37:1022(83)AR - - Treasury, Customs Service, Dallas, TX and NTEU Chapter 140 - - 1990 FLRAdec AR - - v37 p1022
[ v37 p1022 ]
The decision of the Authority follows:
37 FLRA No. 83
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
NATIONAL TREASURY EMPLOYEES UNION
October 16, 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 Howard V. Finston filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Agency canceled the work schedules of three intermittent excepted service employees and changed their employment status so that they no longer worked on a scheduled basis but on an "as needed" basis. The Agency also discontinued making future assignments for the employees. The employees filed a grievance in which they contended that the Agency's action was in reprisal for "whistleblowing" activities and also that the action constituted impermissible sex discrimination.
The Arbitrator found that the grievants had demonstrated reprisal by the Agency but had not proven sex discrimination. As a remedy, the Arbitrator ordered the Agency to give the grievants the opportunity to work as intermittent employees on the same basis as before the Agency's improper action and to make the grievants whole for any losses in pay that were attributable to the Agency's improper action.
The Agency contends that the award is contrary to section 7106(a) of the Statute, the Back Pay Act (5 U.S.C. § 5596), and 5 U.S.C. § 2302(b)(8) (whistleblower provisions). For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The three female grievants have been employed by the Agency since 1979 when they were hired as WAE (when actually employed) customs inspectors. Their positions are in the excepted service and are currently listed in the Agency personnel records as "EXC APPT-INDEFINITE INTERMITTENT." Award at 1. The only other intermittent customs inspector was a male employee. The grievants perform the duties of customs inspectors on a part-time or intermittent basis for up to 700 hours per year, with their appointments being renewed annually. Until February 1986, the grievants served actively as intermittent customs inspectors with the Agency, and their work schedules were routinely scheduled approximately 12 weeks in advance.
In August 1985, the grievants met with a representative of the Office of Personnel Management (OPM) to discuss concerns and complaints they had about the operation and management of the Agency at the Dallas/Fort Worth District. Those concerns included "the appropriateness of work assignments and a perceived lack of adequate 'cash box' procedures[.]" Id. at 2. OPM notified the Agency's Regional Commissioner of the substance of the matters discussed in the meeting. In October, following a September meeting with the grievants regarding their disclosures to OPM, the Agency's Deputy Assistant Regional Commissioner issued a report on the grievants' disclosures. The Dallas/Fort Worth District Director "received and reportedly reviewed" the report. Id.
On December 14, 1985, having received no response from the Agency regarding their concerns, the grievants wrote a memorandum to the Regional Commissioner inquiring about a response to their disclosures to OPM and stating that "[n]o substantive improvement in our situation has been effected during these three months." Id. The memorandum was sent to the District Director with a request that it be forwarded to the Regional Commissioner. On January 15, 1986, the grievants and a Union representative met with the District Director to discuss the concerns raised by the grievants and to review the Deputy Assistant Regional Commissioner's report. The grievants were not provided a copy of the report, but were informed that the report did not sustain or make any findings on their disclosures.
Following the meeting with the District Director, the grievants received a work schedule for January 20, 1986 through April 1986. Three days after receiving the schedules the grievants were informed by letter from the District Director that, due to a shortage of funds and an increase in full-time inspector staffing, he had canceled all intermittent inspector work schedules effective February 16, 1986. He further informed the grievants that any future assignments would be on an "as needed" basis, with 24 hours' notice. The male intermittent inspector was not informed of any change in his schedule and continued to work the same schedule as he had prior to February 16. Between February 16, 1986, and the date of the arbitration hearing, the grievants had not been scheduled to work.
The change in the grievants' work status was grieved and was subsequently submitted to arbitration. The grievants contended that the District Director's "cancellation of their work schedules, his change of their employment role to 'as needed', and his elimination of them from future work assignments . . . constituted either an impermissible reprisal by the Agency in response to their 'whistleblowing' to O.P.M. and Regional management, or impermissible sex discrimination, or both." Id. at 3. The Arbitrator determined that the issues were:
(1) Whether the challenged Agency action was an impermissible reprisal for whistleblowing, and
(2) Whether the challenged Agency action was impermissible discrimination based upon the grievants' sex.
Id. at 1.
The Arbitrator noted that "[e]xcepted service employees are protected from reprisal for whistleblowing under 5 U.S.C. [§] 2302(a)(2)." Id. at 4. He rejected the Agency's contention that because the grievants are intermittent excepted service employees, they are not protected from reprisal under the statutory whistleblower provision. He found no "authority for denying the grievants protection from reprisal under the statute or contract[,]" and determined that "the grievants are entitled to protection from impermissible reprisal for 'whistleblowing.'" Id. at 5 and 6.
The Arbitrator found that the grievants had made protected disclosures to OPM and the Regional Commissioner "relating to a) the alleged disparity between the grievants' compensation and their duties, b) the alleged cash control problems and c) the alleged management communication inadequacies[.]" Id. at 8. The Arbitrator also found that the District Director knew of the protected disclosures "before he undertook the challenged action" and that there was "an inference of retaliatory motivation on the part of the District Director." Id. at 9.
The Arbitrator then examined the matter of nexus or causal connection between the District Director's actions against the grievants and the protected disclosures. He reached the following conclusion:
Considering the record as a whole a) the closeness in time between the protected disclosure and the challenged Agency action, b) the tenor of the District Director's reaction, c) the nature of the disclosures, and d) the dissimilar treatment of the only other similarly situated employee who did not make any protected disclosure, it is the [A]rbitrator's opinion that the grievants have established the requisite nexus, i.e., the causal connection, between their protected disclosures and the Agency action under review.
Id. at 11.
The Arbitrator rejected the Agency's claim that there was a legitimate, nonretaliatory basis for the actions taken concerning the grievants. He stated that he was "not persuaded that cancellation of the grievants' schedules and the discontinuation of their work assignments were adequately explained in terms of budget constraints, increased full-time staffing or a combination of these alleged factors." Id. at 13. Rather he found that "these factors offered by the Agency to explain its action are pretextual[.]" Id.
The Arbitrator found that the grievants failed to establish their claims that they were the victims of impermissible sex discrimination and found that the challenged actions taken against the grievants were the result of the reprisal because of their whistleblowing.
The Arbitrator ordered the following remedy:
1) That the grievants be given future work schedules and assignments consistent with the general pattern of employment that characterized their service with the Agency between 1979 and February, 1986, and consistent with the legitimate needs of the Agency.
2) That the grievants be made whole for any losses which were attributable to the improper personnel action which involved a) the cancellation of their schedules, b) the failure to call them to work, and c) which then formally or informally diminished their opportunity to work up to 700 hours per year.
Id. at 16. The Arbitrator retained jurisdiction to oversee the calculation of the remedy due each grievant and to entertain an application by the Union for attorney fees.
III. First Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the award is deficient because the Arbitrator's order that the grievants be rescheduled to work as they had in the past is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that the Arbitrator's order also violates the right "to determine the number of employees that will be working as inspectors, and to assign the best qualified employees to do inspectional work." Exceptions at 4.
The Agency maintains that it no longer needs to use intermittent employees and argues that intermittent employees are not as fully trained as full-time inspectors and that intermittents are used only to supplement full-time inspectors. The Agency contends that the award violates management's right to determine which employees will be assigned and what duties they will perform and that the award interferes with management's right to determine the qualifications of employees who will perform certain duties. The Agency asserts that the grievants "lacked good judgment and were not reliable." Id. at 7. The Agency also contends that the Arbitrator improperly used a past practice as the basis for reassigning the grievants by requiring that they be rescheduled "consistent with their general pattern of employment[.]" Id.
2. The Union
The Union maintains that the Agency discriminated against the grievants in reprisal for protected activity and thereby failed to exercise its management right to assign work in accordance with applicable law when it canceled their work schedules, refused to call them to work and redesignated their status to "as needed." Opposition at 5. The Union asserts that the Arbitrator's reinstatement order is an appropriate remedy for the Agency's retaliation against the grievants for protected whistleblowing and that "the Arbitrator merely placed the [g]rievants into the position they would have held but for the prohibited personnel action." Id. at 7.
