ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998 No. 97-1414 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _______________________________ DAVID F. POWER, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent and PENSION BENEFIT GUARANTY CORPORATION, Intervenor _______________________________ ON PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor ANN M. BOEHM Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES A. Parties and amici Appearing below in the administrative proceeding before the Federal Labor Relations Authority were the Pension Benefit Guaranty Corporation ("PBGC"), and National Treasury Employees Union ("NTEU"). David F. Power is the petitioner in this court proceeding; the Authority is the respondent. B. Rulings under review The ruling under review in this case is the Authority's Decision and Order on Remand in Pension Benefit Guaranty Corporation, Case No. 3- CA-90456 on April 30, 1997. The Authority's decision is reported at 52 FLRA (No. 132) 1390. C. Related Cases This case has been before this Court in Pension Benefit Guaranty Corporation v. FLRA, 967 F.2d 658 (1992). This case has not previously been before any other court. Counsel for the Authority is unaware of any cases pending before this Court which are related to this case within the meaning of Local Rule 28(a)(1)(C). TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 3 I. Nature of the case 3 II. Statement of the facts 4 A. Power's employment at PBGC and facts prompting his discharge 4 1. Failure to follow OGC concurrence matrix 5 2. Failure to supply a representative writing sample 6 3. Refusal to relinquish copies of PBGC's computer survey data 8 4. Power's failure to cooperate in an official investigation 8 5. Refusal to accept computer messages 9 B. The Removal of Power 10 III. Proceedings below 11 A. The ALJ's and Authority's original decisions in PBGC I 11 B. This Court's decision in PBGC v. FLRA 13 C. The Authority's PBGC II decision remanding the case to the ALJ 15 D. The ALJ's remand decision 16 E. The Authority's decision in PBGC III 17 STANDARD OF REVIEW 22 SUMMARY OF ARGUMENT 23 ARGUMENT 25 I. The Authority properly determined that PBGC established a legitimate justification for Power's discharge 25 A. Insubordination is a legitimate justification for discharge 26 B. Substantial evidence supports the Authority's determination that Power's insubordinate conduct was a legitimate justification for his removal 27 1. The Authority's factual findings with regard to Power's conduct are not disputed 27 2. Power's insubordinate conduct was not protected activity under the Supreme Court's City Disposal decision and the Authority's Bassan decision, nor was it excusable under precedent relating to "flagrant misconduct" 28 II. The Authority, based upon its analysis of similarly situated employees, properly determined that the agency's termination of petitioner's employment did not constitute disparate treatment 33 A. The Authority, in accord with the Court's remand, correctly identified appropriate factors to consider in conducting its disparate treatment analysis 33 B. The Authority's determination that Power was not disparately treated was reasonable and is supported by substantial evidence 35 1. Substantial evidence supports the Authority's reasonable finding that Power was similarly situated to Employees Nos. 6 and 8 and not disparately treated 36 a. Employee No. 6 36 b. Employee No. 8 37 2. Substantial evidence supports the Authority's finding that Power was not similarly situated to Employees Nos. 1, 7, 9, and 10 38 a. Employee No. 1 38 b. Employees Nos. 7, 9, and 10 40 III. Petitioner's arguments regarding Authority error in excluding new evidence and Authority Member bias are without merit 41 A. The Authority properly upheld the ALJ's evidentiary rulings 41 B. Petitioner's contention that the Authority's decision was tainted by bias is unfounded 42 1. Section 7123(c) bars the Court's consideration of petitioner's bias argument 43 2. Case law regarding recusal and bias in administrative adjudications refutes petitioner's contention regarding Member Wasserman 44 3. Member Wasserman's decision was unbiased 45 CONCLUSION 46 ADDENDA Relevant portions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994) and pertinent regulation .................................... A-1 Declaration of Donald S. Wasserman dated February 9, 1998 ........................................ B-1 TABLE OF AUTHORITIES * AFGE Local 2441 v. FLRA, 864 F.2d 178 (D.C. Cir. 1988) 22, 37 Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) 23 Chaney Creek Coal Corp. v. Federal Mine Safety and Health Review Commission, 866 F.2d 1424 (D.C. Cir. 1989) 35 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 22 Cities of Campbell v. FERC, 770 F.2d 1180 (D.C. Cir. 1985) 42 Department of Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir. 1989) 34 EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 476 U.S. 19 (1986) 22 Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990) 22 INS v. Abudu, 485 U.S. 94 (1988) 41 Jenkins v. Sterlacci, 849 F.2d 627 (D.C. Cir. 1988) 44 Jim Walter Resources, Inc. v. Secretary of Labor, 103 F.3d 1020 (D.C. Cir. 1997) 35 Kalkines v. United States, 473 F.2d 1391 (Ct.Cl. 1973) 9 * LCF, Inc. v. NLRB, 129 F.3d 1276 (D.C. Cir. 1997) 22, 35 * Metropolitan Council of NAACP Branches v. FCC, 46 F.3d 1154 (D.C. Cir. 1995) 44, 45 * NLRB v. City Disposal, Inc., 465 U.S. 822 (1984) passim NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) 44 NLRB v. Jacob E. Decker and Sons, 569 F.2d 357 (5th Cir. 1978) 42 National Treasury Employees Union v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983) 22 Overseas Educ. Ass'n v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 22 Phillips v. General Services Admin., 878 F.2d 370 (Fed. Cir. 1989) 26 Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987) 31 United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service v. FLRA, 7 F.3d 243 (D.C. Cir. 1993) 43 United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980) 45 Webster v. Dep't of the Army, 911 F.2d 679 (Fed. Cir. 1990) 26 DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY * Department of Labor, Employment & Training Administration and Lou Ann Bassan, 43 FLRA 1036 (1992) passim * Letterkenny Army Depot, 35 FLRA 113 (1990) 12, 13, 27 Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Shipyard, Long Beach, California, 25 FLRA 1002 32, 33 United States Air Force Academy, Colorado Springs, Colorado, 52 FLRA 874 (1997) 26 * U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, OK, 34 FLRA 385 (1990) 32 U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and AFGE Local 916, 35 FLRA 1145 (1990) 32 DECISION OF THE NATIONAL LABOR RELATIONS BOARD PYA/Monarch, Inc., 275 NLRB 1194 (1985) 26 DECISIONS OF THE MERIT SYSTEM PROTECTION BOARD * Douglas v. Veterans Administration, 5 MSPB 313 (1981) 14, 16, 33, 34 Redfearn v. Department of Labor, 58 MSPR 307 (1993) 26 STATUTES Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) 2 5 U.S.C. § 7102 3, 11, 30 5 U.S.C. § 7105(a)(2)(G) 2 5 U.S.C. § 7114(b)(4) 32 5 U.S.C. § 7116(a)(1) 3, 11, 25 5 U.S.C. § 7116(a)(2) 3, 11, 12, 25 5 U.S.C. § 7123 2 5 U.S.C. § 7123(a) 2 * 5 U.S.C. § 7123(c) 22, 42, 43 5 U.S.C. § 706(2)(A) 22 28 U.S.C. § 455 45 CODE OF FEDERAL REGULATIONS 5 C.F.R. § 2429.17 44 *Cases or authorities chiefly relied upon are marked by asterisks. GLOSSARY Abudu INS v. Abudu, 485 U.S. 94 (1988) AFGE Local 2441 AFGE Local 2441 v. FLRA, 864 F.2d 178 (D.C. Cir. 1988) AGC Beck Assistant General Counsel Jeanne Beck ALJ Administrative Law Judge Bassan Department of Labor, Employment & Training Administration and Lou Ann Bassan, 43 FLRA 1036 (1992) CEO Message Comprehensive Electronic Office Message City Disposal NLRB v. City Disposal, Inc., 465 U.S. 822 (1984) DGC Flowe Deputy General Counsel Carol Connor Flowe Douglas Douglas v. Veterans Administration, 5 MSPB 313 (1981) GC PBGC General Counsel General Counsel General Counsel of the Federal Labor Relations Authority LCF LCF, Inc. V. NLRB, 129 F.3d 1276 (D.C. Cir. 1997) Letterkenny Letterkenny Army Depot, 35 FLRA 113 (1990) Long Beach Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002 (1987) MSPB Merit Systems Protection Board NLRA National Labor Relations Act NLRB National Labor Relations Board NTEU or National Treasury Employees Union union NTEU v. FLRA National Treasury Employees Union v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983) OGC PBGC's Office of General Counsel PBGC or Pension Benefit Guaranty Corportation agency PBGC I Pension Benefit Guaranty Corp., 39 FLRA 905 (1991) PBGC II Pension Benefit Guaranty Corp., 47 FLRA 595 (1993) PBGC III Pension Benefit Guaranty Corp., 52 FLRA 1390 (1997) Power or Petitioner David F. Power Redfearn Redfearn v. Department of Labor, 58 MSPR 307 (1993) Statute Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp II 1996) Tinker AFB U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, OK, 34 FLRA 385 (1990) ORAL ARGUMENT SCHEDULED FOR APRIL 13, 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 97-1414 _______________________________ DAVID F. POWER, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent and PENSION BENEFIT GUARANTY CORPORATION, Intervenor _______________________________ ON PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY STATEMENT OF JURISDICTION The final decision and order under review in this case was issued by the federal Labor Relations Authority ("FLRA" or "Authority") in Pension Benefit Guaranty Corporation, 52 FLRA 1390 (1997), Appendix after Remand ("RA") 1218 (PBGC III).[1] The Authority exercised jurisdiction over the case pursuant to section 7105(a)(2)(G) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) (Statute).