David F. Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998)


ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998

No. 97-1414

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

DAVID F. POWER,
                    Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent

and

PENSION BENEFIT GUARANTY CORPORATION,
                    Intervenor
_______________________________



ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY



            DAVID M. SMITH
              Solicitor

            WILLIAM R. TOBEY
              Deputy Solicitor

            ANN M. BOEHM
              Attorney


            Federal Labor Relations Authority
            607 14th Street, N.W.
            Washington, D.C.  20424
            (202) 482-6620




ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES



A.  Parties and amici

Appearing below in the administrative proceeding
before the Federal Labor Relations Authority were the Pension Benefit Guaranty
Corporation ("PBGC"), and National Treasury Employees Union ("NTEU").  David F.
Power is the petitioner in this court proceeding; the Authority is the
respondent.

B.    Rulings under review

The ruling under review in this case is the Authority's Decision and
Order on Remand in Pension Benefit Guaranty Corporation, Case No. 3-
CA-90456 on April 30, 1997.  The Authority's decision is reported at 52
FLRA (No. 132) 1390.

C.    Related Cases

This case has been before this Court in Pension Benefit Guaranty
Corporation v. FLRA, 967 F.2d 658 (1992).  This case has not previously
been before any other court.  Counsel for the Authority is unaware of
any cases pending before this Court which are related to this case
within the meaning of Local Rule 28(a)(1)(C).




TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUES  2

STATEMENT OF THE CASE  3

I.  Nature of the case  3

II.  Statement of the facts  4

A.  Power's employment at PBGC and facts prompting
his discharge  4

1.  Failure to follow OGC concurrence matrix  5

2.  Failure to supply a representative writing
sample  6

3.  Refusal to relinquish copies of PBGC's
computer survey data  8

4.  Power's failure to cooperate in an official
investigation  8

5.  Refusal to accept computer messages  9

B.  The Removal of Power  10

III.  Proceedings below  11

A.  The ALJ's and Authority's original decisions in
PBGC I  11

B.  This Court's decision in PBGC v. FLRA  13

C.  The Authority's PBGC II decision remanding the
case to the ALJ  15

D.  The ALJ's remand decision  16

E.  The Authority's decision in PBGC III  17

STANDARD OF REVIEW  22

SUMMARY OF ARGUMENT  23



ARGUMENT  25

I.  The Authority properly determined that PBGC established
a legitimate justification for Power's discharge  25

A.  Insubordination is a legitimate justification for
    discharge  26

B.  Substantial evidence supports the Authority's
determination that Power's insubordinate conduct
was a legitimate justification for his removal  27

1.  The Authority's factual findings with regard
to Power's conduct are not disputed  27

2.  Power's insubordinate conduct was not protected
activity under the Supreme Court's City Disposal decision and the
Authority's Bassan decision, nor
was it excusable under precedent relating to
"flagrant misconduct"  28

II.  The Authority, based upon its analysis of similarly
situated employees, properly determined that the
agency's termination of petitioner's employment did
not constitute disparate treatment  33

A.  The Authority, in accord with the Court's remand,
correctly identified appropriate factors to
consider in conducting its disparate treatment
analysis  33

B.  The Authority's determination that Power was not
disparately treated was reasonable and is
supported by substantial evidence  35

1.  Substantial evidence supports the Authority's
reasonable finding that Power was similarly
situated to Employees Nos. 6 and 8 and not
disparately treated  36

a.  Employee No. 6  36

b.  Employee No. 8  37

2.  Substantial evidence supports the
Authority's finding that Power was not
similarly situated to Employees Nos. 1, 7,
9, and 10  38

a.  Employee No. 1  38

b.  Employees Nos. 7, 9, and 10  40

III.  Petitioner's arguments regarding Authority error in
excluding new evidence and Authority Member bias are
without merit  41

A.  The Authority properly upheld the ALJ's
evidentiary rulings  41

B.  Petitioner's contention that the Authority's
decision was tainted by bias is unfounded  42

1.  Section 7123(c) bars the Court's
consideration of petitioner's bias argument  43

2.  Case law regarding recusal and bias in
administrative adjudications refutes
petitioner's contention regarding
Member Wasserman  44

3.  Member Wasserman's decision was unbiased  45

CONCLUSION  46



ADDENDA

Relevant portions of the Federal Service Labor-Management
  Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) and
  pertinent regulation ....................................  A-1

Declaration of Donald S. Wasserman dated
  February 9, 1998 ........................................  B-1




TABLE OF AUTHORITIES

* AFGE Local 2441 v. FLRA, 864 F.2d 178
    (D.C. Cir. 1988)  22, 37

Bureau of Alcohol, Tobacco and Firearms v. FLRA,
    464 U.S. 89 (1983)  23

Chaney Creek Coal Corp. v. Federal Mine Safety and Health
    Review Commission, 866 F.2d 1424 (D.C. Cir. 1989)  35

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
    Inc., 467 U.S. 837 (1984)  22
Cities of Campbell v. FERC, 770 F.2d 1180
    (D.C. Cir. 1985)  42

Department of Treasury, Office of Chief Counsel v. FLRA,
    873 F.2d 1467 (D.C. Cir. 1989)  34

EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984),
    cert. dismissed, 476 U.S. 19 (1986)  22

Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990)  22

INS v. Abudu, 485 U.S. 94 (1988)  41

Jenkins v. Sterlacci, 849 F.2d 627 (D.C. Cir. 1988)  44

Jim Walter Resources, Inc. v. Secretary of Labor,
    103 F.3d 1020 (D.C. Cir. 1997)  35

Kalkines v. United States, 473 F.2d 1391 (Ct.Cl. 1973)  9

*  LCF, Inc. v. NLRB, 129 F.3d 1276 (D.C. Cir. 1997)  22, 35

*  Metropolitan Council of NAACP Branches v. FCC,
    46 F.3d 1154 (D.C. Cir. 1995)  44, 45

*  NLRB v. City Disposal, Inc., 465 U.S. 822
    (1984)  passim

NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993)  44

NLRB v. Jacob E. Decker and Sons, 569 F.2d 357
    (5th Cir. 1978)  42

National Treasury Employees Union v. FLRA, 721 F.2d 1402
    (D.C. Cir. 1983)  22

Overseas Educ. Ass'n v. FLRA, 858 F.2d 769
    (D.C. Cir. 1988)  22

Phillips v. General Services Admin., 878 F.2d 370
    (Fed. Cir. 1989)  26

Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987)  31

United States Department of Commerce, National Oceanic
    and Atmospheric Administration, National Weather Service
    v. FLRA, 7 F.3d 243 (D.C. Cir. 1993)  43

United Steelworkers of America v. Marshall, 647 F.2d 1189
    (D.C. Cir. 1980)  45

Webster v. Dep't of the Army, 911 F.2d 679
    (Fed. Cir. 1990)  26



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

*  Department of Labor, Employment & Training Administration
    and Lou Ann Bassan, 43 FLRA 1036 (1992)  passim

*  Letterkenny Army Depot, 35 FLRA 113 (1990)  12, 13, 27

Long Beach Naval Shipyard, Long Beach, California and
    Long Beach Naval Shipyard, Long Beach, California,
    25 FLRA 1002  32, 33

United States Air Force Academy, Colorado Springs,
    Colorado, 52 FLRA 874 (1997)  26

*  U.S. Air Force Logistics Command, Tinker Air Force Base,
    Oklahoma City, OK, 34 FLRA 385 (1990)   32

U.S. Department of the Air Force, Tinker Air Force Base,
    Oklahoma and AFGE Local 916, 35 FLRA 1145 (1990)   32




DECISION OF THE NATIONAL LABOR RELATIONS BOARD

PYA/Monarch, Inc., 275 NLRB 1194 (1985)  26



DECISIONS OF THE MERIT SYSTEM PROTECTION BOARD

*  Douglas v. Veterans Administration, 5 MSPB 313
    (1981)  14, 16, 33, 34

Redfearn v. Department of Labor, 58 MSPR 307 (1993)  26



STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996)  2
  5 U.S.C. § 7102  3, 11, 30
  5 U.S.C. § 7105(a)(2)(G)  2
  5 U.S.C. § 7114(b)(4)  32
  5 U.S.C. § 7116(a)(1)  3, 11, 25
  5 U.S.C. § 7116(a)(2)  3, 11, 12, 25
  5 U.S.C. § 7123  2
  5 U.S.C. § 7123(a)  2
* 5 U.S.C. § 7123(c)  22, 42, 43
  5 U.S.C. § 706(2)(A)  22
  28 U.S.C. § 455  45

CODE OF FEDERAL REGULATIONS

  5 C.F.R. § 2429.17  44

*Cases or authorities chiefly relied upon are marked by asterisks.



