National Association of Government Employees, Local R4-27 and U. S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 0-AR-3780, June 17, 2004, 60 FLRA No. 5.

FLRA turned down the union's exceptions to an award in which the arbitrator found that the agency didn't violate the Privacy Act by attempting (unsuccessfully) to contact a social worker to discuss the flexibility of a medically proposed work schedule for the grievant's return to work. FLRA held that the union failed to demonstrate that the attempted contact had an adverse effect on the grievant. It also turned down the agency's exception to that portion of the award in which the arbitrator split the arbitration fees between the parties.

The grievant alleged she had sustained work-related medical problems, asked that she be granted advanced sick leave to seek medical treatment, and supported her request with medical data signed by a licensed social worker. When the agency denied the request because the documentation didn't satisfy the agency's requirement that medical documentation be signed by a licensed physician, the social worker sent a letter to the agency, signed by a licensed physician, which 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 schedule. Although the social worker didn't respond, he did write a letter to the agency's Inspector General complaining of the attempted contact. The agency subsequently informed the grievant that she could return to work on the medically proposed schedule.

Several months later the grievant filed a grievance, alleging that the agency violated the Privacy Act when it attempted to contact the social worker without first attempting to get any necessary medical information directly from the grievant. The matter was referred to arbitration and the arbitrator addressed two issues: (1) whether the grievance was timely filed and (2) whether the agency violated the Privacy Act by attempting to gather information on the grievant's medical status without informing the grievant. The arbitrator found that the grievance was arbitrable, but, on the merits, that the agency didn't violate the Privacy Act because, among other things, the grievant wasn't harmed or adversely affected by the agency's inquiry about the proposed work schedule. Because he found that the union prevailed under the first issue, and the agency on the second, he ordered that the arbitration fees be split between the parties. (The contract provided that the arbitrator's fees and expenses shall be borne by the losing party, but where there is a split decision "in which neither party can be designated as the losing party," the costs are to be borne equally.)

Exceptions to the award were filed by both parties, the union challenging the holding that there was no violation of the Privacy Act and the agency the splitting of the fees and expenses of the arbitrator.

Regarding the union's challenge, FLRA noted that 5 USC 552a(e)(2) 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[.]" However, to obtain relief under the Privacy Act, the grievant has to show that (1) the agency failed to get the information directly from the grievant, (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. Regarding (3), FLRA said that "[t]he 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."

In rejecting the union's claim that the denial of advanced sick leave constituted an adverse effect, FLRA noted that the request for advanced sick leave was denied before the agency attempted to contact the social worker, and concluded there was no adverse effect because "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." FLRA also wasn't persuaded by the union's claim that the grievant suffered an adverse effect from not being able to return to work with certain work limitations, noting that the arbitrator found 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." Finding that the union failed to demonstrate that the grievant suffered any adverse effects, FLRA denied the exception.

It also denied the agency's "essence" exception regarding the split fee award. "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."

In a separate concurring opinion, Chairman Cabaniss reiterated her view that "the Privacy Act does not constitute a 'law, rule, or regulation affecting conditions of employment' under ' 7103(a)(9) of our Statute" and thus isn't subject to review through arbitration.