47:0595(52)CA - - Pension Benefit Guaranty Corporation and NTEU - - 1993 FLRAdec CA - - v47 p595

[ v47 p595 ]
The decision of the Authority follows:

47 FLRA No. 52








(Charging Party/Union)


(39 FLRA 905 (1991))



May 7, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in Pension Benefit Guaranty Corporation v. FLRA, 967 F.2d 658 (D.C. Cir. 1992) (PBGC v. FLRA). The complaint alleges that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by discharging employee David Power because he engaged in activities protected by section 7102 of the Statute. Following the court's remand, the parties filed supplemental statements with the Authority. For the following reasons, we conclude that the complaint must be remanded to the Administrative Law Judge for further proceedings.

II. Background

David Power was employed as a GS-14 General Attorney in Respondent Pension Benefit Guaranty Corporation's (PBGC) Office of the General Counsel (OGC) from 1980 until his discharge on April 3, 1989. Beginning in 1984 and continuing until his discharge, Power served as the President of Chapter 211 of the Union. On April 3, 1989, Power was discharged for misconduct. Specifically, he was discharged for: (1) insubordination based on his (a) failure to follow an "OGC Concurrence Matrix," (b) refusal to accept computer messages from an immediate supervisor, and (c) failure to supply a representative writing sample to the Deputy General Counsel; (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.

The Union filed an unfair labor practice charge, and the General Counsel issued a complaint, alleging that Power was discharged in violation of section 7116(a)(1) and (2) of the Statute for engaging in protected activity. The Administrative Law Judge concluded that the Respondent did not violate section 7116(a)(1) and (2) of the Statute when it discharged Power. In reaching this conclusion, the Judge found that Power's Union activity played no part in the decision of his supervisors and the reviewing official to discharge him. Although the Judge acknowledged that animosity based on Power's activities as Union President existed between Power and two of the Respondent's representatives--Frank Tobin, the Director of Personnel, and Thomas Gabriel, an OGC attorney who provided legal assistance on personnel and labor relations matters--the Judge determined that Tobin and Gabriel had only ministerial roles in Power's discharge. The Judge further found that the General Counsel had not established that Power was treated differently from other employees who had been disciplined. In this regard, the Judge compared the discharge of Power to the disciplinary treatment of employees identified as Employees Nos. 1, 7, 8, 9, and 10, and determined that he could not sustain a finding of disparate treatment. The Judge concluded that the General Counsel failed to prove by a preponderance of the evidence that Power was discharged for engaging in protected activity and, therefore, recommended that the complaint be dismissed.

In 39 FLRA 905, the Authority reversed the Judge's conclusion and found that the Respondent had discharged Power in violation of section 7116(a)(1) and (2) of the Statute. The Authority adopted the Judge's credibility determinations of Power's supervisors and the reviewing official that Power's Union activity played no part in their decision to discharge Power. The Authority further adopted the Judge's findings that management officials Tobin and Gabriel were hostile to Power's activities as Union President. However, the Authority found, contrary to the Judge, that Tobin and Gabriel played a meaningful part in management's decision to discharge Power and that their animus toward Power motivated in some part the decision to discharge Power. Accordingly, the Authority found that the General Counsel had established a prima facie case of unlawful discrimination within the meaning of Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny).

The Authority next examined whether the Respondent established by a preponderance of the evidence that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity. 39 FLRA at 930 (citing Letterkenny, 35 FLRA at 122-23). The Authority concluded that even assuming that the Respondent established that it had a legitimate justification for taking some form of disciplinary action against Power, the Respondent failed to demonstrate by a preponderance of the evidence that it would have discharged Power in the absence of protected activity. In reaching this conclusion, the Authority considered Power's conduct in its totality and compared his conduct with that of other employees who had not been discharged for their misconduct.(1) The Authority found that the misconduct of Employee No. 1 was at least comparable to Power's, but that Employee No. 1 was suspended, not discharged. Further, the Authority found that Employees Nos. 7, 9, and 10 engaged in "fairly egregious" misconduct but were not discharged. 39 FLRA at 931. Finally, the Authority noted that the one employee who had been discharged (Employee No. 8) was first accorded progressive discipline, whereas Power was not. Based on these findings, the Authority concluded that the Respondent violated section 7116(a)(1) and (2) of the Statute.

III. Court's Decision in PBGC v. FLRA

As a preliminary matter, the court in PBGC v. FLRA found that the Authority had jurisdiction to hear the unfair labor practice case. Next, the court examined the Authority's application of the Letterkenny framework to the instant case and stated that it "need not decide" whether the General Counsel made out a prima facie case because it "believe[d] that PBGC demonstrated that it would have fired Power absent Tobin's and Gabriel's union animus." 967 F.2d at 666. The court found that the Authority implicitly conceded that the Respondent had a legitimate justification for its action against Power. Further, the court noted the Authority's finding that Power received disparate treatment as a result of his protected activity and that, therefore, the Respondent had not shown that it would have discharged Power in the absence of protected activity. The court concluded, however, that it could not uphold the Authority's decision because the decision was "inadequately explained." Id. at 667.

In this regard, the court noted the Authority's findings concerning the discipline received by Employee No. 1, who was also an OGC attorney, and by employees from other offices at PBGC. With respect to Employee No. 1, the court found that, unlike Power, Employee No. 1 received no warnings before the imposition of discipline. The court further found that "Power continued his insubordinate conduct" even after an investigatory interview. Id. The court found that this was a "critical difference" between the conduct of Power and Employee No. 1 and stated that the Authority's finding that the conduct of Power and Employee No. 1 was "at least comparable" was unsupported by substantial evidence in the record as a whole. Id. Moreover, the court emphasized that the Respondent considered both Employee No. 1's and Power's potential for rehabilitation and the effect of their misconduct on their supervisors' confidence in them. The court noted that the record showed that supervisors retained confidence in Employee No. 1, but not in Power. The court acknowledged 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[,]" but concluded that the Authority "did not explain those factors in concluding that Power and [E]mployee #1 were similarly situated." Id. at 668. Therefore, the court concluded that "a remand is warranted." Id.

The court further noted the Authority's inclusion in its disparate treatment analysis of three other employees (Employees Nos. 7, 9, and 10) at PBGC who had engaged in physical assaults and obscene gestures. The court noted that those employees were neither lawyers nor OGC employees and found that the Authority "did not give a reasoned explanation why the three employees were similarly situated to Power . . . ." Id. at 669. