Alaska Employment Law

The Alaska Department of Public Safety released the Social Security Number of one of its employees in a disclosure to the Public Defenders.   The employee grieved the matter under the 2004-2007 CBA between the Alaska State Employees Association and the State.  When the State refused to process the matter, the union filed an petition with the state Labor Relations Agency to compel arbitration.

The State challenged the arbitrability of the matter before the ALRA.  The ALRA has now held that the matter was not arbitrable. 

We find no terms in the agreement that arguably bear on the right to non-disclosure of personnel records, including an employee’s social security number.  ASEA contends that the management rights clause prohibits disclosure of an employee’s personal information, and that its request is therefore arbitrable. We do not believe that this is a “reasonably arguable” position. As we indicated above, there is no language in the management rights clause, express or implied, that would arguably bear on an alleged prohibition against disclosure of personal information. We believe that there is no term in the agreement that expresses the parties’ agreement to arbitrate disputes over allegations regarding unauthorized disclosure of bargaining unit members’ personal information. While there may be statutory restrictions pursuant to, for example, the Privacy Act of 1974 regarding utilization of social security numbers and other personal information, the parties’ collective bargaining agreement does not contain language or terms that grant an arbitrator authority to decide such allegations as those made here. See, e.g., Public Safety Employees Association v. State, 799 P.2d 315 (Alaska 1990).

Accordingly, we deny ASEA’s petition to compel arbitration of the alleged disclosure of the employee’s social security number and other personal information.

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ASEA goes on to argue that disclosing state employees’ social security numbers violates state law under AS 39.25.080. This law provides that “personnel records, including employment applications and examination and other assessment materials, are confidential and are not open to public inspection except as provided in this section.” (AS 39.25.080). Exceptions include job title, classification status, compensation and dates of service. (AS 39.25.080(b)).

Although ASEA may be correct that disclosing a social security number as part of a personnel file may be prohibited under this law, such a disclosure is not relevant unless there is a reasonably arguable contract connection. The question we must decide is whether the disclosure of the social security number and other personnel-related information raises a question about the application or interpretation of the collective bargaining agreement that triggers a right to resolution before an arbitrator.

We cannot find such a trigger expressly or by implication in the terms of the collective bargaining agreement. It would be one thing if the agreement specifically prohibited the State from violating this statute, or even more specifically, if the agreement prohibited the employer from in any way disclosing the employee’s social security number or other personnel records to a third party without permission. But the agreement before us does not contain such a specific prohibition that could trigger arbitration over the allegations.

If ASEA is contending, in its privacy assertion, that the State violated the employee’s constitutional right to privacy and that we should decide this issue, we decline to address this issue. Deciding a constitutional issue is beyond our jurisdiction or authority.

If ASEA is contending that the State violated the employee’s right to privacy under the management rights clause and we should compel the parties to arbitration of this issue, we disagree with the assertion. We find no reasonably arguable right to privacy under the management rights clause. In addition, we find no other term of the agreement that arguably bears on a bargaining unit member’s right to privacy. As we stated earlier, Article 4 in the parties’ contract addresses management rights, not employee rights. To conclude that each bargaining unit member has a right to privacy under the management rights clause would require us to turn the clause on its head. To construe a right to employee privacy into this or any other clause, without language that makes such a reading at least reasonably arguable, would expand the arbitrability of disputes beyond the terms of the parties’ agreement. Unless appropriate language exists in the contract, a request to arbitrate must be denied.

ALRA Decision and Order No. 288 (June 3, 2009)(various citations omitted)