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Title: Department of the Air Force and Federation of Government Employees,  Local 1592
Date: May 14, 2002 
Arbitrator: Thomas L. Watkins 
Citation: 2002 NAC 102

 

In the matter of arbitration between:

Department of the Air Force
Hill Air Force Base, Utah

                            and

American Federation of Government Employees,  Local 1592                            

 

ARBITRABILITY;

PRIVACY ACT VIOLATION:

MEDICAL INFORMATION

Neal Hadley, Grievant

Case # EG-01-173

THOMAS L. WATKINS, Arbitrator

                                                                                            


APPEARANCES:

             FOR THE COMPANY: 

Cornell Evans, Agency Attorney
Vickie Andersen, Management Analyst; Witness
Nicole Gomez, Observer
Loren Lewis, MD, MPH; Witness
Ruby Raccasi, Agency Labor Relations

    FOR THE UNION:

Kevin Fornelius, Executive Vice President
Tom Batt, Union Representative
Neal Hadley, Grievant; Witness

HEARING HELD: 2 April 02 in Building 1244, Hill Air Force Base, Utah.

THIS PROCEEDING in arbitration was authorized under Article 7 of the Master Labor Agreement between the parties dated 1998.  The Arbitrator was selected by the parties.

 POST HEARING BRIEFS were timely filed by both parties on or before 1 May 02.

INTRODUCTION

The relevant facts of this matter are refreshingly devoid of much controversy.  The Grievant, Neal Hadley, was formerly a WG-8852-10 aircraft mechanic at Hill AFB (or Employer) and was injured in a snowmobile accident in February 2000.  He spent the next year in a series of operations and treatments by various private physicians, during which he was on sick leave or light duty.

On 24 January 01, Loren Lewis, MD and Occupational Medicine Specialist at Hill, recommended that the Grievant be medically disqualified from his mechanic position [Jt. Ex. 10-1].[1]  On 28 March 01 Hadley agreed in writing to his placement in the base’s Physically Disqualified Placement Program [Jt. Ex. 10-2].

Following another surgery the Grievant on 14 June 01 presented to Lewis an x-ray and note dated 16 May from a resident working with one of the Grievant’s private physicians, Dr. Hugh West [Jt. Ex. 10-3].  The note indicated that Hadley could return to regular duty as a mechanic with no restrictions, which the Grievant very much wanted to do.  However, Lewis explained to Hadley there was not sufficient objective information for him to concur with the private physician’s recommendation.  Lewis testified he told the Grievant he would have to consult with West about his note and the medical history, and absent agreement, Lewis could not agree to release Hadley to return to his regular duties.  Hadley testified he could not remember whether or not Lewis mentioned consulting with West, but he stated he would not have objected if asked.  The parties stipulate that Hadley did not sign a medical information release form.

            Lewis also told Hadley he could take more precise x-rays of the critical bone area to assist with his decision on whether to follow the private doctor’s advice and remove the disqualification.  Hadley agreed, and on 19 June he was x-rayed at the base.  On 27 June Lewis again met with the Grievant and reviewed the new x-rays with him.  The x-rays revealed that the clavicle had in fact not healed properly which would prevent Hadley from being able to fulfill all the essential duties in the mechanic’s position description.  Lewis testified he then told the Grievant that the new finding definitely invalidated the recommendation of West, and that he, Lewis, would need to consult with West about the discrepancy in their two evaluations.  Again, Hadley testified he did not remember if Lewis mentioned his need to consult West, but that had Lewis done so, he, Hadley, would have given his consent.

Later that same day, 27 June, Lewis wrote a consultation letter to West [Jt. Ex. 10-6].  On 22 August, Hadley filed the subject grievance [Jt. Ex. 10-7].  Pursuant to an earlier selection, on 26 August Hadley began a permanent position as a GS-1152-07 production controller at Hill, at the same rate of pay has his old WG-10 job [Jt. Ex. 10-8] but on day (rather than swing) shift and without access to overtime.  The grievance was processed through the negotiated procedure [Jt. Ex. 10-9, 10-10], and on 27 December 01 [Jt. Ex. 10-13] the Union invoked arbitration.  It is stipulated that no statutory appeal on this matter was ever filed.

PROCEDURAL INFORMATION AND ISSUES

            This matter initially came to the attention of the Arbitrator in a letter of appointment dated 22 February 02.  Subsequently the Employer filed a motion to dismiss [Jt. Ex. 10] on 27 February contending the grievance was not arbitrable procedurally (i.e., it was twice untimely) or substantively (i.e., it contended a violation of the Privacy Act and could only be resolved in court).  The Union filed a response on 12 March [Jt. Ex. 11].  This resulted in a letter to the parties from the Arbitrator [Jt. Ex. 12 and attached hereto] on 20 March 02.