[2] This Court has jurisdiction to review the Authority's decisions and orders pursuant to section 7123(a) of the Statute. David F. Power ("Power" or "petitioner") filed a petition for review within the 60-day time limit provided by 5 U.S.C. § 7123. STATEMENT OF THE ISSUES I. Whether the Authority properly determined that PBGC established a legitimate justification for termination of petitioner's employment. II. Whether the Authority, based upon its analysis of similarly situated employees, properly determined that the agency's termination of petitioner's employment did not constitute disparate treatment. III. Whether the Authority properly excluded new evidence concerning employees not mentioned in earlier proceedings and whether petitioner's previous contacts with one of the Authority Members required that Member's recusal. STATEMENT OF THE CASE I. Nature of the case This case arose as an unfair labor practice (ULP) proceeding concerning allegations that the Pension Benefit Guaranty Corporation ("PBGC" or "agency") violated section 7116(a)(1) and (2) of the Statute by discharging Power because he engaged in union activities protected by section 7102 of the Statute. The case was first heard by an Administrative Law Judge ("ALJ") who concluded that the General Counsel of the FLRA ("General Counsel") failed to prove by a preponderance of the evidence that Power was discharged for engaging in protected activity and recommended that the ULP complaint be dismissed. (JA 31.) The Authority reversed the ALJ's conclusion and found that PBGC had discharged Power in violation of the Statute. Pension Benefit Guaranty Corp., 39 FLRA 905 (1991) (PBGC I); JA 1. On appeal, this Court found that the Authority had inadequately explained its reasons for concluding that Power received disparate treatment as a result of his protected activity. PBGC v. FLRA, 967 F.2d 658 (D.C. Cir. 1992). As a result, the Court remanded the case to the Authority for further analysis of the disparate treatment issue, including, as part of that analysis, further definition of "similarly situated" employees. Id. at 670. Finding the record before it insufficient to make the determinations the Court required, the Authority remanded the case to the ALJ to hear additional evidence, and, consistent with the Court's opinion, to determine whether Power was subject to disparate treatment. Pension Benefit Guaranty Corp., 47 FLRA 595, 599-501 (1993) (PBGC II); RA 1200, 1204-06. The ALJ's decision on remand found that Power was not subjected to disparate treatment and recommended that the complaint be dismissed. PBGC III, RA 1217. In its final decision, the Authority dismissed the complaint based upon its finding that Power was not disparately treated and therefore that PBGC did not commit the ULPs alleged in the complaint. PBGC III, RA 1219. Power has petitioned this Court for review of the Authority's order dismissing the complaint. II. Statement of the facts The facts of this case are set forth in detail in the prior Authority decisions, particularly PBGC I, JA 2-14, as well as in this Court's decision, PBGC v. FLRA, 967 F.2d at 659-663. For ease of reference, the pertinent facts are again set out below. A. Power's employment at PBGC and facts prompting his discharge David Power was employed as a GS-14 General Attorney in PBGC's Office of General Counsel (OGC) from 1980 until his discharge on April 3, 1989. Beginning in 1984 and continuing until his discharge, Power served as the President of Local Chapter 211 of the National Treasury Employees Union ("NTEU" or "union"). PBGC v. FLRA, 967 F.2d at 659; PBGC I, JA 2. On April 3, 1989, Power was discharged for misconduct that occurred between May and December 1988. 967 F.2d at 659-62; PBGC I, JA 2-11. As explained in the Authority's PBGC III decision, [s]pecifically, he was discharged for: (1) insubordination based on his (a) failure to follow an "OGC Concurrence Matrix," (b) refusal to accept computer messages from an immediate supervisor, (c) failure to supply a representative writing sample to the Deputy General Counsel, and (d) refusal to return computer survey data and failure to provide a written explanation for his refusal; (2) failure to cooperate in an official investigation; (3) threatening an employee with grave physical harm and interfering with the employee's statutory rights; (4) making a false statement in an official investigation; and (5) conversion of Government property. RA 1219.[3] In PBGC III, the Authority determined that "Power's insubordinate conduct provided PBGC with a legitimate justification for his discharge." RA 1229. Because of that holding, only the facts regarding Power's insubordinate conduct are set forth below. 1. Failure to follow OGC concurrence matrix The OGC maintains a concurrence, or "sign-off," matrix ("Concurrence Matrix") that requires supervisory concurrence on all correspondence and other documents going out of the office. PBGC v. FLRA, 967 F.2d at 660; PBGC I, JA 2. Power failed to follow the Concurrence Matrix's requirements on August 11 and 18, 1988, when he sent documents out of OGC without obtaining the prior review or concurrence of his immediate supervisor, Assistant General Counsel Jeanne Beck ("AGC Beck"). 967 F.2d at 660; PBGC I, JA 3. AGC Beck first admonished Power on August 24, 1988, regarding his August 11th violation of the OGC Concurrence Matrix requirement. Id. This admonishment was in the form of a comprehensive electronic office ("CEO") message via computer. PBGC I, JA 3; see SA-6 941. AGC Beck admonished Power for the August 18th incident in a September 9, 1988 memorandum in which she reminded Power that "all matters require supervisory concurrence" and that she expected to see "all documents" before they were sent out of OGC. SA-6 942; PBGC III, RA 1230. Power failed for a third time to follow the matrix's requirements on November 29, 1988, when he sent two letters to opposing counsel without supervisory concurrence. Power also instructed a clerical staff person to disregard the concurrence requirement. 967 F.2d at 660; PBGC I, JA 3. On December 1, 1988, AGC Beck sent a memorandum to Power, again reminding him of the OGC concurrence matrix and noting that Power's repeated noncompliance, coupled with his instructions to a staff person to disregard the established office policy, was "inexcusable." Id.; see SA-6 938. 2. Failure to supply a representative writing sample On May 25, 1988, Power received his performance appraisal for the period December 9, 1987 to May 12, 1988. As permitted under PBGC procedures, the appraisal was sent to Power's second level supervisor, Deputy General Counsel Carol Connor Flowe ("DGC Flowe"), for review after Power appended comments to the appraisal.[4] PBGC v. FLRA, 967 F.2d at 659; PBGC I, JA 4. In order to review Power's rating for consistency, DGC Flowe sent a CEO message to AGC Beck on June 15, 1988, explaining that she was reviewing Power's performance appraisal and requesting a representative sample of his writing. Id. AGC Beck forwarded the CEO message to Power and directed his compliance. PBGC I, JA 4. Power responded by memorandum to DGC Flowe, asking the purpose of her request, id., and stating that some of the documents DGC Flowe requested "may be located in the file room of the OGC." SA-6 949. The next morning DGC Flowe contacted Power directly. PBGC v. FLRA, 967 F.2d at 659; PBGC I, JA 4. She told Power that she was the reviewing official on his performance appraisal and directed him to comply with her request. PBGC I, JA 4. In response, Power submitted over 2,100 unstapled pages of miscellaneous documents. 967 F.2d at 659-60; PBGC I, JA 4. DGC Flowe was "appalled" at Power's response and had the materials returned to him. DGC Flowe then sent Power a memorandum explaining why she was returning the materials and asking again for a representative sample of his writing. Over a month later, Power resubmitted the same 2100 pages of materials to DGC Flowe, indicating in a cover memorandum that those documents bore on his performance during the rating period. 967 F.2d at 660; PBGC I, JA 5. DGC Flowe returned Power's submission, again requesting a representative sample of his writing. Id. Two and a half months later, Power responded, giving DGC Flowe about 25 of his written documents. Id. However, Power disclaimed any characterization of the documents as being a "sample" or representative. Id. DGC Flowe "gave up" at that point and raised Power's performance rating. 967 F.2d at 660. 3. Refusal to relinquish copies of PBGC's computer survey data In the spring, summer, and fall of 1988 the union and the agency were negotiating office space and ergonomic furniture for OGC attorneys. PBGC v. FLRA, 967 F.2d at 661; PBGC I, JA 5. In August 1988, Power obtained computer survey data from an unauthorized source.[5] 967 F.2d at 661; PBGC I, JA 6. In September 1988, PBGC's Director of Personnel directed Power to return the computer surveys, and twice in October 1988, AGC Beck directed Power to return the computer surveys. 967 F.2d at 661; PBGC I, JA 7-8. Power refused to comply with these three orders. Id.; PBGC III, RA 1233. 4. Power's failure to cooperate in an official investigation Based upon agency concerns and questions regarding Power's access to the computer surveys, PBGC decided to conduct an investigatory interview of Power on October 18, 1988. PBGC v. FLRA, 967 F.2d at 661; PBGC I, JA 9. On the day of the interview, Power asked for and received a Kalkines warning.[6] (Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973)). 967 F.2d at 661. Despite this grant of immunity, on several occasions Power refused to answer AGC Beck's questions. Id.; PBGC III, RA 1234. Further, as the interview proceeded, Power dared AGC Beck to discipline him for refusing to cooperate in the interview. Power eventually terminated the interview by rising from his chair and stating that he was finished answering questions. 967 F.2d at 662; PBGC I, JA 10. 