35:1116(123)AR - - NLRB and NLRB Professional Association - - 1990 FLRAdec AR - - v35 p1116



[ v35 p1116 ]
35:1116(123)AR
The decision of the Authority follows:


35 FLRA No. 123

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL LABOR RELATIONS BOARD

(Agency)

and

NATIONAL LABOR RELATIONS BOARD

PROFESSIONAL ASSOCIATION

(Union)

0-AR-1555

DECISION

May 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Louis Aronin filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

The grievances in this case involved: (1) a written reprimand of the grievant for remarks that she allegedly made to the Agency's Equal Employment Opportunity (EEO) Director; and (2) the removal of the grievant from the Federal service for allegedly removing documents from her personnel file and destroying them. The grievances were consolidated and submitted to arbitration.

The Arbitrator found that there was just and sufficient cause for the grievant's reprimand and removal. He also found that the grievant's reprimand and removal were supported by a preponderance of the evidence and that the removal promoted the efficiency of the Federal service. Accordingly, the Arbitrator sustained the reprimand and the removal and denied the grievances.

We have reexamined the Authority's position that adverse actions and actions based on unacceptable performance involving nonpreference-eligible, excepted service employees are within the scope of the negotiated grievance procedure prescribed by the Statute.(1) Based on the rationale and conclusions of the United States courts of appeals that have uniformly reversed the Authority's position,(2) we hold that nonpreference-eligible, excepted service employees are precluded by law from challenging an adverse action set forth in 5 U.S.C. § 7512 or an action based on unacceptable performance set forth in 5 U.S.C. § 4303(a) through the negotiated grievance procedure.

Because we find that the grievant in this case is a nonpreference-eligible, excepted service employee, we conclude that the Arbitrator was precluded by law from reaching the merits of the removal action. Based on our conclusion that the Arbitrator was without jurisdiction over the removal action, we hold that the award as to that action is deficient under section 7122(a) of the Statute because it is contrary to law. Accordingly, we will set aside the award as to the removal action.

In addition, because we conclude that the reprimand of the grievant is not a matter precluded by law from the coverage of the negotiated grievance procedure, we find that the Arbitrator had jurisdiction to consider the merits of the reprimand. We also conclude that the Union has failed to establish that the Arbitrator's award as to the reprimand is deficient on any of the grounds set forth in section 7122 of the Statute. Accordingly, we will deny the Union's exceptions as to the reprimand.

II. Background

The grievant, an attorney in the Agency's Office of Appeals, was assigned to work under supervisor "A" in June 1984. Award at 4. In September 1984, the grievant filed an EEO complaint over the evaluation given to her by supervisor "A." Award at 7. The complaint was withdrawn when the grievant was transferred to another supervisor.

In September 1986, the grievant was again assigned to work under supervisor "A." Award at 5. The grievant's request that she not be assigned to that supervisor was denied. Award at 6. She filed an informal EEO complaint, alleging that the assignment violated the 1984 "settlement" and that the assignment would not be fair because supervisor "A" was a homosexual. The complaint "discussed Mr. 'A's' homosexuality, and Grievant's view, based on medical reports, that homosexuals have antagonisms toward their mothers and that she was a mother image." Award at 7. The Associate General Counsel for the Division of Enforcement Litigation met with the grievant and told the grievant that if she repeated the allegations as to supervisor "A" she would be fired. Award at 11. The record does not show that the complaint went beyond the informal stage.

In November 1986, the grievant discussed another pending complaint with the EEO Director. During the discussion, the grievant allegedly said to the Director, "you need to go back to the ghetto where you belong." Award at l4. Further, the grievant allegedly stated that the Director "was unqualified for [her] position," that she "was just a high school graduate," and that she "should do the agency a favor by resigning." Id. The EEO Director reported these remarks to the Deputy General Counsel. Id.

The Deputy General Counsel investigated the incident and on February 4, 1987, issued a written reprimand to the grievant. Award at 14-15. The reprimand stated that the "ghetto" remark was "inappropriate, offensive, and a racial slur." Union's Exceptions, Appendix at 16. The reprimand stated that the grievant's other remarks, reportedly made in a loud, abusive, rude and argumentative tone of voice, were inappropriate. The reprimand further stated that "[a]ny future instances of unprofessional conduct on your part may result in more severe disciplinary action." Id.

On February 25, 1987, the Union grieved the February 4 reprimand. The grievance was denied by the Agency on March 24, and was scheduled for arbitration. Award at 16.

On February 12, 1987, the grievant went to the office of the Executive Secretary of the Agency and was allowed to look through her personnel file. According to the grievant, she reviewed the file, returned it, and requested a copy of her current SF-171 application form, which she found in the file. Award at 16-17. According to the Agency, the grievant was observed removing certain documents from her personnel file, placing them in or under her jacket, and leaving the office. The Agency stated that the grievant then entered the ladies room where she allegedly was heard to tear up documents and flush them down a toilet. Award at 18-25.

Beginning on February l3, the Agency's Chief of Security and Audit conducted an investigation into the events of February 12, and submitted an investigative report to the Associate General Counsel, Division of Enforcement Litigation. Award at 27. On March 18, 1987, the Associate General Counsel served the grievant with a "Notice of Proposal to Remove." The notice stated that the Agency had established that a copy of the grievant's February 4 reprimand, and other documents, had been removed from the grievant's personnel file. The notice charged the grievant with removing and destroying those documents and informed her that her action was prohibited by the Federal criminal code, 18 U.S.C. § 2071. Award at 27-28. The notice stated:

The above incident in and of itself is . . . serious enough to warrant a proposal of removal. Moreover, in the context of two recent incidents of unprofessional conduct and disruptive behavior, the incident shows a pattern of conduct inconsistent with continued service as a government attorney.

Union's Exceptions, Appendix at 28. The "two recent incidents" were identified in the notice as the September l986 remarks about supervisor "A" and the November 1986 remarks to the EEO Director for which the grievant was reprimanded. Id.

The grievant responded in writing to the notice and also made an oral reply. On May 20, 1987, the General Counsel issued the Agency's "Notice of Decision on Proposal to Remove from Federal Service," removing the grievant from her position effective May 22, 1987. Award at 28. In that notice, the General Counsel stated:

The record reflects that you did remove and destroy documents from your Employee Performance File, with the obvious result that anyone viewing that file would receive a false and misleading picture of you as an employee. . . . Based on the foregoing, I find that the conduct of removing and destroying documents, whether standing alone or taken in conjunction with the other matters relied on by [the Associate General Counsel], requires your removal from the position of Attorney-Advisor.

Union's Exceptions, Appendix at 74.

The Union invoked arbitration over the grievant's removal, and the matter was consolidated for hearing with the grievance over the reprimand.

III. Arbitrator's Award

The Arbitrator stated that the issue before him was whether the grievant was removed from Federal service in accordance with the parties' negotiated agreement and chapter 75 of title 5 of the United States Code. Award at 2.

The Arbitrator noted that if the Agency failed to establish that the grievant removed and destroyed documents from her appraisal file, "then the basis for removal fails in whole or part." Award at 36. The Arbitrator found that there was no "overt" evidence that the grievant removed or destroyed documents from her appraisal file. He also found, however, that "circumstantial evidence may be a basis for removal." Award at 37.

Crediting the testimony of the Agency's witnesses rather the testimony of the grievant, the Arbitrator found that those witnesses: (1) saw the grievant looking through her appraisal file; (2) saw her remove some documents from the file; (3) saw her put something in or under her jacket; (4) saw her leave the office; (5) heard her deny that she had removed any documents; (6) saw her enter the restroom; and (7) heard her tear up some papers and flush the toilet. Award at 37-41.

The Arbitrator noted that the Agency did not have an inventory of the grievant's appraisal file. He found, however, that the Agency had established what the contents of the file had been and had properly concluded that certain documents had been removed from the file by the grievant. Award at 42. He noted that the missing documents contained comments which were adverse to the grievant. Id.

The Arbitrator found that the appraisal file is used to make decisions regarding personnel actions. He concluded that altering the contents of the file could give a more positive view of the grievant's performance. He found, therefore, that removal of documents by the grievant from the file constituted a deliberate attempt to misrepresent the grievant's performance.

Consequently, the Arbitrator found that the Agency "had a valid basis to conclude that [the grievant] was guilty of 'removing and destroying documents.'" Award at 44. The Arbitrator also found that "a preponderance of the evidence support[ed] that conclusion." Id.

The Arbitrator noted that the grievant's responsibility as an attorney was to review and report accurately the contents of case files, a function that requires honesty, integrity, and impartiality. The Arbitrator found that:

It is, therefore, appropriate for the [Agency] to conclude that Grievant's actions in removing and destroying documents to misrepresent her performance did not meet the requisite characteristics of honesty, integrity and impartiality. It was appropriate to conclude under these circumstances that removal would constitute such action as would promote the efficiency of the service[.]

Award at 44. The Arbitrator concluded that the Agency's removal action "was supported by a preponderance of the evidence and comports with decisions of the MSPB [Merit Systems Protection Board] and the courts which have reviewed removal under 5 USC, Chapter 75." Award at 46.

The Arbitrator then considered the two other incidents referred to by the Agency in its decision to remove the grievant. The Arbitrator found that the grievant's remarks in September 1986 about Mr. "A's" alleged homosexuality were an unwarranted effort to maliciously malign him as a supervisor and were intended "to support her argument that she should not be assigned to a supervisor who had given her an unfavorable evaluation." Award at 47. He also found that the remarks were not made in the context of a grievance or at the formal stage of an EEO complaint. He concluded that the remarks were not privileged or protected by law. Noting that the grievant was not disciplined for the remarks, the Arbitrator found that the grievant's statements were "evidence of unprofessional and inappropriate conduct." Award at 55.

The Arbitrator found that the Agency's February 1987 reprimand of the grievant for her remarks to the Agency's EEO Director was warranted. First, based on his credibility determinations, the Arbitrator found that the grievant made the remarks which she was alleged to have made. He then found that the remarks were not privileged or protected by law. He concluded that the Agency had established, "by a preponderance of the evidence, that the Grievant was guilty of unprofessional conduct warranting a reprimand" and that the "reprimand is based on just and sufficient cause." Award at 57. The Arbitrator also found that the reprimand was relied on only as background for determining a penalty in the later removal action, and was not relied on as the sole or major basis for that action. Id.

The Arbitrator rejected the Union's contention that the Agency had taken the reprimand and removal actions against the grievant in reprisal for her filing of EEO complaints. Noting that the grievant had filed numerous EEO complaints, the Arbitrator found that the Union did not meet the burden of showing that the actions were taken because of the grievant's EEO activity rather than for the reasons stated by the Agency. Award at 58.

Finally, in reaching a decision as to the merits of the penalty imposed by the Agency, the Arbitrator noted that he had fully considered the criteria set forth in Douglas v. Veterans Administration, 5 MSPR 280 (1981), cited by the Union. He found that the removal was warranted. Award at 59-60.

The Arbitrator concluded that "the removal of Grievant was based on a preponderance of the evidence and is such action as will promote the efficiency of the service." Award at 60. He also concluded that the "removal of Grievant is sustained and the grievance is denied," and that the "reprimand of Grievant is sustained and that grievance is denied." Id.

IV. Positions of the Parties

A. Union's Exceptions

The Union excepts to the Arbitrator's award insofar as it pertains to the statements alleged to have been made by the grievant about supervisor "A." The Union claims that the award is deficient because a statement about supervisor "A" was true. The Union also claims that the Arbitrator's award is contrary to law because his findings that the grievant made the alleged statements and that the statements were not privileged were not supported by a preponderance of the evidence.

The Union also excepts to the Arbitrator's award insofar as it pertains to statements alleged to have been made by the grievant to the Agency's EEO Director. The Union contends that the award is deficient because: (1) the award fails to address whether the reprimand of the grievant for those statements was contrary to the collective bargaining agreement; (2) the Arbitrator's finding that the grievant made the alleged statements was not supported by a preponderance of the evidence; and (3) the Arbitrator's finding that the grievant's statements were not privileged is contrary to law. The Union concludes that the Arbitrator incorrectly determined that the reprimand was justified.

Finally, the Union excepts to the Arbitrator's award as it relates to the alleged removal and destruction by the grievant of documents from her personnel file. The Union contends that the award is contrary to law because the Arbitrator's findings as to the contents of the grievant's file and as to the claim that the grievant removed and destroyed documents were not supported by a preponderance of the evidence.

The Union requests that the Authority reverse the Arbitrator, make the grievant whole, and retain jurisdiction of this case following its decision so that the Union may file a petition for attorney fees.

B. Agency's Opposition

The Agency contends that the Union's exceptions should be denied because the Union has failed to demonstrate that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

As to the removal, the Agency argues in support of the Arbitrator's findings that the Agency had proven by a preponderance of the credible evidence that the grievant had improperly removed and destroyed personnel documents. Further, the Agency argues that the Agency was justified in removing the grievant for this misconduct.

As to the reprimand, the Agency states that, contrary to the Union's position, the contract issue--whether the Agency had just cause to issue the reprimand--was presented to and passed upon by the Arbitrator.

As to both the removal and the reprimand, the Agency argues that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact, reasoning, and conclusions. The Agency also argues that disagreement with the Arbitrator's credibility determinations does not constitute a basis for finding the award deficient.

V. Analysis and Conclusions

A. The Arbitrator's Award as to the Removal of the Grievant is Contrary to Law

The award in this case concerns the reprimand and removal of the grievant from the Federal service. Although not raised by the parties, we must first decide whether the Arbitrator had jurisdiction to resolve the grievances as to the reprimand and the removal in the circumstances of this case. The Union states that the grievant is a Schedule A employee in the excepted service. Union's Exceptions at 1. The Agency states that the grievant is a nonpreference-eligible, excepted service attorney. Agency's Post-Hearing Brief to the Arbitrator at 61. The Agency's statement is not controverted by the Union. Attorney positions in the civil service are included in Schedule A of the excepted service. 5 C.F.R. § 213.3102(d). See HHS I, which involved, among others, attorney positions. We conclude, therefore, based on the record in this case, that the grievant is a nonpreference-eligible, excepted service employee.

In HHS I; Office of Chief Counsel; and HHS II, the Authority held that adverse actions involving nonpreference-eligible, excepted service employees are within the scope of the negotiated grievance procedure.(3) That position has been rejected by the United States Courts of Appeals for the Seventh Circuit, the District of Columbia Circuit, and the Ninth Circuit insofar as it pertains to the adverse actions set forth in 5 U.S.C. § 7512 and to the actions based on unacceptable performance set forth in 5 U.S.C. § 4303(a). See HHS v. FLRA; Office of Chief Counsel v. FLRA; Region IX v. FLRA; reversing HHS I, Office of Chief Counsel, and HHS II, respectively.

The courts found that, under the comprehensive remedial framework established by Congress in chapters 43 and 75 of the Civil Service Reform Act of 1978 (CSRA), Pub. L. 95-454, 92 Stat. 1111, the right to review of major adverse actions taken under 5 U.S.C. § 7512 and performance based actions taken under 5 U.S.C. § 4303(a) was limited to competitive service and preference eligible employees. 858 F.2d at 1280-81; 873 F.2d at 1468. The courts relied on the Supreme Court's decision in United States v. Fausto, which held that the CSRA: (1) established a preferred position for competitive service and preference eligible employees; and (2) was designed to ensure uniform results in appeals of adverse actions taken under 5 U.S.C. § 7512 and performance based actions taken under 5 U.S.C § 4303(e) involving those classes of employees by restricting review of appeals in such cases to the MSPB and the Federal Circuit. 858 F.2d at 1283-84; 873 F.2d at 1469-71.

The Authority's decisions stated that nonpreference-eligible, excepted service employees, who do not have a right of appeal to MSPB and the Federal Circuit, could challenge adverse actions through arbitration under the negotiated grievance procedure, with review by the Authority. Based on their analyses of the purpose of the CSRA, the courts found that this framework could mean that the results in cases involving nonpreference-eligible, excepted service employees would be inconsistent with results in cases involving competitive service and preference eligible employees because arbitrators and the Authority would not be statutorily bound by MSPB and Federal Circuit precedent. 858 F.2d at 1284; 873 F.2d at 1469-70. Because permitting nonpreference-eligible, excepted service employees to grieve major adverse actions and performance based actions would in this way undermine the purpose of the CSRA to ensure uniformity of results in cases involving those actions, the courts held that extending the scope of the negotiated grievance procedure to major adverse actions and performance based actions involving nonpreference-eligible, excepted service employees was contrary to law. 858 F.2d at 1284; 873 F.2d at 1472.