That letter stated its conclusion that the grievance was not untimely, but that arguments concerning substantive arbitrability would be received at the scheduled hearing on 2 April 02.  At that hearing the parties were unable to agree on the issues to be decided, and they are framed here by the Arbitrator:

1.  Is the alleged violation of the Privacy Act grievable/arbitrable?

2.  If so, Did the Employer violate the Privacy Act through its disclosure of Dr. Lewis’s medical diagnosis to the Grievant’s private physician?

3.  If so, What is the proper remedy?

POSITIONS OF THE PARTIES – ARBITRABILITY

Employer.  In support of its position that this matter is non-arbitrable, the Employer contends (a) perceived violations of the Privacy Act[2] must be pursued in civil court: “the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection;”[3] (b) civil suits are the only remedy option provided by the statute; (c) in creating agency rules under paragraph ‘f’ of the statute, the Air Force Instruction took no steps to imply the existence of administrative remedies with respect to alleged violations:  AFI 37-132 states, “An individual may file a civil suit against the Air Force for failing to comply with the Privacy Act;”[4] (d) the Office of Personnel Management’s implementing regulation[5] reflects that judicial review is the only permissible method review; (e) the Master Labor Agreement is entirely silent on this subject, except that it provides that the MLA is subject to “all applicable laws,” which reinforces that appropriate remedy must be found in the words of the statute; and (f) the case cited by the Union, AFGE Local 987 and USAF, AFMC, Robins AFB, GA, 57 FLRA 97 [Jt. Ex. 11] cannot be applied here in the face of federal statutes, regulations and the MLA.

The Employer distinguishes the instant case in that under Robins “neither party . . . 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.”[6] Second, despite its ruling, the FLRA stated it did not believe that “the issue of the Arbitrator’s jurisdiction to resolve the allegation of a Privacy Act violation is properly before us.”   Third, the FLRA improperly based its authority upon an interpretation of the Back Pay Act,[7] which is here irrelevant, but in any case defers to the language of federal statutes such as the Privacy Act.[8]

            For each and all of these reasons the Employer asks that the grievance be found non-arbitrable: the only procedure available to a Privacy Act violation claimant is that contained within the Act itself, namely a legal action in federal court.

Union.  In support of its belief that the matter is grievable/arbitrable, the Union notes (a) that any protest against grievability, like any new issue, must be raised at step one or it cannot be raised at all under the MLA;[9] (b) the issue was not raised at either step one or step two [Jt. Ex. 10-11]; (c) Article 7, Section 7.06.a of the MLA limits the Arbitrator’s authority “to deciding only the issue or issues considered in the formal grievance” [Jt. Ex. 1]; (d) therefore the matter of “substantive arbitrability” cannot now be properly before the Arbitrator; (e) even if it is to be considered in arbitration, the Privacy Act provides only that an individual may bring a civil suit alleging a violation, it does not require that he do so; i.e., it does not preclude the individual or the Union from raising a claimed violation of the Act with a grievance; (f) the word “may” is also used in the applicable AFI; and (g) most importantly, the FLRA has already ruled on this question in Robins, a precedent which is binding on the matter at hand.

Expanding on this last point, the Union notes that the FLRA held in Robins, “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.”[10]  And the FLRA went on to conclude that “claimed violations of the Privacy Act come within the definition of ‘grievance’ . . . and are grievable and arbitrable under a broad-scope grievance procedure.”[11]  It is thus clear that both the statute and the MLA intend for a claimed violation of the Privacy Act to be resolved under the negotiated grievance procedure, a conclusion directly reinforced by the FLRA in Robins.  All of this is further underscored by the decisions of other arbitrators who have adjudicated grievances over the violation of a federal statute,[12] a position reinforced by the D.C. District Court: “The purpose of arbitration in the Federal Sector labor context is ‘not only to ensure compliance with the collective bargaining agreements, but also to review or police compliance with controlling laws, rules, and regulations by [F]ederal agency employers alike’.”[13]

Therefore the Union asks that even if the Employer’s argument of non-grievability is permitted, the grievance be found arbitrable.

ANALYSIS – ARBITRABILITY

            The first real question in the matter before us is whether the Employer is precluded from raising the “non-grievability issue” for the first time in arbitration, having not raised this issue in the prior steps of the grievance procedure.  The controlling language on this matter is found in the MLA at two different points:

Section 6.08.c.(1) [Step 2] . . . New issues, i.e., issues not raised as part of the Step 1 process, shall not be raised.