5. Refusal to accept computer messages At PBGC, the CEO message system indicates when an employee deletes--or "refuses"--a message without reading it. 967 F.2d at 660; PBGC I, JA 3. On December 8, 1988, Power "refused" a CEO message that AGC Beck had sent on November 28 regarding the scheduling of a case meeting between AGC Beck and Power. PBGC I, JA 3; SA-6 945. In a later CEO message sent that same day, and also refused by Power, (PBGC I, JA 3; SA-6 946), AGC Beck admonished Power for the prior message refusal and deletion, and noted that it was the second or third message he had refused. PBGC I, JA 3; SA-6 1178. In addition, the following day AGC Beck sent Power a CEO message demanding a written explanation of his last two refusals of her CEO messages. Power responded: "I was busy with the Kaiser brief the entire week. Was there something urgent you wanted?" PBGC I, JA 4; SA-6 947. B. The Removal of Power AGC Beck decided to propose the removal of Power because, as she later testified, his "insubordination was repetitive, defiant almost to the point of contempt," he had demonstrated "an inability to comply with [established] procedures," and his actions demonstrated a "lack of integrity" and professional and personal judgment expected of an attorney at the GS-14 level. SA-4 669. According to AGC Beck, and not contested, during the time the notice of removal was being drafted, Power was continuing to delete messages from his computer without reading them and was failing to adhere to the Concurrence Matrix. PBGC v. FLRA, 967 F.2d at 662; PBGC I, JA 11. On January 19, 1989, Power was given a Notice of Proposed Removal setting forth specific charges of misconduct. Id.; SA-6 909. David Lindeman, an attorney and Director of the PBGC's Corporate Policy and Research Department, served as the Oral Reply Official. After careful consideration and evaluation of the charges against Power, Lindeman submitted a written recommendation that AGC Beck's findings be upheld in their entirety. He concluded that the proposed penalty of removal was warranted and should be implemented. 967 F.2d at 662; PBGC I, JA 12. On April 3, 1989, DGC Flowe upheld the proposed removal, accepting Lindeman's recommendation that AGC Beck's charges be sustained in their entirety. Id. After weighing the severity of Power's misconduct against mitigating factors and noting that Power was an attorney in a responsible position who was held to a high standard of conduct, DGC Flowe concluded that Power was either "unable or unwilling to conform his behavior to that high standard." 967 F.2d at 663; PBGC I, JA 54. NTEU brought a ULP charge on Power's behalf, alleging that he had been discharged in violation of section 7116(a)(1) and (2) of the Statute[7] for engaging in protected activity under section 7102.[8] The General Counsel issued a complaint. III. Proceedings below A. The ALJ's and Authority's original decisions in PBGC I In his original decision, the ALJ determined that the ULP complaint against PBGC should be dismissed. PBGC I, JA 61. In the ALJ's view, the FLRA's General Counsel failed to show that Power's discharge was motivated by protected union activity under the Statute. PBGC I, JA 59-60. The Authority reversed the ALJ's conclusion, finding that PBGC discharged Power in violation of the Statute. PBGC I, JA 2. Based upon its analysis of the unlawful discrimination framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny),[9] the Authority concluded that the General Counsel established a prima facie showing that Power was engaged in protected activity and that his discharge was motivated by Power's protected activity. PBGC I, JA 19. The Authority then applied Letterkenny's second prong. The Authority found that, even assuming the agency established a "legitimate justification" for taking some form of discipline against Power, an issue it did not rule upon, the agency did not demonstrate that it would have taken the same action in the absence of protected activity. PBGC I, JA 26-27. As a result, the Authority concluded that Power had been disparately treated. B. This Court's decision in PBGC v. FLRA In PBGC v. FLRA, the Court remanded the case to the Authority for further consideration. Using the Authority's Letterkenny framework, the Court first held that it "need not decide whether the [General Counsel] made out a prima facie case because . . . PBGC demonstrated that it would have fired Power absent . . . union animus. PBGC v. FLRA, 967 F.2d at 666. The Court found implicit in the Authority's determination that "Power engaged in insubordinate acts," (citing PBGC I, JA 26), the recognition that "PBGC had a 'legitimate justification for its action.'" Id. (quoting Letterkenny, 35 FLRA at 118). Recognizing that a finding of legitimate justification "does not end [the] inquiry" under Letterkenny, the Court then examined whether PBGC had shown that "it would have discharged Power 'even in the absence of protected activity.'" Id. at 667 (quoting Letterkenny, 35 FLRA at 118). In this regard, the Court considered whether Power's punishment was harsher than that given to other employees and whether the other employees to whom he was compared were similarly situated. Id. The Court determined that it could not uphold PBGC I because the Authority's decision was "inadequately explained," id., and therefore remanded the case to the Authority. Id. at 670. Specifically, the Court found inadequate the Authority's analysis of the "similarly situated status of the employees being compared," which the Court termed the "linchpin of the disparate treatment analysis." Id. at 667, 670. Based upon its analysis of the record evidence, the Court rejected the FLRA's finding that Employee No. 1 and Power were similarly situated as unsupported by substantial evidence. Id. The Court was "troubled" by the Authority's "assumption" that the misconduct of the two employees (Employee No. 1 and Power) was the sole factor PBGC considered, or could consider, in imposing a sanction. Id. at 668. It thus referenced judicial and administrative precedents as well as regulations that recognize the relevance of many factors in determining an appropriate sanction, including the factors established in the Merit Systems Protection Board's ("MSPB") Douglas v. Veterans Administration decision (5 MSPB 313, 330-33) (1981) (Douglas)). 967 F.2d at 668. Upon further consideration of the record evidence, the Court questioned the absence of a reasoned explanation as to why Employees Nos. 7, 9, and 10, three non-lawyer, non-OGC employees, were similarly situated to Power. PBGC v. FLRA, 967 F.2d at 668-69. Again referencing the Douglas factors, the Court opined that the agency may have been entitled to hold Power to a higher standard of conduct than clerks and technicians. Id. With regard to Employee No. 6, the Court viewed Employee No. 6's transgressions as "at least comparable" to Power's failure to follow the concurrence matrix and thus questioned why the Authority never mentioned Employee No. 6 as being similarly situated. PBGC v. FLRA, 967 F.2d at 669-70. Finally, the Court questioned the Authority's attempt to distinguish Employee No. 8 from Power based on warnings given to Employee No. 8 and not to Power. The Court expressly recognized Power's receipt of warnings and his more than ample notice that his conduct was unacceptable. Id. at 670 n.15. Finding that the Authority had "failed to define 'similarly situated' in conducting its disparate treatment analysis," the Court remanded the case to the Authority "for proceedings not inconsistent with [its] opinion, including the direction that the FLRA consider Employee [No.] 6 in conducting its disparate treatment analysis." Id. at 670. C. The Authority's PBGC II decision remanding the case to the ALJ The Authority remanded the case to the ALJ for further proceedings because it found the record insufficient to make the determinations required by the Court's remand. PBGC II, RA 1204, 1206. Highlighting specific areas in which the record was inadequate, the Authority thus directed the ALJ to "hear additional evidence to decide whether Power was similarly situated to Employees Nos. 1, 6, 7, 9, and/or 10 and, based on the evidence . . . determine . . . whether Power was subject to disparate treatment." PBGC II, RA 1205-6. The Authority provided guidance as to considerations it deemed relevant in determining whether employees were "similarly situated" for purposes of its disparate treatment analysis. Referencing private sector case law, the Authority found it relevant to compare: 1) the nature of the misconduct, 2) the positions the employees occupied, 3) the employees' past disciplinary records, and 4) the extent to which employees were previously warned that their conduct may result in discipline. PBGC II, RA 1204. The Authority also found it appropriate to consider the elements in Douglas "that are relevant to a particular adverse action decision and the extent to which a respondent consistently relied on the Douglas elements."