GLOSSARY


Abudu    INS v. Abudu, 485 U.S. 94 (1988)

AFGE Local 2441  AFGE Local 2441 v. FLRA, 864 F.2d 178
        (D.C. Cir. 1988)

AGC Beck    Assistant General Counsel Jeanne Beck

ALJ    Administrative Law Judge

Bassan    Department of Labor, Employment & Training
        Administration and Lou Ann Bassan, 43 FLRA 1036
        (1992)

CEO Message    Comprehensive Electronic Office Message

City Disposal    NLRB v. City Disposal, Inc., 465 U.S. 822
        (1984)

DGC Flowe    Deputy General Counsel Carol Connor Flowe

Douglas    Douglas v. Veterans Administration, 5 MSPB 313
        (1981)

GC      PBGC General Counsel

General Counsel  General Counsel of the Federal Labor Relations
        Authority

LCF    LCF, Inc. V. NLRB, 129 F.3d 1276
        (D.C. Cir. 1997)

Letterkenny    Letterkenny Army Depot, 35 FLRA 113 (1990)

Long Beach    Long Beach Naval Shipyard, Long Beach,
        California and Long Beach Naval Station,
        Long Beach, California, 25 FLRA 1002 (1987)

MSPB    Merit Systems Protection Board

NLRA    National Labor Relations Act

NLRB    National Labor Relations Board

NTEU or    National Treasury Employees Union
union

NTEU v. FLRA    National Treasury Employees Union v. FLRA,
        721 F.2d 1402 (D.C. Cir. 1983)

OGC    PBGC's Office of General Counsel

PBGC or    Pension Benefit Guaranty Corportation
agency

PBGC I    Pension Benefit Guaranty Corp., 39 FLRA 905
        (1991)

PBGC II    Pension Benefit Guaranty Corp., 47 FLRA 595
        (1993)

PBGC III    Pension Benefit Guaranty Corp., 52 FLRA 1390
        (1997)

Power or Petitioner    David F. Power

Redfearn    Redfearn v. Department of Labor, 58 MSPR 307
        (1993)

Statute    Federal Service Labor-Management Relations
        Statute, 5 U.S.C. §§ 7101-7135
        (1994 & Supp II 1996)

Tinker AFB    U.S. Air Force Logistics Command, Tinker
        Air Force Base, Oklahoma City, OK, 34 FLRA 385
        (1990)




ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 97-1414

_______________________________

DAVID F. POWER,
                    Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent

and


PENSION BENEFIT GUARANTY CORPORATION,
                    Intervenor
_______________________________



ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY




BRIEF FOR THE
FEDERAL LABOR RELATIONS AUTHORITY



STATEMENT OF JURISDICTION

The final decision and order under review in this case was issued by the
federal Labor Relations Authority ("FLRA" or "Authority") in Pension Benefit
Guaranty Corporation, 52 FLRA 1390 (1997), Appendix after Remand ("RA") 1218
(PBGC III).[1]  The Authority exercised jurisdiction over the case pursuant
to section 7105(a)(2)(G) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) (Statute).[2]
This Court has jurisdiction to review the Authority's decisions and orders
pursuant to section 7123(a) of the Statute.  David F. Power ("Power" or
"petitioner") filed a petition for review within the 60-day time limit
provided by 5 U.S.C. § 7123.

STATEMENT OF THE ISSUES

I.  Whether the Authority properly determined that PBGC established a legitimate
justification for termination of petitioner's employment.
II.  Whether the Authority, based upon its analysis of similarly situated
employees, properly determined that the agency's termination of petitioner's
employment did not constitute disparate treatment.
III.  Whether the Authority properly excluded new evidence concerning
employees not mentioned in earlier proceedings and whether petitioner's previous
contacts with one of the Authority Members required that Member's recusal.

STATEMENT OF THE CASE

I.  Nature of the case
  This case arose as an unfair labor practice (ULP) proceeding concerning
  allegations that the Pension Benefit Guaranty Corporation ("PBGC" or
  "agency") violated section 7116(a)(1) and (2) of the Statute by discharging
  Power because he engaged in union activities protected by section 7102 of
  the Statute.  The case was first heard by an Administrative Law Judge
  ("ALJ") who concluded that the General Counsel of the FLRA ("General
  Counsel") failed to prove by a preponderance of the evidence that Power was
  discharged for engaging in protected activity and recommended that the ULP
  complaint be dismissed.  (JA 31.)  The Authority reversed the ALJ's
  conclusion and found that PBGC had discharged Power in violation of the
  Statute.  Pension Benefit Guaranty Corp., 39 FLRA 905 (1991) (PBGC I); JA 1.
  On appeal, this Court found that the Authority had inadequately explained
  its reasons for concluding that Power received disparate treatment as a
  result of his protected activity.  PBGC v. FLRA, 967 F.2d 658 (D.C. Cir.
  1992).  As a result, the Court remanded the case to the Authority for
  further analysis of the disparate treatment issue, including, as part of
  that analysis, further definition of "similarly situated" employees.  Id. at
  670.
  Finding the record before it insufficient to make the determinations the
  Court required, the Authority remanded the case to the ALJ to hear
  additional evidence, and, consistent with the Court's opinion, to determine
  whether Power was subject to disparate treatment.  Pension Benefit Guaranty
  Corp., 47 FLRA 595, 599-501 (1993) (PBGC II); RA 1200, 1204-06.  The ALJ's
  decision on remand found that Power was not subjected to disparate treatment
  and recommended that the complaint be dismissed.  PBGC III, RA 1217.
  In its final decision, the Authority dismissed the complaint based upon its
  finding that Power was not disparately treated and therefore that PBGC did
  not commit the ULPs alleged in the complaint.  PBGC III, RA 1219.  Power has
  petitioned this Court for review of the Authority's order dismissing the
  complaint.