Section 6.10.c.  Within 30 calendar days of the date of the initial grievance, the responding party shall issue a final decision in the matter.  If the matter is not resolved the aggrieved party may invoke arbitration.  Questions of grievability/arbitrability must be raised at this point.  [Emphasis added.]

            While the latter section might arguably provide relief from the prior one (based upon the assumption that Section 6.08 refers only to substantive issues rather than procedural or administrative ones such as grievability) there is no absence of clarity about Section 6.10.c.  It is absolutely clear on its face: a party contesting grievability must raise it no later than its final response prior to arbitration.  In the matter before us the record is devoid of any reference or challenge to grievability/arbitrability until the agency filed its pre-arbitration brief on 27 February 2002.  This was well outside the “30 calendar days” identified in Section 6.10.  Indeed it is also well past the Employer’s last response dated 9 January 2002, a response which contained no mention of grievability [Jt. Ex. 10-11].

One cannot escape the conclusion that the MLA prohibits now raising the question of grievability in the case before us.  In short, the first issue framed above on page 4 is not answered because it cannot be: the Employer’s failure to protest it earlier proscribes it from being addressed.

In a rather odd sense this has a healthy affect on the analysis of the matter before us, because the documentation about whether alleged Privacy Act violations are grievable is so replete with contradictions.  Also, this is not the “pure” case the FLRA says (in Robins) it wished to have in order to rule on the question.  That will have to await another day.  In the meantime, the instant matter must proceed on the assumption that such an allegation is properly grieved.

POSITION OF THE UNION – MERITS

In support of the grievance the Union contends first that the Privacy Act is clear about what constitutes a violation:

(b) Conditions of Disclosure.  No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains... 

            This is reinforced by the OPM regulation which provides that any official or employee of the office or agency should not disclose a record retrieved from a government-wide system of records to any person without the express written consent of the subject individual.[14]  Thus both the statute and the OPM regulations require that the agency not disclose data from an employee’s file without his written consent (except under specific and limited situations), something that was not obtained here, and which can never be implied.

            Nor can the “need to know” exemption within the Privacy Act be used as a defense since the exemption applies only to employees of the same agency who need the record for the performance of their duties.  It does not apply to disclosures to persons in other agencies or to those outside the federal government.

The Employer’s assertion that Lewis disclosed the Grievant’s medical information to help him, not hurt him, is also without merit.  Using the Americans with Disabilities Act analogously, that act makes it clear that the Employer cannot circumvent the law based upon a paternalistic concern about the worker’s health or safety.

The Union also contends that the Grievant should be allowed to return to his former position if (a) his private physician releases him for “regular duty with no restrictions,” and (b) the Grievant is willing to do so without accommodation, i.e., he is willing to perform the full range of duties of the position.

And finally, the Union argues that Lewis had extensive training on the  Privacy Act.  He was well aware he could and should have sought written consent from the Grievant by the proper form,[15] but he made a conscious decision not to.  Lewis intentionally violated the law.

In sum, the Employer has violated the Privacy Act through its unauthorized disclosure of medical information, and the Grievant is entitled to the remedies provided in the statute.

POSITION OF THE EMPLOYER – MERITS

In defense of its action the Employer contends first that there was no unauthorized disclosure in this case.  Lewis unequivocally testified that on two occasions he specifically told Hadley that he would need to consult with the Grievant’s private physician due to the discrepancy in their evaluations and diagnoses concerning fitness for duty.  The Grievant did not deny that those two warnings occurred, only that he could not remember them.  Lewis further testified that he would not have gone forward with the consult if Hadley had in any way signaled an objection.  In addition, while Hadley was uncertain whether he had been told of the need, he testified that had he been asked he would have given his consent. 

Second, federal law and regulations, case law, and professional custom allow an agency physician to share a federal employee’s medical information with the employee’s private physician without explicit prior permission if it is necessary for the safety of the employee or the federal workplace.  The Privacy Act does not require the written consent of an employee prior to disclosure of information for “routine use,” defined as “the use of such record for a purpose which is compatible with the purpose for which it was collected.”[16]  Indeed, the Grievant admitted that his various private physicians must have consulted with each other in the course of his long treatment, and he provided neither written nor oral authorization to any of them.