The Union contends that the Arbitrator's award is consistent with Authority and Merit Systems Protection Board precedent in cases involving retaliation and reprisal. The Union states that the award does not violate management's right to assign work but merely returns the grievants to their former status "consistent with the legitimate needs of the Agency." Id. at 8. The Union denies that the award substitutes the Arbitrator's judgment for that of the Agency concerning the grievants' qualifications or that the award requires the grievants to be placed in positions which would change the staffing levels of the Agency or "place the [g]rievants on duty where or when not needed." Id. at 9. The Union also denies that the Arbitrator improperly imposed a past practice on the Agency when he required the grievants to be reinstated based on their former schedules and assignments.
B. Analysis and Conclusions
The Agency has failed to establish that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. We conclude that the Arbitrator properly ordered the Agency to restore the grievants to their employment status prior to the Agency's improper action.
Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular qualifications and skills necessary to perform the work and the right to make judgments in determining whether particular employees meet those qualifications. See, for example, American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 406 (1987). The Agency contends that the Arbitrator's award interferes with its right to decide which employees will be assigned to work as customs inspectors and that the award prevents it from assigning the best-qualified employees to perform those duties. We disagree.
The Arbitrator did not require the Agency to assign work to unqualified employees because the Agency had already determined that the grievants were qualified to perform the duties to which they had been assigned and the Agency had assigned them to those duties over an extended period of time before the events surrounding the whistleblowing incident occurred. The Arbitrator made no finding as to the grievants' qualifications to perform the work of customs inspectors but, rather, applied the Agency's previous determination that they were qualified. Compare Bureau of Engraving and Printing, Washington, D.C. and International Association of Machinists, Franklin Lodge 2135, Washington, D.C., 32 FLRA 531, 537 (1988) (award was contrary to management's rights to establish qualifications and to determine whether particular employees meet those qualifications because the arbitrator rejected management's determination as to those matters).
Further, the Arbitrator did not order the Agency to assign work to the grievants to any greater extent than in the past. Rather, the Arbitrator ordered "[t]hat the grievants be given future work schedules and assignments consistent with the general pattern of employment that characterized their service with the Agency between 1979 and February, 1986, and consistent with the legitimate needs of the Agency." Award at 16. We find nothing in the Arbitrator's remedy that is contrary to management's right to assign work or the right to determine the number of employees assigned customs inspector duties. We also reject the Agency's contention that the Arbitrator improperly used a past practice as the basis for ordering the grievants reassigned. The Arbitrator only required the Agency to return the grievants to the same employment status which they had prior to the whistleblowing incident as a remedy for the Agency's improper personnel action. See, for example, National Treasury Employees Union, Chapter 137 and United States Customs Service, Region IV, 34 FLRA 650 (1990) (arbitrator properly ordered reassignments rescinded and reassignment actions rerun because of activity's violation of collective bargaining agreement). Accordingly, the Agency's exception will be denied.
IV. Second Exception
A. Positions of the Parties
1. The Agency
The Agency contends that there is no basis for the award under the Back Pay Act because there was no unjustified or unwarranted personnel action to be remedied. The Agency states that "[m]erely changing the employment status of [g]rievants to an 'as needed' basis and not calling them to work is not an unwarranted and unjustifiable personnel action." Exceptions at 9. The Agency points out that the grievants "were employed as Intermittent Schedule A employees under 5 C.F.R. [§] 213.3105(b)(5) wherein they were not to work more than 700 hours per year. Each year the District Director had the option of not renewing their employment or allowing them to continue working." Id. at 10 (citation omitted). The Agency contends that intermittent employees have no "expectancy of permanent employment under the terms and conditions upon which they were hired, nor do they have a vested interest in their employment" and, therefore, "there is no entitlement for the [g]rievants to be awarded backpay or to be rescheduled." Id.
The Agency maintains that the District Director had "sound reasons" for not calling the grievants to work based on lack of funds and an increase in the full-time inspector staff. Id. at 11. The Agency points out that the grievants were not always available for work and that one of the reasons for the male intermittent inspector's being called to work was that he "was more available" than the grievants. Id. The Agency also contends that the Arbitrator's order that the grievants be made whole for any losses they may have sustained as the result of improper Agency action "is unclear, wholly conjectural and without authority" because "it is only speculative as to how often [they] would have been called." Id. at 12.
