Pension Ben. Guar. Corp. v. Federal Labor Relations Authority
| Decision Date | 26 June 1992 |
| Docket Number | No. 91-1180,91-1180 |
| Citation | 967 F.2d 658 |
| Parties | 140 L.R.R.M. (BNA) 2670, 296 U.S.App.D.C. 291 PENSION BENEFIT GUARANTY CORPORATION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Treasury Employees Union, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James Y. Callear, Washington, D.C., for petitioner.
Arthur A. Horowitz, Associate Sol., Federal Labor Relations Authority, with whom William E. Persina, Sol., William R. Tobey, Deputy Sol., and Jill A. Griffin, Attorney, Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent.
Jefferson Friday, of the bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of the court, with whom Gregory O'Duden and Elaine Kaplan, Washington, D.C., were on the brief, for intervenor. Cary P. Sklar and David F. Klein, Washington, D.C., also entered appearances, for intervenor.
Before EDWARDS, SILBERMAN and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
This petition for review involves the decision of the Pension Benefit Guaranty Corporation (PBGC) to terminate David Power, a GS-14 attorney employed in its Office of General Counsel (OGC). Power, who was president of Local Chapter 211 (Local 211) of the National Treasury Employees Union (NTEU) and had frequently represented Local 211 in collective bargaining with PBGC, filed an unfair labor practice charge with the Federal Labor Relations Authority (FLRA) pursuant to 5 U.S.C. § 7116(a). The FLRA concluded that PBGC had committed an unfair labor practice and ordered Power's reinstatement with back pay. The PBGC petitioned for review; the FLRA cross-petitioned for enforcement. We grant PBGC's petition and deny FLRA's cross petition for enforcement of the order.
By all accounts, Power "was an extremely aggressive union advocate who did not hesitate to challenge management" and had been "highly critical" of two of PBGC's management representatives, R. Frank Tobin, Director of Personnel, and Thomas H. Gabriel, a lawyer under the supervision of PBGC Assistant General Counsel Philip R. Hertz (AGC Hertz). Gabriel provided legal advice to Tobin when needed. Pension Benefit Guar. Corp., 39 F.L.R.A. 905, 962 (1991) (ALJ Decision). There was a "deep seated hostility" between Power and both Gabriel and Tobin. Id.
On May 25, 1988, Power received a performance appraisal from his first line supervisor, Lonie Hassel, for the period December 9, 1987, through May 12, 1988. Under PBGC procedures, Power attached comments to the appraisal which was subject to review by then Deputy General Counsel Carol Flowe (DGC Flowe). On June 15, 1988, Flowe, through Assistant General Counsel Jeanne Beck (AGC Beck), Power's intermediate supervisor, asked for "a representative sample of his [Power's] writing." Id. at 940. Power responded by stating that some of the documents requested "may be located in the file room of the OGC." Id.
The next morning, DGC Flowe dealt directly with Power asking again for a representative sample of his writing. This time Power responded by submitting over 2,100 unstapled pages of "lists of documents many pages of court transcripts, letters to Mr. Power from opposing counsel, LEXIS printouts, and balance sheets of companies involved in cases assigned to Power." Id. at 941. Flowe, "appalled" at Power's response, returned the papers and sent him a memo asking for the third time for "[a] representative sample" of his writing. Id. More than a month later, Power resubmitted the entire stack of over 2100 pages along with a memorandum challenging the validity of the review process and characterizing it as "Alice in Wonderland management of government legal personnel." Id. at 942. Flowe returned Power's submission and again requested that Power provide a "representative sample" of his writing. Id.
Two and half months later, Power provided Flowe with twenty-five written documents stating, "I disclaim any representations or characterizations of the enclosures as being a 'sample,' or that any such so-called 'sample' is in any way representative." Id. Power added that the samples "are not intended to, and in fact do not, have any bearing on what constitutes my 'best' written work during the rating period." Id. Flowe "gave up" and improved Power's performance appraisal. Id. at 942-43.
