40:0504(48)AR - - NAGE Local R5-66 and VA Medical Center, Memphis, TN - - 1991 FLRAdec AR - - v40 p504
[ v40 p504 ]
The decision of the Authority follows:
40 FLRA No. 48
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator John J. Maxwell. The Arbitrator denied the grievance over the 14-day suspension of the grievant.
The Union filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
For the reasons that follow, we will remand this case to the parties for further processing.
II. Background and Arbitrator's Award
On April 27, 1987, the Agency's security police received a report that an unauthorized person was using one of the medical center's rooms. After investigating, a security police officer found a woman in the room who "appeared in a dazed or drugged condition" and who was only partially clothed. Award at 2. The woman was taken to the emergency room for evaluation, but refused examination. The woman had been given permission to sleep in the room by one of the Agency's resident physicians, who had no authority to grant permission to the woman to use the room. The resident was questioned by the security police who confiscated the keys to the room from the resident "along with six 'Monoject' needles." Id. The woman was given a citation for loitering and was released in the custody of the resident physician. As a result of the incident, the Agency requested that the physician be removed from the residency program. The physician was dismissed from the residency program in November 1987.
Subsequently, the University of Tennessee, through whose residency program the physician had been assigned to the Agency's medical center, conducted a hearing on the incident, and Agency security policy officers were requested to testify. One of the officers requested that he be furnished with a copy of the investigation file to refresh his memory. The officer was provided with a copy of the uniform officer's report, a copy of the medical record dealing with the examination of the woman found on the Agency's premises, and copies of two statements provided by witnesses.
Those documents were obtained by the grievant, the local Union president, apparently from the police officer who had requested a copy of the file. They were then delivered by the grievant to an Assistant U.S. Attorney for the Western District of Tennessee. According to the Arbitrator, in providing these documents, the grievant inferred that the resident physician was sexually assaulting the woman and supplying her with drugs in order to continue his assaults and that the grievant feared a cover-up by the Agency's security police.
As a result of the grievant's actions, on December 28, 1988, the Agency proposed the grievant's removal on four charges: (1) release and disclosure, without proper authorization, of information obtained as a result of employment, which is of a confidential nature; (2) making false or unfounded statements against government officials which tend to damage the reputation or undermine the authority of those concerned; (3) unauthorized possession of government property; and (4) intentional concealment of material fact in connection with an investigation. The Director of the medical center upheld the proposed discipline based on all four charges, but reduced the penalty to a 14-day suspension. The grievant filed a grievance over the suspension. The grievance was not resolved and was submitted to arbitration.
With respect to the first charge, the Arbitrator noted that the grievant admitted that he was in possession of the documents involved and that he had delivered them to an Assistant U.S. Attorney. The Arbitrator found that "[t]here is not doubt . . . that [the grievant] did do the act he is charged with." Id. at 5. The Arbitrator also found that these documents "were part of a system of records protected by the Privacy Act and should not be disclosed to anyone without proper request or authority." Id. at 3.
The Arbitrator stated that it appeared that the grievant was very unhappy with the Agency's security police and welcomed any opportunity to embarrass the Agency. In the Arbitrator's view, the documents involved, along with a few personal allegations of the grievant, which the Arbitrator found to be unsupported by any evidence, provided the grievant with the opportunity he was seeking to embarrass the Agency. The Arbitrator ruled that the grievant knew, or was charged with knowing, that the documents were part of the Agency's office records system and protected by the Privacy Act, which precluded their disclosure to anyone, including an Assistant U.S. Attorney, unless there were urgent reasons that would make such an action mandatory. The Arbitrator found no such circumstances in this case that would permit the grievant to circumvent the requirements of the Privacy Act.
For these reasons, the Arbitrator found that the grievant was guilty of disclosure and release, without proper authorization, of information obtained as a result of his employment, which was of a confidential nature, as alleged by the Agency. The Arbitrator further found that the 14-day suspension for such charge was not "cruel or excessive" and that the additional charges against the grievant encompassed the same charge. Id. at 7. Consequently, the Arbitrator ruled that he did not need to rule on the additional charges separately and that the 14-day suspension was warranted. Accordingly, the Arbitrator denied the grievance.
