U.S. Federal Labor Relations Authority

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52:1390(132)CA - - Pension Benefit Guaranty Corporation and NTEU - - 1997 FLRAdec CA - - v52 p1390

[ v52 p1390 ]
The decision of the Authority follows:

52 FLRA No. 132







(Charging Party/Union)


39 FLRA 905 (1991)

47 FLRA 595 (1993)


April 30, 1997

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I.    Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. Pension Benefit Guaranty Corporation v. FLRA, 967 F.2d 658 (D.C. Cir. 1992) (PBGC v. FLRA). The Authority remanded the case to the Administrative Law Judge because the record was not sufficient to make the determinations required by the court's remand. Pension Benefit Guaranty Corp., 47 FLRA 595 (1993)(PBGC II).

The complaint alleges that the Respondent Pension Benefit Guaranty Corporation (PBGC) violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by discharging employee David Power because he engaged in activities protected by section 7102 of the Statute. The Judge concluded that the PBGC did not violate the Statute as alleged, and recommended that the complaint be dismissed. The Judge's supplemental decision is now before the Authority pursuant to exceptions filed by the General Counsel and the National Treasury Employees Union (NTEU).

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, we have reviewed the Judge's rulings made at the hearing on remand. Based upon this review, and for the reasons expressed below, we find that no prejudicial error was committed. Upon consideration of the Judge's decision and the entire record and for the reasons discussed below, we conclude that PBGC did not commit the unfair labor practices alleged in the complaint. Accordingly, we dismiss the complaint.

II.    Background and Judge's Decision on Remand

A. Facts

The facts pertaining to employee Power are set forth in the Authority's two previous decisions in this case, Pension Benefit Guaranty Corporation, 39 FLRA 905 (1991) (PBGC I) and PBGC II, and are only briefly summarized here.

David Power was employed as a GS-14 General Attorney in PBGC's Office of the General Counsel (OGC) from 1980 until his discharge on April 3, 1989. Beginning in 1984 and continuing until his discharge, Power served as President of NTEU Chapter 21.

On April 3, 1989, Power was discharged for misconduct occurring between May and December 1988. Specifically, 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. Orig. Jt. Exs. 4 and 4(a).(1) The complaint alleged that PBGC violated section 7116(a)(1) and (2) of the Statute by discharging Power because he engaged in activities protected by the Statute.

B. Procedural History

In PBGC I, the Administrative Law Judge concluded that the FLRA's General Counsel (GC) failed to prove by a preponderance of the evidence that Power was discharged for engaging in protected activity. The Judge recommended that the complaint be dismissed.

The Authority reversed the Judge's conclusion and found that PBGC had discharged Power in violation of the Statute. The Authority found that the GC had established a prima facie case of unlawful discrimination within the meaning of Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). The Authority then concluded that even assuming PBGC established that it had a "legitimate justification" for taking some form of disciplinary action against Power, it had treated Power disparately. PBGC I, 39 FLRA at 932. The Authority therefore concluded that PBGC failed to demonstrate by a preponderance of evidence that it would have discharged Power in the absence of protected activity, and found that PBGC had committed the unfair labor practices charged.

In PBGC v. FLRA, the court remanded the case to the Authority for further consideration and explanation. The court noted that it need not reach the issue whether the General Counsel made out a prima facie case because "it believe[d] that the 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 acknowledgment "that Power engaged in insubordinate acts" (citing 39 FLRA at 930), a recognition on the part of the Authority "that PBGC had a 'legitimate justification for its action.'" Id. (quoting Letterkenny, 35 FLRA at 118). Further, recognizing that a finding of legitimate justification "does not end [the] inquiry" under Letterkenny, the court went on to examine 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 examined whether Power's punishment was harsher than that meted out to other employees and whether the other employees to whom he was compared were similarly situated. The court questioned aspects of the Authority's decision, and concluded that the decision was "inadequately explained." Id.

First, the court questioned the Authority's finding that Power and another employee, denominated Employee No. 1, were "similarly situated." PBGC v. FLRA, 967 F.2d at 667. The court pointed out that, based on the record before it, it did not appear that Employee No. 1 received any warnings, whereas Power had received "numerous verbal warnings." Id. The court also pointed to Employee No. 1's remorse and Power's lack of remorse as a "critical difference" between Power and Employee No. 1. Id. The court therefore rejected the FLRA's finding that Employee No. 1 and Power were similarly situated as unsupported by substantial evidence.

The court was also "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. The court cited judicial and administrative precedents and regulations, including the factors established by the Merit Systems Protection Board (MSPB) in Douglas v. Veterans Administration, 5 MSPR 280, 305-06 (1981) (Douglas), that recognize the relevance of many factors in determining an appropriate sanction.

Second, the court criticized 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. The court opined that the Douglas factors may have entitled the agency to hold Power to a higher standard of conduct than clerks and technicians.

Third, the court questioned why the Authority never mentioned Employee No. 6 as being similarly situated. The court viewed Employee No. 6's "transgressions as 'at least comparable'" to Power's insubordinate failure to follow the Concurrence Matrix. Id. at 669-70.

Finally, the court discounted 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 pointed to warnings Power received and his more than ample notice that his conduct was unacceptable. Id. at 670 n.15.

In sum, 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.

Subsequently, the Authority remanded the case to the Judge for further proceedings because it found the record insufficient to make the determinations required by the remand. Among other things, the Authority directed the Judge to hear additional evidence so that the Authority could decide whether Power was similarly situated to Employees Nos. 1, 6, 7, 9 and/or 10(2) and could determine whether Power was subject to disparate treatment.(3)

The Authority also discussed briefly the following considerations it deemed relevant in determining whether employees were "similarly situated" for purposes of its disparate treatment analysis: 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, 47 FLRA at 599. The Authority also found it appropriate to examine relevant elements listed in Douglas, 5 MSPR at 305-06(4) and the extent to which the agency involved consistently relied on the Douglas or other factors when taking the contested action. PBGC II, 47 FLRA at 599.

C. The Administrative Law Judge's Decision on Remand

On remand, the Judge again concluded that Power's discharge had not been the product of an unfair labor practice. The Judge 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. During the hearing, the Judge refused to admit evidence concerning approximately 30 employees not mentioned in earlier proceedings. Rem. Tr. at 943-44.

As to Employee No. 6, the Judge found that both Power and Employee No. 6 worked in PBGC's legal department, both were GS-14 attorneys at the time of their respective activities, both worked on highly complex legal matters, and both were responsible for following a matrix or checking with higher authority to ensure that actions taken were in agreement with office policy. The Judge also found that unlike Employee No. 6, Power "had been given a number of verbal warnings prior to his discharge." ALJ Rem. at 10. Employee No. 6 had been summarily given 30 days to seek new employment or be discharged after he failed to check with office management before taking certain actions requiring supervisory approval. In sum, the Judge determined that Power had not been treated differently than Employee No. 6, because both were given "like penalties for the same indiscretions." Id.

In contrast to his findings concerning Employee No. 6, the Judge determined that Power was not similarly situated to Employee No. 1. The Judge cited a number of factors that distinguished the two employees. For example, the Judge found the nature of the employees' misconduct different, Power having been insubordinate, while Employee No. 1 had misappropriated PBGC equipment and services for a private legal matter. Also distinguishing the two, the Judge found, was the fact that Employee No. 1's supervisors considered him contrite and continued to trust him to perform his assigned duties. Power's supervisors did not harbor similar expectations for Power. Finally, the Judge cited the reluctance of an outgoing PBGC General Counsel to have his last official act be the discharge of an employee as a special circumstance that contributed to the relatively lenient penalty levied on Employee No. 1, a 45-day suspension, compared to Power's discharge.

Lastly, the Judge determined that Power was not similarly situated to Employees Nos. 7, 9, and 10. The Judge cited a number of distinctions, including that Employees Nos. 7, 9, and 10 were not lawyers, did not work in the same department or under the same supervision, were guilty of fighting rather than insubordination, and had different grades and responsibilities.

Accordingly, having found that Power was similarly situated to Employee No. 6, who was given a "like penalt[y] for the same indiscretions," and having concluded that Power was not similarly situated to Employees Nos. 1, 7, 9, and 10, who received lesser sanctions, the Judge concluded that the General Counsel had failed to establish that Power was treated disparately. As a result, the Judge recommended that the complaint be dismissed.

III.    Positions of the Parties

A. The GC's Exceptions

The GC argues that the Judge's ruling excluding new evidence concerning employees not mentioned in the original proceeding constituted an abuse of discretion. The GC asserts that the new evidence demonstrates that Power was removed for his union activities. The GC also states that the evidence was not in existence at the time of the original hearing.

Incorporating by reference a portion of its exceptions filed in the original proceeding before the Authority, the GC also contends that a number of the charges against Power were invalid, or should be understood in light of circumstances that place Power's actions in their "proper context."

The GC also disagrees with the Judge's conclusions concerning whether Power was similarly situated to various other PBGC employees, and whether he was disparately treated by PBGC. In the GC's view, Power was similarly situated to Employee No. 1, but not to Employee No. 6. Additionally, the GC argues that the discipline of Employees Nos. 7, 9, and 10 should be considered in the disparate treatment analysis, because their conduct was more culpable or serious than Power's. Finally, the GC contends that the circumstances of Employee No. 8 are relevant, insofar as Employee No. 8 was subjected to progressive discipline, and Power was not. The GC concludes that the totality of the facts and circumstances demonstrate that Power was disparately treated.

