American Federation of Government Employees, Local 987 (Union) and U.S. Department of the Air Force, Air Force Materiel Command, Robins Air Force Base, Georgia (Agency)
[ v57 p551 ]
57 FLRA No. 97
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
ROBINS AIR FORCE BASE, GEORGIA
September 28, 2001
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 an exception to an award of Arbitrator Bernard Marcus 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 exception.
The Arbitrator sustained a portion of the Union's grievance which alleged, as relevant here, that the Agency had violated the Privacy Act, 5 U.S.C. § 552a, with respect to the custody of the grievant's personnel file. The Arbitrator ordered the Agency to take certain remedial action, but rejected the Union's request for damages in favor of the grievant under the Privacy Act on the basis that he had no authority to award such damages. For the reasons explained below, we find this portion of the award deficient. We remand the case to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits of the grievant's claim for damages under the Privacy Act. [ v57 p552 ]
II. Background and Arbitration Award
The grievance concerned a dispute over the grievant's performance appraisal for the period of April 1, 1998, to March 31, 1999. On or about May 24, 1999, when the grievant met with her supervisor in order to be appraised for the aforementioned period, a nonsupervisory, bargaining unit employee was present along with the supervisor. The grievant protested her co-worker's presence, to no avail. Thereafter, out of a maximium of 81 total points, the grievant was given 75 points on her appraisal. The appraisal was signed by the grievant's co-worker as her "supervisor," while her supervisor was listed as "reviewer." Award at 7.
On June 9, 1999, the grievant asked her new supervisor, who "apparently" had succeeded the prior supervisor shortly after the grievant's May 1999 appraisal, for access to her personnel files. Id. at 8. After an unsuccessful search of the supervisor's office, the personnel files were found in the custody of the co-worker who had been present at the grievant's appraisal.
As a result of those events, the Union filed a grievance "protesting (1) the manners [sic] in which the appraisal conference was conducted and the appraisal was [accomplished] in May 1999, and (2) [the co-worker's] maintenance of custody of [the grievant's file] on June 9, 1999." Id.
The Arbitrator framed the issues as follows:
1 - Has the Employer violated the Privacy Act by assigning a nonsupervisory employee custody of the grievant's personnel file [ ]?
2 - Has the Employer violated the labor agreement between the parties by permitting a nonsupervisory employee to (i) participate in the grievant's formal annual performance evaluation conference and (ii) sign the resulting evaluation as the grievant's supervisor?
3. If so, what shall the remedy be?
Id. at 2.
The Arbitrator found that the grievant had received a performance score of 81 for her prior year's appraisal period ending in March 1998. After receiving that score, the grievant had been promoted from GS-7 to GS-9. The Arbitrator also noted the grievant's testimony that it is unusual for employees to be promoted unless they are given 81 points.
The Arbitrator then stated that the Agency agreed at the hearing that "mistakes were made" in handling the grievant's performance appraisal; that the appraisal was executed by a "rank and file employee" who was not the grievant's supervisor but was "improperly set up as" an acting supervisor, and who was improperly given custody of the grievant's file. Id. at 10. The Arbitrator found that it was not an acceptable practice under the Privacy Act, or Air Force Pamphlet 36-106, to lodge custody of the grievant's file with the co-worker because the co-worker was not the grievant's supervisor. Accordingly, the Arbitrator found that the grievant had a "statutory and agency mandated right to protection of her privacy from invasion by fellow employees." Id. at 11.
The Arbitrator found that the grievant had been harmed by the Agency's actions because: (1) the Privacy Act and Air Force Pamphlet 36-106 grant privacy rights and presume harm for violations thereof; and (2) permitting the co-worker to participate in the 1999 appraisal may have contributed to the lower point score, thus disqualifying the grievant from consideration for promotion.
As a remedy, the Union requested a substituted score of 81 for the appraisal period ending in March, 1999, and "[a]n award of $1,000 per privacy act violation . . . ." Id. at 12. The Arbitrator found that, under the contract and Air Force Pamphlet 36-106, the grievant was entitled to a "performance appraisal conference and a re-appraisal in place of the fatally defective appraisal signed by [her co-worker]." Id. at 12. [n2]
With regard to the Privacy Act, the Arbitrator found that he did not have authority to grant the grievant's request to award her $1,000 per privacy violation. Specifically, the Arbitrator found that 5 U.S.C. § 552(a)(g)(5) "requires that to enforce any monetary liability available under the statute, suit must be brought in a district court of the United States." Id. at 13. [n3] Moreover, the Arbitrator held that he was not satisfied that the grievant had exhausted her administrative remedies.
