United States, Department of Transportation, National Highway Traffic Safety Administration (Agency) and American Federation of Government Employees, Local 3313 (Union)

[ v58 p333 ]

58 FLRA No. 78

UNITED STATES
DEPARTMENT OF TRANSPORTATION
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3313
(Union)

0-AR-3416

_____

DECISION

January 30, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

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

      The Arbitrator found that the Agency's reassignment of the grievant constituted a prohibited personnel practice under 5 U.S.C § 2302(b)(10) and (12) [n1] and the parties' collective bargaining agreement. As a remedy, the Arbitrator directed the Agency to rescind the grievant's reassignment and to reinstate him to his prior position with backpay and benefits. For the reasons set forth below, we find that the award is deficient, and we set it aside.

II.     Background and Arbitrator's Award

A.     Background

      Until his reassignment, the grievant was a criminal investigator on the Agency's odometer fraud staff. One of the functions of members of the staff is to appear, as necessary, as witnesses in criminal prosecutions of odometer fraud.

      In 1997, the Department of Justice (DOJ) sent a letter to the Agency that discussed the duties of Federal prosecutors, under the Supreme Court's decision in Giglio v. United States, 405 U.S. 150 (1972), to turn over to defense counsel all information that could potentially be used to impeach government witnesses. Subsequently, Agency managers met with officials at DOJ to discuss the grievant's background. As a result of this meeting, the grievant's supervisor notified the grievant that he would be "reassigned from [his] current position of Criminal Investigator, GS-1811-14 . . . on the Odometer Fraud Staff, to the position of Safety Defects Specialist, GS-301-14[.]" Agency's Reassignment Memorandum at 1 (attachment to exceptions). Although the grievant remained a GS-14, as a result of the reassignment, he no longer received law enforcement availability pay and was no longer considered a law enforcement officer for purposes of retirement.

      In explaining the basis for the reassignment, the grievant's supervisor advised the grievant that both the director and assistant director of the Office of Consumer Litigation at DOJ, which is the office primarily responsible for managing federal prosecutions for odometer fraud, had concluded that DOJ would be unwilling to use him as a government witness in an odometer fraud prosecution and that they would advise other federal prosecutors not to use him as a witness. Because these actions affected the grievant's suitability for continued employment as a criminal investigator, the Agency determined that the grievant's reassignment to another position was "appropriate to ensure the effective operation of the Odometer Fraud initiative within th[e] agency." Id. at 2.

      The grievant's supervisor explained that the director and assistant director reached their conclusion on the basis of their judgment that defense counsel would be able to seriously undermine the grievant's credibility through the use of materials in his personnel file. In their view, if the grievant were scheduled to be a witness in an odometer fraud prosecution, some of this material would have to be turned over to defense counsel under the legal principles established by Giglio. They were also of the view that other material would need to be [ v58 p334 ] turned over to the presiding judge and that most judges would turn over substantially all of the material to defense counsel.

      The grievant's supervisor noted that under DOJ's "Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses," (Giglio Policy), the Agency generally would not need to disclose to prosecutors allegations that cannot be substantiated, are not credible, or have resulted in exoneration of an employee because generally they are not considered to be potential impeachment information. However, the supervisor explained to the grievant that the director and assistant director had noted several exceptions to this general rule and had stated that in any event, once prosecutors become aware of impeachment material in a prospective witness' file, the obligation to disclose impeachment material cannot be avoided.

      The grievant filed a grievance that disputed the reassignment.

      In order to address claims raised by the grievant during the processing of his grievance, the grievant's supervisor submitted the Agency's entire background file on the grievant to the assistant director of DOJ's Office of Consumer Litigation for review. [n2]  After review of the entire file, the assistant director reiterated his conclusion that the Office of Consumer Litigation would not use the grievant as a witness at trial. He also reiterated that because the information had now come to the office's attention, the office had a legal obligation to disclose the information to defense counsel. Although he acknowledged that it would be up to individual United States attorney offices to make the determination of whether to use the grievant as a witness in their cases, he stated that the Office of Consumer Litigation would be obligated to inform those offices of the presence of potential Giglio material in the grievant's file. He added that under the DOJ Giglio Policy, even the grievant is obligated to disclose to federal prosecutors the presence of such material.

      On the basis of this response from DOJ, the Agency denied the grievance. Subsequently, the grievance was submitted to arbitration, where the Arbitrator stated the issues as (1) whether the grievance is arbitrable; (2) whether the reassignment constituted a prohibited personnel practice under 5 U.S.C. § 2302 and the collective bargaining agreement; and (3) whether the Agency misapplied or misinterpreted the DOJ Giglio Policy.