B. NTEU's Exceptions

NTEU contends that the Judge improperly excluded evidence concerning the disciplinary situations of employees not mentioned at the original hearing. In NTEU's view, such evidence should have been admitted because of its relevance to the issue of Power's alleged disparate treatment.

NTEU also maintains that the conduct with which Power was charged was either proper, or occurred in mitigating circumstances. NTEU views the charges as ultimately based on Power's protected conduct as a union representative.

NTEU also takes exception to the Judge's conclusions on the disparate treatment issue. NTEU contends, contrary to the Judge's findings, that Power was similarly situated to Employee No. 1. Conversely, in NTEU's view, Power was not similarly situated to Employee No. 6. NTEU further argues that because the Authority looks to the employer's disciplinary record, not only by department but as a whole, Power's case should be compared to PBGC's overall disciplinary practice, even as to employees such as Employees Nos. 7, 9, and 10. Lastly, NTEU asserts that Employee No. 8's conduct was more egregious than Power's, yet Employee No. 8 received progressive discipline and Power did not. In sum, NTEU concludes that the Judge should have found that Power was disparately treated.

C. PBGC's Opposition

PBGC contends that the Judge correctly refused to admit new evidence offered by the GC concerning employees who had never previously been mentioned in the prior proceedings before the Authority or the court. In PBGC's view, the Judge would have improperly exceeded the scope of the Authority's remand order had he allowed the evidence into the record.(5)

As to the charges against Power, PBGC maintains that Power was discharged for the valid reasons stated in the documents that effected his removal. On the issue of disparate treatment, PBGC agrees with the Judge that Power was similarly situated to Employee No. 6, but not to Employees Nos. 1, 7, 9, or 10. PBGC also argues that Employee No. 8 and Power are not similarly situated.

IV.    Analysis and Conclusions

A. The Judge Did Not Err When He Refused to Admit Evidence Concerning Employees to Whom Power Was Not Previously Compared

An Administrative Law Judge "has discretion to determine whether the record should be reopened for additional evidence." Department of Housing and Urban Development, Region X, Seattle, Washington, 41 FLRA 363, 364 (1991); see also 5 C.F.R. § 2423.19(k). Upon review, the Authority considers whether the Judge abused that discretion. 41 FLRA at 364; cf. NLRB v. Cutter Dodge, Inc., 825 F.2d 1375, 1380 (9th Cir. 1987) (The NLRB has considerable discretion in granting or denying motions to reopen the record, and its "decision on such a motion will not be set aside unless shown to constitute an abuse of discretion."); NLRB v. Amalgamated Clothing and Textile Workers, 662 F.2d 1044, 1045 (4th Cir. 1981) (same); Nance v. EPA, 645 F.2d 701, 717 (9th Cir.), cert. denied, 454 U.S. 1081 (1981) (same in more general context).

We do not find merit in the arguments of the GC and NTEU that the Judge abused his discretion by not reopening the record for purposes other than those contemplated by the Authority in its remand order. In this connection, to make the determinations required by the court's remand, the Authority remanded the case to the Judge for the receipt of additional evidence concerning employees as to whom evidence had previously been admitted. The GC sought to have the record reopened for an additional purpose: to receive evidence concerning employees never previously mentioned in proceedings before the Authority and to whom Power had not previously been compared.

As a general matter, motions to reopen a record are disfavored, and reopening is reserved for extraordinary circumstances. See, e.g., INS v. Abudu, 485 U.S. 94, 107 (1988) ("There is a strong public policy 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."); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 296 (1974) ("[T]here is sound basis for adhering to our practice of declining to require reopening of the record, except in the most extraordinary circumstances."). The D.C. Circuit has likewise found that "[r]eopening 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).

Consistent with the principles discussed above, the GC's and NTEU's claim that the proffered evidence is relevant does not present any special circumstances calling for reopening the record for the particular purpose sought by the GC. Cf. NLRB v. Jacob E. Decker and Sons, 569 F.2d 357, 364 (5th Cir. 1978) (Decker) (upholding a refusal to reopen a record where the proffered evidence "meets only the requirements of being material and noncumulative"). The additional factor, that the record had been reopened for other purposes, also does not establish that the Judge abused his discretion. Cf. Oklahoma Natural Gas Co. v. FERC, 28 F.3d 1281, 1288 (D.C. Cir. 1994) (rejecting the argument that reopening the record for one purpose obligated administrative agency to reopen record for other purposes requested by party).

Further, the circumstance cited by the parties, that the evidence was not in existence at the time of the original hearing, weighs against reopening. Where a party seeks to have a record reopened for the particular purpose of receiving "newly discovered evidence," the party must show, inter alia, that the evidence was in existence at the time of the original trial. Decker, 569 F.2d at 363; NLRB v. Hanna Boys Ctr., 940 F.2d 1295, 1299 (9th Cir. 1991), cert. denied, 504 U.S. 985 (1992). To rule otherwise, and require the reopening of a record to receive evidence that had come into existence after the close of the hearing, would be to approve "'a procedure [that] could mean the perpetual continuation of all trials.'" Decker, 569 F.2d at 364 (quoting Prostrollo v. University of South Dakota, 63 F.R.D. 9, 11 (D.S.D. 1974)).

Our decision in United States Department of Transportation, Federal Aviation Administration, El Paso, Texas, 39 FLRA 1542 (1991) (Transportation) is not to the contrary. In that case, in conducting our disparate treatment analysis, we relied upon evidence of the type the GC argues the Judge should have admitted here; i.e., evidence of agency action arising after the alleged discriminatory conduct. See id. at 1552-53, 1561. Because Transportation did not involve any question whatsoever of reopening a record, it is distinguishable. Although evidence of agency action arising after alleged discriminatory conduct can be relevant in a disparate treatment case, this consideration does not address the question of whether a record should be reopened on remand, for the particular purpose of receiving such evidence, as the GC requests in this case. As indicated above, special considerations, such as the need to bring litigation to a close as promptly as is consistent with giving parties a fair opportunity to develop and present their respective cases, justify the Judge's exclusion of the proffered evidence in this case.(6)

Accordingly, we find that the Judge did not abuse his discretion when he refused to expand the remand proceedings by admitting evidence concerning employees who were not mentioned and with whom Power was not compared in the original proceeding. We therefore uphold the Judge's rulings in this regard.

B. PBGC's Discharge of Power Did Not Violate Section 7116(a)(1) and (2) of the Statute

Under the Authority's analytical framework for resolving complaints of alleged discrimination under section 7116(a)(2) of the Statute, the GC has, at all times, the overall burden of establishing 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 conditions of employment. United States Air Force Academy, Colorado Springs, Colorado, 52 FLRA 874, 878 (1997); Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia, 52 FLRA 602, 605 (1996) (Warner Robins); Federal Emergency Management Agency, 52 FLRA 486, 490 & n.2 (1996); Letterkenny, 35 FLRA at 118. As a threshold matter, the GC must offer sufficient evidence of these two elements to withstand a motion to dismiss. Warner Robins, 52 FLRA at 605. However, satisfying this threshold burden establishes a violation of the Statute only if the respondent offers no evidence in its defense. In this connection, the respondent has the burden to establish 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 or previously-occurring activity. Id.

In the Authority's original decision in this case, the Authority held that the GC had satisfied the threshold burden. PBGC I, 39 FLRA at 930. No party has asked us to revisit that holding, and we see no need to do so. However, even were we to revisit the issue, our determination would not alter the ultimate conclusion that we reach in this case. As discussed below, we find that PBGC has established an affirmative defense for its actions. Upon examination of the entire record and the arguments of the parties, we hold that PBGC had a legitimate justification for discharging Power. Furthermore, the record establishes that PBGC would have taken the same action even in the absence of Power's protected activity.

1. Power's Conduct Was a Legitimate Justification for Discharging Him

We find that Power's insubordinate conduct provided PBGC with a legitimate justification for his discharge. It is within an employer's legitimate prerogative to discipline an employee for insubordinate conduct, notwithstanding the employee's involvement in protected activity. Webster v. Department of the Army, 911 F.2d 679, 689 (Fed. Cir. 1990), cert. denied, 502 U.S. 861 (1991) (employee/union shop steward removed for insubordination and open disrespect); Cardwell v. Veterans Admin., 32 MSPR 1 (1986) (employee who had also filed discrimination complaints removed for insubordination).(7)

A preponderance of the evidence establishes that Power engaged in a pattern of conduct justifying his removal. As set forth below, Power exhibited a continuing pattern of behavior over approximately nine months (from June to December 1988) of failing to comply with supervisory directions. Although the proper characterization of some of this conduct is disputed, it is not disputed 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;(8) (d) failed to cooperate in an official investigation; and (e) refused to accept computer messages from his supervisors. This continuing pattern of insubordination is substantiated by record evidence, and was independent of any protected activity.

a. Failure to Follow the OGC's Concurrence Matrix

Power was admonished by his supervisor, Assistant General Counsel Jeanne Beck, on three separate occasions to follow the OGC's supervisory Concurrence Matrix. PBGC I, 39 FLRA at 943-44. Power was admonished that "all matters require supervisory concurrence" and that Beck expected to see "all documents" before they were sent out of the office. Orig. Jt. Exs. 2(i) and 2(j). Power acknowledged the direction, indicating that in the future he would "drop [the documents] by before they go out." Orig. GC Ex. 4.(9)