[10] Id. D. The ALJ's remand decision On remand, the ALJ again concluded that Power's discharge had not been the product of a ULP. RA 1217. Noting that he applied the factors set forth in this Court's decision, id. at 1215 n.4, the ALJ found that Power was not similarly situated to Employees Nos. 1, 7, 9, and 10, but that he was similarly situated to Employee No. 6. RA 1216-17. He then determined that Power was given a "like penalt[y] for the same indiscretions" as Employee No. 6, to whom Power was similarly situated, and that Power was given a stronger penalty than Employees Nos. 1, 7, 9, and 10, to whom Power was not similarly situated. Id. As a result, the ALJ determined that the General Counsel failed to prove that Power was disparately treated. RA 1217. He thus recommended that the ULP complaint be dismissed. Id. E. The Authority's decision in PBGC III Agreeing with the ALJ, the Authority decided in PBGC III that PBGC did not commit the ULPs alleged in the complaint and therefore dismissed the complaint. PBGC III, RA 1219. In reaching this conclusion, the Authority found that PBGC had established that Power's insubordinate conduct constituted a legitimate justification for his discharge. RA 1229. The Authority also analyzed the "similarly situated" status of Employees Nos. 1, 6, 7, 8, 9, and 10,[11] in light of the factors it established in PBGC II and, consistent with the Court's remand, determined that Power was not disparately treated. RA 1235. As a preliminary matter, the Authority first addressed the ALJ's decision not to reopen the record to admit evidence regarding employees to whom Power had not previously been compared. RA 1226. Based upon the considerable discretion given to ALJ's in determining whether the record should be reopened for new evidence, as well as the general public policy consideration against reopening records, the Authority concluded that the ALJ did not abuse his discretion when he refused to admit the newly offered evidence. RA 1226-28. The Authority then considered the legitimate justification issue. RA 1229. After reviewing relevant case law, the Authority concluded that insubordinate conduct justifies removal. Id. It then determined that the record evidence supported a finding "that Power engaged in a pattern of conduct justifying his removal," and that this insubordinate conduct was "independent of any protected activity." RA 1230. In response to the Court's remand direction that the Authority reexamine whether Power was treated disparately, the Authority went on to reconsider the record evidence with regard to Employees Nos. 1, 6, 7, 8, 9, and 10 in light of the "similarly situated" factors it set forth in PBGC II. RA 1235. Based upon its reexamination of the evidence in this regard, the Authority concluded that Power was not disparately treated. Id. The Authority first considered the evidence with regard to Employee No. 6 and found that Power and Employee No. 6 were similarly situated. The Authority concluded that their work and disciplinary records were comparable; both were senior attorneys in PBGC's OGC who had worked at PBGC for comparable amounts of time; both possessed recognized legal talents; and neither attorney had a prior disciplinary record. Noting that Employee No. 6's offenses were less severe in quality and quantity, the Authority nonetheless found those offenses to be similar to Power's. Both employees' offenses involved failure to obtain supervisory clearance, and both employees failed to do so even after repeated warnings. RA 1237. Having found that Power and Employee No. 6 were similarly situated, the Authority then compared the treatment received by the two employees and concluded that "Power was not disparately treated." Id. The Authority specifically determined that the "clear connection between Employee No. 6's erroneous actions and his forced departure from PBGC"[12]--the compulsory aspect of his removal being significant to the Authority--supported the conclusion that Power was not disparately treated. RA 1237-38. The Authority next considered whether Power was similarly situated to Employee No. 1. Acknowledging that Power and Employee No. 1 both occupied GS-14 attorney positions in the OGC and that they engaged in "misconduct that is in some respects comparable," the Authority nonetheless determined that "significant differences between Power and Employee No. 1 demonstrate that the employees were not, in the final analysis, similarly situated." RA 1239. A key difference for the Authority, as it had been with the Court, was the difference in the supervisors' confidence in the two employees. The record was "replete with indications that Power's supervisors had lost confidence in his ability" to continue to perform effectively, whereas Employee No. 1's supervisor "indicated a continuing confidence" in the employee's ability to perform his duties. Id. Further, Power's supervisors saw little potential for rehabilitation in Power, but Employee No. 1's supervisor concluded that he had the potential for rehabilitation and was contrite. RA 1239-40. Because of the expectation that discipline of employees will serve a "constructive purpose," the Authority "ascribe[d] significant weight to the factors of supervisory confidence and potential for rehabilitation." RA 1241. The dissimilarities between Power and Employee No. 1 in this regard resulted in the Authority's finding that these employees were not similarly situated. Therefore, their differing disciplinary actions did not indicate that Power was disparately treated.[13] RA 1241-42. Finding "sufficient similarities between Power's case and that of Employee No. 8," the Authority concluded that these employees were similarly situated.[14] RA 1242. Although Employee No. 8 was not an attorney, the Authority noted that he was "a professional, an auditor, who held a position of responsibility and trust." RA 1243. Like Power, Employee No. 8 was "ultimately removed for a number of instances of generally insubordinate conduct that manifested itself in various forms." Id. Both employees lost the confidence of their supervisors, to include little hope for rehabilitation. The Authority also found, as the Court had pointed out, that both Power and Employee No. 8 received numerous warnings that their conduct was unacceptable. Concluding that these similarly situated employees "suffered the same ultimate penalty in comparable circumstances," the Authority found that Power was not disparately treated. Id. Finally, the Authority determined that Power was not similarly situated to Employees Nos. 7, 9, and 10. RA 1243-44. In making this determination, the Authority agreed with the ALJ's finding that Employees Nos. 7, 9, and 10 were not lawyers, did not work in the same department nor under the same supervision, were disciplined for fighting rather than insubordination, and had different grades and responsibilities. RA 1244. Because the employees were not similarly situated to Power, the lighter penalties given to Employees Nos. 7, 9, and 10 did not indicate that Power was disparately treated. Id. STANDARD OF REVIEW The standard of review of decisions of the Authority is narrow: Authority action shall be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. §§ 7123(c) and 706(2)(A). Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988); EEOC v. FLRA, 744 F.2d 842, 847 (D.C. Cir. 1984), cert. dismissed, 476 U.S. 19 (1986). Under this standard, unless it appears from the Statute or its legislative history that the Authority's construction of its enabling act is not one that Congress would have sanctioned, the Authority's construction should be upheld. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); see also Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990). Further, factual findings of the Authority that are supported by substantial evidence on the record as a whole are conclusive. 5 U.S.C. § 7123(c); National Treasury Employees Union v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir. 1983) (NTEU v. FLRA). The Authority is entitled to have reasonable inferences it draws from its findings of fact not be displaced, even if the court might have reached a different view had the matter been before it de novo. See AFGE Local 2441 v. FLRA, 864 F.2d 178, 184 (D.C. Cir. 1988) (AFGE Local 2441); see also LCF, Inc. v. NLRB, 129 F.3d 1276, 1281 (D.C. Cir. 1997) (LCF). Finally, as the Supreme Court has stated, the Authority is entitled to "considerable deference when it exercises its 'special function of applying the general provisions of the [Statute] to the complexities' of federal labor relations." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983). SUMMARY OF ARGUMENT The Authority properly determined that PBGC had a legitimate justification for discharging Power and that Power's discharge did not constitute disparate treatment. The Authority's determination is fully consistent with this Court's original decision remanding the case to the Authority for further consideration. As a general matter, insubordinate conduct is a legitimate justification for discharging an employee. With regard to Power's actual insubordinate conduct, substantial evidence, which is essentially undisputed, supports the Authority's determination that the agency had a legitimate justification for removing him. Contrary to Power's assertions, his admitted misconduct cannot be excused as "protected activity." None of Power's insubordinate misconduct was based upon actions authorized by a specific provision in the parties' collective bargaining agreement, as would be required to excuse misconduct under City Disposal. Further, Power's misconduct is not excusable under the Authority's "flagrant misconduct" precedent because, among other things, it did not occur while he was engaging in activities specifically on behalf of the bargaining unit. The Authority also properly determined that Power was not disparately treated. Based upon factors drawn from NLRB and MSPB precedent, and consistent with this Court's original remand decision, the Authority correctly analyzed whether particular employees were "similarly situated" to Power. Specifically, substantial evidence supports the Authority's finding that Power was similarly situated to Employees Nos. 6 and 8 who, like Power, were compelled to depart PBGC. Further, the Authority correctly determined that Power was not similarly situated to Employees Nos. 1, 7, 9, and 10, who received lesser sanctions. Finally, arguments raised by Power regarding the Authority's exclusion of new evidence concerning employees not mentioned in earlier proceedings, and alleged bias by an Authority Member, are without merit. With regard to Power's attempt to reopen the record, case law