2. The Union
The Union contends that the grievants are entitled to backpay under the collective bargaining agreement and the Back Pay Act to remedy the Agency's unjustified and unwarranted personnel action. The Union refers to the Arbitrator's findings that (1) prior to the unjustified personnel action the grievants had been regularly scheduled up to 12 weeks in advance and had served actively as inspectors from 1979 until February 1986, and (2) another intermittent inspector continued to receive assignments. The Union contends that the Arbitrator specifically found that the grievants would have continued to receive assignments up to 700 hours per year based on (1) evidence of staff shortages, (2) the use of "non-inspectional personnel," and (3) the testimony of the scheduling officer that "if he had been allowed the opportunity to call the [g]rievants to work after February 1986 he would have called them to work and he would have called them as frequently as their 700 hour ceiling would have permitted." Opposition at 15.
The Union contends that the testimony of the grievants convinced the Arbitrator that the grievants were equally available for work before and after they were informed in February 1986 of the change in their status. The Union asserts that the Agency's arguments to the contrary constitute mere disagreement with the Arbitrator's findings, as does the Agency's argument that there is no basis for finding that the Agency violated the whistleblower provisions. The Union disputes the Agency's contention that the grievants, as intermittent employees, did not have an expectation of continued employment and states that the grievants "did possess a real expectation that their employment status would not be subject to reprisal for whistleblowing." Id. at 18, emphasis in original. The Union denies that the Arbitrator's award is speculative or conjectural and asserts that the record "is clear as to the hours and schedules the [g]rievants worked prior to the unjustified personnel action." Id. at 19.
B. Analysis and Conclusions
We conclude that the Agency has failed to show that the Arbitrator's award is deficient because it is contrary to the Back Pay Act. For an award of backpay to be authorized under the Back Pay Act, an arbitrator must determine that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See, for example, Veterans Administration Medical Center, Palo Alto, California and American Federation of Government Employees, Local 2110, 36 FLRA 98, 107-08 (1990) (VAMC, Palo Alto).
We find, contrary to the Agency's contentions, that the Arbitrator made the findings necessary for an award of backpay under the Back Pay Act, including a finding that the Agency committed an unjustified or unwarranted personnel action against the grievants. The Arbitrator found that the Agency violated the whistleblower provisions of 5 U.S.C. § 2302(b)(8) and the relevant provision of the parties' collective bargaining agreement when it canceled the grievants' work schedules, failed to call them to work, and changed their status to an "as needed basis" in reprisal for the disclosures that the grievants made to OPM and the Regional Administrator. Award at 16. A personnel action taken in reprisal against an employee for the disclosure of information protected by 5 U.S.C. § 2302(b)(8) constitutes a "prohibited personnel practice" under 5 U.S.C. § 2302(a). "[A] decision concerning pay, benefits . . . or other action" constitutes a "personnel action" under 5 U.S.C. § 2302(a)(2)(A). Therefore, the Arbitrator's finding of reprisal against the grievants in violation of 5 U.S.C. § 2302(b)(8) and the parties' collective bargaining agreement satisfies the requirement of the Back Pay Act that an award of backpay be based on "an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee[.]" 5 U.S.C. § 5596(b)(1).
Further, the Arbitrator specifically ruled that "the prohibited personnel action directly resulted in a withdrawal or reduction of the grievants' pay which would not have occurred but for the prohibited personnel action." Award at 16. That is, the Arbitrator found that but for the District Director's action, the grievants would have worked at the same rate as before the incident. Therefore, the grievants' pay was reduced as the result of an unjustified or unwarranted personnel action and the award of backpay is appropriate under the Back Pay Act. See VAMC, Palo Alto, 36 FLRA at 108 (failure to pay employees monies to which they were entitled because of lost overtime assignments constitutes an unwarranted personnel action under the Back Pay Act).
