U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

American Federation of Government Employees, Local 987 and Department of the Air Force, Air Force Materiel Command, Robins Air Force Base, Georgia, 0-AR-3324, September 28, 2001.

Although the arbitrator found that the agency violated the Privacy Act when, among other things, the grievant's personnel file was put in the custody of a co-worker, he concluded he was without authority to act on the union's request for damages. The Authority, Chairman Cabaniss dissenting, found the latter part of the award deficient and remanded the case to the parties for resubmission to the arbitrator for a decision on the merits of the grievant's claim for damages under the Privacy Act.

When the grievant met with her supervisor on or about May 24, 1999, to have her performance appraised, she protested--unsuccessfully--the presence of a co-worker. Out of a maximum of 81 points, the grievant was given 79 points on her appraisal, which was signed by the grievant's co-worker as her "supervisor," and her supervisor was listed as "reviewer." On June 9, 1999, the grievant asked her new supervisor (who apparently succeeded the prior supervisor shortly after the May appraisal) for access to her personnel files. The personnel files were found, not in the supervisor's office, but in the custody of the co-worker who had been present at the grievant's appraisal.

This resulted in a grievance protesting the way in which the appraisal conference was conducted and the co-worker's maintenance of custody of the grievant's file. The matter was referred to arbitration, where the arbitrator found that the agency violated the Privacy Act and Air Force Pamphlet 36-106 when it gave custody of the grievant's file to the co-worker. He also found that permitting the co-worker to participate in the appraisal may have contributed to a lower point score (grievant had received 81 points the year before and had been promoted from GS-7 to GS-9), thus disqualifying the grievant from consideration for promotion.

As a remedy, the union asked that the grievant's score be changed to 81 and that the grievant receive $1,000 per Privacy Act violation. The arbitrator found that the grievant was entitled to re-appraisal and that he didn't have authority to grant the request for an award of $1,000 per privacy violation. The union excepted to that portion of the award in which the arbitrator held that he was without authority to award damages under the Privacy Act.

The Authority, Chairman Cabaniss dissenting, held that the arbitrator has authority to assess money damages under 5 USC § 552a(g)(4), and remanded the case to the parties for resubmission to the arbitrator for a decision on the merits of the grievant's claim for damages.

The dispute between the majority and Chairman Cabaniss, who took the position that FLRA had no jurisdiction over the case, was over whether the Privacy Act is a law affecting conditions of employment within the meaning of section 7103(a)(9)(C)(ii). Chairman Cabaniss, relying on United States Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994), held that the Privacy Act wasn't issued for the purpose of affecting the working conditions of Federal employees (but instead regulates conduct between agencies and "individuals"), whereas the majority held otherwise.

After stating that it didn't think the case before it was appropriate for reconsideration of the court's remark that "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[,]'" the majority said, among other things, the following:

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). . . . 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.

In United States Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994), reported in Significant Cases No. 105, the court held that the Authority exceeded its jurisdiction when it held that alleged violations of a law dealing with foreign trade could be grieved under the negotiated grievance procedure. In the court's view, only those laws primarily aimed at regulating the conditions of employment of Federal employees could be enforced under the negotiated grievance procedure.

Regarding the issue of money damages, the majority rejected the agency's view that a claim for money damages under the Privacy Act can only be brought in United States district court because 5 USC § 552a(g)(4) states that an agency is liable for actual damages where "the court determines that the agency acted in a manner which was intentional or willful . . . ." In rejecting this contention, FLRA said, in part, that "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." It noted, e.g., that in 53 FLRA 1469 @ 1487 FLRA had stated that that portion of 29 USC § 216(b) providing for liquidated damages under the FLSA constitutes a waiver of sovereign immunity and "applies not only to suits brought in Federal or state court, but also to arbitration proceedings."