Nevertheless, on November 29, Power failed to get written concurrence as required by the matrix on the letters in the Greene case, and Power specifically instructed a clerical staff person to disregard the concurrence requirement. PBGC I, 39 FLRA at 944. Although Power testified that he thought he had oral supervisory approval to send the documents, the Judge's determination and the weight of the evidence are to the contrary. As the Judge determined, neither Beck nor Frank McCulloch, another Assistant General Counsel supervising the Greene case, had seen or concurred in the letters. PBGC I, 39 FLRA at 944. Moreover, Power admits in testimony (Orig. Tr. 494) that he did not get actual written concurrence from his supervisor as required by the matrix. Further, when the Greene letters were revised and sent out again, Power admits (Orig. Tr. 484) he failed to get concurrence on the revised letters as well.

b. Failure to Supply a Representative Writing Sample

It is undisputed that on four occasions (June 15, June 16, June 22, and August 8, 1988) PBGC Deputy General Counsel Carol Flowe asked Power to provide "a representative sample of his writing," and Power failed to comply. PBGC I, 39 FLRA at 940-42. Flowe wanted the sample to review for consistency the rating that Power received on one of his objectives. Id. at 940. Rather than complying with Flowe's first request, Power responded that some of the documents Flowe requested "may be located in the file room of the OGC." Id. Power also failed to comply with Flowe's second request, delivering an unusable collection of over 2,100 unstapled pages, including a variety of documents that Flowe had not requested. Id. at 941. Power's response to Flowe's third request was a repetition of the second, with the additional assertion that Flowe was engaged in "Alice in Wonderland management of government legal personnel." Orig. Jt. Ex. 2(x) at 9. When Power eventually provided writing samples, some two and half months after Flowe's fourth request was made, Power denied that his submission was a representative sample of his work. PBGC I, 39 FLRA at 942.

Although the record indicates that Power was in the process of grieving his appraisal and may have been under the impression, at least at the beginning, that Flowe was reviewing his entire appraisal, as opposed to one objective, this did not prevent Power from complying with Flowe's requests. PBGC I, 39 FLRA at 943 n.4. Flowe made clear in all four requests to Power what she wanted.(10) In her third request, responding to Power's delivery of over 2,100 unstapled pages of miscellaneous documents, Flowe stated that she was not asking for "all" or "even most written work you did during the rating period," but "only for samples of your writing, and not for copies of transcripts of court hearings, or papers or correspondence prepared by others." Orig. Jt. Ex. 2(w). Power ignored Flowe's instructions.

We find no justification for Power's refusal to comply with Flowe's requests. As the MSPB has recognized, an employee is not at liberty to disregard an order, even if the employee has doubts about its validity. With exceptions not applicable here, the employee must comply with the order, and raise any disagreement by way of a complaint or grievance. Gomez v. Department of Agriculture, 63 MSPR 36, 39 (1994) (federal smokejumper was not justified in disregarding order to make a parachute jump even if "there [was] substantial reason to believe that the order [was] not proper"); Gragg v. United States Air Force, 13 MSPR 296, 299 (1982)), dismissed 717 F.2d 1343 (Fed. Cir. 1983) (employee was not justified in failing to obey order requiring all employees wearing respirators to be clean shaven, notwithstanding that such a change in policy was later determined to be an unfair labor practice); Jones v. Farm Credit Admin., 11 MSPR 159, 162 (1982) (employee could have complied with supervisor's instructions without harm to the employee's pursuit of his grievance); cf., e.g., NLRB v. P*I*E* Nationwide, Inc., 923 F.2d 506, 514 (7th Cir. 1991) (discussing the nature of activity falling within the scope of the Supreme Court's decision in NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984)); Lorac Constr. Serv., Inc., 318 NLRB 1034, 1035 (1995) (same).

Finally, the record does not support the conclusion that the writing sample was requested in retaliation for a grievance Power filed over his appraisal. Rather, we conclude that Flowe's request was made in order to review the rating on an aspect of Power's appraisal, which in fact was subsequently raised. PBGC I, 39 FLRA at 940-43. We also reject for lack of support in the record NTEU's 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.

c. Refusal to Relinquish All Copies of PBGC's Computer Survey Data

Power also refused to comply with direct orders to relinquish all copies of PBGC's computer survey data that he had obtained from an unauthorized source. It is undisputed that Power took the computer survey data without the knowledge or consent of authorized agency personnel and failed to return all original surveys when ordered to do so on three occasions. PBGC I, 39 FLRA at 949-50.(11) Power admits as much. Orig. Tr. 437, 714-15. This record evidence demonstrates a further instance of Power's insubordinate behavior. As discussed previously, an employee's first obligation is to comply with a supervisory order, reserving any complaints or grievances for a later time. Further, as the Judge recognized, even if the survey data was considered to be of little value to PBGC, the information was still PBGC's property that Power obtained from an unauthorized source without PBGC's knowledge or consent. PBGC I, 39 FLRA at 965.

d. Failure to Cooperate in an Official Investigation

It is also undisputed that Power failed and refused to cooperate in an official investigation held on October 18, 1988. On several occasions, even after he had received a Kalkines warning, Power refused to answer Beck's questions about the whereabouts of the survey data and about an allegedly threatening remark made to another employee. PBGC I, 39 FLRA at 953, 963. Power also "dared" Beck to fire him for his conduct, and unilaterally terminated the interview by walking out. PBGC v. FLRA, 967 F.2d at 662.

Although union officials are entitled in some circumstances to protection against management-conducted interrogations, a union steward who is directly involved in alleged acts of misconduct is not relieved of the responsibility to cooperate fully in the employer's investigation of such misconduct. See Cook Paint & Varnish Co. v. NLRB, 648 F.2d 712, 725 (D.C. Cir. 1981).(12) We find no reason in the circumstances of this case to excuse Power's conduct even if, for example, Power believed, as NTEU claims, that the survey data about which he was asked was important for bargaining purposes, or the alleged threat was more political than physical.

e. Refusal to Accept Computer Messages

Power does not dispute that he refused to accept computer messages from his supervisors. In particular, Power has not denied that he deleted two computer messages sent by Beck on December 8, 1988, without reading them. Orig. Tr. 505-07.

2. PBGC Would Have Taken the Same Action Even in the Absence of Power's Protected Activity

The court's remand decision requires the Authority to reexamine its determination that PBGC committed unfair labor practices when it discharged Power. Resolution of this issue in this case involves determining whether PBGC treated Power disparately, or would have taken the same action even in the absence of Power's protected activity. Because "[t]he linchpin of the disparate treatment analysis is the similarly situated status of the employees being compared," PBGC v. FLRA, 967 F.2d at 667, the court also directed the Authority "to determine in the first instance what factors are relevant in deciding whether employees are similarly situated." Id. at 668.

As discussed above, the Authority identified the factors it considers relevant in determining whether employees are similarly situated in its decision remanding the case to the Administrative Law Judge. PBGC II, 47 FLRA at 599.(13) Consistent with the court's remand order, we have reexamined whether Power was disparately treated in light of these factors. In conducting the disparate treatment analysis, we consider Employee No. 6, as required by the court in its remand decision, as well as the employees with whom Power was compared in the Authority's original decision, Employees Nos. 1, 8, and 7, 9, and 10.(14) Based on this reexamination, we conclude that Power was not disparately treated.

a. Employee No. 6

In January 1986, former General Counsel Mackiewicz named Employee No. 6 as his Executive Assistant. Rem. Tr. 1005. In March 1987, Ford succeeded Mackiewicz as General Counsel. Rem. Tr. 1055. General Counsel Ford met with Employee No. 6, as well as all other OGC attorneys, to determine their views on office management, what work they were doing, and what their career goals were. Rem. Tr. 1065-66. With respect to Employee No. 6, Ford had particular concern about the role that the employee played in Mackiewicz's administration, where he "operat[ed] without much supervision or control from the General Counsel" and "with a great deal of latitude in working on a variety of major cases." Rem. Tr. 1065, 1062. Employee No. 6 had been allowed under Mackiewicz's administration to work directly and without supervisory approval with the Executive Director's office, both with respect to the Executive Director and the deputies. Rem. Tr. 1067. Employee No. 6 informed Ford that he intended to search for a new job "with a bent to . . . business more than to the law." Rem. Tr. 1066.

At a second meeting with Employee No. 6, Ford informed him that although he would retain the title of Executive Assistant to the General Counsel, "he was being supervised like any other attorney in the office" rather than being supervised "by . . . the General Counsel." Rem. Tr. 1090. Ford also told him that he was "to stay out of the front office unless supervised and cleared," and that he "was to cease acting as an independent operator." ALJ Rem. at 6; Rem. Tr. 1067-68. Employee No. 6 assured Ford that he would follow the rules and redouble his efforts to find another position. Rem. Tr. 1068. Ford had already reviewed Employee No. 6's case assignments and made changes. Rem. Tr. 1064. Ford had removed the employee from work on some cases and reduced his role in others, and had placed the employee under new supervision. Id.

Employee No. 6 did not obtain the required supervisory clearance before making certain contacts. Rem. Tr. 1069. On one occasion, Employee No. 6 conducted settlement negotiations with "major players" in the Wheeling Pittsburgh case without the knowledge of General Counsel Ford or Deputy General Counsel Flowe. Rem. Tr. 1096. On a second occasion, around June 1987, Employee No. 6 accused one of the principal owners in the Sharon Steel case of bankruptcy fraud, without consulting with his supervisors. Rem. Tr. 1069-70, 1107. This accusation resulted in a telephone call from a senior company official to PBGC's Executive Director. Id. Ford was "irate," and Employee No. 6 responded that he would redouble his efforts to find a new job. Rem. Tr. 1070.

