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60 FLRA No. 45
U. S. Dept. of Health And Human Services, Gallup Indian Medical Center Navajo Area Indian Health Service and Laborers' International Union of North America, Local 1376 (Angelo, Arbitrator) (0-AR-3728) (Decided September 2, 2004)
The Authority set aside the findings of Fifth Amendment and Whistleblower Protection Act (WPA) violations, and the awards of lost retirement benefits, moving expenses, medical expenses and related travel expenses, the cost of a replacement life insurance policy, damages for psychological injuries, and front pay. The Authority remanded the awards of backpay and attorney fees to the parties for resubmission to the Arbitrator, absent settlement, and we deny the remaining exceptions.
Preliminary, the Authority concluded that it had jurisdiction over the issues raised noting that the stipulated issues before the Arbitrator did not involve the grievant's removal, but involved only whether the Agency violated the parties' agreement and various provisions of law when its employees engaged in telephone communications with the Whiteriver Service Unit, and the appropriate remedies for the alleged violations.
The Authority found that the finding of a First Amendment violation was not deficient. The Authority concluded that the speech involved matters of public concern, that the Agency had not demonstrated that its interests outweighed the grievant's interests here. Thus, the Authority concluded that the Arbitrator's finding of a First Amendment violation was not contrary to law, and denied the exception.
With regard to the finding of a Fifth Amendment violation, the Authority concluded that it was deficient noting that it found no basis for concluding that the phone call both resulted in a tangible loss and involved a charge against the grievant that might seriously damage his standing and associations in his community and result in permanent exclusion from, or protracted interruption of, gainful employment within his trade or profession. Thus, the Authority concluded that the Arbitrator erred in finding that the Agency violated the grievant's Fifth Amendment liberty interest.
The Authority also found deficient the allegation concerning the violation of the Whistleblower Protection Act. The Authority found that the telephone call by the Gallup officials did not constitute a personnel action, within the meaning of § 2302(a)(2)(A), the Arbitrator's imposition of liability on the Gallup Indian Medical Center for a prohibited personnel practice was deficient as contrary to the WPA
Regarding the remedy imposed, the Authority concluded that the First Amendment, by itself, did not provide a basis for the remedies awarded in this case. Thus, because the Back Pay Actconstitutes a waiver of sovereign immunity, the Authority examined whether the various remedies awarded were authorized by the Back Pay Act. However, because the Arbitrator did not explain the amount of backpay that he awarded, and the record did not reflect how he determined that amount, the Authority noted that it was unable to determine whether the amount of backpay awarded was permitted under the Back Pay Act, and remanded the backpay award to the parties for resubmission to the Arbitrator, absent settlement, for a clarification as to the appropriate amount of backpay. With regard to lost retirement benefits, the Authority concluded that the Back Pay Act does not authorize the award of lost retirement benefits, and that portion of the award was set aside. The Authority also concluded that the Arbitrator was biased and that the award was based on nonfacts.