Another exemption from the requirement for prior written consent is disclosure “to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual.”[17]  Both this and the previous exemption (routine use) are reflected in the OPM’s implementing regulation.[18]

In addition, many other sources make clear the permissibility of a government physician consulting freely with other physicians, public and private, in the course of evaluating the health of employees.  I.e., an agency “may make inquiries into the ability of an employee to perform job-related functions.”[19]  Lewis testified this was exactly the purpose of his consultational inquiry memo to West.  This is further underscored by the fact that the agency, not the private physician, is ultimately liable for on-the-job injury to an employee and thus may appropriately seek to determine the employee’s specific functional limitations, abilities and possible reasonable accommodations.[20]  The Employer is within its rights to seek verification of an employee’s condition, and to seek additional information when there is insufficient documentation.[21]

None of the above sources refer to the necessity of obtaining a written release prior to pursuing these medically important consultations.[22]  The only purpose of Lewis’s memorandum to West was to consult with West about the very real and very serious concerns Lewis had about the difference in their diagnoses and disqualification decisions.

Finally, Andersen, who was until recently Hill’s appointed Privacy Act expert, testified that there was no violation here: Lewis only consulted with West in response to the Grievant’s request to remove his disqualification, and West already knew about the condition to which the consult referred.  Indeed, Andersen could envisage no circumstance in which one physician consulting with another about a mutual patient’s condition would constitute a violation of the Privacy Act.

Thus, even if the Privacy Act is interpreted to allow the grievance and arbitration, Lewis did not violate the Act when he consulted with the Grievant’s private physician.  Therefore, the grievance must be dismissed and all requested relief must be denied.

ANALYSIS – MERITS[23]

The Union accepts that it shoulders the burden to establish with a preponderance of evidence that the Employer violated the Grievant’s rights under the Privacy Act.  For a number of reasons, I cannot find that the Union is able to successfully meet that burden.

First, it is not clear from the language of the Act that it applies to medical matters of this sort.  The definition of “record,” as it relates to this situation, only includes “medical history,”[24] i.e., one’s medical history represents a record that cannot be transmitted without written consent.  “Medical history” in turn, would generally be held to refer to historical records that might adversely impact the employee’s employment prospects.  Here, we are faced only with a current medical disqualification.  There is nothing about the information offered by Lewis that could reasonably be construed as Hadley’s “medical history.”

Specifically, it is Lewis’s 27 June 2001 memo which the Union challenges.  Only one paragraph could be considered a revelation of the Grievant’s condition:

My exam today of his left shoulder/clavicle still shows some decreased strength and slight guarding, and some decrease in range of motion.  He also reported that he still feels a little weak in his left shoulder motions.  We also did plain x-rays of his clavicle and these indicate there is still a deficit that has not filled in yet.  Because of his history, there is a legitimate question whether full healing will even occur, although his current status is improved compared to before his recent surgery.

It is clear Hadley’s medical history is not therein being revealed to West.

Second, even if one might consider the above to be embraced by the term “medical history,” the Act provides several exceptions to subsection (b)’s unequivocal requirement[25] of a written consent from the employee.  Two are relevant here: the “need to know” exception and the “compelling circumstances affecting the health or safety of an individual” exception.[26]  In Hadley’s case, Drs. Lewis and West had made different determinations about Hadley’s ability to perform all essential duties of his mechanic’s position.  In the absence of resolution, Lewis was fully prepared to bar Hadley’s return to that job since Lewis believed the health and safety of both the Grievant and those with whom he worked were at stake.  Lewis told Hadley this consultation would be necessary, and there is no testimony indicating that the Grievant objected.  Indeed, Hadley stated under oath that had he been directly asked for permission he would have granted it, because he knew that if Lewis did not have a conversation with West which resolved the discrepancies in diagnoses, Hadley could not achieve his objective of returning to the mechanic’s position.

It must be noted that Hadley could not return to that position simply because he wished to do so, even with a release from his private doctor.  As all parties should be aware, the Employer retains the exclusive right to determine the fitness of an individual to perform the tasks assigned, based upon all appropriate assessments.  It is simply irrelevant that Hadley was prepared to return to the mechanic’s position without accommodation: in the Employer’s well-considered judgment, which is the only one that is determinative, he would be a danger to himself and others.

            Viewed from Lewis’s perspective, the discrepancy about fitness created both a “need to know” and “a compelling circumstance affecting the health and safety” of Hadley and those with whom he would work.  Lewis needed to know why the discrepancies existed in order to perform his own duties,[27] and he shared with West only his own medical actions and findings that would affect Hadley’s return to work as a mechanic.  Lewis was properly concerned that West was unfamiliar with the requirements of the mechanic position; and it is clear from his memo [Jt. Ex. 10-6] that he was sharing only the medical information necessary to have a meaningful conversation with West so that he, Lewis, could make a proper determination.  As he stated in an affidavit [Jt. Ex. 10-4] and in testimony,

