Despite periodic announcements in the Federal Register, not many postal employees are aware that the Postal Service Labor Relations department can legally keep copies of their disciplinary records for their entire postal career – even those “expunged from all files.” The APWU local in St. Paul, Minnesota found this out in 2007.
In case #E00C-1E-D07006798, Arbitrator Imes wrote:
Although the Union argues that management is violating the National Agreement and settlements by keeping a central file of expunged disciplinary records, they are really arguing that the words “all files” in its settlements means that no record of any settled disciplinary action, once expunged, may remain in any file maintained by the Postal Service. After reviewing the evidence and the record, it is concluded that the Union is incorrect even though it provided evidence that some of its settlements state that the disciplinary action “shall be pulled from all systems and files.”
USPS 100.000 in HBK AS-353 specifically states that the Postal Service keeps reference copies of all discipline or adverse actions, including letters of warning; notices of removal; suspension; reduction in grade or pay; letters of decisions and documents relating to those actions in a separate file maintained by Labor Relations. This provision, although updated in October 2006 has existed in one form or another since at least 1999, and probably earlier, and was in existence when several of the settlements were reached. Further, USPS 120.190 states that records of discipline may became of a part of 120.070 and 120.070 specifically states that reference copies of discipline or adverse actions are kept for historical purposes and may be used to refute inaccurate statements by witnesses before a judicial or administrative body. These Privacy Act provisions clearly indicate that the Postal Service has the right to maintain a file which contains all disciplinary records of employees who are employed by the Service (subject to certain time restrictions) and that they may be used by the Service for historical purposes and for other limited purposes.
Given these provisions, it is unlikely that the parties meant that expunged disciplinary records, including settlements, must be removed from reference copy files maintained by Labor Relations when they agreed that disciplinary action would be removed from “all files”. As stated earlier, in another arbitration decision issued by this Arbitrator, settlements are negotiated by parties who are knowledgeable and experienced in labor relations and who, more than likely, understand the principles of labor contract administration. Given this knowledge and the fact that these provisions have existed for years, it is very unlikely that management would agree to a settlement that would take away its right to maintain a reference copy file of such discipline. Further, given the knowledge of both parties and the Union’s concern that management may incorrectly use expunged discipline as a basis for determining the degree of discipline in a new instance or in an effort to prejudice the arbitrator, as was apparently the case that precipitated this grievance, it more likely that both parties intended “all files” to include any supervisor’s self-maintained file, any other file that other supervisors or employees may have access to, and/or the official personnel folders for employees.
Having considered the arguments and evidence advanced by both parties and based upon the above discussion, the grievance is sustained in part and denied in part. That part that relates to whether management must destroy all expunged disciplinary records is denied. That part that relates to management maintaining a file that contains disciplinary records in the St. Paul facility is sustained. Consequently, if the file is still being maintained in the St. Paul facility, management is ordered to move the materials in that file from its facility to a Labor Relations Department of its choice. Further, it is ordered to cease retaining any expunged disciplinary records in any file in the St. Paul facility.
The Postal Service revised its Privacy Act regulations slightly in the Federal Register of June 17, 2011 [76 FR 35485]. Here is the pertinent text:
System Name: General Personnel Records.
CATEGORIES OF RECORDS IN THE SYSTEM:
REFERENCE COPIES OF ALL DISCIPLINE OR ADVERSE ACTIONS: Letters of warning; notices of removal, suspension and/or reduction in grade or pay; letters of decisions; and documents relating to these actions. These are used only to refute inaccurate statements by witnesses before a judicial or administrative body. They may not be maintained in the employee’s OPF or eOPF, but must be maintained in a separate file by Labor Relations.
RETENTION AND DISPOSAL:
REFERENCE COPIES OF DISCIPLINE OR ADVERSE ACTIONS. These records are kept for historical purposes and are not to be used for decisions about the employee. The retention of these records may not exceed 10 years beyond the employee’s separation date. The records are maintained longer if the employee is rehired during the 10-year period. They may not be maintained in the employee’s OPF or eOPF, but must be maintained in a separate file by Labor Relations.
Rescinded disciplinary actions can surface more than a decade later in the grievance/arbitration procedure and in MSPB and EEO hearings. Under current Privacy Act regulations and Handbook AS-353, it is legal. Since it is not good enough to request that the disciplinary action be pulled from “all systems and files,” representatives should add a second request that the disciplinary action be removed from “all Labor Relations’ files” as well. It would behoove postal employees to keep documentation of the final disposition of their disciplinary actions until they retire from the Postal Service.