establishes that such reopenings should occur only in extraordinary circumstances not present in this case. With regard to the bias allegation, Power's argument, based on an asserted prior contact between Power and the Member, was not raised before the Authority and therefore cannot be considered by this Court. Further and in any event, the circumstances alleged by Power would not require recusal. Finally, Power's argument is without foundation because the Member was not aware of the alleged contact at the time he participated in the decision in this case. ARGUMENT In determining that PBGC's discharge of Power did not violate section 7116(a)(1) and (2) of the Statute, the Authority carefully considered the analytical framework for resolving complaints of alleged discrimination as set forth in Letterkenny. The Authority found no need to revisit its earlier finding and the Court's assumption concerning the first prong of Letterkenny. PBGC III, RA 1229. Rather, consistent with the Court's remand order, the Authority focused on the second prong of Letterkenny--PBGC's burden of proving, "by a preponderance of the evidence, as an affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity . . . ." Id. The Authority held that "PBGC had a legitimate justification for discharging Power" and that "the record establishes that PBGC would have taken the same action even in the absence of Power's protected activity." Id. I. The Authority properly determined that PBGC established a legitimate justification for Power's discharge The Authority properly held that "Power's insubordinate conduct provided PBGC with a legitimate justification for his discharge." PBGC III, RA 1229. In making this determination the Authority first considered whether insubordinate conduct, in general, justifies removal from employment. Second, the Authority reviewed the record to determine whether the insubordinate conduct alleged by PBGC was supported by record evidence. A. Insubordination is a legitimate justification for discharge The Authority found that "[i]t is within an employer's legitimate prerogative to discipline an employee for insubordinate conduct, notwithstanding the employee's involvement in protected activity." PBGC III, RA 1229.[15] The Authority relied in this connection upon precedent from the Authority, the National Labor Relations Board ("NLRB"), and the MSPB.[16] For example, the MSPB has held, "[a]n employee's deliberate refusal to follow supervisory instructions constitutes serious misconduct that cannot properly be condoned." Redfearn, 58 MSPR at 316. In fact, "[i]nsolent disrespect towards supervisors so seriously undermines management's capacity to maintain employee efficiency and discipline that no agency should be expected to exercise forbearance for such conduct more than once." Id. Further, the Authority's conclusion that Power's insubordinate conduct was a legitimate justification for his termination comports with the Court's determination in PBGC v. FLRA. In that regard, the Court noted that implicit in the Authority's concession in PBGC I that "'Power engaged in insubordinate acts,' . . . is a recognition that PBGC had a 'legitimate justification for its action.'" PBGC v. FLRA, 967 F.2d at 666 (quoting Letterkenny, 35 FLRA at 118). B. Substantial evidence supports the Authority's determination that Power's insubordinate conduct was a legitimate justification for his removal 1. The Authority's factual findings with regard to Power's conduct are not disputed Holding that insubordinate conduct justifies removal, the Authority then correctly concluded that Power's insubordinate conduct was a legitimate justification for his removal. It was undisputed before the Authority that Power, contrary to supervisory instructions and office policy, (a) failed to follow the OGC's Concurrence Matrix; (b) failed to supply a representative writing sample requested by one of his supervisors; (c) refused to relinquish all copies of PBGC's computer survey data; (d) failed to cooperate in an official investigation; and (e) refused to accept computer messages from his supervisors. PBGC III, RA 1230. Petitioner does not contest, in any respect, the Authority's findings regarding his insubordinate conduct for failure to follow the OGC's Concurrence Matrix, or his refusal to accept computer messages from his supervisors. Significantly, petitioner concedes that these aspects "of the allegations of insubordination . . . have merit aside from protected activity." (Brief at 22.) Instead, petitioner contends that certain aspects of his admitted misconduct should be excused because he was engaged in "protected activity." See, e.g., Brief at 18 (insubordination with regard to the writing samples and the computer survey data was "protected activity"); Brief at 22 ("charges relating to the writing sample and the computer survey [including failure to cooperate in official investigation] must be disregarded because they involved protected conduct"). 2. Power's insubordinate conduct was not protected activity under the Supreme Court's City Disposal decision and the Authority's Bassan decision, nor was it excusable under precedent relating to "flagrant misconduct" Neither the Supreme Court's decision in NLRB v. City Disposal, Inc., 465 U.S. 822 (1984) (City Disposal), nor the Authority's decision in Department of Labor, Employment & Training Administration and Lou Ann Bassan, 43 FLRA 1036 (1992) (Bassan), provides a shelter for Power's insubordinate refusal to provide writing samples, to return the improperly obtained computer survey data, or to cooperate in an official investigation when questioned about the computer survey data.[17] In City Disposal and Bassan, the Supreme Court and the Authority, respectively, found limited protections under the National Labor Relations Act ("NLRA") and the Statute for employees to engage in certain activities that would otherwise be sanctionable. Specifically, in City Disposal, the Supreme Court upheld the NLRB's Interboro doctrine, which provides that "an individual's assertion of a right grounded in a collective-bargaining agreement is recognized as 'concerted activity'" and therefore is accorded the protections of the NLRA. 465 U.S. at 829 (emphasis added). City Disposal involved the discharge of an employee after he refused to drive a truck that he believed to be unsafe because of faulty brakes. Id. at 828. A specific provision in the collective bargaining agreement provided that the employer could not require employees to operate any vehicle that was not in safe operating condition. Id. The Court determined that because there was no doubt that in refusing to drive the truck the employee was invoking a right explicitly granted him in his collective bargaining agreement, the employee was therefore engaged in "concerted activity." Id. at 839-41. Relying on City Disposal in Bassan,[18] the Authority determined that an employee was wrongfully terminated for exercising a right specifically granted by the applicable collective bargaining agreement to submit comments to her supervisor regarding performance standards. Bassan, 43 FLRA at 1037; see also 43 FLRA at 1047, 1056, 1061. Based upon careful consideration of the Supreme Court's rationale in City Disposal and of the propriety of applying the principles of that decision to federal sector labor law, the Authority held that "when an individual employee asserts a right that emanates from a collective bargaining agreement, that employee is engaging in the protected activity under section 7102 of the Statute of assisting the union that negotiated the agreement." Id. at 1039. Petitioner has not established that his misconduct with regard to the writing samples and computer surveys satisfies the stringent requirements of City Disposal and Bassan. The conduct found to be excusable in City Disposal was based on a specific contract provision. As the Supreme Court in City Disposal repeatedly stated, in order for an individual's conduct to be "concerted activity," the employee must invoke a right "grounded" or "rooted" in the collective bargaining agreement. 465 U.S. at 831-32; see also Bassan, 43 FLRA at 1059. Similarly, the protected conduct in Bassan was specifically allowed by a provision of the collective bargaining agreement. The discipline of the employee was improper because the employee was "discharged for asserting a contractual right." Id. at 1040. In arguing that failure to comply with DGC Flowe's requests for writing samples is protected activity, petitioner asserts that he was actively engaged in a grievance over the subject matter for which the writing samples were requested. (Brief at 19.) With regard to the misconduct associated with the computer survey data, petitioner asserts that his actions were undertaken for the purpose of representing the bargaining unit in negotiations. However, petitioner does not identify a specific contract provision that authorizes either his refusal to comply with DGC Flowe's clear, repeated requests for writing samples, or his theft of and refusal to return the computer survey data. Petitioner self-servingly attempts to broaden the purposefully narrow basis on which City Disposal and Bassan were premised. These cases stop far short of protecting any activity merely related, in some protracted way, to the collective bargaining agreement. Neither the Supreme Court nor the Authority has afforded protection to activities that are at most tangentially related to collective bargaining. Rather, City Disposal and Bassan only protect otherwise sanctionable conduct when it implicates a specific collectively bargained right of unit employees. See, e.g., Prill v. NLRB, 835 F.2d 1481, 1483 (D.C. Cir. 1987) (the collective bargaining agreement provides the link between workers that merits protection for the actions of an individual employee exercising specific rights in its provisions). Equally unavailing is petitioner's claim (Brief at 24-26) that his misconduct relating to the writing samples and computer survey data should be excused under Authority precedent regarding "flagrant misconduct." Under this precedent, management has a right to discipline a union representative for misconduct "which [is] 'not specifically on behalf of the exclusive representative or which exceed[s] the boundaries of protected activity such as flagrant misconduct.'" U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, OK, 34 FLRA 385, 388-89 (1990) (Tinker AFB) (quoting Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987) (Long Beach)) In Tinker AFB, the Authority held to be unjustified the reprimand of a union representative for refusal to leave the work area while serving copies of ULP charges because the activity was clearly undertaken on behalf of the union and there was no evidence of flagrant misconduct. Id. at 390. There is nothing about Power's repeated refusal to obey a clear direction to provide writing samples, or the theft of documents and refusal to return those documents when so ordered, that could properly be considered activity specifically on behalf of the union. In any event, actions like Power's theft and refusal to return documents are properly characterized as "flagrant misconduct."