53:1136(90)AR - - NFFE, Local 2030 and Interior, Bureau of Land Management, Idaho Falls, ID - - 1998 FLRAdec AR - - v53 p1136



[ v53 p1136 ]
53:1136(90)AR
The decision of the Authority follows:


53 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2030

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

IDAHO FALLS, IDAHO

(Agency)

0-AR-2813

_____

DECISION

January 7, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Philip Kienast 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency's reassignment of the grievant constituted improper discipline and violated the Whistleblower Protection Act.(2)

For the reasons set forth below, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a District Law Enforcement Ranger (District Ranger), protested that his law enforcement activities were being challenged by management. He later filed a grievance over a proposed Agency reorganization. Subsequently, he met with a management official to discuss law enforcement issues. "Upset with what he perceived was management interference in enforcement issues," the grievant turned in his badge and credentials to the Associate District Manager (ADM) and advised the ADM that he was resigning. Award at 6. The grievant also submitted a letter of resignation.

The District Manager did not accept the grievant's resignation; instead, she placed him on administrative leave. Thereafter, she offered the grievant reassignment as a Natural Resource Specialist because she concluded that the "grievant's conduct on [the day of his resignation] clearly demonstrated his unsuitability for continued assignment as district ranger." Id. at 7.

The grievant accepted the reassignment pending the outcome of the grievance giving rise to this case. That grievance alleged that the reassignment constituted improper discipline and was in retaliation for "the grievant's proper conduct relative to opposing management interference in law enforcement activities." Id. The parties were unable to resolve the grievance and the matter was submitted to arbitration. As relevant here, the Arbitrator framed the issue as follows:

Did the [Agency] violate the Agreement or applicable law when it reassigned the grievant . . . ?

If yes, what is the appropriate remedy?

Id. at 1.

The Union argued that the grievant's reassignment was an impermissible reprisal for his whistleblowing activities, pursuant to the WPA, and/or for the fact that he had previously exercised his grievance rights under the agreement by filing a grievance over a proposed Agency reorganization. The Agency argued that the grievant was reassigned because his actions demonstrated that he could no longer properly function as a District Ranger.

The Arbitrator found that there was "clear and convincing evidence" that the District Manager's directed reassignment of the grievant "was not in retaliation" for either the grievant's allegations of management interference in law enforcement activities or the grievance he had filed over the proposed reorganization. Id. at 9, 10. The Arbitrator concluded that when the District Manager did not accept the grievant's resignation, she "demonstrated she held no animosity toward the grievant and did not direct his reassignment because of his allegations of interference in law enforcement or [his] grievance filing relative to reorganization." Id. at 10. The Arbitrator found that the record showed that the District Manager:

made a permissible and prudent administrative judgment that the grievant's precipitous resignation was stark evidence of his unsuitability for continued assignment as a ranger. In the face of his resignation, [the District Manager] sought and found a place to assign the grievant.

Id. The Arbitrator additionally stated that the fact that the grievant had performed well in his new position further demonstrated that there was no attempt by management to retaliate against the grievant.

Based on the above, the Arbitrator concluded that the Agency did not violate the law or the agreement when it reassigned the grievant. Therefore, he denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

1. WPA

The Union contends that the award is contrary to the WPA for the following reasons.

First, the Union asserts that the Arbitrator wrongly required the grievant to prove the existence of a retaliatory motive on the part of the District Manager. The Union contends that under the WPA, a whistleblower need show only that his protected disclosure was a contributing factor to the personnel action taken. In support, the Union cites Marano v. Department of Justice, 2 F.3d 1137 (Fed. Cir. 1993) (Marano). The Union asserts that the grievant made protected disclosures that were contributing factors in his reassignment.

Second, the Union contends that, in addressing the Agency's affirmative defense that it would have taken the same personnel action against the grievant even in the absence of his protected disclosures, the Arbitrator did not apply the correct legal standard. The Union asserts that, instead of determining whether the Agency demonstrated by clear and convincing evidence that the District Manager would have reassigned the grievant even in the absence of his protected disclosures, the Arbitrator determined that there was clear and convincing evidence that the District Manager's reassignment of the grievant was not done in retaliation for his protected disclosures. According to the Union, had the Arbitrator applied the correct legal standard, he would have found that there was no support for the Agency's affirmative defense.

Third, the Union contends that the Arbitrator's consideration of evidence related to the grievant's post-reassignment performance in support of the Agency's affirmative defense is contrary to the WPA. The Union asserts that the Arbitrator may look only at circumstances preceding the grievant's reassignment and at the District Manager's rationale for the reassignment.