We have reexamined the Authority's position and, based on the courts' rationale and conclusions set forth above, hold that nonpreference-eligible, excepted service employees, such as the grievant, are precluded by law from challenging major adverse actions and performance based actions through the negotiated grievance procedure. To the extent that previous decisions of the Authority are to the contrary, they will no longer be followed.

Because the grievant in this case, a Schedule A attorney, is a nonpreference-eligible, excepted service employee, her grievance contesting her removal--a major adverse action--is a matter which is outside the scope of the negotiated grievance procedure and is not properly subject to arbitral review. In short, the Arbitrator had no jurisdiction as a matter of law to determine the merits of the grievant's removal. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 15 FLRA 714 (1984), in which the Authority found that an arbitrator's award involving the grievance over the removal of a probationary employee was deficient as contrary to law both because it found the grievance arbitrable and because it resolved the grievance on the merits.

Consequently, we conclude that the Arbitrator's award on the merits of the grievant's removal from the Federal service is deficient because it is contrary to law. Accordingly, we will set aside the award insofar as it pertains to the grievant's removal.

In so finding, we emphasize that we do not hold that nonpreference-eligible, excepted service employees are precluded from challenging disciplinary actions, other than actions covered by 5 U.S.C. § 7512 and 5 U.S.C. § 4303(a), through the negotiated grievance procedure. Moreover, we do not address whether such employees are precluded from filing grievances concerning major adverse actions which involve alleged interference with protected union activity under the Statute or grievances concerning actions based upon unlawful discrimination.

B. The Arbitrator's Award as to the Reprimand of the Grievant is Not Deficient Under the Statute

We now turn to the Union's exceptions to the Arbitrator's award as it relates to the reprimand of the grievant. Consistent with the foregoing discussion, we conclude that the Arbitrator had jurisdiction over the reprimand because it is not an adverse action under 5 U.S.C. § 7512. Accordingly, the Union's exceptions to the Arbitrator's award sustaining the reprimand are properly before the Authority.

We note that the Arbitrator, based on his credibility determinations, found that the grievant made the remarks to the Agency's EEO Director that she was alleged to have made. He also found that the remarks were not privileged or protected by law. He concluded that the Agency's finding of unprofessional conduct warranting a reprimand was supported by a preponderance of the evidence and that the reprimand was based on just and sufficient cause.

The Union claims that the Arbitrator misapplied the preponderance of the evidence standard. The Union argues that the Arbitrator erred in making specific findings of fact, including credibility determinations, and in reaching certain conclusions based on those findings. Disagreement with an arbitrator's findings of fact--including his or her evaluation of the evidence and the credibility of the witnesses--reasoning and conclusions does not constitute a basis for finding an award deficient under section 7122(a) of the Statute. See U.S. Small Business Administration and Local 2532 of National Council of Small Business Administration Locals of the American Federation of Government Employees, AFL-CIO, 33 FLRA 28, 37 (1988).

We also reject the Union's contention that the Arbitrator erred in finding that the grievant's statements were not privileged. The Union has provided no basis for finding that the Arbitrator's conclusion is contrary to law. The Union's exceptions constitute only disagreement with the Arbitrator's determination that the grievant's statements were not privileged. We conclude, therefore, that the Union's exceptions do not constitute a basis for finding the award as it pertains to the reprimand of the grievant deficient under section 7122(a) of the Statute. See, for example, VA Medical Center, Leavenworth, Kansas, 34 FLRA 584, 586 (1990).

C. The Union's Attorney Fees Request

In view of our decision, we deny the Union's request that we retain jurisdiction of this case so that the Union may file a petition for attorney fees.

VI. Decision

Insofar as it pertains to the grievant's removal from the Federal service, the Arbitrator's award is set aside. The Union's exceptions to the Arbitrator's award concerning the grievant's reprimand are denied.




FOOTNOTES:
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1. National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 25 FLRA 1110 (1987) (HHS I); National Treasury Employees Union and Department of the Treasury, Office of Chief Counsel, 30 FLRA 656 (1987) (Office of Chief Counsel); and National Treasury Employees Union and Department of Health and Human Services, Region IX, San Francisco, California, 31 FLRA 993 (1988) (HHS II).

2. United States Department of Health and Human Services v. FLRA, 858 F.2d 1278 (7th Cir. 1988) (HHS v. FLRA); Department of Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990) (Office of Chi