American Federation of Government Employees, Local 2145 (Union) and United States, Department of Veterans Affairs, Hunter Homes Mcguire Medical Center, Richmond, Virginia (Agency)

[ v61 p571 ]

61 FLRA No. 109

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2145
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
HUNTER HOMES MCGUIRE
MEDICAL CENTER
RICHMOND, VIRGINIA
(Agency)

_____

0-AR-4000

_____

DECISION

May 4, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Walter J. Alprin filed by the Union under § 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 the grievance, which alleged that the grievant was detailed and, subsequently, permanently reassigned in retaliation for her Equal Employment Opportunity Commission (EEOC) and Whistleblower Protection Act (WPA) claims. For the following reasons, we set aside the Arbitrator's finding that the grievant's WPA claims and claims relating to the grievant's permanent reassignment are precluded by 5 U.S.C. § 7121(d). In addition, we remand the award to the parties for submission to the Arbitrator, absent settlement, for explanation of the basis of the Arbitrator's finding that the grievance, to the extent it concerns the grievant's reassignment, is excluded from the negotiated grievance procedure pursuant to 38 U.S.C. § 7422 (§ 7422). Finally, we deny the Union's remaining exceptions.

II.     Background and Arbitrator's Award

      On January 23, 2004, the grievant, a Registered Nurse (RN) in the cardiac catheterization laboratory (CCL), returned to work from an on-the-job injury, under a light duty restriction limiting her to a forty-hour workweek. [n1]  See Award at 2. On February 12, the grievant submitted a report to a supervisor stating that she believed an attending physician provided improper medical treatment to a patient who later died. See id. On February 23, the Agency detailed the grievant to the emergency room (ER), stating that the detail was necessary to prevent other nurses in the CCL from having to work longer hours to accommodate the grievant's light duty restriction. See id. at 3. On August 9, the Agency permanently reassigned the grievant to the ER on the ground that the grievant's frequent absences from the CCL due to her on-the-job injury had a "negative impact on patient care[.]" Id. at 5.

      On August 6, the Union filed a grievance over the grievant's detail from the CCL to the ER. The grievance was amended on August 13 to include the grievant's permanent reassignment to the ER and to include a claim of reprisal for whistleblowing and EEOC activities. See id. The grievance was not resolved and was submitted to arbitration where the parties stipulated the issues to be: (1) whether the Agency retaliated against the grievant for her prior EEOC activity when it detailed and reassigned her to the ER; (2) whether the Agency retaliated against the grievant for her whistleblowing activities when it detailed and reassigned the grievant to the ER; (3) whether the Union is the prevailing party due to the Agency's failure to timely respond to the grievance; and (4) what, if any, is the appropriate remedy. See id. at 1.

      The Arbitrator found that the grievant filed an EEOC complaint on May 7, which concerned the grievant's detail to the ER. See id. at 5. According to the Arbitrator, the complaint asserted that the Agency failed to select and promote the grievant, the grievant suffered harassment based on her on-the-job injury and her whistleblowing activities, and the grievant's detail violated a prior EEOC settlement agreement between the Agency and the grievant. See id. The Arbitrator also found that, as the grievance was filed "three months after" the EEOC complaint, under § 7121(d) of the Statute, he was precluded from resolving any issues related to the grievant's detail and permanent reassignment, including the grievant's claim that the Agency retaliated [ v61 p572 ] against her based on her whistleblowing activities. Id. at 7.

      In response to the Agency's assertion that it was authorized to detail and reassign the grievant pursuant to § 7106, the Arbitrator determined that the Agency's decision to detail and reassign the grievant was made pursuant to § 7422, not § 7106. Specifically, the Arbitrator found that, in a prior case involving the reassignment of a RN, the Under Secretary for Health determined that the reassignment "involved professional competence and conduct within the meaning of [§ 7422] an therefore [was] outside the scope of the . . . negotiated grievance procedure." [n2]  Id. at 8. Based on this finding, the Arbitrator found that details and reassignments, including the grievant's, "are . . . not subject to arbitration." Id.