After the bankruptcy event, Ford was determined that Employee No. 6's resignation would no longer be voluntary and that "he had to go." Rem. Tr. 1074. Ford investigated a way to ensure Employee No. 6's imminent departure but still "allow [him] some . . . further time to find another position." Rem. Tr. 1109. After seeking labor relations advice, Ford converted Employee No. 6 from his GM-14 position to a temporary, 30-day GS-14 position. Rem. Tr. 1072. At Ford's request in October 1987, a draft letter of resignation was prepared for Employee No. 6. Rem. Tr. 1074, 1109. After discussion and negotiations with Ford, a new letter of resignation was signed by Employee No. 6. Rem. Tr. 1071, 1074. After requesting and receiving a several week extension of this temporary appointment in order to finalize a new job, Employee No. 6 resigned from PBGC on December 1, 1987. Rem. Tr. 1076.

Upon consideration of all the evidence, we find that Power and Employee No. 6 were similarly situated. Their work and disciplinary records were comparable. Both were senior attorneys in PBGC's General Counsel's Office, had spent approximately the same amount of time employed by the Government, and were viewed as possessing substantial legal talents. Compare Rem. Tr. 1003-04, 1006-07 with PBGC I, 39 FLRA at 906, 938; Orig. Jt. Ex. 4 at 1. Neither attorney had a prior disciplinary record. Rem. Tr. 1076; Orig. Tr. 181.

Furthermore, although Employee No. 6's offenses were less severe in terms both of quantity and quality, they were similar to Power's. Power and Employee No. 6 were each responsible for obtaining supervisory clearance for contacts outside the office, but both attorneys failed to do so in multiple situations. Rem. Tr. 1069-70, 1094-96; Orig. Tr. 357, 368, 494. Moreover, these failures were repeated despite clear warnings to the contrary. Compare Rem. Tr. 1065-68, 1090 with PBGC I, 39 FLRA at 943-45.

Against this background of significant similarities, a comparison of the treatment received by each attorney from PBGC indicates that Power was not disparately treated. Although Employee No. 6 did not engage in the range of misconduct that Power did, Employee No. 6's departure from PBGC was compelled, as was Power's. As a direct consequence of Employee No. 6's actions, his supervisor concluded that "he had to go." Rem. Tr. 1074. Employee No. 6's supervisor subsequently took actions to ensure his departure, including converting Employee No. 6 from his regular position to a temporary, 30-day position, and requiring him to sign a letter of resignation acknowledging the arrangement. This clear connection between Employee No. 6's erroneous actions and his forced departure from PBGC supports the determination that Power, who committed similar, as well as other, instances of misconduct, was not disparately treated.

In this particular case, we do not find that the different means by which Power and Employee No. 6 departed PBGC, by discharge versus resignation, militates against their comparison for purposes of the disparate treatment analysis. Although there is indeed a difference between the discharge imposed on Power and the resignation taken by Employee No. 6, each had a compulsory aspect that makes them comparable. Just as Employee No. 6 could have chosen to resist General Counsel Ford's determination that Employee No. 6 had to leave PBGC, so could Power have avoided the potentially stigmatizing effect of a removal by resigning.

b. Employee No. 1

In early June 1986, Employee No. 1, a GS-14 attorney in OGC, requested and received approval for three days of sick leave to undergo elective dental work. Instead of receiving dental treatment, the employee used the time to take depositions in a private litigation matter. Rem. Tr. 1025. Later, the employee approached then-General Counsel Mackiewicz and indicated that he had heard that an investigation was being conducted into an outside matter he was handling. Rem. Tr. 1013, 1026-27. Employee No. 1 then informed Mackiewicz that he was working on a personal injury case for a friend and requested permission to continue the litigation. Id. Employee No. 1 admitted using PBGC's computer system for non-agency work and apologized. However, he falsely informed Mackiewicz that he had dental work performed during the three days of sick leave referenced above. Rem. Tr. 1025-26.

The official internal audit department investigation revealed that Employee No. 1 had used sick leave for non-medical purposes. Rem. Tr. 1026; Orig. GC Ex. 13 at 9-11. It also revealed that Employee No. 1 had used Government equipment and resources for his private litigation matter (i.e., telephone and messenger service, the computer system, and support staff to type some documents). Orig. GC Ex. 13 at 6, 10-11. After the internal audit investigation, in an investigatory interview with PBGC's Director of Internal Audit, Employee No. 1 admitted using the sick leave to handle a private litigation case, but indicated that he could not recall some of the other uses of Government property. Orig. GC Ex. 13 at 7.

Prior to undertaking the private litigation matter, Employee No. 1 had been notified of the rules prohibiting the use of Government equipment and resources for personal reasons. Rem. Tr. 1040-42. In October 1985, Employee No. 1 received a routine, general statement setting forth the rule against using Government computer equipment for personal reasons. Rem. GC Ex. 108. Further, PBGC's former ethics official testified that in the spring of 1986, Employee No. 1 asked the ethics office about the propriety of working on an outside legal matter and was advised not to do so on Government time or using Government resources. Rem. Tr. 1043, 1051-52.

Employee No. 1 received a 45-day suspension for practicing private litigation for personal gain through use of his Government employment resources, including using sick leave for performing legal work, using Government telephones, messenger services, computers and secretarial typing services, as well as lying in response to questions regarding the use of such resources and making false statements in an official investigation. PBGC I, 39 FLRA at 917, 926, 960.

In deciding not to discharge Employee No. 1, Mackiewicz took into consideration the value of the employee to the department, his excellent ratings over the years, his prior good employment record, his contrition, Mackiewicz's continuing confidence in the employee, and his potential for rehabilitation. Rem. Tr. 1015-16; Orig. GC Ex. 9 at 4-5.

Consistent with the court's decision remanding the case to the Authority, we have reexamined our determination that Power and Employee No. 1 were similarly situated in light of the factors that we have identified as relevant to such a determination. On reconsideration, we reverse the Authority's former holding. PBGC I, 39 FLRA at 931.

Although Power and Employee No. 1 both occupied GS-14 attorney positions in OGC and engaged in misconduct that is in some respects comparable, we conclude that significant differences between Power and Employee No. 1 demonstrate that the employees were not, in the final analysis, similarly situated. As the court indicated, PBGC v. FLRA, 967 F.2d at 668, the record is replete with indications that Power's supervisors had lost confidence in his ability to continue to perform his assigned duties effectively, and in his potential for rehabilitation. Orig. Tr. 669, 671-72, 849, 851-52. The fact that "even after the investigatory interview, at which time Power had knowledge that his conduct was being closely scrutinized, he continued to refuse to follow the concurrence matrix and he continued to delete CEO messages without reading them," confirmed these assessments. PBGC v. FLRA, 967 F.2d at 667.

In contrast, Employee No. 1's supervisor, former General Counsel Mackiewicz, indicated a continuing confidence in the employee's ability to perform his duties in the wake of his disciplinary difficulties. Rem. Tr. 1016. Mackiewicz also concluded that Employee No. 1 had the potential for rehabilitation and was contrite. See Rem. Tr. 1014-16, 1034. Thus, Mackiewicz was of the opinion that the employee "wouldn't do anything like it again." Rem. Tr. 1015. He also indicated that in his view Employee No. 1 recognized that he "had made a mistake and from his demeanor and the way he spoke and so forth, I believe he -- I concluded that he was contrite." Rem. Tr. 1034.

These significant dissimilarities serve to distinguish Power from Employee No. 1. It is true that the employment backgrounds and offenses of the two attorneys, although not identical, are arguably comparable.(15) Nevertheless, insofar as discipline serves a constructive purpose in correcting employee behavior and preserving the Government's investment in an employee, we ascribe significant weight to the factors of supervisory confidence and potential for rehabilitation.(16) Because of the employees' dissimilarities in these respects, we find that they were not similarly situated. Accordingly, we do not find a basis in the differing disciplinary situations of Power and Employee No. 1 for concluding that Power was disparately treated because of his union activities.(17)

c. Employee No. 8 (18)

On February 26, 1988, Employee No. 8, a GS-12 Auditor, was discharged on a record of insubordinate conduct. The employee was first disciplined on October 10, 1984, when he received a 2-day suspension for use of obscene language against his supervisor and for making unwarranted accusations against him. Rem. GC Ex. 112A at 1. On a second occasion, June 17, 1985, Employee No. 8 was suspended for 60 days for disrespectful, discourteous, and uncooperative action, and unwarranted accusations against his supervisor. Rem. GC Ex. 112(C). Initially, removal was proposed for this second incident. Id. at 8. However, the employee was given "one final opportunity to demonstrate [the employee's] willingness and ability to behave in an appropriate manner." Id. When the insubordinate conduct resumed, PBGC on September 14, 1987, issued a proposal to remove Employee No. 8 for disrespectful, discourteous, uncooperative attitude, and for insubordination against his supervisor. Orig. GC Ex. 8 at 1. As indicated above, on February 26, 1988, Employee No. 8 was removed. Id. at 28.