III.First, Second, and Third Exceptions
A.Positions of the Parties
The Union contends that the award is deficient because: (1) the Agency failed to prove every element of all the four charges against the grievant; (2) the award is "tainted" by the Agency's delay in proposing discipline, Exceptions at 23; and (3) the Arbitrator erred by failing to consider all arguments as to all the charges against the grievant.
The Union argues that the award is contrary to law because the Agency failed to prove all the elements of all four of the charges brought against the grievant. The Union maintains that the Agency had the burden of proof and failed to meet it. The Union asserts that the Arbitrator ignored the Union's arguments and that the award is totally devoid of any reasoning.
The Union also argues that the discipline was untimely under Article 11, section 4 of the parties' collective bargaining agreement. The Union claims that the delay in proposing discipline constituted harmful error and that, consequently, the Arbitrator should have reduced or overturned the discipline.
The Union also argues that the Arbitrator erred by failing to consider the arguments as to all four charges. The Union maintains that the discipline was based on all four charges and that, consequently, the Arbitrator should have considered all four charges and decided whether the discipline was appropriate on the basis of a full consideration of the charges. The Union claims that, by sustaining the discipline based on only one charge, the Arbitrator deprived the grievant of due process because he was suspended for 14 days based on all four charges.
The Agency disputes the Union's contentions. The Agency first disputes the Union's contention that the Arbitrator ignored the Union's arguments. The Agency notes that the award clearly states that the Arbitrator studied the briefs of both parties. The Agency further argues that the Arbitrator appropriately found that the grievant was guilty of the unauthorized disclosure, as alleged, and that under Authority precedent, an arbitrator is not required to discuss particular items of evidence and an award is not deficient for failing to do so. The Agency maintains that the Union's contentions about the asserted failure to prove the charges constitutes nothing more than disagreement with the Arbitrator's findings of fact and evaluation of the evidence and testimony.
The Agency also asserts that the Arbitrator properly denied the grievance based on the first charge. The Agency maintains that because the Arbitrator found that the first charge was sustained and that a 14-day suspension was proper and appropriate, there was no need for the Arbitrator to discuss the remaining charges.
The Agency further asserts that, contrary to the claim of the Union, the discipline was not untimely. The Agency maintains that the Union's exception constitutes disagreement with the Arbitrator's evaluation of the evidence in failing to find that the discipline was untimely.
B.Analysis and Conclusions
We conclude that these exceptions provide no basis for finding the award deficient.
The Union's claim that the Arbitrator erred by failing to consider the arguments as to all four charges against the grievant fails to establish that the award is deficient. We find that the Arbitrator's conclusion that the 14-day suspension was appropriate based solely on his finding that the grievant was guilty of unauthorized disclosure, as alleged in the first charge, does not render the award deficient. The Arbitrator reviewed the appropriateness of the penalty in view of the considerations of the first charge, which he found encompassed the additional charges, and found that the penalty was appropriate. Award at 7. The Union fails to establish otherwise and its contentions provide no basis for finding the award deficient. See Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553, 559 (1990).
As we have acknowledged, for example, Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 336 (1990) (El Reno FCI), the Authority noted in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1162 (1988): "[A]rbitrators routinely resolve under the Statute and the Civil Service Reform Act grievances over whether disciplinary action was warranted and, if so, whether the penalty assessed was appropriate."
Indeed, as the Authority indicated in Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 636 (1987), this is precisely one of the functions that arbitrators perform, and that Congress intended that arbitrators perform, under the Statute. Accord El Reno FCI, 35 FLRA at 336. In our view, consistent with this arbitral authority, an arbitrator may determine that the assessed penalty is appropriate and warranted based on one or more of the charges in multiple charge cases and may sustain the discipline based on such misconduct.