[19] As the Authority has stated in this latter connection, when conduct is "'totally unprofessional and not befitting that which is expected of a representative of the Union,'" it "exceed[s] the boundaries of protected activity" and constitutes "flagrant misconduct." U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and AFGE Local 916, 35 FLRA 1146, 1152 (1990) (citation omitted). Further, the Authority has noted that "[t]he Statute's protections were not intended to insulate employees from the consequences of behavior" of a criminal nature. Long Beach, 25 FLRA at 1006. In sum, petitioner does not dispute the Authority's factual determinations in finding that PBGC had a legitimate justification for removing him. In addition, Power has not demonstrated that his conduct constitutes excusable protected activity under City Disposal and Bassan. Similarly, Power's actions would not be excusable under case law relating to "flagrant misconduct." II. The Authority, based upon its analysis of similarly situated employees, properly determined that the agency's termination of petitioner's employment did not constitute disparate treatment A. The Authority, in accord with the Court's remand, correctly identified appropriate factors to consider in conducting its disparate treatment analysis Consistent with the Court's remand decision, and reasonably relying upon NLRB and MSPB precedent, the Authority correctly identified appropriate factors to consider in determining whether employees were "similarly situated," for purposes of its disparate treatment analysis under the Statute. The factors applied by the Authority were set forth in its PBGC II decision. PBGC II, RA 1204. As discussed supra at p. 16, these relevant factors were drawn from NLRB disparate treatment cases as well as the MSPB's Douglas decision. Id. Petitioner's argument (Brief at 41) that the Douglas factors have no bearing on federal sector ULP cases is erroneous. When the Authority determined that the Douglas factors, among others, were relevant in deciding whether employees were similarly situated, the Authority heeded the sound reasons offered by this Court favoring use of those factors for that purpose. PBGC v. FLRA, 967 F.2d at 668.[20] As the Court indicated, it is well established that the Douglas factors, among others, are relevant in the related context of determining appropriate sanctions for employee misconduct. Id. Petitioner does not advance any reason for rejecting this aspect of the Court's decision in PBGC II. As the Court's approval of their use indicates, the Douglas factors are well-suited to the role that the Authority determined they should play in cases like this. Developed by the MSPB, the "primary body for resolving disputes over adverse personnel actions" in the federal sector, Department of Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467, 1469 (D.C. Cir. 1989), the Douglas factors provide a proven means for analyzing and comparing the situations of employees against whom discipline might be, or has been taken. Their use by the Authority as a tool in applying one step of its Letterkenny disparate treatment analysis - to determine whether particular employees were "similarly situated" - was therefore reasonable. For these reasons, it cannot fairly be said, as petitioner alleges (Brief at 43), that the Authority's use of the Douglas factors, among others, for the limited purposes specified constitutes "abdicat[ing] to the policies and positions of the MSPB and the Federal Circuit in evaluating disparate treatment . . . ." B. The Authority's determination that Power was not disparately treated was reasonable and is supported by substantial evidence The Authority reasonably determined, based upon its analysis of similarly situated employees, that Power was not disparately treated due to protected activity, and that therefore the agency did not commit a ULP. Substantial evidence on the record as a whole supports the factual findings therein. This Court's "'task in reviewing substantial evidence questions is to determine whether there is such relevant evidence as a reasonable mind might accept as adequate to support the [Authority's] conclusion'" that Power was not disparately treated as a result of his protected activity. Jim Walter Resources, Inc. v. Secretary of Labor, 103 F.3d 1020, 1023-24 (D.C. Cir. 1997) (quoting Chaney Creek Coal Corp. v. Federal Mine Safety and Health Review Commission, 866 F.2d 1424, 1431 (D.C. Cir. 1989) (Chaney Creek)). In addition, if the Authority's factual findings are reasonable, "they may not be displaced on review even if the court might have reached a different result had the matter been before it de novo." LCF, Inc., 129 F.3d at 1281 (citations omitted). 1. Substantial evidence supports the Authority's reasonable finding that Power was similarly situated to Employees Nos. 6 and 8 and not disparately treated a. Employee No. 6 Substantial evidence on the record as a whole supports the Authority's determination that Power was similarly situated to Employee No. 6.[21] Petitioner does not contest the Authority's findings with regard to this aspect of its disparate treatment analysis. Petitioner does, however, contest the Authority's further finding, in connection with its disparate treatment analysis, that Employee No. 6's departure was compelled by PBGC and in this respect was comparable to Power's discharge. (Brief at 32-33.) Contrary to petitioner's assertions, substantial evidence supports the Authority's conclusion that Employee No. 6's departure was compelled. As the decision reveals, the Authority relied upon considerable testimony of GC Ford to this effect in making this determination.[22] PBGC III, RA 1236-38. Petitioner's claim (Brief at 32) that GC Ford's testimony demonstrates that Employee No. 6 "left PBGC's employ on his own terms" is erroneous. Even a cursory review of GC Ford's testimony reveals that GC Ford did in fact take steps to ensure Employee No. 6's departure. See, e.g., SA-13 2220-24. Moreover, petitioner's mere disagreement with the Authority's interpretation of the facts is immaterial, because the reasonable inferences that the Authority draws from its findings of fact are not to be displaced. AFGE Local 2441, 864 F.2d at 184. Petitioner has not demonstrated that the Authority's determination with regard to Employee No. 6 is unsupported by substantial evidence or in any other respect defective. The Authority's determination concerning Employee No. 6 should be upheld by this Court. b. Employee No. 8 Petitioner does not raise any substantial evidence issues with regard to the facts considered by the Authority in finding that Power was similarly situated to Employee No. 8. Rather, petitioner quarrels with the Authority's interpretation of these facts in making the similarly situated determination. Because the Authority's interpretations were reasonable, they are entitled to deference and should be upheld. As the Authority determined, there are "sufficient similarities between Power's case and that of Employee No. 8" to find them similarly situated. PBGC III, RA 1242. For example, even though Power was an attorney and Employee No. 8 was an auditor, the level of responsibility and trust expected of them as professionals made them comparable. Also, the employees' ultimate removal for a similar pattern of insubordinate misconduct, the warnings each received, and their supervisors' loss of confidence in them as well as the supervisors' belief that each had little chance for rehabilitation all favor the result reached by the Authority. Petitioner's argument that these similarities cited by the Authority are "specious" is unfounded. The Authority expressly noted that there were some distinctions between Employee No. 8 and Power, but thoroughly explained its reason for finding the employees to be similarly situated. Because this determination is reasonable, it is entitled to deference and should be upheld by the Court. Similarly, because it is undisputed that both employees were discharged, the Authority's finding that Power was not disparately treated as a result of his comparable discharge from employment is reasonable and should also be upheld. 