This sequence was but one of many incidents of Power's insubordinate conduct. PBGC has independent litigating authority; its Office of General Counsel (OGC) employs some 75 attorneys and has a substantial workload which, at the time of the hearing before the Administrative Law Judge (ALJ) in this matter, included over 600 cases in the bankruptcy courts, 78 cases in the district courts, 11 cases in the circuit courts of appeal and 2 cases in the United States Supreme Court. OGC also drafts regulations and provides advice to other PBGC departments. Because PBGC is a fairly new agency 1 litigating issues of first impression and often revising its positions, OGC uses a "concurrence matrix" to ensure the consistency of its policies. The matrix sets out the requirements for supervisory approval of written materials originating in OGC and disseminated both to opposing parties in litigation and to other offices within PBGC. Power was well aware of the matrix, having bargained over it as Local 211 president. Nevertheless he repeatedly breached the matrix's requirements.
The first breach involved Power's sending out a promissory note and security agreement to fund trustees, parties in litigation involving PBGC, without AGC Beck's concurrence despite having been told by his previous supervisor, Lonie Hassel, that concurrence was required. AGC Beck reproved Power for doing so and advised him that "[a]ll future agreements and related matters must go through me." Id. at 944. Seven days later, however, Power sent a memorandum regarding other litigation to another PBGC department without Beck's concurrence. Beck again admonished Power for his breach of the matrix. Id.
Despite these repeated admonitions, three months later, Power sent out two letters to opposing counsel in a third case without following the matrix. He also instructed a clerical worker to ignore the concurrence requirement. One of the letters erroneously stated the amount of the promissory note involved and required a revised letter. Power did not obtain concurrence regarding the revised letter. AGC Beck then sent Power a memorandum which recounted her previous warnings to Power and the importance of obtaining concurrence and termed Power's failure to follow the matrix "inexcusable." Id. at 945.
PBGC utilizes a Comprehensive Electronic Office (CEO) mail system to send messages within the agency. The CEO system notes if a recipient deletes a message without reading it. Power repeatedly refused messages sent by AGC Beck, including one scheduling a meeting to discuss the status of Power's cases. Id. at 945-46.
During the spring and summer of 1988, NTEU and PBGC engaged in bargaining over office space and ergonomic furniture for PBGC's lawyers. PBGC's computer department had requested that Donald Morrison, a GS-9 Information Service Specialist who acted as OGC's liaison with the department, send out computer usage surveys to all OGC employees. Negotiations reached an impasse on August 23, 1988. That afternoon, Power, who had begun collecting the survey responses from OGC employees because of their usefulness in the bargaining, learned that Morrison was collecting the responses directly on his computer.
Power approached Morrison and asked him if the survey responses were on his computer. Morrison acknowledged that they were but told Power that they were not very reliable. Power asked Morrison for a copy of the survey data. Morrison refused. Later that day, Morrison's printer malfunctioned. Because he was not able to obtain the data printout during his scheduled workday, Morrison asked Power to retrieve the data from the printer and put it on his desk. Id. at 947.
The next day, Power returned to the bargaining table with the survey printouts. Morrison's supervisor confronted Morrison, wanting to know how Power obtained the surveys. Morrison lied, claiming that Power's computer had been down the week before, that he had given Power access to his computer and that Power must have used his access code to obtain the surveys. Id. at 948.
A month later, on the basis of Morrison's statement, Personnel Director Tobin accused Power of wrongfully obtaining a copy of the surveys. Tobin ordered Power to return the survey data. Power did not do so. Tobin also asked AGC Beck to order Power to return the survey data which Beck did. In the meantime, Morrison admitted to Power that he had lied and corrected his previous statement. Power attached a copy of Morrison's corrected statement to his memorandum responding to Beck's order. Power further advised Beck that he equated her demand for a "written explanation" to an examination of him at which he was entitled to be represented by a union representative. Id. at 950. Beck replied, again ordering Power to return the surveys and disputing Power's right to union representation. Later that day, Power gave Tobin copies of the surveys.
In the meantime, AGC Hertz and his staff lawyer Gabriel conducted an investigatory interview of Morrison to determine which of his two statements was correct and why he had made a false statement. Morrison stated that he was afraid of what might happen if he told the truth. Gabriel asked Morrison if he had any problems with Power in the past. Morrison stated that in July 1986, Morrison had been nominated as executive vice president of Local 211 and that Power had called and asked him why he was running and what his qualifications were. As Morrison explained, Power told him that if he continued to...
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