II.  Statement of the facts

  The facts of this case are set forth in detail in the prior Authority
  decisions, particularly PBGC I, JA 2-14, as well as in this Court's
  decision, PBGC v. FLRA, 967 F.2d at 659-663.  For ease of reference, the
  pertinent facts are again set out below.
  A.  Power's employment at PBGC and facts prompting his discharge
  David Power was employed as a GS-14 General Attorney in PBGC's Office of
  General Counsel (OGC) from 1980 until his discharge on April 3, 1989.
  Beginning in 1984 and continuing until his discharge, Power served as the
  President of Local Chapter 211 of the National Treasury Employees Union
  ("NTEU" or "union").  PBGC v. FLRA, 967 F.2d at 659; PBGC I, JA 2.
  On April 3, 1989, Power was discharged for misconduct that occurred between
  May and December 1988.  967 F.2d at 659-62; PBGC I, JA 2-11.  As explained
  in the Authority's PBGC III decision,
[s]pecifically, he was discharged for: (1) insubordination based on his (a)
failure to follow an "OGC Concurrence Matrix," (b) refusal to accept computer
messages from an immediate supervisor, (c) failure to supply a representative
writing sample to the Deputy General Counsel, and (d) refusal to return computer
survey data and failure to provide a written explanation for his refusal; (2)
failure to cooperate in an official investigation; (3) threatening an employee
with grave physical harm and interfering with the employee's statutory rights;
(4) making a false statement in an official investigation; and (5) conversion of
Government property.
RA 1219.[3]  In PBGC III, the Authority determined that "Power's insubordinate
conduct provided PBGC with a legitimate justification for his discharge."  RA
1229.  Because of that holding, only the facts regarding Power's insubordinate
conduct are set forth below.
    1.  Failure to follow OGC concurrence matrix
  The OGC maintains a concurrence, or "sign-off," matrix ("Concurrence
  Matrix") that requires supervisory concurrence on all correspondence and
  other documents going out of the office.  PBGC v. FLRA, 967 F.2d at 660;
  PBGC I, JA 2.  Power failed to follow the Concurrence Matrix's requirements
  on August 11 and 18, 1988, when he sent documents out of OGC without
  obtaining the prior review or concurrence of his immediate supervisor,
  Assistant General Counsel Jeanne Beck ("AGC Beck").  967 F.2d at 660; PBGC
  I, JA 3.
    AGC Beck first admonished Power on August 24, 1988, regarding his August
    11th violation of the OGC Concurrence Matrix requirement.  Id.  This
    admonishment was in the form of a comprehensive electronic office ("CEO")
    message via computer.  PBGC I, JA 3; see SA-6 941.  AGC Beck admonished
    Power for the August 18th incident in a September 9, 1988 memorandum in
    which she reminded Power that "all matters require supervisory concurrence"
    and that she expected to see "all documents" before they were sent out of
    OGC.  SA-6 942; PBGC III, RA 1230.
  Power failed for a third time to follow the matrix's requirements on
  November 29, 1988, when he sent two letters to opposing counsel without
  supervisory concurrence.  Power also instructed a clerical staff person to
  disregard the concurrence requirement.  967 F.2d at 660; PBGC I, JA 3.  On
  December 1, 1988, AGC Beck sent a memorandum to Power, again reminding him
  of the OGC concurrence matrix and noting that Power's repeated
  noncompliance, coupled with his instructions to a staff person to disregard
  the established office policy, was "inexcusable."  Id.; see SA-6 938.
    2.  Failure to supply a representative writing sample
  On May 25, 1988, Power received his performance appraisal for the period
  December 9, 1987 to May 12, 1988.  As permitted under PBGC procedures, the
  appraisal was sent to Power's second level supervisor, Deputy General
  Counsel Carol Connor Flowe ("DGC Flowe"), for review after Power appended
  comments to the appraisal.[4]  PBGC v. FLRA, 967 F.2d at 659; PBGC I, JA 4.
  In order to review Power's rating for consistency, DGC Flowe sent a CEO
  message to AGC Beck on June 15, 1988, explaining that she was reviewing
  Power's performance appraisal and requesting a representative sample of his
  writing.  Id.  AGC Beck forwarded the CEO message to Power and directed his
  compliance.  PBGC I, JA 4.  Power responded by memorandum to DGC Flowe,
  asking the purpose of her request, id., and stating that some of the
  documents DGC Flowe requested "may be located in the file room of the OGC."
  SA-6 949.
  The next morning DGC Flowe contacted Power directly.  PBGC v. FLRA, 967 F.2d
  at 659; PBGC I, JA 4.  She told Power that she was the reviewing official on
  his performance appraisal and directed him to comply with her request.  PBGC
  I, JA 4.  In response, Power submitted over 2,100 unstapled pages of
  miscellaneous documents.  967 F.2d at 659-60; PBGC I, JA 4.
  DGC Flowe was "appalled" at Power's response and had the materials returned
  to him.  DGC Flowe then sent Power a memorandum explaining why she was
  returning the materials and asking again for a representative sample of his
  writing.  Over a month later, Power resubmitted the same 2100 pages of
  materials to DGC Flowe, indicating in a cover memorandum that those
  documents bore on his performance during the rating period.  967 F.2d at
  660; PBGC I, JA 5.
  DGC Flowe returned Power's submission, again requesting a representative
  sample of his writing.  Id.  Two and a half months later, Power responded,
  giving DGC Flowe about 25 of his written documents.  Id.  However, Power
  disclaimed any characterization of the documents as being a "sample" or
  representative.  Id.  DGC Flowe "gave up" at that point and raised Power's
  performance rating.  967 F.2d at 660.
  3.  Refusal to relinquish copies of PBGC's computer survey data
  In the spring, summer, and fall of 1988 the union and the agency were
  negotiating office space and ergonomic furniture for OGC attorneys.  PBGC v.
  FLRA, 967 F.2d at 661; PBGC I, JA 5.  In August 1988, Power obtained
  computer survey data from an unauthorized source.[5]  967 F.2d at 661; PBGC
  I, JA 6.  In September 1988, PBGC's Director of Personnel directed Power to
  return the computer surveys, and twice in October 1988, AGC Beck directed
  Power to return the computer surveys.  967 F.2d at 661; PBGC I, JA 7-8.
  Power refused to comply with these three orders.  Id.; PBGC III, RA 1233.
  4.  Power's failure to cooperate in an official investigation
  Based upon agency concerns and questions regarding Power's access to the
  computer surveys, PBGC decided to conduct an investigatory interview of
  Power on October 18, 1988.  PBGC v. FLRA, 967 F.2d at 661; PBGC I, JA 9.  On
  the day of the interview, Power asked for and received a Kalkines
  warning.[6] (Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973)).  967
  F.2d at 661.  Despite this grant of immunity, on several occasions Power
  refused to answer AGC Beck's questions.  Id.; PBGC III, RA 1234.  Further,
  as the interview proceeded, Power dared AGC Beck to discipline him for
  refusing to cooperate in the interview.  Power eventually terminated the
  interview by rising from his chair and stating that he was finished
  answering questions.  967 F.2d at 662; PBGC I, JA 10.
  5.  Refusal to accept computer messages
  At PBGC, the CEO message system indicates when an employee deletes--or
  "refuses"--a message without reading it.  967 F.2d at 660; PBGC I, JA 3.  On
  December 8, 1988, Power "refused" a CEO message that AGC Beck had sent on
  November 28 regarding the scheduling of a case meeting between AGC Beck and
  Power.  PBGC I, JA 3; SA-6 945.  In a later CEO message sent that same day,
  and also refused by Power, (PBGC I, JA 3; SA-6 946), AGC Beck admonished
  Power for the prior message refusal and deletion, and noted that it was the
  second or third message he had refused.  PBGC I, JA 3; SA-6 1178.  In
  addition, the following day AGC Beck sent Power a CEO message demanding a
  written explanation of his last two refusals of her CEO messages.  Power
  responded:  "I was busy with the Kaiser brief the entire week.  Was there
  something urgent you wanted?"  PBGC I, JA 4; SA-6 947.
  B.  The Removal of Power
  AGC Beck decided to propose the removal of Power because, as she later
  testified, his "insubordination was repetitive, defiant almost to the point
  of contempt," he had demonstrated "an inability to comply with [established]
  procedures," and his actions demonstrated a "lack of integrity" and
  professional and personal judgment expected of an attorney at the GS-14
  level.  SA-4 669.  According to AGC Beck, and not contested, during the time
  the notice of removal was being drafted, Power was continuing to delete
  messages from his computer without reading them and was failing to adhere to
  the Concurrence Matrix.  PBGC v. FLRA, 967 F.2d at 662; PBGC I, JA 11.
  On January 19, 1989, Power was given a Notice of Proposed Removal setting
  forth specific charges of misconduct.  Id.; SA-6 909.  David Lindeman, an
  attorney and Director of the PBGC's Corporate Policy and Research
  Department, served as the Oral Reply Official.  After careful consideration
  and evaluation of the charges against Power, Lindeman submitted a written
  recommendation that AGC Beck's findings be upheld in their entirety.  He
  concluded that the proposed penalty of removal was warranted and should be
  implemented.  967 F.2d at 662; PBGC I, JA 12.
  On April 3, 1989, DGC Flowe upheld the proposed removal, accepting
  Lindeman's recommendation that AGC Beck's charges be sustained in their
  entirety.  Id.  After weighing the severity of Power's misconduct against
  mitigating factors and noting that Power was an attorney in a responsible
  position who was held to a high standard of conduct, DGC Flowe concluded
  that Power was either "unable or unwilling to conform his behavior to that
  high standard."  967 F.2d at 663; PBGC I, JA 54.
  NTEU brought a ULP charge on Power's behalf, alleging that he had been
  discharged in violation of section 7116(a)(1) and (2) of the Statute[7] for
  engaging in protected activity under section 7102.[8]  The General Counsel
  issued a complaint.
III.  Proceedings below
  A.  The ALJ's and Authority's original decisions in PBGC I
  In his original decision, the ALJ determined that the ULP complaint against
  PBGC should be dismissed.  PBGC I, JA 61.  In the ALJ's view, the FLRA's
  General Counsel failed to show that Power's discharge was motivated by
  protected union activity under the Statute.  PBGC I, JA 59-60.
  The Authority reversed the ALJ's conclusion, finding that PBGC discharged
  Power in violation of the Statute.  PBGC I, JA 2.  Based upon its analysis
  of the unlawful discrimination framework set forth in Letterkenny Army
  Depot, 35 FLRA 113 (1990) (Letterkenny),[9] the Authority concluded that the
  General Counsel established a prima facie showing that Power was engaged in
  protected activity and that his discharge was motivated by Power's protected
  activity.  PBGC I, JA 19.
  The Authority then applied Letterkenny's second prong.  The Authority found
  that, even assuming the agency established a "legitimate justification" for
  taking some form of discipline against Power, an issue it did not rule upon,
  the agency did not demonstrate that it would have taken the same action in
  the absence of protected activity.  PBGC I, JA 26-27.  As a result, the
  Authority concluded that Power had been disparately treated.
  B.  This Court's decision in PBGC v. FLRA
  In PBGC v. FLRA, the Court remanded the case to the Authority for further
  consideration.  Using the Authority's Letterkenny framework, the Court first
  held that it "need not decide whether the [General Counsel] made out a prima
  facie case because . . . PBGC demonstrated that it would have fired Power
  absent . . . union animus.  PBGC v. FLRA, 967 F.2d at 666.  The Court found
  implicit in the Authority's determination that "Power engaged in
  insubordinate acts," (citing PBGC I, JA 26), the recognition that "PBGC had
  a 'legitimate justification for its action.'" Id. (quoting Letterkenny, 35
  FLRA at 118).
  Recognizing that a finding of legitimate justification "does not end [the]
  inquiry" under Letterkenny, the Court then examined whether PBGC had shown
  that "it would have discharged Power 'even in the absence of protected
  activity.'"  Id. at 667 (quoting Letterkenny, 35 FLRA at 118).  In this
  regard, the Court considered whether Power's punishment was harsher than
  that given to other employees and whether the other employees to whom he was
  compared were similarly situated.  Id.
  The Court determined that it could not uphold PBGC I because the Authority's
  decision was "inadequately explained," id., and therefore remanded the case
  to the Authority.  Id. at 670.  Specifically, the Court found inadequate the
  Authority's analysis of the "similarly situated status of the employees
  being compared," which the Court termed the "linchpin of the disparate
  treatment analysis."  Id. at 667, 670.
  Based upon its analysis of the record evidence, the Court rejected the
  FLRA's finding that Employee No. 1 and Power were similarly situated as
  unsupported by substantial evidence.  Id.
  The Court was "troubled" by the Authority's "assumption" that the misconduct of
  the two employees (Employee No. 1 and Power) was the sole factor PBGC
  considered, or could consider, in imposing a sanction.  Id. at 668.  It thus
  referenced judicial and administrative precedents as well as regulations that
  recognize the relevance of many factors in determining an appropriate sanction,
  including the factors established in the Merit Systems Protection Board's
  ("MSPB") Douglas v. Veterans Administration decision (5 MSPB 313, 330-33) (1981)
  (Douglas)).  967 F.2d at 668.
  Upon further consideration of the record evidence, the Court questioned the
  absence of a reasoned explanation as to why Employees Nos. 7, 9, and 10,
  three non-lawyer, non-OGC employees, were similarly situated to Power.  PBGC
  v. FLRA, 967 F.2d at 668-69.  Again referencing the Douglas factors, the
  Court opined that the agency may have been entitled to hold Power to a
  higher standard of conduct than clerks and technicians.  Id.  With regard to
  Employee No. 6, the Court viewed Employee No. 6's transgressions as "at
  least comparable" to Power's failure to follow the concurrence matrix and
  thus questioned why the Authority never mentioned Employee No. 6 as being
  similarly situated.  PBGC v. FLRA, 967 F.2d at 669-70.  Finally, the Court
  questioned the Authority's attempt to distinguish Employee No. 8 from Power
  based on warnings given to Employee No. 8 and not to Power.  The Court
  expressly recognized Power's receipt of warnings and his more than ample
  notice that his conduct was unacceptable.  Id. at 670 n.15.
  Finding that the Authority had "failed to define 'similarly situated' in
  conducting its disparate treatment analysis," the Court remanded the case to
  the Authority "for proceedings not inconsistent with [its] opinion,
  including the direction that the FLRA consider Employee [No.] 6 in
  conducting its disparate treatment analysis."  Id. at 670.
  C.  The Authority's PBGC II decision remanding the case to the ALJ
  The Authority remanded the case to the ALJ for further proceedings because
  it found the record insufficient to make the determinations required by the
  Court's remand.  PBGC II, RA 1204, 1206.  Highlighting specific areas in
  which the record was inadequate, the Authority thus directed the ALJ to
  "hear additional evidence to decide whether Power was similarly situated to
  Employees Nos. 1, 6, 7, 9, and/or 10 and, based on the evidence . . .
  determine . . . whether Power was subject to disparate treatment."  PBGC II,
  RA 1205-6.
  The Authority provided guidance as to considerations it deemed relevant in
  determining whether employees were "similarly situated" for purposes of its
  disparate treatment analysis.  Referencing private sector case law, the
  Authority found it relevant to compare:  1) the nature of the misconduct, 2)
  the positions the employees occupied, 3) the employees' past disciplinary
  records, and 4) the extent to which employees were previously warned that
  their conduct may result in discipline.  PBGC II, RA 1204.  The Authority
  also found it appropriate to consider the elements in Douglas "that are
  relevant to a particular adverse action decision and the extent to which a
  respondent consistently relied on the Douglas elements."[10]  Id.
  D.  The ALJ's remand decision
  On remand, the ALJ again concluded that Power's discharge had not been the
  product of a ULP.  RA 1217.  Noting that he applied the factors set forth in
  this Court's decision, id. at 1215 n.4, the ALJ found that Power was not
  similarly situated to Employees Nos. 1, 7, 9, and 10, but that he was
  similarly situated to Employee No. 6.  RA 1216-17.  He then determined that
  Power was given a "like penalt[y] for the same indiscretions" as Employee
  No. 6, to whom Power was similarly situated, and that Power was given a
  stronger penalty than Employees Nos. 1, 7, 9, and 10, to whom Power was not
  similarly situated.  Id.  As a result, the ALJ determined that the General
  Counsel failed to prove that Power was disparately treated.  RA 1217.  He
  thus recommended that the ULP complaint be dismissed.  Id.
  E.  The Authority's decision in PBGC III
  Agreeing with the ALJ, the Authority decided in PBGC III that PBGC did not
  commit the ULPs alleged in the complaint and therefore dismissed the
  complaint.  PBGC III, RA 1219.  In reaching this conclusion, the Authority
  found that PBGC had established that Power's insubordinate conduct
  constituted a legitimate justification for his discharge.  RA 1229.  The
  Authority also analyzed the "similarly situated" status of Employees Nos. 1,
  6, 7, 8, 9, and 10,[11] in light of the factors it established in PBGC II
  and, consistent with the Court's remand, determined that Power was not
  disparately treated.  RA 1235.
  As a preliminary matter, the Authority first addressed the ALJ's decision
  not to reopen the record to admit evidence regarding employees to whom Power
  had not previously been compared.  RA 1226.  Based upon the considerable
  discretion given to ALJ's in determining whether the record should be
  reopened for new evidence, as well as the general public policy
  consideration against reopening records, the Authority concluded that the
  ALJ did not abuse his discretion when he refused to admit the newly offered
  evidence.  RA 1226-28.
  The Authority then considered the legitimate justification issue.  RA 1229.
  After reviewing relevant case law, the Authority concluded that
  insubordinate conduct justifies removal.  Id.  It then determined that the
  record evidence supported a finding "that Power engaged in a pattern of
  conduct justifying his removal," and that this insubordinate conduct was
  "independent of any protected activity."  RA 1230.
  In response to the Court's remand direction that the Authority reexamine
  whether Power was treated disparately, the Authority went on to reconsider
  the record evidence with regard to Employees Nos. 1, 6, 7, 8, 9, and 10 in
  light of the "similarly situated" factors it set forth in PBGC II.  RA 1235.
  Based upon its reexamination of the evidence in this regard, the Authority
  concluded that Power was not disparately treated.  Id.
  The Authority first considered the evidence with regard to Employee No. 6
  and found that Power and Employee No. 6 were similarly situated.  The
  Authority concluded that their work and disciplinary records were
  comparable; both were senior attorneys in PBGC's OGC who had worked at PBGC
  for comparable amounts of time; both possessed recognized legal talents; and
  neither attorney had a prior disciplinary record.  Noting that Employee No.
  6's offenses were less severe in quality and quantity, the Authority
  nonetheless found those offenses to be similar to Power's.  Both employees'
  offenses involved failure to obtain supervisory clearance, and both
  employees failed to do so even after repeated warnings.  RA 1237.
  Having found that Power and Employee No. 6 were similarly situated, the
  Authority then compared the treatment received by the two employees and
  concluded that "Power was not disparately treated."  Id.  The Authority
  specifically determined that the "clear connection between Employee No. 6's
  erroneous actions and his forced departure from PBGC"[12]--the compulsory
  aspect of his removal being significant to the Authority--supported the
  conclusion that Power was not disparately treated.  RA 1237-38.  The
  Authority next considered whether Power was similarly situated to Employee
  No. 1.  Acknowledging that Power and Employee No. 1 both occupied GS-14
  attorney positions in the OGC and that they engaged in "misconduct that is
  in some respects comparable," the Authority nonetheless determined that
  "significant differences between Power and Employee No. 1 demonstrate that
  the employees were not, in the final analysis, similarly situated."  RA
  1239.
  A key difference for the Authority, as it had been with the Court, was the
  difference in the supervisors' confidence in the two employees.  The record
  was "replete with indications that Power's supervisors had lost confidence
  in his ability" to continue to perform effectively, whereas Employee No. 1's
  supervisor "indicated a continuing confidence" in the employee's ability to
  perform his duties.  Id.  Further, Power's supervisors saw little potential
  for rehabilitation in Power, but Employee No. 1's supervisor concluded that
  he had the potential for rehabilitation and was contrite.  RA 1239-40.
  Because of the expectation that discipline of employees will serve a
  "constructive purpose," the Authority "ascribe[d] significant weight to the
  factors of supervisory confidence and potential for rehabilitation."  RA
  1241.  The dissimilarities between Power and Employee No. 1 in this regard
  resulted in the Authority's finding that these employees were not similarly
  situated.  Therefore, their differing disciplinary actions did not indicate
  that Power was disparately treated.[13]  RA 1241-42.
  Finding "sufficient similarities between Power's case and that of Employee
  No. 8," the Authority concluded that these employees were similarly
  situated.[14]  RA 1242.  Although Employee No. 8 was not an attorney, the
  Authority noted that he was "a professional, an auditor, who held a position
  of responsibility and trust."  RA 1243.  Like Power, Employee No. 8 was
  "ultimately removed for a number of instances of generally insubordinate
  conduct that manifested itself in various forms."  Id.  Both employees lost
  the confidence of their supervisors, to include little hope for
  rehabilitation.  The Authority also found, as the Court had pointed out,
  that both Power and Employee No. 8 received numerous warnings that their
  conduct was unacceptable.  Concluding that these similarly situated
  employees "suffered the same ultimate penalty in comparable circumstances,"
  the Authority found that Power was not disparately treated.  Id.
  Finally, the Authority determined that Power was not similarly situated to
  Employees Nos. 7, 9, and 10.  RA 1243-44. In making this determination, the
  Authority agreed with the ALJ's finding that Employees Nos. 7, 9, and 10
  were not lawyers, did not work in the same department nor under the same
  supervision, were disciplined for fighting rather than insubordination, and
  had different grades and responsibilities.  RA 1244.  Because the employees
  were not similarly situated to Power, the lighter penalties given to
  Employees Nos. 7, 9, and 10 did not indicate that Power was disparately
  treated.  Id.