The Arbitrator retained jurisdiction over the case for sixty days, "limited to assisting the parties with resolution of compliance disputes." Id. at 14. [ v57 p553 ]
III. Positions of the Parties
A. Union's Exception
The Union argues that the Arbitrator erred as a matter of law in concluding that he was without authority to award damages under the Privacy Act. The Union states that, consistent with §7103(a)(9) of the Statute, employees may grieve violations of law which affect their conditions of employment. [n4] The Union also cites West v. Gibson, 527 U.S. 212, 221-22 (1999) (Gibson), among other cases, for the proposition that compensatory damages available in the context of a jury trial may also be available in an administrative process. Exception at 4. The Union concludes that the Authority should remand this case to the Arbitrator with instructions to resolve the grievant's claim for damages under the Privacy Act.
B. Agency's Opposition
The Agency contends that the Arbitrator correctly held that he had no authority to grant the Union's requested remedy. The Agency draws specific attention to the language of 5 U.S.C. § 552a(g)(4):
In any suit brought under the provisions of subsection(g)(1)(C) or (D) in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable . . . .
Opposition at 2 (emphasis added) (footnote omitted). The Agency argues that "this statute allows a U.S. District Court alone to grant a remedy for a violation of the Act[,]" and that "[n]owhere does the language of this statute allow for an Arbitrator, or any other administrative body, to grant a monetary remedy for a violation of the Act." Id.
IV. Analysis and Conclusions
A. The Authority Applies a De Novo Standard of Review
An exception alleging that an award is contrary to law is reviewed by the Authority 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) (Customs Service)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. United States Dep't of the Treasury, United States Customs Serv., Portland, Or., 54 FLRA 764, 770 (1998) (citing NFFE, Local 1437, 53 FLRA 1703, 1710 (1998)). In making that assessment, the Authority defers to the arbitrator's underlying findings of fact. Id.
B The Arbitrator Has Authority to Assess Money Damages Under 5 U.S.C. § 552a(g)(4)
The sole question presented by the exception is whether the Arbitrator has authority to award money damages for a violation of the Privacy Act. We find that the Arbitrator is empowered to make this assessment. Accordingly, we remand this case to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits of the grievant's claim for damages under the Privacy Act.
1. Complaints of violations of the Privacy Act fall under the definition of "grievance" set forth at § 7103(a)(9)(C)(ii) of the Statute
Under § 7103(a)(9)(C)(ii) of the Statute, Congress defined "grievance" broadly to include complaints by any employee labor organization concerning any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. This intent is reflected by Congress' statement that "[a]ll matters that under the provisions of law could be submitted to the grievance procedures shall in fact be within the scope of any grievance procedure negotiated by the parties unless the parties agree as part of the collective bargaining process that certain matters shall not be covered by the grievance procedures." Joint Explanatory Statement of the Committee on Conference, H.R. Rep. No. 95-1717, 95th Cong. 2d Sess. 1978, Pub. L. No. 95-454, 1978 U.S.C.C.A.N 2860, 2891. [n5]
Even though the parties have not filed exceptions or presented arguments as to the following matters, our dissenting colleague maintains that the Authority should: (1) address whether the Arbitrator lacked [ v57 p554 ] authority to consider the allegation of a Privacy Act violation; (2) adopt the test set forth by the court in Customs Service for determining whether a law affects conditions of employment within the meaning of § 7103(a)(9)(C)(ii) of the Statute; and (3) conclude that grievances claiming violations of the Privacy Act do not affect conditions of employment within the meaning of § 7103(a)(9)(C)(ii) of the Statute and, therefore, that the Arbitrator lacked authority to consider the allegation of a Privacy Act violation. We respectfully disagree.