      The Arbitrator also addressed the Union's claim that the grievant was subjected to reprisal based on her whistleblowing activities. In this connection, the Arbitrator determined that the grievant's report regarding the alleged improper medical treatment was not a protected disclosure under the WPA, 5 U.S.C. § 2302(b)(8), because the report was required as a part of her normal duties. Specifically, the Arbitrator found that the grievant was "required" to write and submit a report to the Agency if she believed another employee was engaging in misconduct. Id. at 9. The Arbitrator further determined that although the Agency did not timely respond to the grievance as required by Article 42, Section 9 of the parties' agreement (§ 9), the Union's remedy, requesting that the grievant be reinstated to the CCL with back pay, and consequential and compensatory damages, was not reasonable. Accordingly, he found that he was not required to resolve the grievance in the Union's favor. [n3]  See id. at 10-11.

      Based on the foregoing, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is contrary to law because the Arbitrator erred in finding that the subject matter of the grievance had been raised in a prior EEOC complaint. In this connection, the Union asserts that the issue "was never raised at the hearing and it was not one of the stipulated issues." Exceptions at 6. The Union also asserts that the Arbitrator's characterization of the EEOC complaint was "wrong" because the grievant's permanent reassignment to the ER "was never the subject" of the complaint. Id.

      In addition, the Union claims that the award is contrary to law because the Arbitrator erred in his evaluation of the grievant's WPA claim. In this regard, the Union contends that the Arbitrator provided "no authority" for the test he applied in resolving the WPA claim. Id. at 8. The Union also claims that management's right to reassign the grievant was not an issue stipulated by the parties and that the award is contrary to § 7106 of the Statute because the Arbitrator erred in determining that the Agency had an "unfettered right to reassign" the grievant. Id. at 7. The Union further claims that the award is contrary to § 7422 because the Agency never determined that the grievant's detail or reassignment was outside the scope of the grievance procedure. See id. at 8. Moreover, the Union contends that the award fails to draw its essence from § 9 because, although the Arbitrator found that the Agency failed to timely respond to the grievance, he did not award the remedy requested by the Union.

B.      Agency's Opposition

      The Agency asserts the issue of whether the grievance was precluded under § 7121(d) was raised as a "preliminary matter" before the Arbitrator. Opposition at 5. The Agency also asserts that, pursuant to § 7121(d) of the Statute, the Arbitrator properly determined that he was precluded from resolving matters that were raised the EEOC complaint. In this regard, the Agency contends that the Arbitrator correctly determined that the claim asserted in the grievance -- that the grievant's detail and subsequent reassignment to the ER was in reprisal for her prior EEO and whistleblowing activities -- was previously raised in an EEOC complaint. See id. at 5-6.

      In addition, the Agency contends that the test used by the Arbitrator to evaluate the grievant's WPA claim is "well grounded in law." See id. at 6 (citing Eidmann v. MSPB, 976 F.2d 1400, 1407 (Fed. Cir. 1992) (Eidmann)). The Agency further contends that the Arbitrator [ v61 p573 ] properly addressed the management rights arguments it made to the Arbitrator. See id. at 6. Moreover, the Agency asserts that the award "represent[s] a plausible interpretation" of § 9 because the Arbitrator properly "determined that the remedy sought [by the Union] was not legal or reasonable[.]" Id. at 4.

IV.     Analysis and Conclusions

A.      The Arbitrator did not exceed his authority.

      The Union asserts that the issues of whether the grievance was precluded under § 7121(d) and whether the grievant was properly reassigned pursuant to § 7106 were not issues before the Arbitrator. We construe these assertions as claims that the Arbitrator exceeded his authority by resolving issues not submitted to arbitration. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). Further, arbitrators do not exceed their authority by addressing any issue that is necessary to decide the stipulated issue, or by addressing any issue that necessarily arises from issues specifically included in a stipulation. See United States Dep't of the Air Force, Minot Air Force Base, N.D., 61 FLRA 366, 369 (2005) (Member Pope dissenting on other grounds).