STANDARD OF REVIEW

  The standard of review of decisions of the Authority is narrow:  Authority
  action shall be set aside only if "arbitrary, capricious, an abuse of
  discretion, or otherwise not in accordance with law[.]"  5 U.S.C. §§ 7123(c)
  and 706(2)(A). Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir.
  1988); EEOC v. FLRA, 744 F.2d 842, 847 (D.C. Cir. 1984), cert. dismissed,
  476 U.S. 19 (1986).  Under this standard, unless it appears from the Statute
  or its legislative history that the Authority's construction of its enabling
  act is not one that Congress would have sanctioned, the Authority's
  construction should be upheld.  See Chevron, U.S.A., Inc. v. Natural
  Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); see also Fort
  Stewart Sch. v. FLRA, 495 U.S. 641 (1990).
  Further, factual findings of the Authority that are supported by substantial
  evidence on the record as a whole are conclusive.  5 U.S.C. § 7123(c);
  National Treasury Employees Union v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir.
  1983) (NTEU v. FLRA).  The Authority is entitled to have reasonable
  inferences it draws from its findings of fact not be displaced, even if the
  court might have reached a different view had the matter been before it de
  novo.  See AFGE Local 2441 v. FLRA, 864 F.2d 178, 184 (D.C. Cir. 1988) (AFGE
  Local 2441); see also LCF, Inc. v. NLRB, 129 F.3d 1276, 1281 (D.C. Cir.
  1997) (LCF).
  Finally, as the Supreme Court has stated, the Authority is entitled to
  "considerable deference when it exercises its 'special function of applying
  the general provisions of the [Statute] to the complexities' of federal
  labor relations."  Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S.
  89, 97 (1983).

