National Association of Government Employees, Local R4-27 (Union) and United States, Department of Defense, Defense Commissary Agency, Fort Lee, Virginia (Agency)

[ v60 p14 ]

60 FLRA No. 5

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R4-27
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
FORT LEE, VIRGINIA
(Agency)

0-AR-3780

_____

DECISION

June 17, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator George R. Gray 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 and a cross-exception.

      The Arbitrator found that the Agency did not violate the Privacy Act, 5 U.S.C. § 552a (the Privacy Act), by attempting to contact the grievant's medical provider to discuss the flexibility of the grievant's medically proposed work schedule. The Arbitrator ordered the parties to split the arbitration fees. For the reasons set forth below, we deny the Union's exception and the Agency's cross-exception.

II.     Background and Arbitrator's Award

      The grievant alleged that she had sustained work-related medical problems and requested that the Agency grant her advanced sick leave so she could seek medical treatment. The grievant supported the requests with medical data signed by a licensed social worker. The Agency denied the grievant's requests as "administratively insufficient," finding that the documentation did not satisfy the Agency's requirement that medical documentation be completed by a licensed physician. Award at 5.

      Subsequently, the social worker sent a letter to the Agency, signed by a licensed physician, that included a proposed work schedule for the grievant's return to work. An Agency representative attempted to contact the social worker by phone to discuss the flexibility of the proposed work schedule. The social worker did not respond to the representative, but he did write a letter to the Agency's Inspector General complaining of the attempted contact. Thereafter, the Agency informed the grievant that she could return to work on the proposed schedule.

      Several months later, the grievant filed the instant grievance alleging that the Agency violated the Privacy Act by contacting the social worker without first seeking to obtain any necessary medical information directly from the grievant. The grievance was unresolved and was submitted to arbitration where the Arbitrator set forth the issues to be: (1) "Whether or not the Grievant . . . filed her grievance claiming Agency violation of the Privacy Act in a timely manner[;]" and (2) "Whether or not the Agency violated the Collective Bargaining Agreement and the privacy rights of the Grievant by attempting to gather information on the Grievant's medical status without informing the Grievant[.]" Award at 2, 3.

      Regarding the first issue, the Arbitrator agreed with the Union that the grievance was arbitrable. On the merits, the Arbitrator determined that, after the Agency received the letter and proposed work schedule signed by the licensed physician, the Agency deemed the grievant's medical data administratively sufficient. The Arbitrator further determined that, upon receiving the proposed work schedule, the Agency attempted to contact the social worker to discuss the flexibility of the schedule and when the grievant could return to work. Accordingly, the Arbitrator found that the Agency was engaged in a "legitimate process," in trying to contact the social worker. Id. at 10. He further found that, because there was not any actual contact between the Agency and the social worker, the grievant was not harmed or adversely affected by the Agency's inquiry regarding the proposed work schedule.

      Based on the foregoing, the Arbitrator denied the grievance. In addition, in a letter dated the same day as the award, the Arbitrator determined that the Union had prevailed on the arbitrability issue, and the Agency had prevailed on the merits. Accordingly, under Article 44, [ v60 p15 ] Section 6 (§ 6) of the parties' agreement, the Arbitrator split the arbitration fees between the two parties. [n2]  See Opposition, Attachment 4 (Dec. 3, 2003 Letter). [n3] 

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the award is contrary to the Privacy Act. In this connection, the Union maintains that the Agency did not attempt to collect the grievant's medical information directly from the grievant to the greatest extent practicable. Exceptions at 5. The Union also maintains that the Agency's action of seeking the grievant's medical information directly from her medical providers was not unintentional or "benign." Id. at 6. The Union further maintains that the Agency's actions caused the grievant to suffer a "discrete and tangible loss of benefits[.]" Id. at 7. Specifically, the Union contends that the grievant was denied the use of advanced sick leave and lost her ability to return to work with certain work limitations.

B.     Agency's Opposition and Cross-Exception

      The Agency contends that the award is consistent with the Privacy Act. In this regard, the Agency asserts that the grievant failed to provide sufficient medical data, despite the Agency's repeated attempts to obtain such information directly from the grievant. The Agency also asserts that the Agency did not act in a willful manner when contacting the social worker. The Agency further asserts that the grievant was not harmed by the Agency's contact because the Agency did not obtain any information from the social worker.

      In a cross-exception, the Agency argues that the Arbitrator's award fails to draw its essence from the parties' agreement. Specifically, the Agency asserts that the Arbitrator's decision to split the fees between the parties is contrary to § 6, which requires the "losing party" -- the Union -- to pay the full amount of the arbitration fees. Opposition at 4.

IV.     Analysis and Conclusions

A.     The award is not contrary to the Privacy Act.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Under the de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Privacy Act requires federal agencies to "collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs[.]" 5 U.S.C. § 552a(e)(2). An individual who is adversely affected by an agency's intentional or willful failure to comply with this provision is entitled to relief under the Act. See id. at § 552a(g)(1)(D) and (g)(4). To obtain such relief, a grievant must show that: (1) the agency failed to elicit information directly from him or her to the greatest extent practicable; (2) the agency's violation of the Act was intentional or willful; and (3) the agency's action had an adverse effect on the grievant. See Waters v. Thornburgh, 888 F.2d 870, 872 (D.C. Cir. 1989) (Waters). In addition, a recent Supreme Court decision requires that an individual suffer actual damages to be entitled to relief for a violation of the Privacy Act. See Doe v. Chao, 124 S.Ct. 1204, 1206 (2004). If the above factors are satisfied, then the grievant is entitled to the greater of $1,000 or the actual damages sustained, pursuant to § 552a(g)(4) of the Act. Waters, 888 F.2d at 872.