Despite a number of distinctions, we find sufficient similarities between Power's case and that of Employee No. 8 to support the conclusion that these employees were similarly situated. Although Employee No. 8 was not an attorney, as was Power, Employee No. 8 was nevertheless a professional, an auditor, who held a position of responsibility and trust. Furthermore, like Power, Employee No. 8 was ultimately removed for a number of instances of generally insubordinate conduct that manifested itself in various forms. Additionally, although Employee No. 8's misconduct extended over a far longer time frame than did Power's, both received a series of specific warnings against repeating their objectionable behaviors, which both employees ignored. In the end, both employees lost the confidence of their supervisors, who viewed them as having scant potential for rehabilitation. In this latter regard, PBGC concluded in Employee No. 8's case that there was "little if any potential for rehabilitation, particularly in light of the fact that [the employee had] not in any way acknowledged any need for rehabilitation." Orig. GC Ex. 8 at 24. Because both employees suffered the same ultimate penalty in comparable circumstances, we find that the comparison supports the conclusion that Power was not treated disparately.

Against this background, we reject the assertion that Power and Employee No. 8 were disparately treated because Employee No. 8 was progressively disciplined prior to his removal and Power was not. As the court pointed out, like Employee No. 8, "Power received numerous warnings and had more than ample notice that his conduct was unacceptable." PBGC v. FLRA, 967 F.2d at 670 n.15. The warnings Power received, documented in the record, render the substance of the comparison with Employee No. 8 valid, even if there is some difference in the form in which the warnings were rendered. Moreover, as indicated above, PBGC levied the same penalty on Power and Employee No. 8: both were ultimately removed. This consistency in PBGC's treatment of Power and Employee No. 8, against the background of similarities we discussed, satisfies us that the two employees were similarly situated and comparably disciplined.

d. Employees Nos. 7, 9, and 10

On July 25, 1986, Employees Nos. 7 and 10 engaged in a physical altercation. Employee No. 7, a GS-9 Supervisory Accounting Technician, was Employee No. 10's immediate supervisor. Employee No. 10 was a GS-6 Accounting Technician. ALJ Rem. at 7.

The incident occurred after Employee No. 10 followed Employee No. 7 to his car, repeatedly cursed at Employee No. 7, and slammed Employee No. 7's car door. After Employee No. 10 slammed the car door, Employee No. 7 "struck the first blow" when he got out of his car, grabbed Employee No. 10, carried her approximately a dozen feet away, and pinned her against a wall in the garage near the door to the stairwell. Orig. GC Exs. 7 at 1, 18(a) at 1. Employee No. 10 grabbed Employee No. 7's tie, threatened, and attempted to injure him with a heavy metal sign or similar object, while shouting obscenities at him. Other employees intervened and Employee No. 7 released Employee No. 10. Employee No. 7 then returned to his car. Employee No. 10 followed Employee No. 7 back to his car and "commenced banging on it and shouting obscenities as Employee No. 7 drove away." Orig. GC Ex. 18a at 2. Employee No. 7 received a 3-day suspension and Employee No. 10 received a 14-day suspension.

On May 13, 1986, in an unrelated incident, Employee No. 9, a GS-5 Document Control Clerk, was in a meeting with his immediate supervisor and seven co-workers to discuss an office luncheon. During the meeting, a heated discussion developed between Employee No. 9 and Employee No. 12 concerning the luncheon. Employee No. 9's supervisor directed him more than once to return to his work station. Employee No. 9 refused, and the heated discussion continued between him and Employee No. 12. During the discussion, Employee No. 12 hit Employee No. 9, and a fight commenced. Although Employee No. 12 subsequently attempted to withdraw, Employee No. 9 continued the fight. The fight eventually ended when Employee No. 9's supervisor forcibly intervened. Employee No. 9 was suspended for 60 days. Employee No. 12 left the agency before any discipline could be imposed.

The Judge found on remand that Employees Nos. 7, 9, and 10 and Power were not similarly situated. The Judge noted in this regard that: (1) the employees were not attorneys like Power; (2) the employees did not work in the same department under same supervision; (3) the type of misconduct was different -- i.e., fighting as opposed to insubordination; (4) the employees occupied different grades; and (5) the employees had responsibilities different from those of Power, "an independent operator representing Respondent in the legal arena." ALJ Rem. at 11. We agree with the Judge that these considerations demonstrate that Power and Employees Nos. 7, 9, and 10 were not similarly situated. In view of this conclusion, and because of the nature of the considerations involved, the lighter penalties levied on Employees Nos. 7, 9, and 10 do not indicate that Power was treated disparately.

e. Summary Concerning Disparate Treatment

Accordingly, we find Power similarly situated and treated comparably to Employees Nos. 6 and 8, who were also separated from Federal service. As to Employee No. 1, although Power and Employee No. 1 were both attorneys and engaged in somewhat comparable misconduct, we find that significant differences between them rebuts the conclusion that Power was disparately treated. We also find that Power was not similarly situated to Employees Nos. 7, 9, and 10 who, like Employee No. 1, received lesser sanctions than Power. We therefore find that Power was not treated disparately by PBGC, and that PBGC would have taken the same action even in the absence of Power's protected activity. Consistent with the foregoing, we conclude that PBGC did not violate section 7116(a)(1) and (2) of the Statute, as alleged, and the complaint must therefore be dismissed

V.    Order

The complaint in this case is dismissed.

WASHINGTON, D.C. 20424-0001






Charging Party

Case No. 3-CA-90456

39 FLRA 905 (1991)

47 FLRA 595 (1993)

Nancy Heermans, Esquire
Denise Yegge, Esquire

Raymond M. Forster, Esquire
For the Respondent

Carolyn J. Dixon, Esquire
For the General Counsel

Jefferson D. Friday, Esquire
For the Charging Party

Deborah Stover-Springer, Esquire
For Respondent's Office of Inspector General

Administrative Law Judge


Statement of the Case

Pursuant to a charge filed on April 5, 1989, by the National Treasury Employees Union, (hereinafter called the Union or NTEU), a Complaint and Notice of Hearing was issued on June 6, 1989 by the Regional Director of the Washington Region, Federal Labor Relations Authority. The Complaint alleged that the Pension Benefit Guaranty Corporation, (hereinafter called the Respondent or PBGC), violated Sections 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by discharging David Power, a GS-14 attorney employed in the Office of the General Counsel. On April 9, 1990, the undersigned Administrative Law Judge, following a hearing on the matter, issued a decision wherein it was found that the General Counsel had not established that Mr. Power had been discharged for engaging in activities protected by the Statute. Accordingly, it was recommended that the Complaint be dismissed in its entirety.

Upon appeal, the Federal Labor Relations Authority concluded, among other things, that Mr. Power had been treated differently from other employees in terms of discipline and that Respondent had not proved that it would have discharged Mr. Power in the absence of his participation in union activities. The Authority reversed the Administrative Law Judge and ordered Respondent to reinstate Mr. Power and make him whole for any wages he may have lost.

Thereafter, Respondent filed a Petition for Review with the Court of Appeals for the District of Columbia Circuit and the Federal Labor Relations Authority filed a Cross-Application for Enforcement of its decision. The Court while concluding, contrary to the Authority, that Respondent would have discharged Mr. Power in the absence of any union activity, was concerned with the Authority's finding that "the harsher discipline" imposed upon Mr. Power, i.e., discharge, constituted disparate treatment. In this latter connection the Court disagreed with the standards applied by the Authority in deciding whether or not Mr. Power had been subjected to disparate treatment. The Court was also troubled by the FLRA's disparate treatment analysis which in the main consisted of a comparison of other employees' misconduct and the penalties imposed for such misconduct.

The Court, citing Douglas v. Veterans Administration, 5 M.S.P.B. 313, went on to list additional factors to be considered in determining whether an employee had been subjected to disparate treatment. Such factors included the nature and seriousness of the offense, and its relation to the employee's duties, positions, and responsibilities; the employee's job level and type of employment, including supervisory or fiduciary role, contact with the public, and prominence of the position; the employee's past disciplinary record; the employee's past work record, including length of service, performance on the job, and ability to get along with fellow workers, and dependability; 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; and the employee's potential for rehabilitation.

The Court remanded the case to the Authority to explain the basis for its conclusion that Mr. Power and Employees No. 1, No. 7, No. 9 and/or No. 10 were similarly situated. Further, with respect to Employees No. 7, No. 9 and No. 10 the Court was concerned, given the positions of such employees, i.e., lower graded control clerks and accounting technicians, how the Authority could conclude that they were similarly situated to Mr. Power. Finally, the Court wanted an explanation from the Authority as to why it did not consider Employee No. 6 and Mr. Power to be similarly situated.

The Authority, over the objection from Counsel for the Respondent,(1) took the position that the record was "insufficient to make the determinations required by the Court" and remanded the matter to the undersigned Adminis-trative Law Judge "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, to determine in a recommended decision and order whether Mr. Power had been subjected to disparate treatment".

Pursuant to the remand from the Authority, a hearing was held in the captioned matter on October 19, 1993, in Washington, D.C. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues set forth in the Authority's remand. The Respondent, General Counsel and Charging Party all filed post-hearing and reply briefs which have been duly considered.(2)

Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

Employee No. 1 was hired as a GS-14 trial attorney in Respondent's legal department on November 18, 1979. Prior to being disciplined in 1986, Employee No. 1 was given four within-grade wage increases and a number of Special Act awards in recognition of his good work. Prior to 1986, Employee No. 1 had never been subjected to any type of discipline.