B.     Arbitrator's Award

      The Arbitrator rejected the Agency's claim that the grievance was not arbitrable. He found that because the parties had "incorporated the statutory substance" of § 2302(b)(10) and (12) into Article 33 of the collective bargaining agreement, arbitration was available to resolve whether the grievant's reassignment constituted a prohibited personnel practice. Award at 18.

      On the merits, the Arbitrator viewed the Agency's decision to reassign the grievant to be predicated on the Agency's determination that the grievant's personnel file contained impeachment material that would need to be disclosed to defense counsel if the grievant were a government witness in a fraud prosecution. Accordingly, he ruled that in order to determine whether the grievant's reassignment was a prohibited personnel practice, he needed to first determine whether the grievant's personnel file contained information that precluded prosecutors from calling him as a witness. In making this determination, the Arbitrator was specifically guided by the DOJ Giglio Policy statement that allegations that cannot be substantiated, are not credible, or have resulted in the exoneration of an employee generally are not considered to be potential impeachment information.

      After reviewing the grievant's entire personnel file, the Arbitrator ruled that the grievant had proved under Article 39 of the collective bargaining agreement that the reassignment constituted a prohibited personnel practice under § 2302(b)(10) and its restatement in Article 33 of the parties' agreement because the grievant had been subjected to discrimination on the basis of conduct that does not adversely affect his performance or the performance of others. [n3]  He noted that the disputed allegations had been previously investigated by the Office of Personnel Management, agency investigators, and the Agency's Inspector General and found not to be substantiated. He determined that there was no basis on which to alter these findings.

      Deferring to these findings, the Arbitrator ruled that nothing in the grievant's background constituted [ v58 p335 ] impeachment material that would disqualify him as a witness. He concluded that the DOJ Office of Consumer Litigation could not preempt the Agency's right to determine what material must be disclosed under Giglio. He was of the view that the Agency should never have submitted the material to DOJ because it did not meet the Giglio guidelines and that therefore, the grievant's reassignment was for conduct that did not affect his performance. In reaching this determination, the Arbitrator found it noteworthy that the grievant had rarely testified in odometer fraud trials. The Arbitrator also noted that even if the grievant were to testify as a witness in a fraud trial and a defense counsel raised allegations of misconduct, the grievant's denial of the misconduct would end the inquiry because the Federal Rules of Evidence preclude a defense counsel from impeaching witness credibility with extrinsic evidence.

      In addition, the Arbitrator determined that the grievant's reassignment constituted a prohibited personnel practice under § 2302(b)(12) and its restatement in Article 33, paragraph 11 of the agreement "because the reassignment violated merit principles set forth in § 2301." [n4]  Id. at 55.

      As a remedy, the Arbitrator ordered the grievant's reassignment to be rescinded and the grievant to be reinstated to his position as a criminal investigator with backpay and benefits, including retirement credit.

III.      Positions of the Parties

A.     Agency's Exceptions

      In general, the Agency contends that the award is deficient because the "Arbitrator failed to connect the Agency's reassignment of the grievant to any Agency violation of a prohibited personnel practice either under a Collective Bargaining Agreement (CBA) provision or 5 U.S.C. § 2302." Exceptions at 1. The Agency asserts that the reassignment was not a prohibited personnel practice under either § 2302 or Article 33. The Agency claims that the Arbitrator did not set forth any basis for his finding that the Agency discriminated against the grievant on the basis of conduct which did not adversely affect his performance. The Agency maintains that it did not reassign the grievant on the basis of his conduct or misconduct, but rather on the basis of the determination by DOJ that DOJ would not use the grievant as a witness in criminal odometer fraud cases. The Agency also asserts that it did not violate any merit system principles and that the Arbitrator failed to explain how the reassignment of the grievant violated any law, rule, or regulation implementing, or directly concerning, merit system principles.

      The Agency also contends that the award is deficient on the following grounds: (1) the award does not draw its essence from the agreement; (2) the Arbitrator exceeded his authority; (3) the award is based on a nonfact; (4) the Arbitrator failed to conduct a fair hearing; and (5) the award fails to conform to law and regulation.

B.     Union's Opposition

      The Union first contends that the Authority lacks jurisdiction to consider the Agency's exceptions under § 7122(a) of the Statute because the award relates to the grievant's reduction in pay, which the Union claims constitutes a matter described in § 7121(f) of the Statute. The Union asserts that the grievant's reassignment and his resulting loss of law enforcement availability pay constitutes a reduction in pay within the meaning of 5 U.S.C. § 7512 over which the Authority has no jurisdiction.