SUMMARY OF ARGUMENT

  The Authority properly determined that PBGC had a legitimate justification
  for discharging Power and that Power's discharge did not constitute
  disparate treatment.  The Authority's determination is fully consistent with
  this Court's original decision remanding the case to the Authority for
  further consideration.
  As a general matter, insubordinate conduct is a legitimate justification for
  discharging an employee.  With regard to Power's actual insubordinate
  conduct, substantial evidence, which is essentially undisputed, supports the
  Authority's determination that the agency had a legitimate justification for
  removing him.
  Contrary to Power's assertions, his admitted misconduct cannot be excused as
  "protected activity."  None of Power's insubordinate misconduct was based
  upon actions authorized by a specific provision in the parties' collective
  bargaining agreement, as would be required to excuse misconduct under City
  Disposal.  Further, Power's misconduct is not excusable under the
  Authority's "flagrant misconduct" precedent because, among other things, it
  did not occur while he was engaging in activities specifically on behalf of
  the bargaining unit.
  The Authority also properly determined that Power was not disparately
  treated.  Based upon factors drawn from NLRB and MSPB precedent, and
  consistent with this Court's original remand decision, the Authority
  correctly analyzed whether particular employees were "similarly situated" to
  Power.  Specifically, substantial evidence supports the Authority's finding
  that Power was similarly situated to Employees Nos. 6 and 8 who, like Power,
  were compelled to depart PBGC.  Further, the Authority correctly determined
  that Power was not similarly situated to Employees Nos. 1, 7, 9, and 10, who
  received lesser sanctions.
  Finally, arguments raised by Power regarding the Authority's exclusion of
  new evidence concerning employees not mentioned in earlier proceedings, and
  alleged bias by an Authority Member, are without merit.  With regard to
  Power's attempt to reopen the record, case law establishes that such
  reopenings should occur only in extraordinary circumstances not present in
  this case.
  With regard to the bias allegation, Power's argument, based on an asserted
  prior contact between Power and the Member, was not raised before the
  Authority and therefore cannot be considered by this Court.  Further and in
  any event, the circumstances alleged by Power would not require recusal.
  Finally, Power's argument is without foundation because the Member was not
  aware of the alleged contact at the time he participated in the decision in
  this case.