We find no merit in the Agency's contention that the grievants were not called to work because of budget and increased staffing considerations. Those arguments were made to the Arbitrator and were considered and rejected by him. Similarly, we find no merit in the Agency's contention that the Arbitrator's order concerning backpay for the grievants "is unclear, wholly conjectural and without authority." Exceptions at 12. The Agency's argument constitutes mere disagreement with the Arbitrator's finding that the grievants are entitled to backpay. This argument provides no basis for finding the award deficient. See, for example, Social Security Administration and American Federation of Government Employees, Local 1760, 30 FLRA 684 (1987) (exceptions which constitute nothing more than disagreement with the arbitrator's findings of fact, reasoning, and conclusions provide no basis for finding an arbitration award deficient). Consequently, we reject the Agency's assertion that the award violates the Back Pay Act.
V. Third Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the award is deficient because the matters about which the grievants complained to OPM are not matters covered by 5 U.S.C. § 2302(b)(8) but "are really recommendations on how the Customs District in the Dallas/Ft. Worth District could have been improved." Exceptions at 13. The Agency maintains that the grievants were really dissatisfied with the District Director's decision to reduce their duties because of an increase in the full-time inspector staff and that the grievants' complaints were personal. The Agency states that the Arbitrator erred "in holding that the disclosures by the [g]rievants to OPM were the type of protected disclosures that the whistleblowing statute was intended to include." Id. at 14 (citation omitted). The Agency cites Fiorillo v. U.S. Department of Justice, Bureau of Prisons, 795 F.2d 1544 (Fed. Cir. 1986) (Fiorillo), for the proposition that "the primary motivation of the employee must be the desire to inform the public on matters of public concern and not personal vindictiveness." Id. at 15.
The Agency disputes the Arbitrator's findings that there was reprisal taken against the grievants and that the District Director took personal offense at the grievants' disclosures to OPM. The Agency also denies that the reasons given by the District Director for changing the grievants' schedules were pretextual.
2. The Union
The Union contends that the Agency's exception constitutes disagreement with the Arbitrator's findings and conclusions and evaluation of the evidence and that the exception is an attempt to relitigate the merits of the grievance. The Union maintains that the Arbitrator correctly applied the requirements for finding a violation of the whistleblower provisions as set forth in Fiorillo and other relevant precedent. The Union asserts that the record and the Arbitrator's analysis support the conclusions that: (1) the grievants' primary motivation was to expose problems and not personal vindictiveness; (2) the disclosures were protected under the whistleblower provisions; (3) the actions taken against the grievants were reprisals; and (4) there was a causal connection between the protected disclosures and the Agency's action.
B. Analysis and Conclusions
We conclude that the Agency has failed to establish that the Arbitrator's award is deficient because it is contrary to the whistleblower provisions contained in 5 U.S.C. § 2302(b)(8). In particular, we disagree with the Agency's contention that the matters which the grievants complained about to OPM were matters of personal vindictiveness and not matters of public concern which are protected by the provisions of 5 U.S.C. § 2302(b)(8). We find that the Arbitrator made his finding of impermissible reprisal against the grievants in accordance with the applicable legal requirements of section 2302(b)(8).
A protected disclosure under the whistleblower provisions is a disclosure of information by an employee which the employee reasonably believes evidences: (1) a violation of any law, rule or regulation; or (2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A). In order to find a disclosure of information to be a matter protected against impermissible reprisal under 5 U.S.C. § 2302(b)(8), it must be shown that the employee is protected by the statute and that: (1) a protected disclosure was made; (2) the official accused of taking the retaliatory action knew of the disclosure; (3) the challenged action against the employee could have been retaliation; and (4) a nexus is established between the adverse action and the motive. For example, Christopher v. Defense Logistics Agency, 44 MSPR 264, 271 (1990).
The Arbitrator found that the grievants' status as intermittent excepted service employees did not remove them from the protection of the whistleblower provisions or the parties' agreement. He correctly noted that excepted service employees are protected from reprisal for whistleblowing. See 5 U.S.C. § 2302(a)(2)(B) (including within the coverage of the whistleblower provisions employees in "a position in the excepted service"). The Agency does not except to the Arbitrator's determination that the grievants' status a