      In the event the Authority rules that it has jurisdiction, the Union contends that the Agency's exceptions provide no basis for finding the award deficient. The Union asserts that the Agency is merely disagreeing with the Arbitrator's factual findings that the Agency misapplied the DOJ Giglio Policy by submitting material to DOJ that was unsubstantiated. The Union claims that the Arbitrator correctly found that the Agency committed a prohibited personnel practice by reassigning the grievant on the basis of allegations that did not constitute impeachment materials under Giglio and that did not adversely affect the performance of the grievant.

      The Union maintains that the determination of one prosecutor that he would not use the grievant as a witness does not preclude the grievant from testifying in other cases because prosecutors make their own determinations. The Union further asserts that what should now control under Giglio is the Arbitrator's factual determination that all of the disputed allegations are unsubstantiated.

IV.     Analysis and Conclusions

A.     The Authority has jurisdiction.

      Under § 7122(a) of the Statute, the Authority lacks jurisdiction to resolve exceptions to arbitration awards [ v58 p336 ] that relate to matters described in § 7121(f) of the Statute. The matters described in § 7121(f) are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise in other personnel systems. Section 7512 covers removals, suspensions for more than 14 days, reductions in either grade or pay, or furloughs for 30 days or less. The Union argues that the grievant's loss of law enforcement availability pay as a result of the reassignment constitutes a reduction in pay within the meaning of § 7512.

      For purposes of § 7512, pay is defined in § 7511(a)(4) as "the rate of basic pay fixed by law or administrative action for the position held by an employee[.]" Accordingly, for a reduction in pay to be covered under § 7512, the pay reduction must be in the employee's basic pay. The Merit Systems Protection Board (MSPB) has consistently held that premium pay is not part of basic pay and that consequently, the loss or reduction of premium pay is not a reduction in pay within the meaning of § 7512. See, e.g., Mitchell v. Dep't of Def., 46 MSPR 154, 159 (1990).

      Both the Federal Circuit and the MSPB have held that law enforcement availability pay is premium pay and is not part of basic pay for a criminal investigator. See Martinez v. MSPB, 126 F.3d 1480, 1482 (Fed. Cir. 1997), aff'g Martinez v. Dep't of the Treasury, 71 MSPR 262, 264-65 (1996). Consequently, absent the exception noted below, reduction in an employee's total pay because of a reassignment which results in the loss of law enforcement availability pay is not a matter covered under § 7512. See 126 F.3d at 1482; 71 MSPR at 265.

      5 U.S.C. § 5545a(e)(2) provides that notwithstanding the definition of pay in § 7511(a)(4), a reduction in law enforcement availability pay resulting from a denial of certification constitutes a reduction in pay covered by § 7512. As the grievant's loss of law enforcement availability pay was not the result of a denial of certification, the award does not relate to a matter covered under § 7512. We reject the Union's argument that we should extend § 5545a(e)(2) to include the grievant's reassignment. We are without authority to alter the statutory exception of § 5545a(e)(2). Accordingly, we have jurisdiction to resolve the Agency's exceptions.

B.      The award is contrary to § 2302.

1.     Standard of Review

      The Agency's contention that the Arbitrator erred by finding that the grievant's reassignment constituted a prohibited personnel practice under § 2302(b) challenges the award's consistency with law. Accordingly, we review de novo the Arbitrator's finding of a statutory prohibited personnel practice. See, e.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See, e.g., United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000). In making this determination, we defer to the Arbitrator's factual findings. See id.

      Although the Authority generally defers to an arbitrator's interpretation of a collective bargaining agreement, when an arbitrator finds a violation of a contract provision that restates a provision of the Statute, the Authority "exercise[s] care" in reviewing the finding to ensure that the arbitrator's interpretation is consistent with Authority precedent interpreting the statutory provision. See, e.g., NAGE Local R14-143, 55 FLRA 317, 319 (1999) (Chair Segal concurring in part and dissenting in part) (quoting United States Dep't of Def., Def. Mapping Agency, Aerospace Ctr., St. Louis, Mo., 43 FLRA 147, 153 (1991)). The Arbitrator specifically found that the parties incorporated the statutory substance of § 2302(b) into Article 33 of the agreement. Consequently, we will exercise the same care in reviewing the Arbitrator's findings of a prohibited personnel practice under the contract provisions restating § 2302(b)(10) and (12), as we do in reviewing the Arbitrator's findings that the grievant's reassignment constituted prohibited personnel practices under § 2302(b)(10) and (12), to ensure that the contractual findings are consistent with precedent interpreting the statutory provisions.