      As relevant here, the parties stipulated the issues to be whether the Agency retaliated against the grievant for her prior EEOC and whistleblowing activities when it detailed and later reassigned her to the ER. See Award at 1. The record establishes that, before the Arbitrator, the Agency asserted that the Arbitrator was precluded from considering the grievance under § 7121(d) because the Union had previously filed an EEOC complaint regarding the same matter. See Exceptions, Attachment, Agency's Post-Hearing Brief at 6-8. The record also establishes that the Agency asserted to the Arbitrator that its decision to detail and reassign the grievant was based on the Agency's § 7106 rights, not reprisal. See id. at 11. As it was necessary for the Arbitrator to address the § 7121(d) issue before resolving the stipulated issues and because the Arbitrator's resolution of the Agency's § 7106 claim arose from the stipulated issues, the Union has failed to establish that the Arbitrator exceeded his authority. Consequently, we deny the exception.

B.     The award is contrary to law.

      When a party's exceptions involve an award's consistency with law, the Authority reviews the questions of law and the arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

1.      5 U.S.C. § 7121(d)

      Section 7121(d) of the Statute provides that when an employee affected by a prohibited personnel practice under 5 U.S.C. § 2302(b)(1) has raised the matter under a statutory procedure, such as an EEOC complaint, the employee may not file a written grievance under the negotiated grievance procedure concerning the same matter. For a grievance to be precluded by § 7121(d) two conditions must be met: (1) the matter which is the subject of the grievance must be the same matter which was the subject of the action initiated under the statutory procedure; and (2) such matter must have been earlier raised by the employee timely initiating an action under the statutory procedure. See United States Dep't of Justice, Immigration & Naturalization Serv., El Paso, Tex., 40 FLRA 43, 52 (1991) (INS, El Paso).

      The term "matter" as used in § 7121(d) "pertains to prohibited personnel practices under section 2302(b)(1)." Id.; see also United States Dep't of the Treasury, Internal Revenue Serv., Oxon Hill, Md., 56 FLRA 292, 296 (2000) (quoting United States Dep't of Justice, United States Marshals Serv., 23 FLRA 564, 567 (1986) (Marshals Serv.)). The Authority has found that personnel practices in this context are any personnel actions defined in 5 U.S.C. § 2302(a). See INS, El Paso, 40 FLRA at 53. As relevant here, 5 U.S.C. § 2302(a)(2)(A)(iv) defines a personnel action as "a detail, transfer, or reassignment." Id.

      The Arbitrator found that the grievant filed an EEOC complaint on May 7, which concerned the grievant's detail to the ER. See Award at 5. According to the Arbitrator, the complaint asserted that the Agency failed to select and promote the grievant, the grievant suffered harassment based on her whistleblowing activities and an on-the-job injury, and the grievant's detail violated a prior EEOC settlement agreement between the Agency and the grievant. See id. The Arbitrator also found that the Union filed a grievance on August 6 concerning the grievant's detail to the ER. The Arbitrator further found that the grievance was amended on August 13 to include the grievant's reassignment to the ER, which occurred [ v61 p574 ] on August 9, and to add a claim that the detail and reassignment were in reprisal for the grievant's whistleblowing and EEO activities. See id. at 5.