ARGUMENT

  In determining that PBGC's discharge of Power did not violate section
  7116(a)(1) and (2) of the Statute, the Authority carefully considered the
  analytical framework for resolving complaints of alleged discrimination as
  set forth in Letterkenny.  The Authority found no need to revisit its
  earlier finding and the Court's assumption concerning the first prong of
  Letterkenny.  PBGC III, RA 1229.  Rather, consistent with the Court's remand
  order, the Authority focused on the second prong of Letterkenny--PBGC's
  burden of proving, "by a preponderance of the evidence, as an affirmative
  defense that:  (1) there was a legitimate justification for its action; and
  (2) the same action would have been taken even in the absence of protected
  activity . . . ."  Id.  The Authority held that "PBGC had a legitimate
  justification for discharging Power" and that "the record establishes that
  PBGC would have taken the same action even in the absence of Power's
  protected activity."  Id.
I.  The Authority properly determined that PBGC established a legitimate
justification for Power's discharge
  The Authority properly held that "Power's insubordinate conduct provided
  PBGC with a legitimate justification for his discharge."  PBGC III, RA 1229.
  In making this determination the Authority first considered whether
  insubordinate conduct, in general, justifies removal from employment.
  Second, the Authority reviewed the record to determine whether the
  insubordinate conduct alleged by PBGC was supported by record evidence.
A.  Insubordination is a legitimate justification for discharge
  The Authority found that "[i]t is within an employer's legitimate
  prerogative to discipline an employee for insubordinate conduct,
  notwithstanding the employee's involvement in protected activity."  PBGC
  III, RA 1229.[15]  The Authority relied in this connection upon precedent
  from the Authority, the National Labor Relations Board ("NLRB"), and the
  MSPB.[16]
  For example, the MSPB has held, "[a]n employee's deliberate refusal to
  follow supervisory instructions constitutes serious misconduct that cannot
  properly be condoned."  Redfearn, 58 MSPR at 316.  In fact, "[i]nsolent
  disrespect towards supervisors so seriously undermines management's capacity
  to maintain employee efficiency and discipline that no agency should be
  expected to exercise forbearance for such conduct more than once."  Id.
  Further, the Authority's conclusion that Power's insubordinate conduct was a
  legitimate justification for his termination comports with the Court's
  determination in PBGC v. FLRA.  In that regard, the Court noted that
  implicit in the Authority's concession in PBGC I that "'Power engaged in
  insubordinate acts,' . . . is a recognition that PBGC had a 'legitimate
  justification for its action.'"  PBGC v. FLRA, 967 F.2d at 666 (quoting
  Letterkenny, 35 FLRA at 118).
B.  Substantial evidence supports the Authority's determination that Power's
insubordinate conduct was a legitimate justification for his removal
1.  The Authority's factual findings with regard to Power's conduct are not
disputed
  Holding that insubordinate conduct justifies removal, the Authority then
  correctly concluded that Power's insubordinate conduct was a legitimate
  justification for his removal.  It was undisputed before the Authority that
  Power,
contrary to supervisory instructions and office policy, (a) failed to follow the
OGC's Concurrence Matrix; (b) failed to supply a representative writing sample
requested by one of his supervisors; (c) refused to relinquish all copies of
PBGC's computer survey data; (d) failed to cooperate in an official
investigation; and (e) refused to accept computer messages from his supervisors.
PBGC III, RA 1230.
  Petitioner does not contest, in any respect, the Authority's findings
  regarding his insubordinate conduct for failure to follow the OGC's
  Concurrence Matrix, or his refusal to accept computer messages from his
  supervisors.  Significantly, petitioner concedes that these aspects "of the
  allegations of insubordination . . . have merit aside from protected
  activity."  (Brief at 22.)
  Instead, petitioner contends that certain aspects of his admitted misconduct
  should be excused because he was engaged in "protected activity."  See,
  e.g., Brief at 18 (insubordination with regard to the writing samples and
  the computer survey data was "protected activity"); Brief at 22 ("charges
  relating to the writing sample and the computer survey [including failure to
  cooperate in official investigation] must be disregarded because they
  involved protected conduct").
    2.  Power's insubordinate conduct was not protected activity under the
    Supreme Court's City Disposal decision and the Authority's Bassan
    decision, nor was it excusable under precedent relating to "flagrant
    misconduct"
  Neither the Supreme Court's decision in NLRB v. City Disposal, Inc., 465
  U.S. 822 (1984) (City Disposal), nor the Authority's decision in Department
  of Labor, Employment & Training Administration and Lou Ann Bassan, 43 FLRA
  1036 (1992) (Bassan), provides a shelter for Power's insubordinate refusal
  to provide writing samples, to return the improperly obtained computer
  survey data, or to cooperate in an official investigation when questioned
  about the computer survey data.[17]  In City Disposal and Bassan, the
  Supreme Court and the Authority, respectively, found limited protections
  under the National Labor Relations Act ("NLRA") and the Statute for
  employees to engage in certain activities that would otherwise be
  sanctionable.
  Specifically, in City Disposal, the Supreme Court upheld the NLRB's
  Interboro doctrine, which provides that "an individual's assertion of a
  right grounded in a collective-bargaining agreement is recognized as
  'concerted activity'" and therefore is accorded the protections of the NLRA.
  465 U.S. at 829 (emphasis added).  City Disposal involved the discharge of
  an employee after he refused to drive a truck that he believed to be unsafe
  because of faulty brakes.  Id. at 828.  A specific provision in the
  collective bargaining agreement provided that the employer could not require
  employees to operate any vehicle that was not in safe operating condition.
  Id.  The Court determined that because there was no doubt that in refusing
  to drive the truck the employee was invoking a right explicitly granted him
  in his collective bargaining agreement, the employee was therefore engaged
  in "concerted activity."  Id. at 839-41.
  Relying on City Disposal in Bassan,[18] the Authority determined that an
  employee was wrongfully terminated for exercising a right specifically
  granted by the applicable collective bargaining agreement to submit comments
  to her supervisor regarding performance standards.  Bassan, 43 FLRA at 1037;
  see also 43 FLRA at 1047, 1056, 1061.  Based upon careful consideration of
  the Supreme Court's rationale in City Disposal and of the propriety of
  applying the principles of that decision to federal sector labor law, the
  Authority held that "when an individual employee asserts a right that
  emanates from a collective bargaining agreement, that employee is engaging
  in the protected activity under section 7102 of the Statute of assisting the
  union that negotiated the agreement."  Id. at 1039.
  Petitioner has not established that his misconduct with regard to the
  writing samples and computer surveys satisfies the stringent requirements of
  City Disposal and Bassan.  The conduct found to be excusable in City
  Disposal was based on a specific contract provision.  As the Supreme Court
  in City Disposal repeatedly stated, in order for an individual's conduct to
  be "concerted activity," the employee must invoke a right "grounded" or
  "rooted" in the collective bargaining agreement.  465 U.S. at 831-32; see
  also Bassan, 43 FLRA at 1059.  Similarly, the protected conduct in Bassan
  was specifically allowed by a provision of the collective bargaining
  agreement.  The discipline of the employee was improper because the employee
  was "discharged for asserting a contractual right."  Id. at 1040.
  In arguing that failure to comply with DGC Flowe's requests for writing
  samples is protected activity, petitioner asserts that he was actively
  engaged in a grievance over the subject matter for which the writing samples
  were requested.  (Brief at 19.)  With regard to the misconduct associated
  with the computer survey data, petitioner asserts that his actions were
  undertaken for the purpose of representing the bargaining unit in
  negotiations.  However, petitioner does not identify a specific contract
  provision that authorizes either his refusal to comply with DGC Flowe's
  clear, repeated requests for writing samples, or his theft of and refusal to
  return the computer survey data.
  Petitioner self-servingly attempts to broaden the purposefully narrow basis
  on which City Disposal and Bassan were premised.  These cases stop far short
  of protecting any activity  merely related, in some protracted way, to the
  collective bargaining agreement.  Neither the Supreme Court nor the
  Authority has afforded protection to activities that are at most
  tangentially related to collective bargaining.  Rather, City Disposal and
  Bassan only protect otherwise sanctionable conduct when it implicates a
  specific collectively bargained right of unit employees.  See, e.g., Prill
  v. NLRB, 835 F.2d 1481, 1483 (D.C. Cir. 1987) (the collective bargaining
  agreement provides the link between workers that merits protection for the
  actions of an individual employee exercising specific rights in its
  provisions).
  Equally unavailing is petitioner's claim (Brief at 24-26) that his
  misconduct relating to the writing samples and computer survey data should
  be excused under Authority precedent regarding "flagrant misconduct."  Under
  this precedent, management has a right to discipline a union representative
  for misconduct "which [is] 'not specifically on behalf of the exclusive
  representative or which exceed[s] the boundaries of protected activity such
  as flagrant misconduct.'"  U.S. Air Force Logistics Command, Tinker Air
  Force Base, Oklahoma City, OK, 34 FLRA 385, 388-89 (1990) (Tinker AFB)
  (quoting Long Beach Naval Shipyard, Long Beach, California and Long Beach
  Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987) (Long
  Beach))  In Tinker AFB, the Authority held to be unjustified the reprimand
  of a union representative for refusal to leave the work area while serving
  copies of ULP charges because the activity was clearly undertaken on behalf
  of the union and there was no evidence of flagrant misconduct.  Id. at 390.
  There is nothing about Power's repeated refusal to obey a clear direction to
  provide writing samples, or the theft of documents and refusal to return
  those documents when so ordered, that could properly be considered activity
  specifically on behalf of the union.  In any event, actions like Power's
  theft and refusal to return documents are properly characterized as
  "flagrant misconduct."[19]  As the Authority has stated in this latter
  connection, when conduct is "'totally unprofessional and not befitting that
  which is expected of a representative of the Union,'" it "exceed[s] the
  boundaries of protected activity" and constitutes "flagrant misconduct."
  U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and AFGE
  Local 916, 35 FLRA 1146, 1152 (1990) (citation omitted).  Further, the
  Authority has noted that "[t]he Statute's protections were not intended to
  insulate employees from the consequences of behavior" of a criminal nature.
  Long Beach, 25 FLRA at 1006.
  In sum, petitioner does not dispute the Authority's factual determinations
  in finding that PBGC had a legitimate justification for removing him.  In
  addition, Power has not demonstrated that his conduct constitutes excusable
  protected activity under City Disposal and Bassan.  Similarly, Power's
  actions would not be excusable under case law relating to "flagrant
  misconduct."
II.  The Authority, based upon its analysis of similarly situated employees,
properly determined that the agency's termination of petitioner's employment did
not constitute disparate treatment
  A.  The Authority, in accord with the Court's remand, correctly identified
  appropriate factors to consider in conducting its disparate treatment
  analysis
  Consistent with the Court's remand decision, and reasonably relying upon
  NLRB and MSPB precedent, the Authority correctly identified appropriate
  factors to consider in determining whether employees were "similarly
  situated," for purposes of its disparate treatment analysis under the
  Statute.  The factors applied by the Authority were set forth in its PBGC II
  decision.  PBGC II, RA 1204.  As discussed supra at p. 16, these relevant
  factors were drawn from NLRB disparate treatment cases as well as the MSPB's
  Douglas decision.  Id.
  Petitioner's argument (Brief at 41) that the Douglas factors have no bearing
  on federal sector ULP cases is erroneous.  When the Authority determined
  that the Douglas factors, among others, were relevant in deciding whether
  employees were similarly situated, the Authority heeded the sound reasons
  offered by this Court favoring use of those factors for that purpose.  PBGC
  v. FLRA, 967 F.2d at 668.[20]  As the Court indicated, it is well
  established that the Douglas factors, among others, are relevant in the
  related context of determining appropriate sanctions for employee
  misconduct.  Id.  Petitioner does not advance any reason for rejecting this
  aspect of the Court's decision in PBGC II.
  As the Court's approval of their use indicates, the Douglas factors are
  well-suited to the role that the Authority determined they should play in
  cases like this.  Developed by the MSPB, the "primary body for resolving
  disputes over adverse personnel actions" in the federal sector, Department
  of Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467, 1469 (D.C. Cir.
  1989), the Douglas factors provide a proven means for analyzing and
  comparing the situations of employees against whom discipline might be, or
  has been taken.  Their use by the Authority as a tool in applying one step
  of its Letterkenny disparate treatment analysis - to determine whether
  particular employees were "similarly situated" - was therefore reasonable.
  For these reasons, it cannot fairly be said, as petitioner alleges (Brief at
  43), that the Authority's use of the Douglas factors, among others, for the
  limited purposes specified constitutes "abdicat[ing] to the policies and
  positions of the MSPB and the Federal Circuit in evaluating disparate
  treatment . . . ."
  B.  The Authority's determination that Power was not disparately treated was
  reasonable and is supported by substantial evidence
  The Authority reasonably determined, based upon its analysis of similarly
  situated employees, that Power was not disparately treated due to protected
  activity, and that therefore the agency did not commit a ULP.  Substantial