We also find that the Union's claim that the award is deficient because the Agency failed to meet its burden of proof fails to establish that the award is deficient. As decided above, the Arbitrator did not err by resolving the grievance based on the misconduct established for the first charge. Consequently, we conclude that the Union's contention that the award is deficient because the Arbitrator considered only the first charge against the grievant constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony, his reasoning and conclusions, and his findings of fact and an attempt to relitigate the merits of this case before the Authority. As such, this exception provides no basis for finding the award deficient. For example, U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2144, 39 FLRA 269, 273 (1991); U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 34 FLRA 315, 318 (1990).
Similarly, the Union's contentions that the Arbitrator failed to consider the Union's arguments and that the award is devoid of any reasoning provide no basis for finding the award deficient. In view of the Arbitrator's statement that he had carefully examined the testimony, the exhibits, and the parties' briefs, the Union's contentions constitute mere disagreement with the findings and conclusions of the Arbitrator based on the testimony and evidence presented at the arbitration hearing. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 35 FLRA 929, 930 (1990). Furthermore, we reject the implication of the Union's contentions that, in the circumstances of this case, the Arbitrator was obligated to set forth specific findings or a rationale more extensive than he did to support the award denying the grievance. See U.S. Department of the Air Force, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857, 35 FLRA 1295, 1296-97 (1990); American Federation of Government Employees, Local 171 and Federal Correctional Institution, 32 FLRA 965 (1988) (rejecting contention that the arbitrator was obligated to set forth specific findings and a rationale to support the award denying the grievance and citing Wissman v. Social Security Administration, 848 F.2d 176 (Fed. Cir. 1988), in which the court indicated that there is no general statutory obligation that an arbitrator set forth specific findings).
For similar reasons, we conclude that the Union fails to establish that the award "is tainted" by the Agency's delay in processing the discipline. Exceptions at 23. Just as the Arbitrator was not obligated to set forth specific findings and a rationale to support the award denying the grievance, as discussed above, he was not obligated to set forth specific findings and a rationale to support the failure to find the discipline to be untimely, as was asserted by the Union. Consequently, we view the Union's contention to constitute nothing more than disagreement with the finding and conclusion of the Arbitrator not to sustain the grievance because of the alleged delay by the Agency in processing the discipline. As such, the Union's contention provides no basis for finding the award deficient. See U.S. Department of Veterans Affairs Medical Center, Memphis, Tennessee and National Association of Government Employees, Local R5-66, 34 FLRA 893, 896 (1990).
Accordingly, we deny these exceptions.
IV. Fourth Exception
A. Positions of the Parties
The Union contends that the Agency's discipline of the greivant is "tainted" by the Agency's reprisal for whistleblowing activities. Exceptions at 23. The Union argues that the award is deficient because it sustained discipline that constituted a reprisal for whistleblowing activities that were protected from reprisal under 5 U.S.C. § 2302(b)(8). The Union claims that the grievant reasonably believed that criminal activity had occurred and was being covered up and that such actions could endanger the health and safety of employees and others who came in contact with the physician involved. The Union asserts that in his capacity as a concerned individual and as Union president, the grievant went to law enforcement officials to report what he perceived as the problem and for that he was disciplined.
The Agency contends that the whistleblower claims have no relevance in an arbitration proceeding. The Agency maintains that such claims must be raised by filing a claim with the Office of Special Counsel, which the grievant did not do.
B.Analysis and Conclusions
For the following reasons, we will remand this case to the parties for further proceedings.
Prohibited personnel practices are set forth at 5 U.S.C. § 2302(b). At the time this case arose, section 2302(b)(8) prohibited an agency from taking a personnel action in reprisal for:
(A) a 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) 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[.]