In 1986 Employee No. 1 was one of four trial attorneys in the Office of General Counsel working on various legal matters wherein they exercised a wide latitude of independence with respect to the prosecution of the legal aspects of the cases assigned to them.

In early June 1986, Employee No. 1 was granted three days of sick leave in order to have some dental work performed. However, unbeknownst to his supervisors, Employee No. 1 used the time off to take depositions in New York for a private legal matter he was handling for a friend.

Subsequently, he approached Mr. Edward Mackiewicz, who at the time held the position of General Counsel, and informed him that he had heard that Respondent was conducting an investigation about some outside matter he was handling. Employee No. 1 then informed Mr. Mackiewicz that he was working on a personal injury case for a friend and requested Mr. Mackiewicz permission to continue such litigation. During the ensuing conversation Employee No. 1 admitted having used Respondent's computer system in his private litigation and also falsely informed Mr. Mackiewicz that he had his wisdom teeth extracted during the period when he was off on sick leave. He apologized for using the computer for his private litigation and made it clear that he would be willing to remove his personal entries from the computer system or do whatever else that would make Respondent happy.

The Respondent's investigation of Employee No. 1 disclosed that Employee No. 1 had utilized the three days of sick leave for non-medical purposes and that in addition to the unauthorized use of Respondent's computers he had also used Respondent's telephones to make long distance calls, Respondent's messenger services and Respondent's support staff in his private litigation.

Following the completion of the investigation, Employee No. 1 met with Mr. Wayne Poll, Respondent's Director of Internal Audit, and admitted having spent his sick leave on the private litigation that he was handling. However, when asked about the use of Government resources in his private litigation he failed to recall the use of such resources.

Subsequently, Employee No. 1 was accused of utilizing Government Resources in his private litigation, making false statements and lying to his supervisor. Following a number of discussions with Employee No. 1, Mr. Mackiewicz, who had the responsibility of deciding the initial discipline, proposed a 45-day suspension. According to Mr. Mackiewicz, who had never disciplined an employee, in deciding not to discharge Employee No. 1 he took into consideration his value to the department, his prior employment record, his excellent ratings over the years, his clean record, his contrition, Mr. Mackiewicz' confidence in the employee and his potential for rehabili-tation, and the fact that he, Mr. Mackiewicz, was about to leave the Respondent and did not want one of his last official acts to be the discharge of an employee.

While the disciplinary action was pending, Mr. Gary Ford became General Counsel and also the final deciding official with respect to the discipline to be imposed on Employee No. 1. Mr. Ford had to decide whether the 45-day suspension was appropriate and if so, how it was to be served. Mr. Ford met with Employee No. 1 and found him to be contrite. Despite the fact that Employee No. 1 was sorry for his actions and did not make any excuses, Mr. Ford was of the opinion that the 45-day suspension was overly lenient and that the penalty should be raised. However, after being advised by Mr. Philip Hertz, who was in charge of labor and personnel matters, that a change in the proposed penalty would entail a new investi-gation and be subject to possible reversal by MSPB, Mr. Ford decided to go along with the 45-day suspension and ordered that such suspension be served on consecutive days.

Employee No. 6 was hired as a GS-11 law clerk in 1979 and progressed up through the ranks to a GS-14 attorney. Upon the arrival of Mr. Mackiewicz in 1985, Employee No. 6 became his right hand man. Due to his superior work, Employee No. 6 was promoted in January 1986 to the newly created position of Executive Assistant to the Director of the Legal Department.(3) As Mr. Mackiewicz' executive assistant, Employee No. 6 was involved in numerous high profile sensitive matters. He interfaced with the highest officials at IRS as well as with Respondent's Director and Deputy Executive Director. According to Mr. Mackiewicz, that while Employee No.6 continued to perform at a superior performance level, he did on occasion neglect to keep him, Mr. Mackiewicz, informed about his dealings with the "front office".

In February 1987, Mr. Ford replaced Mr. Mackiewicz as Respondent's General Counsel. Mr. Ford interviewed all the attorneys, including Employee No. 6, assigned to his staff for purposes of determining the work they were doing and to obtain their suggestions as to how the office could be improved. Although not completely clear from the record, it appears that during the aforementioned discussions Employee No. 6 informed Mr. Ford that it was his intention to search for a new job within a month or two.

Subsequently, Mr. Ford being disturbed about Employee No. 6's unsupervised contacts with the Office of Executive Director, decided to place him under the same supervisory rules that the other attorneys in the office were subject to. To this end, Mr. Ford met with Employee No. 6 and informed him that he would be allowed to retain his current title, i.e., Executive Assistant to the General Counsel, but that he would be subject to the same supervision as the other attorneys in the office and that he was to stay out of the front office "unless supervised and cleared." According to Mr. Ford, he made it clear to Employee No. 6 that he was serious about the matter and that he, Employee No. 6, was to cease acting as an independent operator. Employee No. 6 replied that he understood that there could not be two General Counsels and that while he operated as Mr. Mackiewicz' alter ego, he understood that such was not going to be the case under Mr. Ford. He went on to state that while he was going to redouble his efforts to find another position he intended to abide by the rules while he was still with the Respondent.

Despite his assurance that he would abide by Mr. Ford's instructions and stop acting as an independent operator, Employee No. 6 failed to follow the rules and continued dealing independently with the outside world and the Executive Director's Office without first consulting with his supervisors. His independent unsupervised actions caused great embarrassment to the Office of General Counsel.

Upon learning of Employee No. 6's recent activities in the above regard, Mr. Ford met again with Employee No. 6 and told him that he was very concerned with his recent independent activities. At such time, Mr. Ford made it clear that Employee No. 6's resignation was no longer voluntary and that as far as he, Mr. Ford, was concerned, "he had to go".

Following the above described meeting, Mr. Ford contacted Mr. Hertz and informed him that he wanted to set a date for Employee No. 6's departure. Specifically, he wanted to know if there was a procedure whereby he could effect the immediate departure of Employee No. 6 and also allow him time to find a position with another employer. Mr. Hertz advised Mr. Ford to change Employee No. 6 from a GM-14 position to a temporary GS-14 position which, pursuant to a contract, would expire 30 days later. At Mr. Ford's request, Mr. Hertz prepared a letter of resignation for Employee No. 6's signature acknowledging the arrangement. Employee No. 6 signed the letter and gave it to Mr. Ford. Thereafter, after receiving a short extension of the 30-day period allowed to find a new job, Employee No. 6 left Respondent's employ on December 1, 1987.

Employee No. 7 was hired by the Respondent in September 1980 as a GS-5 Accounting Technician. By 1986, he progressed to the position of a GS-9 Supervisory Accounting Technician in the Premium Processing Branch, a part of Respondent's Financial Operations Department. His main responsibility was keeping records of premium payments made by various pension plans to Respondent. The position had no set educational or degree requirements. Both he and his supervisor were required to follow a set of guidelines for performing their work. Employee No. 7 did not make policy and to the extent that a problem arose for which an answer was not readily available from the guidelines, such problem was to be brought to the attention of his immediate supervisor.

Employee No. 10 was hired as a GS-3 typist in July 1972. She progressed to a GS-6 accounting technician under the supervision of Employee No. 7. There were no educational requirements for the job. Like Employee No. 7, she followed instructional guidelines in the performance of her work.

On July 25, 1986, Employee No. 7 entered Respondent's parking garage and proceeded to his car. Employee No. 10 followed him into the garage and, in the presence of other employees, began cursing, threatening and attempting to injure Employee No. 7. Employee No. 10 then slammed shut Employee No. 7's car door. After Employee No. 10 ignored the orders of Employee No. 7 to return to her work station, Employee No. 7 got out of his car and pinned Employee No. 10 against the wall. The employees who were witnessing the altercation intervened and caused Employee No. 7 to release Employee No. 10. The altercation then ceased.

The record indicates that both employees had satisfactory employment records and that this was the first time that they had been in trouble. Mr. Charles Hicks, who at the time was the Deputy Director of the Financial Operations Department, proposed suspending Employee No. 7 for seven days and Employee No. 10 for fourteen days. Mr. Lawrence Martin, who at the time was Director of the Financial Operations Department, subsequently reduced Employee No. 7's suspension from seven to three days and went along with the fourteen-day suspension for Employee No. 10. In awarding the penalties, Respondent's representatives took into consideration, among other things, the fact that Employee No. 7 had only been a supervisor for a short while and that Employee No. 10 was the instigator. Due to the fact that Employee No. 10 was scheduled to undergo a rehabilitation program designed to correct or cure an emotional problem and drug dependency, the imposition of the fourteen-day suspension was delayed. Subsequently, prior to completion of the rehabilitation program, Employee No. 10 was discharged for insubordination and threats to harm her second-line supervisor.

Employee No. 9 was hired by Respondent as a GS-4 File Clerk in 1982. As of May 1986 he progressed to the position of a GS-5 Document Control Clerk. In such position he reviewed various filings with respect to the termination of pension plans for purposes of insuring that such filings had been correctly filled out. In performing his duties Employee No. 9 used little or no independent judgement but rather followed written instructions.