      As both the EEOC complaint and the grievance concerned the grievant's detail to the ER, the Arbitrator found, and we agree, that the complaint and the grievance concerned the same "matter" within the meaning of § 7121(d) of the Statute. See AFGE, Local 1592, 57 FLRA 882, 883 (2002); INS, El Paso, 40 FLRA at 53-54. Further, as it is undisputed that the EEOC complaint was filed first, the Arbitrator was precluded under § 7121(d) from resolving matters in the grievance procedure that were raised in the EEOC complaint. See Marshals Serv., 23 FLRA at 568. Accordingly, consistent with Authority precedent, the Arbitrator properly concluded that the grievance, to the extent it concerns the grievant's detail, was precluded under § 7121(d). See, e.g., United States Dep't of the Air Force, Headquarters, Okla. City Air Logistics Ctr., Tinker Air Force Base, 43 FLRA 290, 299 (1991). Therefore, we deny the Union's exception in this regard.

      However, as argued by the Union, there is no basis for concluding that the EEOC complaint concerned the "matter" of the grievant's permanent reassignment to the ER. See AFGE, Local 3230, AFL-CIO, 22 FLRA 448, 450 (1986). In this connection, as asserted by the Union, the EEOC complaint was filed several months before the Agency permanently reassigned the grievant to the ER and there is no indication that the complaint was amended to include this matter. The grievance, however, was amended to include the permanent reassignment matter. As such, the Arbitrator erred in finding that the grievant's permanent reassignment was a matter at issue in the EEOC complaint and, thus, was precluded from review pursuant to § 7121(d). See United States Dep't of the Treasury, Internal Revenue Serv., Oxon Hill, Md., 56 FLRA 292, 297 (2000) (matter raised for the first time in the grievance procedure not precluded from such procedure under § 7121(d)).

      With regard to the Union's WPA claims, although § 7121(d) provides that matters involving claims under 5 U.S.C. § 2302(b)(1) may be filed under the negotiated grievance procedure or a statutory procedure, reprisal for whistleblowing activities is a prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(8), not 5 U.S.C. § 2302(b)(1). Therefore, a WPA claim is not precluded under § 7121(d). We note that WPA claims could be precluded pursuant to § 7121(g). However, there is no indication that the Union filed any of the statutory actions that would preclude the grievant from asserting her WPA claim in the grievance procedure. See 5 U.S.C. § 7121(g).

      Based on the foregoing, we find that the Arbitrator properly concluded that the portion of the grievance concerning the detail was precluded under § 7121(d). However, we find that the Arbitrator erred as a matter of law in finding that the WPA claims and the claims relating to the grievant's permanent reassignment were precluded under § 7121(d). As such, we set aside those findings. Accordingly, it is necessary to address the Union's claims that the award is contrary to the WPA, § 7106, and § 7422, and fails to draw its essence from the parties' agreement.

2.      Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8).

      The Arbitrator found that the grievant was required, as part of her normal duties, to report her belief that the attending physician had provided improper medical treatment. In this regard, the Arbitrator found that the Agency "required" employees to write and submit a report to the Agency if they believed that another employee had engaged in misconduct. Award at 9. Accordingly, the Arbitrator concluded that the grievant's report was not a protected disclosure under the WPA. The Union asserts that the test applied by the Arbitrator to analyze the Union's WPA claim, in this regard, is not "legally supportable." Exceptions at 8.

      Under the WPA, a disclosure made in connection with assigned normal duties is not a protected disclosure and an employee who makes a disclosure in the course of his normal duties cannot claim the protection of the WPA. See Huffman v. Office of Personnel Mgmt., 263 F.3d 1341, 1352 (Fed. Cir. 2001) (Huffman). As Huffman explains, there is no indication that the WPA was designed to "trigger protection for performance of normal duties." Id. at 1353. Rather, the WPA was "established to protect employees who go above and beyond the call of duty and report infractions of law that are hidden." Id.

      The Arbitrator found that the grievant was "required" to disclose her belief that the attending physician had provided improper medical treatment and that the grievant would have been "in violation of [the Agency's disclosure] requirement" if she had not "prepared and submitted a report." Award at 9-10. Although the Union asserts that the Arbitrator's finding is unfounded, see Exceptions at 8, the Union points to no evidence in the record indicating that the grievant was not required as part of her normal duties to make such a disclosure. Accordingly, we find that the Union [ v61 p575 ] has not demonstrated that the Arbitrator erred in rejecting the Union's WPA claim because there is no indication that the Arbitrator erroneously determined that the grievant's disclosure was required as part of her normal duties. Based on the foregoing, we find that the award is consistent with the appropriate WPA standard, and deny the exception. See Huffman, 263 F.3d at 1352.