Because a personnel action, such as a suspension, that is taken in reprisal for a protected disclosure constitutes a prohibited personnel practice, such a personnel action is not in accordance with law and cannot be sustained. See U.S. Department of the Treasury, Customs Service, Dallas, Texas and National Treasury Employees Union, Chapter 140, 37 FLRA 1022 (1990) (Customs Service) (arbitrator revoked the grievants' change in work status because the change was in reprisal for disclosures protected under section 2302(b)(8); the Authority denied the agency's exception, which contended that the award was contrary to section 2302(b)(8)); Sowers v. Department of Agriculture, 24 MSPR 492 (1984) (Sowers) (employee's removal was reversed because the agency action was primarily caused by its desire to retaliate against the employee for his whistleblowing activities). Before the Merit Systems Protection Board in cases involving serious adverse actions covered under 5 U.S.C. § 7512, the agency must prove that: (1) the employee committed the act of misconduct for which the employee was disciplined; (2) the discipline is for "such cause as will promote the efficiency of the service," 5 U.S.C. § 7513(a); and (3) the assessed penalty is appropriate. See Sowers, 24 MSPR at 493-94. Prior to the Whistleblowers Protection Act, if the agency established the merits of its case against the employee, the employee could raise the affirmative defense that the adverse action was not in accordance with law because the action was in reprisal for protected disclosures under section
2302(b)(8) and could not be sustained. See, for example, Warren v. Department of the Army, 804 F.2d 654 (Fed. Cir. 1986). In Customs Service, we recognized that, in order to find that a disclosure of information is protected against impermissible actions under section 2302(b)(8), it must be established that the employee is protected by the statute and that: (1) a protected disclosure was made; (2) the official accused of taking the retaliatory action knew of the disclosure; (3) the challenged action against the employee could have been retaliation; and (4) a nexus is established between the adverse action and the motive. 37 FLRA at 1033 (citing Christopher v. Defense Logistics Agency, 44 MSPR 264, 271 (1990)).
As indicated by Customs Service, when exceptions to an arbitration award raise the question of whether an agency has committed a prohibited personnel practice by taking a personnel action in reprisal for, or because of, a protected disclosure under section 2302(b)(8), we will review the record in the case to determine whether the award is consistent with law. In this case, the issue of whether the grievant was suspended in reprisal for protected disclosures under section 2302(b)(8) was raised as an affirmative defense to the suspension by the grievant before the Arbitrator, but was not addressed or resolved by the Arbitrator in his award sustaining the suspension and denying the grievance. The award contains no findings, conclusions, or discussion on whether the suspension was not in accordance with law or whether it was an impermissible reprisal under section 2302(b)(8). The Union contends that the suspension cannot be sustained because it constituted an impermissible reprisal under section 2302(b)(8). The Agency in its opposition does not address this specific issue. The Agency argues only that whistleblower claims have no relevance in arbitration proceedings, a claim that we reject as totally without support.
Based on the record presented, we cannot determine whether the award is deficient because the Arbitrator sustained discipline that was in reprisal for disclosures protected under section 2302(b)(8). See Sowers, 24 MSPR at 495 (noting that the determination of whether there was a reprisal for whistleblowing must be made after a complete analysis and weighing of testimonial evidence, particularly evidence regarding the motivation and intent of the agency
in taking the action). Accordingly, we will vacate the denial of the grievance and remand the case to the parties for further proceedings.
On remand, absent settlement, the parties may submit the matter of whether the suspension was an impermissible reprisal under section 2302(b)(8) to an arbitrator of their choice for resolution. Because we have otherwise denied the Union's exceptions, the merits of the Agency's case are not subject to relitigation. If an arbitrator determines that the suspension was not an impermissible reprisal, the 14-day suspension must be sustained in accordance with the Arbitrator's award. Therefore, the sole purpose of this remand is to have addressed and resolved the matter of whether the suspension constitutes a prohibited personnel practice under section 2302(b)(8) that, consequently, cannot be sustained. We note that because the disciplinary action against the grievant was pending before the effective date of the Whistleblower Protection Act, the matter of whether the suspension constitutes a prohibited personnel practice under section 2302(b)(8) must be reso