  evidence on the record as a whole supports the factual findings therein.
  This Court's "'task in reviewing substantial evidence questions is to
  determine whether there is such relevant evidence as a reasonable mind might
  accept as adequate to support the [Authority's] conclusion'" that Power was
  not disparately treated as a result of his protected activity.  Jim Walter
  Resources, Inc. v. Secretary of Labor, 103 F.3d 1020, 1023-24 (D.C. Cir.
  1997) (quoting Chaney Creek Coal Corp. v. Federal Mine Safety and Health
  Review Commission, 866 F.2d 1424, 1431 (D.C. Cir. 1989) (Chaney Creek)).  In
  addition, if the Authority's factual findings are reasonable, "they may not
  be displaced on review even if the court might have reached a different
  result had the matter been before it de novo."  LCF, Inc., 129 F.3d at 1281
  (citations omitted).
1.  Substantial evidence supports the Authority's reasonable finding that Power
was similarly situated to Employees Nos. 6 and 8 and not disparately treated
a.  Employee No. 6
  Substantial evidence on the record as a whole supports the Authority's
  determination that Power was similarly situated to Employee No. 6.[21]
  Petitioner does not contest the Authority's findings with regard to this
  aspect of its disparate treatment analysis.  Petitioner does, however,
  contest the Authority's further finding, in connection with its disparate
  treatment analysis, that Employee No. 6's departure was compelled by PBGC
  and in this respect was comparable to Power's discharge.  (Brief at 32-33.)
  Contrary to petitioner's assertions, substantial evidence supports the
  Authority's conclusion that Employee No. 6's departure was compelled.  As
  the decision reveals, the Authority relied upon considerable testimony of GC
  Ford to this effect in making this determination.[22]  PBGC III, RA 1236-38.
  Petitioner's claim (Brief at 32) that GC Ford's testimony demonstrates that
  Employee No. 6 "left PBGC's employ on his own terms" is erroneous.  Even a
  cursory review of GC Ford's testimony reveals that GC Ford did in fact take
  steps to ensure Employee No. 6's departure.  See, e.g., SA-13 2220-24.
  Moreover, petitioner's mere disagreement with the Authority's interpretation
  of the facts is immaterial, because the reasonable inferences that the
  Authority draws from its findings of fact are not to be displaced.  AFGE
  Local 2441, 864 F.2d at 184.
  Petitioner has not demonstrated that the Authority's determination with
  regard to Employee No. 6 is unsupported by substantial evidence or in any
  other respect defective.  The Authority's determination concerning Employee
  No. 6 should be upheld by this Court.
b.  Employee No. 8
  Petitioner does not raise any substantial evidence issues with regard to the
  facts considered by the Authority in finding that Power was similarly
  situated to Employee No. 8.  Rather, petitioner quarrels with the
  Authority's interpretation of these facts in making the similarly situated
  determination.  Because the Authority's interpretations were reasonable,
  they are entitled to deference and should be upheld.
  As the Authority determined, there are "sufficient similarities between
  Power's case and that of Employee No. 8" to find them similarly situated.
  PBGC III, RA 1242.  For example, even though Power was an attorney and
  Employee No. 8 was an auditor, the level of responsibility and trust
  expected of them as professionals made them comparable.  Also, the
  employees' ultimate removal for a similar pattern of insubordinate
  misconduct, the warnings each received, and their supervisors' loss of
  confidence in them as well as the supervisors' belief that each had little
  chance for rehabilitation all favor the result reached by the Authority.
  Petitioner's argument that these similarities cited by the Authority are
  "specious" is unfounded.  The Authority expressly noted that there were some
  distinctions between Employee No. 8 and Power, but thoroughly explained its
  reason for finding the employees to be similarly situated.  Because this
  determination is reasonable, it is entitled to deference and should be
  upheld by the Court.  Similarly, because it is undisputed that both
  employees were discharged, the Authority's finding that Power was not
  disparately treated as a result of his comparable discharge from employment
  is reasonable and should also be upheld.
2.  Substantial evidence supports the Authority's finding that Power was not
similarly situated to Employees Nos. 1, 7, 9, and 10
a.  Employee No. 1
  Substantial evidence in the record regarding Employee No. 1 supports the
  Authority's finding that there were "significant differences" between this
  employee and Power that rendered them not similarly situated.  See PBGC III,
  RA 1239.  Of particular relevance to the Authority in making this finding
  was the difference in the supervisors' confidence in the two employees.  As
  the Authority noted, the record is "replete with indications that Power's
  supervisors had lost confidence in his ability" to continue to perform
  effectively, whereas Employee No. 1's supervisor "indicated a continuing
  confidence" in the employee's ability to perform his duties.  Id.
  Similarly, there was little expectation of rehabilitation for Power, whereas
  Employee No. 1's supervisor concluded that he had the potential for
  rehabilitation and was contrite.[23]  RA 1239-40.
  Petitioner's disagreement with the Authority's determination that Employee
  No. 1's supervisor viewed him as "contrite" should be rejected.  As noted
  above, the Authority made this finding based upon the testimony of Employee
  No. 1's supervisor himself.[24]  The record evidence cited by Power to
  refute this finding by the Authority is a memorandum written by Employee No.
  1's supervisor.  SA-11 1896.  Although the Authority's decision does not
  expressly mention this memorandum, the Authority did evaluate the untrue
  statements by Employee No. 1 that are recorded in this memorandum.  PBGC
  III, RA 1238.  Nonetheless, the Authority determined that the weight of the
  evidence showed that Employee No. 1 was viewed as contrite and that his
  supervisor had confidence in his ability to perform his duties.  For these
  determinations there is ample record support.
  Petitioner also argues (Brief at 31-32) that the warnings received by
  Employee No. 1 and Power were not identical.  The Authority carefully
  analyzed the warnings received by both employees, and concluded that "[b]
  ased upon our reexamination of the record, including the portion compiled on
  remand, it appears that both employees had reason to know that their conduct
  was improper."  PBGC III, RA 1240 n.15.  Petitioner concedes in this regard
  (Brief at 31) that both employees received warnings.  Petitioner's claim,
  when considered in connection with his concession on the subject of warning,
  does not demonstrate that the Authority's findings were unreasonable.
      b.  Employees Nos. 7, 9, and 10
  As to Employees Nos. 7, 9, and 10, petitioner does not raise any substantial
  evidence issues as to the Authority's finding that Power was not similarly
  situated to these employees.  Petitioner instead challenges (Brief at 35-36)
  the Authority's interpretation of the facts, arguing that these employees'
  misconduct--fighting--was more severe than Power's insubordination.
  The Authority found these employees not to be similarly situated to Power
  not only because their misconduct was different, but also because they were
  not attorneys, did not work in the same department, and had different grades
  and responsibilities than Power.  Power's assertions focusing only on the
  relative severity of their misconduct do not demonstrate that the
  Authority's conclusions, reached on the basis of broader considerations, are
  unreasonable.  Accordingly, those findings are entitled to deference and
  should be upheld by the Court.
III.  Petitioner's arguments regarding Authority error in excluding new
evidence and Authority Member bias are without merit
A.  The Authority properly upheld the ALJ's evidentiary rulings
  Petitioner contends (Brief at 38-40) that the Authority erred in deciding
  not to reverse the ALJ's exclusion of evidence concerning approximately
  thirty employees who had not been mentioned in any earlier proceedings.
  Petitioner's contention is based upon a misapprehension of the relevant case
  law with regard to reopening records and should be rejected.
  As the Authority recognized, "[a]s a general matter, motions to reopen a
  record are disfavored."  PBGC III, RA 1227.  See INS v. Abudu, 485 U.S. 94,
  107 (1988) (Abudu).  According to the Supreme Court in Abudu, a key
  consideration in determining whether to reopen a record is the "strong
  public interest in bringing litigation to a close as promptly as is
  consistent with the interest in giving the adversaries a fair opportunity to
  develop and present their respective cases."  Id.  In a similar vein, this
  Court has stated:  "Reopening an evidentiary hearing is a matter of agency
  discretion, and is reserved for extraordinary circumstances."  Cities of
  Campbell v. FERC, 770 F.2d 1180, 1191 (D.C. Cir. 1985) (citations omitted).
  In asserting error by the Authority, petitioner places great emphasis on the
  fact that the new evidence was not in existence at the time of the first
  hearing.  (Brief at 38.)  The Authority expressly dismissed this argument.
  As the Authority explained, the fact that the "evidence was not in existence
  at the time of the original hearing" actually "weighs against reopening."
  PBGC III, RA 1227.  When a party seeks to reopen the record to introduce
  "newly discovered evidence," the party must show "that the evidence was in
  existence at the time of the original trial."  Id. (citing NLRB v. Jacob E.
  Decker and Sons, 569 F.2d 357, 363 (5th Cir. 1978)).  To rule otherwise
  would encourage a procedure enabling the perpetual continuation of trials.
  Id.  Petitioner's claim does not demonstrate any procedural error in the
  Authority's proceeding on remand.
  B.  Petitioner's contention that the Authority's decision was tainted by
  bias is unfounded
  Petitioner argues that because of "prior extrajudicial knowledge and contact
  [with Power], Member Wasserman is not impartial and should not have ruled on
  Power's FLRA case."  (Brief at 28.)  Power's argument is without merit for
  three reasons:  1) petitioner failed to raise the "bias" argument before the
  Authority, and thus, pursuant to section 7123(c) of the Statute, the
  argument cannot be considered by this Court; 2) relevant case law regarding
  recusal and bias in administrative agency decision making reveals that, even
  if Power's allegations regarding Member Wasserman were true, these
  allegations would not have required Member Wasserman's recusal; and 3) as
  provided in Member Wasserman's declaration appended to this brief, during
  his deliberations on this case Member Wasserman did not recognize Power as
  anyone with whom he had previously associated (Add. B at 2).
1.  Section 7123(c) bars the Court's consideration of petitioner's bias argument
  Section 7123(c) of the Statute provides, as pertinent here, that "[n]o
  objection that has not been urged before the Authority, or its designee,
  shall be considered by the court, unless the failure or neglect to urge the
  objection is excused because of extraordinary circumstances."  5 U.S.C. §
  7123(c); see United States Department of Commerce, National Oceanic and
  Atmospheric Administration, National Weather Service v. FLRA, 7 F.3d 243,
  245 (D.C. Cir. 1993).  Petitioner is raising the allegation of bias by
  Member Wasserman for the first time before this Court.  Because petitioner
  did not raise this issue before the Authority, the Court is without
  jurisdiction to consider the matter.
  Further, petitioner has not asserted any "extraordinary circumstances" that
  would justify his failure to raise the issue before the Authority.
  Petitioner had the opportunity to raise the issue either before the
  Authority issued its decision (almost a year and a half after Member
  Wasserman became a Member of the Authority), or after the decision issued,
  by way of a motion for reconsideration.  See 5 C.F.R. § 2429.17; NLRB v.
  FLRA, 2 F.3d 1190, 1195 (D.C. Cir. 1993).
2.  Case law regarding recusal and bias in administrative adjudications refutes
petitioner's contention regarding Member Wasserman
  Even if this Court were to consider petitioner's argument in this regard,
  the relevant case law refutes petitioner's contentions with regard to Member
  Wasserman.  This Court has recognized that "'[a] motion for recusal based
  upon the appearance of impropriety can have only prospective effect.'"
  Jenkins v. Sterlacci, 849 F.2d 627, 634 (D.C. Cir. 1988).  Petitioner,
  therefore, is too late.  As noted above, petitioner never moved for the
  recusal of Member Wasserman nor did he raise any issue of bias before the
  Authority.  Further, petitioner has not demonstrated that his alleged
  contact with Member Wasserman, even if true, would have required Member
  Wasserman's recusal.  According to this Court, "[i]n an adjudicatory
  proceeding, recusal is required only where 'a disinterested observer may
  conclude that [the decision maker] has in some measure adjudged the facts as
  well as the law of a particular case in advance of hearing it."
  Metropolitan Council of NAACP Branches v. FCC, 46 F.3d 1154, 1164-65 (D.C.
  Cir. 1995).[25]  The Court also noted that it will set aside a member's
  decision not to recuse himself
"only where he has 'demonstrably made up [his] mind about important and specific
factual questions and [is] impervious to contrary evidence.'"  Id. at 1165
(quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1209 (D.C.
Cir. 1980)).  Petitioner has made no such showing in this case.  See also Chaney
Creek, 866 F.2d at 1432 (no actual bias by the decision maker because no
activity indicative of prejudice, such as making decision on key question in the
case on the basis of his personal knowledge of and belief in the integrity of
the party defendant).
3.  Member Wasserman's decision was unbiased
  Finally, and again, assuming this Court were to consider petitioner's
  argument that Member Wasserman should have recused himself, petitioner's
  allegations are disproven by Member Wasserman's declaration.  As set forth
  in his declaration, Member Wasserman participated in the Authority's
  decision in this case without any recollection of prior association with
  Power.  (Add. B at 2.)  Based upon this declaration, together with Power's
  admission that there is not "anything Member Wasserman did during the FLRA
  adjudication, or wrote in the FLRA decision, [that] constituted his actual
  bias" (Brief at 26), the Court should reject petitioner's claim that the
  Authority's decision is tainted by Member Wasserman's participation in the
  decision.
  CONCLUSION
  For the foregoing reasons, the Court should affirm the Authority's decision
  and deny the petition for review.
  Respectfully submitted.