      The Union argues that the Agency's inquiry to the social worker caused the grievant to suffer "a discrete and tangible loss of benefits" because she was denied the use of advanced annual leave and the ability to return to work with certain work limitations. Exceptions at 7. We construe this as an argument that the Agency's action had an adverse effect on the grievant. The Privacy Act's adverse effect requirement has two components: (1) an adverse effect standing requirement and (2) a causal nexus between the agency's action and the adverse effect. See United States Dep't of Veterans Affairs, Med. Ctr., Charleston, S.C., 58 FLRA 706, 710 (2003) (Chairman Cabaniss concurring). [ v60 p16 ]

      The Arbitrator specifically concluded that, because the Agency's inquiry was legitimate and no actual contact was made with the social worker, he did "not agree that [the grievant] was in any way harmed by the Agency [i]nquiry or that any adverse impact was sustained by [the grievant]." Award at 11. The Union has not provided any evidence indicating that the Arbitrator's findings are incorrect. Regarding the Union's claim that the Agency's attempted contact of the social worker caused the grievant to suffer the adverse effect of being denied the use of advanced sick leave, the Arbitrator found that the Agency properly denied the grievant's use of such leave and did so prior to the Agency's attempted contact of the social worker. As there is no causal nexus between the Agency's attempted contact of the social worker and the grievant being denied the use of advanced sick leave, the Union has not established that the grievant suffered an adverse effect. Moreover, regarding the Union's argument that the grievant suffered an adverse effect from not being able to return to work with certain work limitations, the Arbitrator determined that the Agency allowed the grievant to return to work on the medically proposed work schedule. As such, the evidence does not indicate that the grievant suffered an adverse effect in this respect.

      As the Union has not demonstrated that the grievant suffered any adverse effects, it has not established that the award is contrary to the Privacy Act. Therefore, we deny the exception. [n4] 

B.     The award does not fail to draw its essence from the parties' agreement.

      In order for an award to be found deficient because it does not draw its essence from the collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Section 6 provides that the arbitrator's fees and expenses shall be borne by the losing party, that the arbitrator shall determine the losing party, and that, if there is a split decision in which neither party can be designated as the losing party, then the costs shall be borne equally. Accordingly, this provision permits the Arbitrator to exercise his judgment in determining how the arbitration expenses should be divided when, in the Arbitrator's judgment, neither party is the clear losing party.

      Here, the Arbitrator found that neither the Union nor the Agency was the clear losing party because the Union had prevailed on the arbitrability issue and the Agency had prevailed on the merits. Accordingly, the Arbitrator determined that, under § 6, a split fee was appropriate. See Opposition, Attachment 4 (Dec. 3, 2003 Letter). As the Agency has not established that the award is irrational, implausible, or unconnected with the language of the parties' agreement, the cross-exception provides no basis for finding the award deficient. See NFFE, Local 2030, 56 FLRA 667, 670 (2000) (denying exception that award fails to draw its essence from the parties' agreement where the Arbitrator found that neither party was the clear losing party and split the arbitration fees between the parties). Accordingly, we deny the exception.

V.     Decision

      The Union's exception and the Agency's cross-exception are denied.


Concurring Opinion of Chairman Cabaniss:

      Consistent with my separate opinions in AFGE, Local 2382, 58 FLRA 270, 272 (2002) and AFGE, Local 987, 57 FLRA 551, 558 (2001), I would find that the Privacy Act does not constitute a "law, rule, or regulation affecting conditions of employment" under § 7103(a)(9) of our Statute. As a result, the issue of whether the Agency violated the Privacy Act would still be subject to review through other administrative channels but would not be subject to review through arbitration.



Footnote # 1 for 60 FLRA No. 5 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 5 - Authority's Decision

   Article 44, Section 6 of the parties' agreement states, in relevant part, that "[t]he Arbitrator's fees and expenses shall be borne by the losing party. The Arbitrator shall determine the losing party. If there is a split decision in which neither party can be designated as the losing party, the costs shall be borne equally." Exceptions, Attachment at 58 (Collective Bargaining Agreement).


Footnote # 3 for 60 FLRA No. 5 - Authority's Decision

   This letter is dated the same day as the award and, apparently, accompanied the award. Neither party argues that the letter does not constitute a part of the award, and Authority precedent indicates that the letter should be treated as a part of the award for the purpose of resolving the Agency's cross-exception. See United States Dep't of the Air Force, McGuire Air Force Base, N.J., 48 FLRA 740, 741 (1993).


Footnote # 4 for 60 FLRA No. 5 - Authority's Decision

   As noted above, for the grievant to obtain relief for a violation of the Privacy Act, she must show that (1) the Agency did not elicit information about the flexibility of the proposed work schedule from the grievant to the greatest extent practicable; (2) the Agency intentionally or willfully attempted to contact the social worker; and (3) the Agency's attempted contact of the social worker had an adverse effect on the grievant. As the Union has failed to establish that the Agency's attempted contact had an adverse effect on the grievant, it is unnecessary to address the Union's exceptions regarding the other two requirements.

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