In May 1986, Employee No. 9 became involved in a fight with Employee No. 12 over the cost of the food and beverages that each was to be responsible for supplying for an employee luncheon. According to Employee No. 9's immediate supervisor, who was a witness to the altercation, Employee No. 9 and Employee No. 12 were arguing. As Employee No. 9 proceeded to leave the office, pursuant to instructions, he kept yelling and "provoking" Employee No. 12 who suddenly ran across the room and hit him. They rolled on the floor with Employee No. 12 on the top. After a few minutes, Employee No. 12 informed Employee No. 9 that the fight was over and that he was going to let him up. As they got up Employee No. 9 hit Employee No. 12 and the fight lasted a little longer.

Employee No. 9 was originally charged with fighting and gross insubordination and recommended for discharge. However, the deciding official, Mr. William DeHarde the Director of the Office of Program Operations, reduced the penalty to a 60-day suspension. In reducing the penalty, Mr. DeHarde took into consideration the fact that Employee No. 9 had not struck the first blow, that he was following his immediate supervisor's order to leave the office and return to his work station when the fight occurred, that he had vowed to be a good employee, that it was a one time incident and that his immediate supervisor had confidence in his ability to perform his assigned duties. He also took into account the fact that Employee No. 9 had been cautioned several years earlier concerning shouting matches or arguments over sports which disrupted the office.

With respect to Employee No. 12, the record indicates that he left Respondent's employ before discipline could be imposed.


As noted supra, pursuant to the Authority's remand, a hearing was held for purposes of taking "additional evidence to decide whether Mr. Power was similarly situated to Employees Nos. 1, 6, 7, 9 and/or 10, and, based on the evidence to determine whether Mr. Power had been subjected to disparate treatment".(4)

In my original decision in this matter I found that Mr. Power had not been subjected to disparate treatment and that Mr. Power would have been discharged, in any event, absent his participation in union activities. Admittedly, in reaching the aforementioned conclusion, I only considered and/or compared Mr. Power and Employees Nos. 1, 7, 8, 9 and 10. With respect to Employee No. 6, I did not consider him to be similarly situated to Mr. Power since, prior to any indiscretion on his part, he had made it clear that he was going to leave Respondent's employ. Accordingly, I viewed his departure from Respondent's employ to be a voluntary act.

Upon reconsideration, I find that to the extent that Employee No. 6's departure was hastened by his failure to follow orders, that both he and Mr. Power were similarly situated. Thus, the record indicates that they both worked in the legal department of Respondent, both were Grade 14 attorneys, both worked on highly complex legal matters, and both were responsible for either following a matrix or checking in with higher authority in order to insure that any actions taken by them were in agreement with office policy. Finally, both were separated from Respondent's employ for failure to follow instructions. While Employee No. 6 may have once held a managerial position, at the time of his separation he was acting as a rank and file Grade 14 attorney. Moreover, unlike Mr. Power who had been given a number of verbal warnings prior to his discharge, Employee No. 6 upon failing to check with the General Counsel before taking a particular course of action, was summarily given 30 days to seek new employment or be discharged.

Inasmuch as both Employee No. 6 and Mr. Power were given like penalties for the same indiscretions, I find that Mr. Power was not treated differently than Employee No. 6.

With respect to Employee No. 1, in agreement with the Circuit Court of Appeals for the District of Columbia, I find that Employee No. 1 and Mr. Power were not similarly situated. Aside from the fact that both held GS-14 attorney positions, the facts underlying their respective indiscretions are entirely different. Thus, the record indicates that Mr. Power was guilty of insubordination while Employee No. 1 was guilty of misappropriation of Respondent's equipment and services for a private legal matter. Additionally, according to the credited testimony of Respondent's witnesses, unlike Mr. Power, they found Employee No. 1 to be contrite and were of the opinion that Employee No. 1 could still be trusted to perform his assigned duties in a proper manner. Additionally, while Respondent considered Employee No. 1's indiscretion to be of a very serious nature, the record indicates that he escaped a more serious penalty due to the fact that a new General Counsel was about to take office and that the incumbent General Counsel was reluctant to have as one of his last acts the discharge of an employee. The new General Counsel, viewing the 45-day suspension as being lenient, was hesitant to change the penalty after being informed that a change would entail a new investigation and be subject to a reversal by the MSPB.

Accordingly, based upon the foregoing considerations, I do not find Employee No. 1 and Mr. Power to be similarly situated.

Finally, turning to Employee Nos. 7, 9 and 10, who occupied the positions of a GS-9 Supervisory Accounting Technician, a GS-6 Accounting Technician and a GS-5 Document Control Clerk, respectively, I cannot find that they are similarly situated to Mr. Power. In reaching this conclusion I note, among other things, the fact that they are not lawyers, they do not work in the same department under the same supervision, the type of misconduct they were involved in, i.e., fighting as opposed to insubordination, the respective grades held by the employees and Mr. Power, and the responsibilities imposed upon Mr. Power as an independent operator representing Respondent in the legal arena.

Based upon the above analysis, I cannot find that Mr. Power was subjected to disparate treatment. In such circumstances, it is recommended that the Authority adopt the following order which dismisses the Complaint in its entirety.


It is hereby Ordered that the Complaint should be, and hereby is, dismissed in its entirety.

Issued, Washington, DC, July 19, 1994



Authority's Footnotes Follow:

1. The following are references to documents submitted in the original proceeding in PBGC I: (1) transcript of proceedings before the Judge (Orig. Tr.); (2) Joint Exhibits (Orig. Jt. Ex.); (3) General Counsel Exhibits (Orig. GC Ex.); and (4) Respondent Exhibits (Orig. R Ex.).

The following are references to documents submitted in proceedings on remand before the Judge: (1) transcript of proceedings before the Judge on remand (Rem. Tr.); (2) General Counsel Exhibits on remand (Rem. GC Ex.); and (3) Respondent Exhibits on remand (Rem. R Ex.).

2. The Authority did not mention Employee No. 8 in its remand order.

3. In this connection, the Authority specifically rejected PBGC's argument that the Authority was precluded from reopening the record for the limited purpose of obtaining additional evidence to make the required determinations. PBGC has not renewed this argument in its exceptions to the Judge's Decision on Remand, and it will not be discussed further in this decision.

4. The Douglas factors 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.

5. PBGC filed a motion to strike portions of the GC's and NTEU's exceptions relating to evidence excluded from the record by the Judge in a ruling that, as discussed in section IV.A. below, we uphold. The GC and NTEU opposed PBGC's motion to strike, and the GC filed a motion to strike PBGC's opposition, arguing that PBGC's previously filed motion to strike should be deemed its opposition. We deny both motions to strike. With regard to PBGC's motion, the Authority's regulations provide that submissions such as those PBGC challenges, which rely on material not part of the case's record, may be "disregarded." 5 C.F.R. § 2423.27(a)(3) & (b). As to the GC's motion to strike, the Authority's regulations provide PBGC with the opportunity to file an opposition to exceptions, 5 C.F.R. § 2423.28(b). The regulations also provide, separately, for the filing of motions. 5 C.F.R. § 2423.22. Thus, the Authority's regulations provide a basis for distinguishing between PBGC's motion to strike and its later-filed opposition to the GC's and NTEU's exceptions. However, the regulations do not require that PBGC's motion to strike be deemed its opposition simply because the motion was filed first. Moreover, even were PBGC's motion deemed part of its opposition, the motion was timely submitted in compliance with the Authority's regulations. 5 C.F.R. § 2423.28(b). The Authority's regulations do not require a party's opposition to be filed as a single document.

6. Also distinguishable is U.S. Department of Veterans Affairs Medical Center, North Chicago, Illinois andAmerican Federation of Government Employees, Local 2107, 52 FLRA 387 (1996), in which the Authority considered affidavits submitted by a party to the Authority that had not been submitted during the previous proceeding before an arbitrator. Although the affidavits "could not have been submitted to the Arbitrator prior to the issuance of the award," the reason was specific to that case. Id. at 399 n.10. As the Authority noted, the affidavits were submitted in support of the party's contention that the award itself was deficient, because of events that had occurred during the arbitration proceeding (allegedly showing arbitrator bias). Id.

7. See also United States Air Force Academy, Colorado Springs, Colorado, 52 FLRA at 879 (supervisor would have issued a memorandum regarding employee's discourteous and insubordinate conduct even in absence of employee's union activities since "a supervisor is under no obligation to tolerate remarks and/or actions which are designed to arouse his anger"); Bureau of Engraving and Printing, Western Currency Facility, Forth Worth, Texas, 51 FLRA 1014, 1042-43 (1996), petition for review filed, Midder v. FLRA, No. 96-60371 (5th Cir.) (employee discharged for misconduct); U.S. Department of Treasury, IRS, Washington, D.C. and IRS, Service Center, Ogden, Utah, 41 FLRA 1212, 1214 (1991) (employee not disciplined because of official time use but for his failure to abide by work requirement letter); NLRB v. Vemco, Inc., 989 F.2d 1468, 1482 (6th Cir. 1993) (layoff justified by showing of overstaffing, failure to obtain anticipated contract for more work, and the high cost of keeping unnecessary workers); PYA/Monarch, Inc., 275 NLRB 1194 (1985) (employee discharged for failing to deliver a customer order, and for failing to clock out).

8. These actions by Power also underlay the charge that Power converted Government property. Orig. Jt. Ex. 4 at 4, 8, & 10.