2. 5 U.S.C. § 2302(b)(9)

The Union argues that the award is contrary to 5 U.S.C. § 2302(b)(9), which precludes an agency official from taking a personnel action against an employee because of the exercise of any grievance right granted by law.(3) The Union asserts that before the grievant submitted his resignation and was reassigned, he exercised his right, in a previously filed grievance, to grieve a proposed reorganization. The Union contends that the Arbitrator impermissibly imposed a requirement that the grievant show that his reassignment was in retaliation for his filing a grievance concerning the Agency's reorganization.

3. Agency Regulation

The Union contends that the award is contrary to Section 2 of the Agency's regulation entitled "Policy on the Suspension and Revocation of Law Enforcement Authority."(4) According to the Union, Section 2 provides that "[a] temporary suspension removes the [law enforcement officer's] authority to make arrests and carry firearms, pending the outcome of an investigation or completion of any remedial action." Exceptions at 13 (emphasis added). The Union claims that the Agency did not make an investigation or take remedial action before revoking the grievant's law enforcement authority, and, by "ignor[ing]" the Agency's violation of this regulation, the award is contrary to the regulation. Id. at 14.

4. Section 7114(b)(4)

Finally, the Union contends that, at the arbitration hearing, it objected to evidence offered by the Agency concerning information it had requested under section 7114(b)(4) of the Statute.(5) The Union contends that the Arbitrator erred by accepting and considering this evidence because it was improperly concealed from the Union in violation of section 7114(b)(4) of the Statute.

B. Agency's Opposition

The Agency contends that the "Union's allegations, alleging prohibited personnel practices because of the grievant's reassignment, clearly come under the purview of the Office of Special Counsel and have no place in the arbitration process."(6) Opposition at 3.

The Agency next asserts that, contrary to the Union's characterization of the award, it was not based on the Union's failure to prove a prima facie case. According to the Agency, the award shows that the Agency demonstrated by clear and convincing evidence that it would have reassigned the grievant in the absence of any protected disclosure, and, therefore, the Agency "met its burden of proof[.]" Id. at 5.

The Agency asserts that its regulation setting forth its policy on the suspension and revocation of law enforcement authority does not apply in this case because the regulation applies only where management initiates a suspension action. The Agency contends that in this case, the grievant voluntarily surrendered his credentials and management did not initiate any action.

Finally, the Agency asserts that the Union's allegation that the Agency concealed witnesses and exhibits from the Union is without foundation. According to the Agency, "[a]ll memorand[a] and notes used in the resignation and subsequent reassignment of the [g]rievant were made available to the Union before the hearing." Id. at 7.

IV. Analysis and Conclusions

Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any law, rule, or regulation. To the extent that the exceptions involve the award's consistency with law and regulation, the questions of law raised by the Arbitrator's award and the Union's exceptions must be reviewed de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). For purposes of section 7122(a)(1), "rule or regulation" includes governing agency regulations. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990).

A. The Award Is Not Contrary to the WPA

1. Standard under the WPA

In Clark v. Department of the Army, 997 F.2d 1466 (Fed. Cir. 1993) (Clark), cert. denied, 510 U.S. 1091 (1994), the court stated:

There are three steps in a complete analysis of an employee's whistleblower defense to an adverse personnel action: First, is the employee's disclosure a protected "whistleblowing" activity under [the WPA]? Second, was the disclosure a contributing factor in the personnel action? Third, can the agency prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure?

Id. at 1470 (citations omitted). In applying the steps set forth in the framework, we look to the MSPB's application of the WPA. See National Treasury Employees Union, Chapter 168 and U.S. Department of the Treasury, U.S. Customs Service, New Orleans District, 52 FLRA 1354, 1365-66 (1997) (Customs Service, New Orleans).

If an employee demonstrates that the disclosure was a contributing factor to the challenged personnel action, corrective action will be ordered by the MSPB unless the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure. Watson v. Department of Justice, 64 F.3d 1524, 1527 (Fed. Cir. 1995) (Watson); 5 U.S.C. § 1221(e)(1) and (2). In determining whether an agency showed, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the whistleblowing, the MSPB considers the following factors: the strength of the agency's evidence in support of its personnel action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and any evidence that the agency takes similar action against employees who are not whistleblowers but who are otherwise similarly situated. Geyer v. Department of Justice, 70 MSPR 682, 688 (1996) (Geyer); Braga v. Department of the Army, 54 MSPR 392, 399 (1992), affirmed, 6 F.3d 787 (Fed. Cir. 1993) (Table). In summary, the WPA requires only that an agency demonstrate by clear and convincing evidence that it would take the same personnel action in the absence of the protected disclosure; it does not require that the adverse personnel action be based on facts completely separate and distinct from protected whistleblowing disclosures. Watson, 64 F.3d at 1528.