I was not revealing something that was new to [West].  It was necessary to explain my exam findings and the differences and to describe the specific concerns that I had in order to provide a basis for my correspondence.  It is hardly possible or reasonable for me to differ with his recommendation without explaining the nature of and basis for the differences. . . . The information provided dealt specifically with the concerns I had and related specifically to the condition for which Dr. West had seen and treated him, and there was no other information of a private nature that was discussed

            Viewed differently, Lewis was telling West of his diagnosis and of his concern that Hadley was not yet healed enough to return to his former position to prompt West’s input; but West failed to provide it.  Presumably the Union would have filed no grievance has Lewis simply sent a note to West saying, “I cannot remove the disqualification without a discussion about your diagnosis.”  Instead, Lewis shared his observations so that West would understand why the discrepancies existed, and why West needed to respond if both doctors were to be on the same page in determining what would be in Hadley’s best interest.

            In sum, it must be found that the 27 June 01 memo did not in any way violate the Grievant’s privacy rights since it provided only information necessary to elicit an informed response from West so as to resolve the differences in diagnoses, and since it constituted a “compelling circumstance affecting the health and safety” of the Grievant.

Third, the memo likely would also meet the test of “routine use”[28] although that is not specifically determined in this opinion.  It is clear that doctors routinely discuss medical matters concerning a patient as it relates to a condition they are all working on.  Even Hadley admits that the many doctors who previously treated him following his snowmobile accident almost certainly spoke with one another, sharing critical information such as x-rays and diagnoses, and not once was he asked for his written or oral consent.  He had no objection to that procedure.  Indeed, Hadley seems to accept this information exchange as routine since he admits that he would have given his permission to Lewis to write the memo had he been asked.

Fourth, the only Privacy Act “expert” who testified at the hearing stated unequivocally that the type of communication between Lewis and West which occurred here could not constitute a violation of the Act because Lewis contacted West in response to the Grievant’s own request to remove his disqualification, and West already knew about the condition to which the memo referred.  Even if one were to question the expertise of the witness, the conclusion would be the same: the exchange was common, necessary and routine.  Only if Lewis volunteered irrelevant information about the Grievant might the Privacy Act be potentially invoked.

Thus, one must conclude that even if a grievance is a proper method of protesting an alleged violation of the Privacy Act, that grievance must be denied in the circumstances presented.  Therefore, Issue #2 is decided in the negative, and Issue #3 is moot.

DECISION

The grievance of Neal Hadley is denied.

                                                                                                   __________________________

                                                                THOMAS L. WATKINS, Arbitrator

14 May 2002

Frisco, Colorado


[1] Virtually all of the documents herein identified as being part of Jt. Ex. 10 are also contained in Jt. Ex. 3, the grievance chain documents, but they are not double referenced here.

[2] 5 USC 552a, Jt. Ex. 4.

[3] Supra, at paragraph (g)(1).

[4] AFI 37-132 at para. 1.2.

[5] 5 CFR 297. Jt. Ex. 6.

[6] 57 FLRA 97, p. 4.

[7] 5 USC 7103.

[8] Supra, at para. (a)(9) and (14).

[9] Section 6.08.c(1).

[10] Supra, p. 4.

[11] Supra, p. 7.  The parties have such a ‘broad-scope grievance procedure’ permitting grievances on “any matter involving working conditions.”  MLA Section 6.01.

[12] 53 FLRA 134.

[13] Devine v. White, 697 F2d. 421, 438 (1983).

[14] Supra, at Subpart D.

[15] “Authorization for Release of Medical Information,” Un. Ex. 1.

[16] Jt. Ex. 4, para. (b)(3) and (a)(7).

[17] Supra, para. (b)(8).

[18] Jt. Ex. 6: 5 CFR 297.401(h) and (c).

[19] Jt. Ex. 8: 42 USC 12112 para. (d)(4)(B); Jt. Ex. 9: 29 CFR 1630 § 1630.14(c).

[20] EEOC Notice No. 915.002 para. 16.

[21] EEOC: “Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act,” pp. 2-4.

[22] The Employer also notes that the form submitted by the Union, Un. Ex. 1, is outdated and would not be used as a consent form for this type of situation in any event.

[23] It must be remembered that this analysis is based upon only an assumption of the grievability of an alleged Privacy Act violation.  No determination of such grievability can be made here because the Employer failed to timely raise that question.

[24] Supra, at (a)(4).

[25] See p. 9 of this decision for the precise wording.

[26] Supra, at (b)(1) and (8) respectively.

[27] OPM 297.401 clearly states that written consent need not be obtained if the disclosure is to persons “who have a need for the information in the performance of their duties.”  Jt. Ex. 6. 

[28] Supra, at (b)(3).

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