2.      The Arbitrator erred in finding a prohibited personnel practice under § 2302(b)(12) and Article 33, paragraph 11.

      Merit system principles are hortatory and are not self-executing. Because they are not self-executing and, alone, cannot form the basis of a legal action, they cannot independently authorize or serve as the basis for an arbitration remedy. See, e.g., United States Dep't of Def., Army Chemical and Military Police Ctrs., Fort McClellan, Ala., 39 FLRA 457, 463 (1991) (citing Dep't of the Air Force, Carswell Air Force Base, Tex., 35 FLRA 754, 762 (1990) (Carswell AFB)) (Ft. McClellan)[n5]  An arbitrator "can award relief under section 2302(b)(1[2]) for violations of merit system [ v58 p337 ] principles only if the arbitrator also finds a violation of a law, rule, or regulation that implements or directly concerns those merit system principles." Indian Educators Fed'n, New Mexico Fed'n of Teachers, 53 FLRA 352, 360 (1997) (citing Carswell AFB, 35 FLRA at 762). In this case, although the Arbitrator found a violation of merit system principles set forth in § 2301(b), the Arbitrator did not find a violation of any law, rule, or regulation implementing or concerning those principles. Consequently, the Arbitrator erred by finding a prohibited personnel practice under § 2302(b)(12). See Ft. McClellan, 39 FLRA at 463 (arbitrator erred by finding a prohibited personnel practice under § 2302(b)(12) because the arbitrator did not find a violation of law, rule, or regulation implementing or concerning merit system principles).

      For the same reasons, the Arbitrator's finding of a prohibited personnel practice under Article 33, paragraph 11 of the agreement is inconsistent with precedent interpreting § 2302(b)(12). Consequently, the Arbitrator also erred by finding a prohibited personnel practice under Article 33, paragraph 11.

3.      The Arbitrator erred in finding a prohibited personnel practice under § 2302(b)(10) and Article 33, paragraph 10

      The legislative history of § 2302(b)(10) indicates that it was enacted to prohibit discrimination against activities that have no bearing on an employee's job performance. See House Conference Report No. 95-1717, 95th Cong., 2d Sess. at 131 ("The conferees intend that only conduct of the employee or applicant that is related to the duties to be assigned to an employee or applicant or to the employee's or applicant's performance or the performance of others may be taken into consideration in determining that employee's suitability or fitness."). The MSPB notes that under § 2302(b)(10) personnel actions must be job-related and not non-job-related. See Merritt v. Dep't of Justice, 6 MSPR 585, 602 (1981). In Garrow v. Gramm, 856 F.2d 203, 207 (D.C. Cir. 1988), the court emphasized that § 2302(b)(10) is designed to prohibit personnel actions that are taken in response to an employee's off-duty conduct or matters that are unrelated to job performance. Accordingly, both the courts and the MSPB refuse to sustain findings of a prohibited personnel practice under § 2302(b)(10) when the personnel action was in response to matters that were related to an employee's performance. See, e.g., Harvey v. MSPB, 802 F.2d 537 (D.C. Cir. 1986); Thompson v. Farm Credit Admin., 51 MSPR 569 (1991).

      In this case, the Arbitrator determined that the grievant's reassignment was "predicated on [the Agency's] determination that [the grievant's] background contained `numerous, substantial and credible allegations of misconduct[.]'" Award at 41. After reviewing the grievant's background, he ruled that the disputed allegations would not disqualify the grievant as a witness. Accordingly, he found that the grievant's reassignment constituted a prohibited personnel practice because it was based on conduct that did not adversely affect his performance or the performance of others.

      Reviewing this finding de novo, we conclude that the Arbitrator erred. The Arbitrator misconceived the basis on which the grievant was reassigned. We find that the grievant's reassignment was in response to DOJ declaring him to be an unsuitable witness and that the DOJ actions clearly related to the grievant's ability to perform in the position of a criminal investigator.