As an initial matter, we do not believe that the issue of the Arbitrator's jurisdiction to resolve the allegation of a Privacy Act violation is properly before us. In this regard, we note that neither party has contested the arbitrability of the Privacy Act claim under the parties' negotiated grievance procedure; in fact, the parties stipulated that the grievance was substantively arbitrable. See Award at 2. Moreover, no exception has been taken to the Arbitrator's determination that the Agency violated the Privacy Act, nor has either party discussed or even cited Customs Service in their submissions.
We also do not believe that this case is one in which the Authority should raise, sua sponte, the issue of whether the Arbitrator had jurisdiction to address the allegation of a Privacy Act violation. In United States Dep't of the Interior, Nat'l Park Serv., Golden Gate Nat'l Recreation Area, San Francisco, Cal., 55 FLRA 193 (1999) (Interior, Nat'l Park Serv.), the Authority considered and rejected an attempt by a party to argue for the first time in its exception that an arbitrator did not have jurisdiction under § 7121(c)(3) of the Statute to resolve a grievance. The Authority noted that under § 2429.5 of its Regulations, it will not consider issues that could have been, but were not, raised before an arbitrator, and that there was no indication in the record that the agency had argued to the arbitrator, as it had in its exception, that the grievance was precluded by § 7121(c)(3).
In that case, the Authority also noted the distinction between its subject-matter jurisdiction and the jurisdiction of an arbitrator to resolve a grievance. The Authority stated that although "its subject-matter jurisdiction is an issue that may be raised at any stage of the Authority's proceedings," the agency in that case was "not questioning the jurisdiction of the Authority to issue a decision resolving its exception[;] [i]nstead, the [a]gency [w]as questioning for the first time in its exception the jurisdiction of the [a]rbitrator to resolve the grievance." Interior, Nat'l Park Serv., 55 FLRA at 195. See also United States Dep't of the Army, The Adjutant Gen., Missouri Nat'l Guard, Bridgeton, Mo., 56 FLRA 1104, 1106 (2001).
We are not aware of any reason why the Authority, in the absence of any exception by a party, should raise and resolve an issue as to an arbitrator's jurisdiction on its own, when the precedent cited above demonstrates that the Authority will not even consider a party's exception to an arbitrator's jurisdiction if that claim was not presented to the arbitrator. Specifically, in the case before us, we see no basis on which the Authority should, on its own, challenge the Arbitrator's jurisdiction to address the alleged Privacy Act violation in the absence of a party having properly raised this issue.
Further, we note that shortly after the court's decision in Customs Service, the Authority resolved exceptions to an award involving the same law (19 U.S.C. § 1448) that was at issue in Customs Service. While agreeing with the court that that law was not one affecting conditions of employment under § 7103(a)(9) of the Statute, the Authority stated the following:
We express no view at this time on the court's statement that, under the Statute, a law may be the subject of a grievance only if that law has `been issued for the very purpose of affecting the working conditions of employees -not one that merely incidentally does so.' Accordingly, we reserve for an appropriate case a reconsideration of the interpretation of the phrase 'any law affecting conditions of employment' in section 7103(a)(9)(C)(ii) of the Statute.
U.S. Dep't of the Treasury, United States Customs Serv. Pacific Region, 50 FLRA 656, 659 n.5 (1995) (citation omitted). Since that time, the Authority has been presented with only one arbitration case in which a party has asserted that the Authority should apply the court's statement in Customs Service. United States Dep't of Justice, Federal Bureau of Prisons, Med. Facility for Fed. Prisons, 51 FLRA 1126 (1996). The Authority found that the court's decision in Customs Service was "distinguishable in all respects from" that case. Id. at 1134.
In sum, for the reasons stated above and consistent with the Authority's statement in U.S. Dep't of the Treasury, it is our view that reconsideration of the interpretation of the phrase "any law affecting conditions of [ v57 p555 ] employment" in section 7103(a)(9)(C)(ii) of the Statute should be reserved for an appropriate case, and we respectfully believe that the case before us is not the appropriate case to engage in such a reconsideration. As such, we leave for another day, when properly raised and argued by the parties, this matter.