2. Substantial evidence supports the Authority's finding that Power was not similarly situated to Employees Nos. 1, 7, 9, and 10 a. Employee No. 1 Substantial evidence in the record regarding Employee No. 1 supports the Authority's finding that there were "significant differences" between this employee and Power that rendered them not similarly situated. See PBGC III, RA 1239. Of particular relevance to the Authority in making this finding was the difference in the supervisors' confidence in the two employees. As the Authority noted, the record is "replete with indications that Power's supervisors had lost confidence in his ability" to continue to perform effectively, whereas Employee No. 1's supervisor "indicated a continuing confidence" in the employee's ability to perform his duties. Id. Similarly, there was little expectation of rehabilitation for Power, whereas Employee No. 1's supervisor concluded that he had the potential for rehabilitation and was contrite.[23] RA 1239-40. Petitioner's disagreement with the Authority's determination that Employee No. 1's supervisor viewed him as "contrite" should be rejected. As noted above, the Authority made this finding based upon the testimony of Employee No. 1's supervisor himself.[24] The record evidence cited by Power to refute this finding by the Authority is a memorandum written by Employee No. 1's supervisor. SA-11 1896. Although the Authority's decision does not expressly mention this memorandum, the Authority did evaluate the untrue statements by Employee No. 1 that are recorded in this memorandum. PBGC III, RA 1238. Nonetheless, the Authority determined that the weight of the evidence showed that Employee No. 1 was viewed as contrite and that his supervisor had confidence in his ability to perform his duties. For these determinations there is ample record support. Petitioner also argues (Brief at 31-32) that the warnings received by Employee No. 1 and Power were not identical. The Authority carefully analyzed the warnings received by both employees, and concluded that "[b] ased upon our reexamination of the record, including the portion compiled on remand, it appears that both employees had reason to know that their conduct was improper." PBGC III, RA 1240 n.15. Petitioner concedes in this regard (Brief at 31) that both employees received warnings. Petitioner's claim, when considered in connection with his concession on the subject of warning, does not demonstrate that the Authority's findings were unreasonable. b. Employees Nos. 7, 9, and 10 As to Employees Nos. 7, 9, and 10, petitioner does not raise any substantial evidence issues as to the Authority's finding that Power was not similarly situated to these employees. Petitioner instead challenges (Brief at 35-36) the Authority's interpretation of the facts, arguing that these employees' misconduct--fighting--was more severe than Power's insubordination. The Authority found these employees not to be similarly situated to Power not only because their misconduct was different, but also because they were not attorneys, did not work in the same department, and had different grades and responsibilities than Power. Power's assertions focusing only on the relative severity of their misconduct do not demonstrate that the Authority's conclusions, reached on the basis of broader considerations, are unreasonable. Accordingly, those findings are entitled to deference and should be upheld by the Court. III. Petitioner's arguments regarding Authority error in excluding new evidence and Authority Member bias are without merit A. The Authority properly upheld the ALJ's evidentiary rulings Petitioner contends (Brief at 38-40) that the Authority erred in deciding not to reverse the ALJ's exclusion of evidence concerning approximately thirty employees who had not been mentioned in any earlier proceedings. Petitioner's contention is based upon a misapprehension of the relevant case law with regard to reopening records and should be rejected. As the Authority recognized, "[a]s a general matter, motions to reopen a record are disfavored." PBGC III, RA 1227. See INS v. Abudu, 485 U.S. 94, 107 (1988) (Abudu). According to the Supreme Court in Abudu, a key consideration in determining whether to reopen a record is the "strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases." Id. In a similar vein, this Court has stated: "Reopening an evidentiary hearing is a matter of agency discretion, and is reserved for extraordinary circumstances." Cities of Campbell v. FERC, 770 F.2d 1180, 1191 (D.C. Cir. 1985) (citations omitted). In asserting error by the Authority, petitioner places great emphasis on the fact that the new evidence was not in existence at the time of the first hearing. (Brief at 38.) The Authority expressly dismissed this argument. As the Authority explained, the fact that the "evidence was not in existence at the time of the original hearing" actually "weighs against reopening." PBGC III, RA 1227. When a party seeks to reopen the record to introduce "newly discovered evidence," the party must show "that the evidence was in existence at the time of the original trial." Id. (citing NLRB v. Jacob E. Decker and Sons, 569 F.2d 357, 363 (5th Cir. 1978)). To rule otherwise would encourage a procedure enabling the perpetual continuation of trials. Id. Petitioner's claim does not demonstrate any procedural error in the Authority's proceeding on remand. B. Petitioner's contention that the Authority's decision was tainted by bias is unfounded Petitioner argues that because of "prior extrajudicial knowledge and contact [with Power], Member Wasserman is not impartial and should not have ruled on Power's FLRA case." (Brief at 28.) Power's argument is without merit for three reasons: 1) petitioner failed to raise the "bias" argument before the Authority, and thus, pursuant to section 7123(c) of the Statute, the argument cannot be considered by this Court; 2) relevant case law regarding recusal and bias in administrative agency decision making reveals that, even if Power's allegations regarding Member Wasserman were true, these allegations would not have required Member Wasserman's recusal; and 3) as provided in Member Wasserman's declaration appended to this brief, during his deliberations on this case Member Wasserman did not recognize Power as anyone with whom he had previously associated (Add. B at 2). 1. Section 7123(c) bars the Court's consideration of petitioner's bias argument Section 7123(c) of the Statute provides, as pertinent here, that "[n]o objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances." 5 U.S.C. § 7123(c); see United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service v. FLRA, 7 F.3d 243, 245 (D.C. Cir. 1993). Petitioner is raising the allegation of bias by Member Wasserman for the first time before this Court. Because petitioner did not raise this issue before the Authority, the Court is without jurisdiction to consider the matter. Further, petitioner has not asserted any "extraordinary circumstances" that would justify his failure to raise the issue before the Authority. Petitioner had the opportunity to raise the issue either before the Authority issued its decision (almost a year and a half after Member Wasserman became a Member of the Authority), or after the decision issued, by way of a motion for reconsideration. See 5 C.F.R. § 2429.17; NLRB v. FLRA, 2 F.3d 1190, 1195 (D.C. Cir. 1993). 2. Case law regarding recusal and bias in administrative adjudications refutes petitioner's contention regarding Member Wasserman Even if this Court were to consider petitioner's argument in this regard, the relevant case law refutes petitioner's contentions with regard to Member Wasserman. This Court has recognized that "'[a] motion for recusal based upon the appearance of impropriety can have only prospective effect.'" Jenkins v. Sterlacci, 849 F.2d 627, 634 (D.C. Cir. 1988). Petitioner, therefore, is too late. As noted above, petitioner never moved for the recusal of Member Wasserman nor did he raise any issue of bias before the Authority. Further, petitioner has not demonstrated that his alleged contact with Member Wasserman, even if true, would have required Member Wasserman's recusal. According to this Court, "[i]n an adjudicatory proceeding, recusal is required only where 'a disinterested observer may conclude that [the decision maker] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it." Metropolitan Council of NAACP Branches v. FCC, 46 F.3d 1154, 1164-65 (D.C. Cir. 1995).[25] The Court also noted that it will set aside a member's decision not to recuse himself "only where he has 'demonstrably made up [his] mind about important and specific factual questions and [is] impervious to contrary evidence.'" Id. at 1165 (quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1209 (D.C. Cir. 1980)). Petitioner has made no such showing in this case. See also Chaney Creek, 866 F.2d at 1432 (no actual bias by the decision maker because no activity indicative of prejudice, such as making decision on key question in the case on the basis of his personal knowledge of and belief in the integrity of the party defendant). 