            DAVID M. SMITH
            Solicitor



WILLIAM R. TOBEY
            Deputy Solicitor



            ANN M. BOEHM
            Attorney

            Federal Labor Relations Authority
            607 14th St., N.W.
            Washington, D.C. 20424
            (202) 482-6620

DATE: February 11, 1998




IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

DAVID F. POWER,
          Petitioner

      v.                              No. 97-1414

FEDERAL LABOR RELATIONS AUTHORITY,
        Respondent

              and

PENSION BENEFIT GUARANTY CORPORATION,
        INTERVENOR    )
_______________________________



CERTIFICATE OF SERVICE

I certify that copies of the Brief For The Federal Labor Relations
Authority, have been served this day, by mail, upon the following:

  Steven J. Silverberg, Esq    James J. Keightley
  1629 K Street, N.W.,        General Counsel
  Suite 802         Terrence M. Deneen
  Washington, D.C. 20006      Principal General Counsel

Nancy S. Heermans
Senior Counsel
Pension Benefit Guaranty Corporation
1200 K Street, N.W.,
Suite 340
Washington, D.C. 20005


                            Thelma Brown
                            Paralegal Specialist
February 11, 1998



I certify that the Final Brief of the Federal Labor Relations Authority does
not exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d).


                  Ann M. Boehm
                  Attorney

February 11, 1998



[1]     The appendices in this case are abbreviated as follows:  Original Joint
Appendix, "JA"; Original Supplemental Appendices 1-6, "SA-1-6"; Appendix after
Remand, "RA"; Supplemental Appendices 7-13 (after remand), "SA-7-13".
[2]      Pertinent statutory and regulatory provisions are set forth in
Addendum ("Add.") A to this brief.
[3]      The Authority, in an effort to clarify the complex nature of these
charges, grouped the misconduct charges somewhat differently in its final
decision than in the PBGC removal letters and in PBGC I.  See SA-6 909, 1031;
PBGC I, JA 2.
[4]      Power also filed a formal grievance over his appraisal.  PBGC I, JA 5.
[5]      The OGC attorneys gave their survey responses to Information Service
Specialist Donald Morrison, a GS-9 unit employee in the OGC.  Power asked for a
copy of the survey data, but Morrison refused.  When Morrison was unable to
print out the survey data during his scheduled time at work due to his printer's
malfunction, he asked Power to retrieve the survey data when it eventually came
through the printer and to put it on Morrison's desk.  Power, however, retained
the survey data.  967 F.2d at 661; PBGC I, JA 6.
[6]      Among other things, the Kalkines warning (1) assured Power that none
of his answers would be used against him in a criminal proceeding, and (2)
warned him that a refusal to reply fully and truthfully could result in removal
from the federal service.  SA-6 928.
[7]      Section 7116(a)(1) and (2) of the Statute provides,
[I]t shall be an unfair labor practice for an agency--
     (1)  to interfere with, restrain, or coerce any employee in the
     exercise by the employee of any right under this chapter;
     (2)  to encourage or discourage membership in any labor
     organization by discrimination in connection with hiring,
     tenure, promotion, or other conditions of employment.
5 U.S.C. § 7116(a)(1) & (2).
[8]      Section 7102 provides, in pertinent part, that "[e]ach employee shall
have the right to form, join, or assist any labor organization . . . freely and
without fear of penalty or reprisal, and each employee shall be protected in the
exercise of such right."  5 U.S.C. § 7102.
[9]      In Letterkenny, the Authority established the analysis it would follow
to resolve alleged violations of section 7116(a)(2) of the Statute.  PBGC I, JA
18.  Under Letterkenny, the General Counsel bears the burden of proving by a
preponderance of the evidence that:  (1) the employee against whom the alleged
discriminatory action was taken was engaged in protected activity; and (2) such
activity was a motivating factor in the agency's treatment of the employee in
connection with hiring, tenure, promotion or other condition of employment.
Letterkenny, 35 FLRA at 118.  If the General Counsel fails to make the required
prima facie showing, the case ends without further inquiry.  Id.  Once the
General Counsel makes the required prima facie showing, a respondent may seek to
establish the affirmative defense that:  (1) there was a "legitimate
justification" for the action; and (2) the same action would have been taken
even in the absence of protected activity.  Id.
[10]         The Douglas factors, as described by the Authority, are:  (a) The
nature and seriousness of the offense, and its relation to the employee's
duties, position, and responsibilities, including whether the offense was
intentional or technical or inadvertent, or was committed maliciously or for
gain, or was frequently repeated; (b) the employee's job level and type of
employment, including supervisory or fiduciary role, contacts with the public,
and prominence of the position; (c) the employee's past disciplinary record; (d)
the employee's past work record, including length of service, performance on the
job, ability to get along with fellow workers, and dependability; (e) the effect
of the offense upon the employee's ability to perform at a satisfactory level
and its effect upon supervisors' confidence in the employee's ability to perform
assigned duties; (f) consistency of the penalty with those imposed upon other
employees for the same or similar offenses; (g) consistency of the penalty with
any applicable agency table of penalties; (h) the notoriety of the offense or
its impact upon the reputation of the agency; (i) the clarity with which the
employee was on notice of any rules that were violated in committing the
offense, or had been warned about the conduct in question; (j) potential for the
employee's rehabilitation; (k) mitigating circumstances surrounding the offense
such as unusual job tensions, personality problems, mental impairment,
harassment or bad faith, malice or provocation on the part of others involved in
the matter; and, (l) the adequacy and effectiveness of alterative sanctions to
deter such conduct in the future by the employee or others.  PBGC III, RA
1222-23.
[11]      Petitioner refers to the situation of Employee No. 5.  (Brief at
13-14, 33-34.)  However, for the reasons stated in its decision, the Authority
did not consider Employee No. 5.  PBGC III, 52 FLRA at 1407 n.14; RA 1235.
[12]      The Authority found that Employee No. 6's supervisor determined that
"he had to go" and took actions to ensure Employee No. 6's departure.  Id. at
1237.  Thus, the Authority considered Employee No. 6's departure to be "forced."
Id.
[13]      The Authority also decided that even if it were to find Employee No. 1
to be similarly situated to Power "on the basis of employment background,
position, and offenses committed," it "would reach the same conclusion on the
issue of Power's alleged disparate treatment."  RA 1242 n.17.  In this
connection, the Authority stated that the "significant differences" in the
supervisory confidences in the employees and in the estimated potential for
rehabilitation "accounts convincingly for the differing penalties they received,
and compels a conclusion that Power was not disparately treated."  Id.
[14]      Although additional evidence regarding Employee No. 8 was not
considered by the ALJ on remand, the Authority determined that the record was
sufficiently developed to reconsider Employee No. 8's situation under the
factors set forth in PBGC II.  RA 1242.
[15]      Insubordination has been defined as "a willful and intentional refusal
to obey an authorized order of a superior . . .[,] which the [superior] is
entitled to have obeyed."  Phillips v. General Services Admin., 878 F.2d 370,
373 (Fed. Cir. 1989); see also Redfearn v. Department of Labor, 58 MSPR 307
(1993) (Redfearn).
[16]      The Authority considered case law with particular reference to
discipline of employees involved in protected activity.  PBGC III, RA 1229.
See, e.g., Webster v. Dep't of the Army, 911 F.2d 679, 689 (Fed. Cir. 1990)
(steward correctly removed for insubordinate conduct, notwithstanding the
employee's involvement in protected activity); United States Air Force Academy,
Colorado Springs, Colorado, 52 FLRA 874, 879, 899 (1997) (steward correctly
disciplined for discourteous conduct, notwithstanding the employee's involvement
in union activity); PYA/Monarch, Inc., 275 NLRB 1194 (1985) (even absent union
activities, employee would have been discharged for failing to deliver a
customer order, and for failing to clock out).
[17]      The Authority expressly rejected "for lack of support in the record
[the] claim that a connection exists between Power's failure to supply the
requested writing sample and Power's grievance over his performance appraisal,
such as would excuse his misconduct."  PBGC III, 52 FLRA at 1233.  Similarly,
the Authority did not find any union-related activity that excused Power's
misconduct in connection with the computer survey data.  Id. at 1234.
[18]      The Bassan case is the only case to date in which the Authority has
considered the application of City Disposal to federal sector labor law.
[19]      Indeed, the Statute specifically provides a proper procedure for
unions to follow in acquiring data for bargaining and other purposes.  See 5
U.S.C. § 7114(b)(4).
[20]      The Court stated that "[i]t is, of course, for the FLRA to determine
in the first instance what factors are relevant in deciding whether employees
are similarly situated."  PBGC v. FLRA, 967 F.2d at 668.
[21]      Based primarily upon its consideration and evaluation of the testimony
of PBGC General Counsel ("GC") Ford (SA-13 2201-2248), Employee No. 6's
supervisor at the time of his departure, the Authority found that Employee No. 6
and Power were similarly situated because:  their work and disciplinary records
were comparable; they occupied similar positions for similar periods of time;
they possessed recognized legal talents; neither attorney had a prior
disciplinary record; their offenses involved failure to obtain supervisory
clearance; and they committed the offenses even after repeated warnings.  PBGC
III, RA 1236-37.
[22]      Petitioner incorrectly suggests that the Authority's conclusions in
this regard are based upon the testimony of DGC Flowe.  The Authority's decision
clearly sets forth its reliance upon GC Ford's testimony, not DGC Flowe's
testimony, in determining that Employee No. 6's departure was forced.  PBGC III,
RA 1236-38.
[23]      Because of the expectation that discipline of employees will serve a
"constructive purpose," it was reasonable for the Authority to "ascribe
significant weight to the factors of supervisory confidence and potential for
rehabilitation."  PBGC III, RA 1241.  The dissimilarities between Power and
Employee No. 1 in this regard resulted in the Authority's finding that these
employees were not similarly situated.
[24]      Petitioner asserts that the testimony of Employee No. 1's supervisor
is entitled to little weight.  (Brief at