However, even assuming, without deciding, that the rationale of Customs Service applies to this case, we would nonetheless find that the Privacy Act is a law affecting conditions of employment within the meaning of § 7103(a)(9)(C)(ii). In Customs Service, the court held that "[a] grievance claiming a 'violation, misinterpretation, or misapplication of a law, rule, or regulation' may be brought under § 7103(a)(9)(C)(ii) (assuming the relevant agreement tracks the statutory definition) if the particular legal authority relied upon was fashioned for the purpose of regulating the working conditions of employees." 43 F.3d at 690-91. In so doing, the court noted that the term "'law, rule, or regulation affecting conditions of employment' can be only interpreted . . . to confine grievances to alleged violations of a statute or regulation that can be said to have been issued for the very purpose of affecting the working conditions of employees--not one that merely incidentally does so." Id. at 689. In our view, as demonstrated below, the Privacy Act has more than a "merely incidental" effect on employees' working conditions.
The Privacy Act's effect on employees' working conditions is evident from the large variety of situations in which the Privacy Act has been involved in federal sector labor-management cases. There have been numerous cases in which arbitrators have addressed and resolved grievances involving the Privacy Act. [n6] Similarly, even in cases where a grievance did not raise a Privacy Act claim, the Authority has reviewed numerous exceptions to arbitrators' awards involving alleged inconsistencies with the Privacy Act. [n7]
The Privacy Act protects the privacy interests of individuals in information collected about them by federal agencies. It prescribes certain duties for the agencies which collect, store, and disseminate such information. See 5 U.S.C. § 552a. Federal employees are included in the category of individuals whose privacy rights are protected by the Privacy Act. In this regard, the Authority has previously addressed the significant role the Privacy Act plays in agency maintenance of employee personnel records. See, e.g., United States Dep't of Transp., Fed. Aviation Admin., New York TRACON, Westbury, N.Y., 50 FLRA 338, 339 n.3 (1995) (New York TRACON) ("[w]ith certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent."). Information that is contained in agency records and retrieved by reference to an individual's name or some other personal identifier, such as the employee personnel file at issue here, falls within the scope of the Privacy Act. See United States Dep't of the Air Force, 56th Support Group, Macdill Air Force Base, Fla., 51 FLRA 1144, 1145 n.2 (1996) (citing 5 U.S.C. § 552a(4), (5)).
5 U.S.C. § § 552a(e) sets forth the "[a]gency requirements" for maintenance of systems of records under the Privacy Act. For example, agencies are required to "maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination." 5 U.S.C. § 552a(e)(5). Agencies are also required to establish "appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or [ v57 p556 ] unfairness to any individual on whom information is maintained." 5 U.S.C. § 552a(e)(10).
The rights and obligations created by the requirements of the Privacy Act demonstrate that it is a law that affects the working conditions of federal employees in a significant manner. In particular, proper maintenance of personnel records by agencies is an aspect of the working conditions of employees, and the Office of Personnel Management has issued regulations recognizing that the Privacy Act governs proper maintenance of those records. See 5 C.F.R. Part 293. Also, the Authority has long recognized the importance of maintaining the confidentiality of personnel records in the interest of precluding an unwarranted invasion of employees' personal privacy, consistent with the disclosure requirements set forth by § 7114(b)(4) of the Statute. See, e.g., New York TRACON, 50 FLRA at 347 (Authority held that disclosure of unsanitized employee performance appraisals would disturb the privacy interests of employees). Disclosure of favorable, as well as unfavorable, information could subject employees to embarrassment and jealousy among co-workers, which could result in discord at the workplace. See, e.g., Dep't of Health and Human Services, Soc. Sec. Admin., New York Region, N.Y., N.Y., 52 FLRA 1133, 1142 (1997). In addition, disclosure could "chill candor in the evaluation process" that is, "supervisors might withhold comments, both positive and negative, from inclusion in appraisals if they were aware that their comments could become known." New York TRACON, 50 FLRA at 350 (internal citation and quotations omitted). As demonstrated by our case law, there is a direct nexus between the requirements of the Privacy Act and the employment relationship between agencies and their employees.
Based upon the foregoing, we conclude that the Privacy Act is a law "affecting conditions of employment" within the meaning of § 7103(a)(9)(C)(ii) of the Statute. As such, claimed violations of the Privacy Act come within the definition of "grievance" set forth at § 7103(a)(9)(C)(ii), and are grievable and arbitrable under a broad-scope grievance procedure.