3. Member Wasserman's decision was unbiased Finally, and again, assuming this Court were to consider petitioner's argument that Member Wasserman should have recused himself, petitioner's allegations are disproven by Member Wasserman's declaration. As set forth in his declaration, Member Wasserman participated in the Authority's decision in this case without any recollection of prior association with Power. (Add. B at 2.) Based upon this declaration, together with Power's admission that there is not "anything Member Wasserman did during the FLRA adjudication, or wrote in the FLRA decision, [that] constituted his actual bias" (Brief at 26), the Court should reject petitioner's claim that the Authority's decision is tainted by Member Wasserman's participation in the decision. CONCLUSION For the foregoing reasons, the Court should affirm the Authority's decision and deny the petition for review. Respectfully submitted. DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor ANN M. BOEHM Attorney Federal Labor Relations Authority 607 14th St., N.W. Washington, D.C. 20424 (202) 482-6620 DATE: February 11, 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _______________________________ DAVID F. POWER, Petitioner v. No. 97-1414 FEDERAL LABOR RELATIONS AUTHORITY, Respondent and PENSION BENEFIT GUARANTY CORPORATION, INTERVENOR ) _______________________________ CERTIFICATE OF SERVICE I certify that copies of the Brief For The Federal Labor Relations Authority, have been served this day, by mail, upon the following: Steven J. Silverberg, Esq James J. Keightley 1629 K Street, N.W., General Counsel Suite 802 Terrence M. Deneen Washington, D.C. 20006 Principal General Counsel Nancy S. Heermans Senior Counsel Pension Benefit Guaranty Corporation 1200 K Street, N.W., Suite 340 Washington, D.C. 20005 Thelma Brown Paralegal Specialist February 11, 1998 I certify that the Final Brief of the Federal Labor Relations Authority does not exceed 12,500 words, the maximum amount allowed under Circuit Rule 28(d). Ann M. Boehm Attorney February 11, 1998 [1] The appendices in this case are abbreviated as follows: Original Joint Appendix, "JA"; Original Supplemental Appendices 1-6, "SA-1-6"; Appendix after Remand, "RA"; Supplemental Appendices 7-13 (after remand), "SA-7-13". [2] Pertinent statutory and regulatory provisions are set forth in Addendum ("Add.") A to this brief. [3] The Authority, in an effort to clarify the complex nature of these charges, grouped the misconduct charges somewhat differently in its final decision than in the PBGC removal letters and in PBGC I. See SA-6 909, 1031; PBGC I, JA 2. [4] Power also filed a formal grievance over his appraisal. PBGC I, JA 5. [5] The OGC attorneys gave their survey responses to Information Service Specialist Donald Morrison, a GS-9 unit employee in the OGC. Power asked for a copy of the survey data, but Morrison refused. When Morrison was unable to print out the survey data during his scheduled time at work due to his printer's malfunction, he asked Power to retrieve the survey data when it eventually came through the printer and to put it on Morrison's desk. Power, however, retained the survey data. 967 F.2d at 661; PBGC I, JA 6. [6] Among other things, the Kalkines warning (1) assured Power that none of his answers would be used against him in a criminal proceeding, and (2) warned him that a refusal to reply fully and truthfully could result in removal from the federal service. SA-6 928. [7] Section 7116(a)(1) and (2) of the Statute provides, [I]t shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment. 5 U.S.C. § 7116(a)(1) & (2). [8] Section 7102 provides, in pertinent part, that "[e]ach employee shall have the right to form, join, or assist any labor organization . . . freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right." 5 U.S.C. § 7102. [9] In Letterkenny, the Authority established the analysis it would follow to resolve alleged violations of section 7116(a)(2) of the Statute. PBGC I, JA 18. Under Letterkenny, the General Counsel bears the burden of proving by a preponderance of the evidence that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion or other condition of employment. Letterkenny, 35 FLRA at 118. If the General Counsel fails to make the required prima facie showing, the case ends without further inquiry. Id. Once the General Counsel makes the required prima facie showing, a respondent may seek to establish the affirmative defense that: (1) there was a "legitimate justification" for the action; and (2) the same action would have been taken even in the absence of protected activity. Id. [10] The Douglas factors, as described by the Authority, are: (a) The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; (b) the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; (c) the employee's past disciplinary record; (d) the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; (e) the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties; (f) consistency of the penalty with those imposed upon other employees for the same or similar offenses; (g) consistency of the penalty with any applicable agency table of penalties; (h) the notoriety of the offense or its impact upon the reputation of the agency; (i) the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; (j) potential for the employee's rehabilitation; (k) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment or bad faith, malice or provocation on the part of others involved in the matter; and, (l) the adequacy and effectiveness of alterative sanctions to deter such conduct in the future by the employee or others. PBGC III, RA 1222-23. [11] Petitioner refers to the situation of Employee No. 5. (Brief at 13-14, 33-34.) However, for the reasons stated in its decision, the Authority did not consider Employee No. 5. PBGC III, 52 FLRA at 1407 n.14; RA 1235. [12] The Authority found that Employee No. 6's supervisor determined that "he had to go" and took actions to ensure Employee No. 6's departure. Id. at 1237. Thus, the Authority considered Employee No. 6's departure to be "forced." Id. [13] The Authority also decided that even if it were to find Employee No. 1 to be similarly situated to Power "on the basis of employment background, position, and offenses committed," it "would reach the same conclusion on the issue of Power's alleged disparate treatment." RA 1242 n.17. In this connection, the Authority stated that the "significant differences" in the supervisory confidences in the employees and in the estimated potential for rehabilitation "accounts convincingly for the differing penalties they received, and compels a conclusion that Power was not disparately treated." Id. [14] Although additional evidence regarding Employee No. 8 was not considered by the ALJ on remand, the Authority determined that the record was sufficiently developed to reconsider Employee No. 8's situation under the factors set forth in PBGC II. RA 1242. [15] Insubordination has been defined as "a willful and intentional refusal to obey an authorized order of a superior . . .[,] which the [superior] is entitled to have obeyed." Phillips v. General Services Admin., 878 F.2d 370, 373 (Fed. Cir. 1989); see also Redfearn v. Department of Labor, 58 MSPR 307 (1993) (Redfearn). [16] The Authority considered case law with particular reference to discipline of employees involved in protected activity. PBGC III, RA 1229. See, e.g., Webster v. Dep't of the Army, 911 F.2d 679, 689 (Fed. Cir. 1990) (steward correctly removed for insubordinate conduct, notwithstanding the employee's involvement in protected activity); United States Air Force Academy, Colorado Springs, Colorado, 52 FLRA 874, 879, 899 (1997) (steward correctly disciplined for discourteous conduct, notwithstanding the employee's involvement in union activity); PYA/Monarch, Inc., 275 NLRB 1194 (1985) (even absent union activities, employee would have been discharged for failing to deliver a customer order, and for failing to clock out). [17] The Authority expressly rejected "for lack of support in the record [the] claim that a connection exists between Power's failure to supply the requested writing sample and Power's grievance over his performance appraisal, such as would excuse his misconduct." PBGC III, 52 FLRA at 1233. Similarly, the Authority did not find any union-related activity that excused Power's misconduct in connection with the computer survey data. Id. at 1234. [18] The Bassan case is the only case to date in which the Authority has considered the application of City Disposal to federal sector labor law. [19] Indeed, the Statute specifically provides a proper procedure for unions to follow in acquiring data for bargaining and other purposes. See 5 U.S.C. § 7114(b)(4). [20] The Court stated that "[i]t is, of course, for the FLRA to determine in the first instance what factors are relevant in deciding whether employees are similarly situated." PBGC v. FLRA, 967 F.2d at 668. [21] Based primarily upon its consideration and evaluation of the testimony of PBGC General Counsel ("GC") Ford (SA-13 2201-2248), Employee No. 6's supervisor at the time of his departure, the Authority found that Employee No. 6 and Power were similarly situated because: their work and disciplinary records were comparable; they occupied similar positions for similar periods of time; they possessed recognized legal talents; neither attorney had a prior disciplinary record; their offenses involved failure to obtain supervisory clearance; and they committed the offenses even after repeated warnings. PBGC III, RA 1236-37. [22] Petitioner incorrectly suggests that the Authority's conclusions in this regard are based upon the testimony of DGC Flowe. The Authority's decision clearly sets forth its reliance upon GC Ford's testimony, not DGC Flowe's testimony, in determining that Employee No. 6's departure was forced. PBGC III, RA 1236-38. [23] Because of the expectation that discipline of employees will serve a "constructive purpose," it was reasonable for the Authority to "ascribe significant weight to the factors of supervisory confidence and potential for rehabilitation." PBGC III, RA 1241. The dissimilarities between Power and Employee No. 1 in this regard resulted in the Authority's finding that these employees were not similarly situated. [24] Petitioner asserts that the testimony of Employee No. 1's supervisor is entitled to little weight. (Brief at 30-31.) However, credibility determinations and weighing of evidence are within the Authority's province, and are to be upheld so long as they are supported by substantial evidence and are reasonable. [25] The cases cited by petitioner are inapposite, because they deal with recusal issues in the federal courts rather than administrative agencies. Statutory provisions governing the federal courts provide strict recusal requirements, see 28 U.S.C. § 455 (1994), that are not applicable to administrative agencies.