2. Application of Standard in This Case

The Arbitrator addressed the third step of the framework set forth above: whether the agency has established by clear and convincing evidence that it would have taken the same personnel action in the absence of the alleged whistleblowing activity. Because the WPA does not mandate any particular sequence of analysis for the 3-step framework, it was not necessary for the Arbitrator to first address steps 1 and 2. See Clark, 997 F.2d at 1470; Geyer, 70 MSPR at 688.

Although the Arbitrator did not articulate the third step of this framework precisely as it is stated in Clark,(7) his findings, when read in context, show that the Arbitrator properly determined there was clear and convincing evidence that the Agency would have reassigned the grievant in the absence of the protected disclosures. See Customs Service, New Orleans, 52 FLRA at 1364 (in determining whether an arbitrator applied the correct legal standard, the Authority read the arbitrator's use of certain terms in context).

The Arbitrator concluded that "by not accepting the grievant's resignation," the District Manager "demonstrated she held no animosity toward the grievant and did not direct his reassignment because of his allegations of interference in law enforcement or [his] grievance filing relative to reorganization." Award at 10 (emphasis added). This conclusion was based on the Arbitrator's factual findings that: (1) the grievant became upset and resigned over what he perceived was management's interference in law enforcement issues; (2) the District Manager did not immediately accept his resignation but placed him on administrative leave; (3) the District Manager gathered information on the grievant's resignation; (4) the District Manager made a prudent administrative judgment; and (5) the District Manager determined that the grievant's "precipitous resignation was stark evidence of his unsuitability for continued assignment as a ranger." Id. We agree that these findings, which have not been excepted to, establish that there is clear and convincing evidence that the Agency would have reassigned the grievant in the absence of the protected disclosures.

The Union's reliance on Marano is misplaced. In Marano, the court stated that a whistleblower need not "demonstrate the existence of a retaliatory motive on the part of the employee taking the alleged prohibited personnel action in order to establish that [a] disclosure was a contributing factor to the personnel action[.]" Marano at 1141 (emphasis added). In this case, the Arbitrator did not require the grievant to prove the existence of a retaliatory motive on the part of the District Manager in order to establish that the grievant's disclosure was a contributing factor to the personnel action. As discussed above, the Arbitrator considered evidence with respect to the Agency's motive to retaliate as a factor in his analysis of whether the Agency satisfied its burden of proof. The Arbitrator did not impose any requirement on the grievant that was contrary to Marano.

In addition, the Arbitrator's consideration of the grievant's post-reassignment performance provides no basis for finding the award contrary to the WPA. Considering this performance as additional evidence relevant to the Agency's motive to retaliate is permissible under the WPA. See Geyer, 70 MSPR at 693 (in considering agency's retaliatory motive for employee's whistleblowing activities pertaining to a memorandum concerning scheduling practices, MSPB considered evidence that majority of employees signing the memorandum had been promoted since signing it).

Accordingly, the award is not deficient as contrary to the WPA.

B. The Award Is Not Inconsistent with 5 U.S.C. § 2302(b)(9)

"To prevail on a contention of illegal reprisal under 5 U.S.C. § 2302(b)(9), a grievant has the burden of showing that the agency took action because of protected activity." National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210 (1996) (Mobile) (citing Keenan v. U.S. Postal Service, 62 MSPR 307, 309 n.2 (1994)).

As discussed above in Section IV. A.2., we concluded that the Arbitrator properly determined there was clear and convincing evidence that the Agency would have reassigned the grievant in the absence of the protected disclosures--which included his filing a grievance over a proposed reorganization. Based on this conclusion, the Union has not met its burden under 5 U.S.C. § 2302(b)(9) of establishing that the Agency took action against the grievant because of protected activity. See Mobile, 52 FLRA at 210. Accordingly, as the Union has failed to establish that the award is deficient in this respect, the exception provides no basis for finding the award deficient.