      The reassignment memo to the grievant specifically set forth the Agency's reason for reassigning the grievant. The memo explained that the grievant's supervisor had met with the director and assistant director of the Office of Consumer Litigation to discuss the grievant's background and that

both concluded that if you were scheduled to be a witness in an odometer fraud prosecution, some of the [background] material would have to be turned over to defense counsel under the legal principles established in Giglio and subsequent cases. Additionally, they concluded that several other items identified in the reports would have to be turned over to the presiding judge so that the judge could decide whether to pass them along to the defense counsel. On the basis of their experience, they believed that most of the judges would give substantially all of those items to defense counsel. Additionally, they stated that in view of the likelihood that defense counsel would be able to seriously undermine your credibility through the use of some of the materials in those background reports, the Department of Justice would not be willing to use you as a government witness in an odometer fraud prosecution. Further, they also stated that they would advise other Federal prosecutors who are not part of the Office of Consumer Litigation not to use you as a government witness.

Reassignment Memorandum at 2. The memo concluded that in view of these actions, the Agency had determined that "your reassignment to another position within the Office of Safety Assurance is appropriate to ensure the effective operation of the Odometer Fraud initiative [ v58 p338 ] within this agency." Id. Because one of the functions of the grievant's position as a criminal investigator is to appear, as necessary, as a witness in criminal prosecutions of odometer fraud, these actions by DOJ clearly related to the grievant's suitability for continued employment as a criminal investigator.

      The timing of the grievant's reassignment further supports that he was reassigned not because of the disputed allegations, but in response to DOJ's refusal to use him as a witness. As the Arbitrator specifically acknowledged, the Agency had investigated the disputed actions in the past and had never before acted on the allegations. It was not until DOJ declared the grievant to be an unsuitable witness that the Agency reassigned him to a position that did not require him to appear as a government witness. Accordingly, we conclude that the Arbitrator erred in finding a prohibited personnel practice under § 2302(b)(10) and Article 33, paragraph 10. See Thompson, 51 MSPR at 585-86 (administrative judge erred in finding a prohibited personnel practice because the agency's action was in response to a matter related to the employee's performance).

      Even if we view the reassignment as predicated on the grievant's conduct as the Arbitrator did, the reassignment did not constitute a prohibited personnel practice. As explained by the court in Harvey, the focus of § 2302(b)(10) is narrowly circumscribed. See 802 F.2d at 552. The focus on conduct is confined to whether the alleged conduct on which the personnel action was based is performance-related. An action under § 2302(b)(10) is not available to contest whether the employee actually committed the alleged conduct. See id. (when the conduct an agency ascribes to the employee is performance-related, it is irrelevant for purposes of § 2302(b)(10) whether the agency is right or wrong in ascribing the conduct to the employee).

      Consequently, in adjudicating whether the Agency had committed a prohibited personnel practice under § 2302(b)(10) by reassigning the grievant on the basis of allegations viewed to be impeachment material subject to disclosure under Giglio, the Arbitrator was confined to determining whether allegations viewed to be impeachment material subject to disclosure under Giglio related to the grievant's performance. Instead, the Arbitrator improperly converted the proceeding into a review of whether the allegations were substantiated, whether they were impeachment material subject to disclosure, and the impact of the actions by DOJ. We find that allegations determined to be, either rightly or wrongly, impeachment material subject to disclosure under Giglio clearly relate to the performance of an employee in a criminal investigator position. Accordingly, the Arbitrator erred by finding a prohibited personnel practice under § 2302(b)(10) and Article 33, paragraph 10. See Harvey, 802 F.2d at 551 (the MSPB's analysis did not permit a holding that the disputed matter constituted a prohibited personnel practice under § 2302(b)(10)).

V.      Decision

      As the Arbitrator's findings of a prohibited personnel practice are deficient and the Arbitrator's remedy is solely predicated on the findings of a prohibited personnel practice, we set the award aside. [n6] 



Footnote # 1 for 58 FLRA No. 78 - Authority's Decision

   The Arbitrator erroneously identified the prohibited personnel practice under § 2302(b)(12) as a prohibited personnel practice under § 2302(b)(11). In 1998, Pub. Law 105-339, § 6(a)(2) redesignated paragraph 11 as paragraph 12. Consequently, in this decision, we will refer to this prohibited personnel practice as a prohibited personnel practice under § 2302(b)(12).


Footnote # 2 for 58 FLRA No. 78 - Authority's Decision

   The Agency's entire file on the grievant had not originally been submitted to DOJ.


Footnote # 3 for 58 FLRA No. 78 - Authority's Decision

   Section 2302(b)(10) and Article 33, paragraph 10 both provide that it is a prohibited personnel practice for an employee who has the authority to take a personnel action to discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.


Footnote # 4 for 58 FLRA No. 78 - Authority's Decision

   Section 2302(b)(12) and Article 33, paragraph 11 both provide that it is a prohibited personnel practice for an employee who has the authority to take a personnel action to take or fail to t