9. Seeking to excuse Power's first two instances of misconduct, the GC asserts that documents sent on August 11 (documents in the Anthracite Fund case) and August 18, 1988 (internal documents in the Gulf & Western case) did not require supervisory concurrence since they were not listed on the matrix. However, the GC does not point specifically to anything in the matrix excluding such documents. Moreover, the memorandum accompanying the matrix specifies no exception to the requirement for "supervisory concurrence or approval . . . before sending any material, especially pleadings, out of the office." Orig. GC Ex. 15 (emphasis added). The record also indicates that whenever there was an exception to the matrix's requirements, the document had been cleared orally with the supervisor. See Orig. Tr. 819-20 (testimony of Flowe); Orig. Tr. 748 (testimony of Lindeman); Orig. Tr. 559-60 (testimony of Hertz). Power does not dispute that he failed to get the necessary concurrence on August 11 and 18. See Orig. Tr. 357, 368. Further, as the Judge found, Power had been warned by Beck's predecessor, Lonnie Hassel, on at least one occasion that supervisory concurrence was necessary on the promissory note and security agreement sent out in the Anthracite Fund case. PBGC I, 39 FLRA at 943; see also Orig. Tr. 358, 487 (testimony of Power admitting he was warned by Hassel).

10. For example, in her first request, Flowe stated that she wanted to examine "a representative sample of [Power's] writing," and asked to be provided with "[a] variety of his written materials, including specifically copies of ALL of the intra and interoffice memoranda he has prepared in connection with the Kaiser case." Orig. Jt. Ex. 2(o).

11. The record indicates that Power knew that the lower-level employee from whom he obtained the data was not an authorized source. PBGC I, 39 FLRA at 910. Power had been told "repeatedly . . . that any formal communication regarding labor relations should be directed to . . . the agency's labor relations representative." Orig. R Ex. 4(a).

12. See also Manville Forest Prod. Corp., 269 NLRB 390, 391 (1984) ("it is within an employer's legitimate prerogative to investigate misconduct in its plant and to do so without interference from any of its employees -- including those who are union officials"); Service Technology Corp., 196 NLRB 845, 846 (1972) (no unfair labor practice in the employer's investigation of a union steward's alleged threats to co-employees, despite union's contention "that the matter was strictly a union one and [that the investigating management official should] keep his nose out of it").

13. We do not, however, consider and address each and every factor in comparing Power's disciplinary situation to that of the other employees we discuss in the sections of the opinion that follow. See Nagel v. Department of Health & Human Servs., 707 F.2d 1384, 1386 (Fed. Cir. 1983) (upholding MSPB where it did not specifically consider and address all 12 factors listed in Douglas, since "[n]ot all of the factors will be pertinent in every case").

14. The GC asserts that Power was treated differently than Employee No. 5, an attorney who allegedly also failed to follow the Concurrence Matrix and to respond to computer messages from her supervisor but who, unlike Power, was not removed. Employee No. 5 was not mentioned by the Judge in either the original or the remand proceeding, by the Authority, or by the court. Unlike Employee No. 8, discussed infra, we find insufficient evidence in the record to make determinations concerning the nature and extent of Employee No. 5's misconduct and surrounding circumstances. Accordingly, we do not consider Employee No. 5 in determining whether Power was subjected to disparate treatment.

15. Questioning this similarity, the court discussed the fact that Power received warnings concerning his behavior while Employee No. 1 apparently had not. PBGC v. FLRA, 967 F.2d at 667. Based 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. However, Power's warnings were rendered in closer proximity to his misconduct than Employee No. 1's warnings. Further, Power's warnings were more specific than Employee No. 1's because they occurred immediately after and with particular reference to incidents of his misconduct.

In this regard, Employee No. 1 received at least two general warnings before any misconduct occurred. On October 30, 1985 Employee No. 1 signed a receipt for a general warning given to all PBGC employees (Rem. GC Ex. 108) concerning PBGC policy on the use of computer equipment. In the spring of 1986, the employee was generally advised by an ethics official not to conduct work on outside legal matters on Government time or with Government resources (Rem. Tr. 1042-43, 1051-52; Orig. GC Ex. 13). On the other hand, Power was given three warnings for failing to follow the Concurrence Matrix, on August 25, 1988 (Orig. Jt. Ex. 2(i)), September 9, 1988 (Orig. Jt. Ex. 2(j)), and December 1, 1988 (Orig. Jt. Ex. 2(g)), after he failed to comply with the matrix on August 11 and 18, and November 29, 1988. He was given two warnings on December 8 (Orig. Jt. Ex. 2(l)) and December 9, 1988 (Orig. Jt. Ex. 2(n)), immediately following his refusal to accept two CEO mail messages on December 8. See also PBGC I, 39 FLRA at 945-46. In a related vein, Power failed to respond to other repeated requests. For example, on four separate occasions Power failed to supply a representative writing sample in response to supervisory instructions (June 15 (Orig. Jt. Ex. 2(p)), June 16 (Orig. Jt. Exs. 2(t)-2(v)), June 22 (Orig. Jt. Ex. 2(w)), and August 8, 1988 (Orig. Jt. Ex. 2(aa))). Power also failed to return original computer surveys after three separate requests were made on September 26, 1988 (Orig. Jt. Ex. 2(f)), October 3, 1988 (Orig. Jt. Ex. 2(e)), and October 6, 1988 (Orig. GC Ex. 3)).

In any event, Employee No. 1 did not continue to repeat his erroneous actions once they came to light. Power, in contrast, compiled a record of chronically failing to heed specific warnings he received concerning his actions, establishing a pattern of behavior that continued unabated throughout the period covered by the record in this case.

16. Compare Gomez v. Social Sec. Admin., 70 MSPR 257, 266 (1996) (arbitrator properly considered mitigating factors such as employee's unblemished record for 13 years and outstanding ratings and performance awards, but found removal penalty appropriate for established pattern of mishandling and falsifying documents since, among other things, employee lacked rehabilitation potential); Griffin v. Department of Army, 66 MSPR 113, 119-20 (1995) (removal of supervisory employee for insubordination and poor performance should not have been mitigated where no persuasive analysis showed that factor of employee's medical depression outweighed other pertinent factors such as the fact that employee demonstrated no remorse for behavior at hearing and showed no potential for rehabilitation); Pope v. Department of Navy, 63 MSPR 51, 54 (1994) (suspension of 90 days, based on sustained charges, reasonable despite fact that employee was a 21-year Federal employee with no disciplinary record, and had received outstanding performance ratings, since employee was guilty of serious intentional misconduct that was disruptive to the work environment and showed no remorse) with Sublette v. Department of Army., 68 MSPR 82, 89 (1995) (mitigation of penalty of removal to demotion to highest available nonsupervisory position justified where, among other things, employee showed potential for rehabilitation by indicating to agency officials that he was willing to work to improve); Bivens v. Tennessee Valley Auth., 8 MSPR 458, 463 (1981) (based on disparate treatment of similarly situated employees and evidence of employees' likelihood of rehabilitation, charge of removal was reduced to 60-day suspension).

17. Even if we were to determine, on the basis of employment background, position, and offenses committed, that Power and Employee No. 1 were similarly situated, we would reach the same conclusion on the issue of Power's alleged disparate treatment. The significant differences between Power and Employee No. 1 regarding the levels of confidence their supervisors continued to have in them, and in their supervisor's views as to their potential for rehabilitation, accounts convincingly for the differing penalties they received, and compels a conclusion that Power was not disparately treated.

18. Although the Authority did not direct the Judge to make additional recommendations concerning Employee No. 8, we find Employee No. 8's situation both relevant and sufficiently developed in the record for us to consider. Moreover, unlike Employee No. 5, see note 14, supra, Employee No. 8 was considered by the Authority in its original decision in this case (39 FLRA at 931, inadvertently referring to Employee No. 8 as Employee No. 9), and by the court. PBGC v. FLRA, 967 F.2d at 670 n.15.

ALJ's Footnotes Follow:

1. Upon Remand from the Circuit Court for further explanation of its conclusions that Mr. Power was similarly situated to the aforementioned employees, the Respondent urged the Authority to limit its review to only those issues identified in the Circuit Court's remand and to confine such review to the existing record. In support of its position Respondent cited a number of Circuit Court cases, i.e., City of Cleveland, Ohio v. Federal Power Commission, 561 F.2d 344; In re Wella A.G., 858 F.2d 725; Mefford v. Gardner, 383 F.2d 748; and Department of the Navy v. Federal Labor Relations Authority, 835 F.2d 921, wherein the Courts made it clear that on remand the subordinate tribunal had no choice but to follow the directions set forth in their respective remands. The Courts further noted, absent directions to the contrary, the subordinate tribunal was not to add additional evidence to the existing record.

Based upon the above cited cases, as well as the Authority's Rules and Regulations which impose upon the General Counsel in the first instance the burden of proving the allegations of the Complaint by a preponderance of the evidence, Respondent's position appears to have merit since a remand for additional evidence allows the General Counsel to correct a possible deficient record. However, inasmuch as, due to the scheme of things, an Administrative Law Judge is subordinate to the Federal Labor Relations Authority, the undersigned Administrative Law Judge has attempted to comply with the instructions and/or directions set forth in Authority's Decision and Order on Remand dated May 7, 1993.

2. Respondent also submitted an "ERRATA" to the transcript of the hearing on remand. In the absence of any objection, the transcript is hereby corrected so as to reflect the corrections appearing in Respondent's "ERRATA".

3. A GM-14 position.

4. In reaching the conclusions set forth infra with respect to whether Mr. Power and the named employees were similarly situated, I considered and applied the factors set forth in the Circuit Court's Remand.