3.      Section 7106 of the Statute.

      The Union claims that the award is contrary to § 7106 of the Statute because the Arbitrator erred in determining that the Agency had an "unfettered right to reassign" the grievant. Exceptions at 7. While the Arbitrator noted the Agency's § 7106 claim, he did not find that the provision provided the Agency with the right to reassign the grievant to the ER. Instead, the Arbitrator determined that, pursuant to 38 U.S.C. § 7422, the grievant's reassignment "involved professional competence and conduct . . . and therefore [was] outside the scope of . . . the negotiated grievance procedure." Award at 8. Accordingly, we find that there is no basis for the Union's claim that the Arbitrator erred in his application of § 7106.

4.     38 U.S.C. § 7422.

      The Union claims that the award is contrary to § 7422 because the Agency did not make a determination as to whether the grievant's reassignment was outside the scope of the grievance procedure. Under § 7422, "matters or questions concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation" are specifically excluded from coverage by a negotiated grievance procedure. 38 U.S.C. § 7422(b); see Veterans Admin., Long Beach, Calif., 48 FLRA 970, 975 (1993) (VA, Long Beach). Further, the issue of whether a "matter or question" falls within the meaning of § 7422(b) "shall be decided by the Secretary[.]" 38 U.S.C. § 7422(d). The Authority has held that the Secretary has "exclusive authority" to make such determinations and that the Secretary's determination is not reviewable by the Authority. VA, Long Beach, 48 FLRA at 975; 38 U.S.C. § 7422(d).

      Here, the Arbitrator found that the grievance was excluded from the grievance procedure because it "involved professional competence and conduct[.]" Award at 8. In reaching this decision, the Arbitrator relied on a determination by the Under Secretary for Health in a prior case that a reassignment of a RN involved professional competence and conduct. See id.

      Although the Arbitrator found that the Under Secretary's § 7422 determination in the prior case established that the grievant's reassignment was "not subject to arbitration[,]" id. at 8, it is not clear whether the determination relied on in that case does, in fact, extend to other similar cases, or whether it was limited to the facts of that case. In addition, there is no indication that the Secretary or his designee made a determination in this case that the grievant's reassignment involved the same "matters or questions" as the RN's reassignment in the prior case or that the grievant's reassignment standing alone was a "matter or question" within the meaning of § 7422(b). 38 U.S.C. § 7422(b). Further, the Agency has not provided the Authority with a copy of the determination that it is relying on or the prior award relied on by the Arbitrator.

      On this record, we are unable to determine whether the Arbitrator erred in finding that the Agency's § 7422 determination in the prior reassignment case applied to subsequent similar cases. Accordingly, we remand the portion of the grievance concerning the grievant's reassignment to the parties for resubmission to the Arbitrator, absent settlement or a determination by the Secretary or his designee pursuant to § 7422, for an explanation of the basis of the conclusion that the Agency's prior § 7422 determination is dispositive in the instant case.

      We note that, on remand, the Secretary or his designee is permitted to determine whether the grievance involved one of these subjects. See VA, Balt., Md., 59 FLRA at 386; United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Asheville, N.C., 57 FLRA 681, 683 (2002) (Secretary permitted to make § 7422 determination even after grievance is filed, arbitration award has issued, or during a pending unfair labor practice charge). If a determination has been made that the grievant's reassignment falls under § 7422, then the portion of the grievance concerning the reassignment is excluded from the negotiated grievance procedure. If no determination has been made regarding whether the grievant's reassignment falls within § 7422(b), then the Arbitrator is directed to resolve the merits of the portion of the grievance concerning the permanent reassignment.