C. The Award Is Not Inconsistent with an Agency Regulation

Section 2 of the Agency regulation states, in relevant part, that "[i]n exigent circumstances, law enforcement authority may be temporarily suspended by the [law enforcement officer's] supervisor." Exceptions, Attachment U-22.(8) Thus, as plainly worded, Section 2 applies when an Agency supervisor initiates a temporary suspension.

The Union raised its contention concerning the Agency regulation at the arbitration hearing. See Exceptions, Attachment, Transcript (Tr.) at 3, 119, and 162-63 and Attachment U-22. The Arbitrator made no findings with respect to the regulation. However, the Arbitrator found that, when the grievant tendered his resignation from the Agency, he surrendered his credentials, badge, and equipment. Thus, in the circumstances of this case, the grievant's law enforcement authority was suspended by his own voluntary action, not by the action of the Agency. Therefore, this is not a situation in which "[a] temporary suspension [by the supervisor] remove[d] the [grievant's] authority to make arrests and carry firearms," within the terms of Section 2 of the Agency regulation. Because the temporary suspension resulted from the grievant's voluntary surrender of his credentials, Section 2 does not apply in this case.

Consequently, the Union has not shown that the award is contrary to the regulation.

D. Section 7114(b)(4) of the Statute

The Union contends that the Arbitrator erred by accepting and considering evidence that was improperly concealed from the Union in violation of section 7114(b)(4) of the Statute. We construe this assertion as a claim that the Arbitrator failed to conduct a fair hearing.

The Authority will find an award deficient when it determines that an arbitrator's refusal "to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole." American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995) (Elmendorf). It is well established that an arbitrator has considerable latitude in conducting a hearing. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local No. 547, 24 FLRA 959, 961 (1986). As the Union's contention concerns how the Arbitrator conducted the proceeding, we apply Elmendorf in this case.

The Union has not established that the Arbitrator's acceptance and consideration of the disputed evidence prejudiced the Union so as to affect the fairness of the proceeding as a whole. See, e.g., U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA 390, 396-97 (1997); American Federation of Government Employees, Local 2109 and U.S. Department of Veterans Affairs, Temple, Texas, 46 FLRA 446, 449 (1992). Accordingly, this exception provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.

APPENDIX

5 U.S.C. § 2302(b):

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-

. . . .

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of --

(A) any disclosure of information by an employee . . . which the employee . . . reasonably believes evidences--

(i) a violation of any law, rule, or regulation[.]

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of--

(A) the exercise of any appeal, complaint or grievance right . . . .

Section 2 of the Agency's "Policy on the suspension and revocation of law enforcement authority."

2. TEMPORARY SUSPENSION. In exigent circumstances, law enforcement authority may be temporarily suspended by the [law enforcement officer's] supervisor. The supervisor will immediately report this action to the servicing personnel office . . . . The SD (State Director) will then notify the AD (Assistant Director) through the Chief-LERP. The supervisor will immediately prepare a memorandum to the LEO . . . outlining the reasons for the suspension. The Chief-LERP will recommend that the AD either continue the suspension or remand the matter back to the SD.

A temporary suspension removes the LEO's authority to make arrests and carry firearms, pending the outcome of an investigation or completion of any remedial action. Law enforcement credentials, badges, and agency-owned firearms must be surrendered by the officer; credentials and badges will be sent to the Chief-LERP via overnight mail.

[The regulation lists situations that may justify suspension of enforcement authority.]




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Cabaniss did not participate in this decision.

2. The Whistleblower Protection Act was enacted in 1989 as Pub. L. No. 101-12, 103 Stat. 16, and is codified at various sections of title 5 of the U.S. Code. As relevant to this case, it amended 5 U.S.C. § 2302(b)(8) (1988), which was originally enacted as part of the Civil Service Reform Act of 1978. In this decision, the term "WPA" means 5 U.S.C. § 2302(b)(8), which is set forth in the Appendix.

3. The text of 5 U.S.C. § 2302(b)(9) is set forth in the Appendix to this decision.

4. The pertinent text of section 2 of the Agency's Regulation is set forth in the Appendix to this decision.

5. The Union cites to the transcript. See Exceptions, Attachment, Transcript at 147-50. The Arbitrator did not address section 7114(b)(4) in the award.

6. The Agency's contention constitutes a claim that the Arbitrator did not have authority to resolve the grievance because it was not substantively arbitrable. In order for the Authority to consider this claim, the Agency was required to have timely raised it in an exception to the Arbitrator's award. As it did not do so, we do not address the claim. See American Federation of Governm