2. The money damages provision of the Privacy Act, 5 U.S.C. § 552a(g)(4), may be enforced at arbitration
In cases where agencies violate the requirements of the Privacy Act, 5 U.S.C. § 552a(g)(1) provides for civil remedies. As relevant here, 5 U.S.C. § 552a(g)(1)(C) allows for civil remedies whenever any agency "fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual." 5 U.S.C. § 552a(g)(1)(D) allows for civil remedies whenever any agency "fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual." For any claim brought under 5 U.S.C. § 552a(g)(1)(C) or (D), 5 U.S.C. § 552a(g)(4) allows for an individual to receive money damages.
The Agency relies on the language of 5 U.S.C. § 552a(g)(4) to support its argument that a claim for money damages under the Privacy Act can only be brought in United States district court. That section provides, in relevant part, that an agency shall be liable for actual damages where "the court determines that the agency acted in a manner which was intentional or willful . . . ."
However, it is well accepted that statutory language permitting a court to award money damages against the federal government does not deprive arbitrators of authority to also award such damages. For example, regarding analogous statutes with comparable language authorizing courts to award damages, it has been held that administrative bodies also have authority to award such damages. In NTEU, 53 FLRA 1469 (1998), the Authority stated that the portion of 29 U.S.C. § 216(b) that provides for liquidated damages constitutes a waiver of sovereign immunity and "applies not [ v57 p557 ] only to suits brought in [f]ederal or state court, but also to arbitration proceedings." Id. at 1487 (upholding authority of arbitrators to award liquidated damages under the FLSA). That provision states, as relevant here, that "[a]n action to recover [liquidated damages] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction . . . ." 29 U.S.C. § 216(b). In the same vein, the damages provision of the Privacy Act under § 552a(g)(4) provides a waiver of sovereign immunity. Tomasello v. Rubin, 167 F.3d 612, 618 (D.C. Cir. 1999).
Similarly, in Gibson, the United States Supreme Court found that the language of 42 U.S.C. § 1981a(c), providing that "'[i]f a complaining party seeks compensatory . . . damages under this section . . . any party may demand a trial by jury,'" did not act to deprive EEOC of authority to award compensatory damages against the federal government. 527 U.S. at 221-22 citing 42 U.S.C. § 1981a(c) (emphasis added). Moreover, in deciding whether statutory provisions are applicable to grievance and arbitration proceedings, the Authority has considered whether the provision encompasses substantive as opposed to procedural rights. Damages provisions have been viewed as substantive provisions applicable to grievance and arbitration proceedings. See United States Dep't of the Treasury, IRS, Washington, D.C., 46 FLRA 1063, 1073 (1992); Cf. United States Dep't of the Navy, Naval Explosive Ordinance Disposal Tech. Div., Indian Head, Md., 57 FLRA 280, 284-86 (2001) (Authority held that the opt-in provision under FLSA requiring party plaintiffs to file written consents with the court was procedural, as opposed to substantive, and therefore not applicable to arbitration proceedings).
Based on the foregoing, we find that the damages provision is applicable to arbitration proceedings. Thus, we find that the Arbitrator erred in finding that he did not have authority to assess money damages under 5 U.S.C. § 552a(g). Accordingly, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits of the grievant's claim for damages under the Privacy Act. In this regard, the Arbitrator is directed on remand to make findings and conclusions consistent with the requirements under § 552a(g).
We strike the portion of the award in which the Arbitrator found that he lacked authority to award damages for a violation of the Privacy Act. The case is remanded to the parties for resubmission to the Arbitrator, absent settlement, for a decision on the merits of the grievant's claim for damages under the Privacy Act. In this regard, the Arbitrator is directed on remand to make findings and conclusions consistent with the requirements under § 552a(g).
Section 7103(a)(9) of the Statute provides:
(9) "grievance" means any complaint-
(A) by any employee concerning any matter relating to the employment of the employee;
(B) by any labor organization concerning any matter relating to the employment of any employee; or
(C) by any employee, labor organization, or agency concerning--
(i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or<