C.      The award does not fail to draw its essence from the parties' agreement.

      The Union claims that the award fails to draw its essence from § 9. In order for an award to be deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from [ v61 p576 ] the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; and (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Section 9 provides that the Agency's failure to comply with the grievance procedure time limits will result in the grievance being resolved in favor of the grievant, "provided that . . . the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance." Award at 10. While the Arbitrator found that the Agency failed to timely respond to the grievance, the Arbitrator did not award the remedy requested by the Union because, according to the Arbitrator, the requested remedy was "not legal . . . nor reasonable under the circumstances of the grievance[.]" Id. at 11, 12. As the Arbitrator's finding is consistent with his authority under § 9, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement. See NFFE, Local Lodge 2276, Int'l Ass'n of Machinists & Aerospace Workers, 61 FLRA 387, 390 (2005). Accordingly, we deny the exception.

V.      Decision

      We set aside the Arbitrator's finding that the grievant's WPA claims and claims relating to the grievant's permanent reassignment are precluded by § 7121(d), remand the portion of the award concerning the grievant's permanent reassignment to the parties for submission to the Arbitrator, absent settlement or a determination by the Secretary or his designee under § 7422, and deny the Union's remaining exceptions.


APPENDIX

5 U.S.C. § 7121(d) provides in relevant part:

An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first.

38 U.S.C. § 7422 states, in relevant part:

(a)      Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations).
(b)      Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of employees described in section 7421(b) of this title may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title.
. . . .
(d)      An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.

5 U.S.C. § 2302(b) provides, in relevant part, that "[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . [ v61 p577 ]

(1)      discriminate for or against any employee or applicant for employment--
(A)      on the basis of race, color, religion, sex, or national origin, as prohibited under section
           717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
(B)      on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in
           Employment Act of 1967 (29 U.S.C. 631, 633a);
(C)      on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act
           of 1938 (29 U.S.C. 206(d));
(D)      on the basis of handicapping condition, as prohibited under section 501 of the
           Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E)      on the basis of marital status or political affiliation, as prohibited under any law, rule, or
           regulation;
. . . .
(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 or applicant which the employee or
           applicant reasonably believes evidences --
(i)       a violation of any law, rule, or regulation, or
(ii)      gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial
          and specific danger to public health or safety,
if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
(B)      any disclosure to the Special Counsel, or to the Inspector General of an agency or
           another employee designated by the head of the agency to receive such disclosures, of
           information which the employee or applicant reasonably believes evidences --
(i)       a violation of any law, rule, or regulation, or
(ii)      gross 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. § 7121(g) provides:

(1)      This subsection applies with respect to a prohibited personnel practice other than a prohibited
           personnel practice to which subsection (d) applies.
(2)      An aggrieved employee affected by a prohibited personnel practice described in paragraph (1) may
          elect not more than one of the remedies described in paragraph (3) with respect thereto. For
          purposes of the preceding sentence, a determination as to whether a particular remedy has been
          elected shall be made as set forth under paragraph (4).
(3)      The remedies described in this paragraph are as follows:
(A)      An appeal to the Merit Systems Protection Board under section 7701.
(B)      A negotiated grievance procedure under this section.
(C)      Procedures for seeking corrective action under subchapters II and III of chapter 12.
(4)      For the purpose of this subsection, a person shall be considered to have elected --
(A)      the remedy described in paragraph (3)(A) if such person has timely filed a notice of
           appeal under the applicable appellate procedures;
(B)      the remedy described in paragraph (3)(B) if such person has timely filed a grievance in
           writing, in accordance with the provisions of the parties' negotiated procedure; or
(C)      the remedy described in paragraph (3)(C) if such person has sought corrective action
           from the Office of Special Counsel by making an allegation under section 1214(a)(1).



Footnote # 1 for 61 FLRA No. 109 - Authority's Decision

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