority noted that it 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. Further, the Authority noted that 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.
The Authority also found that the award was 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. After reviewing the record the Authority concluded 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.
The Authority also concluded that the Award was not inconsistent with the Privacy Act. The Authority explained that, 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. One exception to this general rule is for a routine use as defined in the Privacy Act. 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. The Authority found, in the circumstances of this case, assuming that the doctor's note is maintained in one of the systems of records described above, that the Agency's disclosure of the grievant's doctor's note was an authorized routine use under the Privacy Act. Lastly, the Authority concluded that the award was not based on nonfacts, nor that it failed to draw its essence from the parties' agreement