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Now Where Did I Put Those Confidential Documents?

Note:  This is a story about an employment issue at the NLRB.  Apropos of nothing perhaps, the NLRB has been open throughout the Government Shutdown, while the EEOC has been closed.

We all misplace stuff, right?  I found my car keys right where I left them.  And my glasses were right on my forehead, which my wife pointed out to me.   But, in 34 years of law practice, I have never misplaced (read “lost”) confidential documents.

I do recall once hearing the story of a young lawyer who put a box of original documents he was reviewing next to his garbage can, only to come in the next morning and find that the cleaning service had removed both the box (and its contents) and the trash, but that may have been apocryphal.  Imagine the anxiety such an event would create.  One might be concerned about one’s prospects for continued employment as well.

Well, that’s sort of what happened to an NLRB field attorney in Alabama.  Only worse.  A federal district judge has upheld a decision by the Merit Systems Protection Board that the attorney’s termination was justified.  Powell v. NLRB, 2019 U.S. Dist. LEXIS 4445 (N.D. Ala. Jan. 10, 2019).

In this case, Gregory Powell was investigating claims of alleged unfair labor practices (ULPs) by an employer.  As is the NLRB’s practice, confidential witness affidavits are obtained during an investigation.  According to the court’s decision, Mr. Powell obtained these affidavits from witnesses, but then left them in his hotel room.  Three unsigned affidavits were delivered to the company’s lawyer by a man who “claimed that he found them at a local hotel.”  The company, of course, is not supposed to see these statements (hence the term “confidential.”)  The company lawyer contacted Powell and returned the affidavits to him.  Powell said nothing about this to his supervisors.

The case was assigned to an NLRB trial attorney, who subsequently had a conversation with the company lawyer who relayed that she had seen the affidavits.  Powell responded orally to his supervisor’s inquiry, but when she asked him to prepare a memo about what happened, the following email exchange occurred:

Powell:  I have already responded. There will be no additional written responses. White employees don’t have to write responses so why do African American men have to?

Supervisor: What are you talking about? What has race got to do with this? Confidential statements were compromised. We need to know what happened with the return of the affidavits by the company. This is not about race. Whether black or white I would be asking the same thing. What is the extent of exposure for our witnesses? Which ones were exposed?

Powell:  These statements would have been seen in court anyway.

An investigation was then conducted by the NLRB’s inspector general, who found that Powell “allowed the improper disclosure of confidential information by losing the witness affidavits; failed to properly safeguard the . . . case file and report the loss of the affidavits; acted insubordinately when he refused to provide information about the affidavits when [his supervisor] asked him to do so; and provided false and misleading information during his interview . . . by alleging that [his supervisor] received the returned affidavits before he did.”

It was recommended that Powell be removed from his position.  Taking the position that the best defense is a good offense, Powell responded by blaming everyone else, and alleging discrimination based on race, disability and sex, and in retaliation for an EEOC charge he had filed.   The NLRB’s Associate General Counsel determined that removal was appropriate, based on the MSPB’s precedent in Douglas v. Veterans Administration, 5 MSPR 280 (1981).  Among other things, she ultimately concluded Powell “created insurmountable trust issues regarding his ability to perform his work duties.”  An ALJ of the MSPB agreed.

Judge Bowdre got the case when Powell filed a petition for review in Federal Court. She was not persuaded, commenting from the start that Powell’s motion “constructs a maze of convoluted allegations that requires the court to perform Mr. Powell’s crucial task – argue why the MSPB decision fails 5 U.S.C. § 7703 judicial review – for him. His motion, in many instances, fails to support his allegations with record citations, inaccurately or falsely characterizes evidence, fails to acknowledge his burden of proof or relate his arguments to any standard of review, makes an abundance of irrelevant assertions, lacks logical organization or formatting, and seems to bring claims never raised in his amended complaint or anywhere else in this case.”

Not surprisingly, things did not get better for Powell as the opinion progressed.  Judge Bowdre granted the NLRB’s motion for summary judgment, holding that given the “exceedingly thorough analysis of all of the relevant mitigating and aggravating Douglas factors applied to the charges brought against Mr. Powell, the court agrees with the MSPB that ‘the agency established that the penalty of removal did not exceed the tolerable bounds of reasonableness. . . .’ The MSPB thus made an entirely reasonable decision in affirming the NLRB’s removal of Mr. Powell. So Mr. Powell has failed to meet his burden to show that the MSPB reached an arbitrary and capricious decision.”

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