Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85 (Authority decision, March 3, 1988)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award that rejected a Privacy Act grievance over use of a leave form at an earlier hearing and an objection to recording the later arbitration hearing. The award remains in place. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A VA medical center introduced an employee's leave application at an arbitration hearing without her consent. An arbitrator later found that its use fit a published routine use under the Privacy Act and denied the employee's grievance. The arbitrator also rejected the union's objection to a court reporter recording the later hearing. The Authority found that the union had shown no legal or contractual defect in either ruling and denied its exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a) and the Privacy Act routine use exception, 5 U.S.C. § 552a(b)(3).
• Outcome: Union exceptions denied; arbitrator's award remains in place.
• Key point: Disagreement with an arbitrator's contract interpretation does not establish a deficient award, and the union did not show a Privacy Act violation.

Full text (FLRA public release)

[ v31 p712 ]

31:0712(44)AR

The decision of the Authority follows:

31 FLRA NO. 44

31 FLRA 712

03 MAR 1988

VETERANS ADMINISTRATION
MEDICAL CENTER, LEAVENWORTH
KANSAS

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 85

Union

Case No. 0-AR-1453

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Henry M. Grether. The Arbitrator found that the Activity did not violate the Privacy Act when it introduced the grievant's application for leave form (SF 71) into evidence at a prior arbitration hearing without the grievant's consent. Therefore, the Arbitrator denied the grievance. The Arbitrator also ruled that the Activity did not violate the parties' collective bargaining agreement when it authorized a court reporter to tape record the hearing before him without the consent of the Union. The Union filed exceptions under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

We conclude that the Union has not established that the award as it pertains to the use of the court reporter is contrary to the parties' agreement. We also conclude that the Union has not established that the award as it pertains to the grievant's SF 71 is contrary to law, regulation, or the agreement. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award The Union filed a grievance claiming that the Activity violated the Privacy Act, 5 U.S.C. 552a, by introducing the grievant's application for leave form (SF 71) into evidence at a prior arbitration hearing without the grievant's consent. The SF 71 was introduced into evidence at the prior hearing to establish that the grievant had not been denied the opportunity to be present at a meeting to resolve her earlier grievance.

The grievance concerning the use of the SF 71 was submitted to arbitration. At the outset of the arbitration hearing, the Union objected to the tape recording of the hearing by a court reporter. In a bench ruling, which was subsequently incorporated into his award, the Arbitrator ruled that the tape recording of the proceedings did not violate the parties' collective bargaining agreement.

As to the use of the SF 71 at the prior arbitration hearing, the Arbitrator concluded that the grievant's SF 71 is part of a system of records subject to the Privacy Act. The Arbitrator found that the Activity's introduction of the grievant's SF 71 in the prior arbitration hearing was proper under the routine use exception of the Act. He noted that, in accordance with the requirement of the Privacy Act that routine uses of records be identified, the Agency has designated "Negotiated Agreement Grievances and Arbitrations" as one of the routine uses for its records. Accordingly, the Arbitrator denied the grievance.

III. Discussion

The Union contends that the award as it pertains to the use of the court reporter is contrary to the parties' agreement. The Union contends that the award as it pertains to the grievant's SF 71 is contrary to the Privacy Act, regulations protecting the privacy of leave records, and the agreement.

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

On the issue concerning the tape recording of the Arbitrator's hearing, the Union disagrees with the Arbitrator's interpretation and application of the collective bargaining agreement. Exceptions which constitute mere disagreement with an arbitrator's interpretation of a collective bargaining agreement provide no basis for finding an award deficient. See, for example, 351st Combat Support Group, Whiteman Air Force Base and Local 2361, American Federation of Government Employees, 30 FLRA 505 (1987).

On the issue concerning the use of the SF 71 at the prior arbitration hearing, the Union's exception provides no basis for finding the award contrary to the Privacy Act or implementing regulations. See, for example, Farmers Home Administration Finance Office St. Louis. Missouri, 23 FLRA 788 (1986), enforced in part and remanded sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Jan. 15, 1988), petitions for rehearinq filed (Exception (b)(3) to the Privacy Act, 5 U.S.C. 552a(b)(3), permits an agency to disclose a record without the consent of the individual to whom it pertains when the disclosure constitutes a published routine use of the record.).

IV. Decision

Accordingly, the Union's exceptions are denied.

Issued, Washington, D.C., March 3, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY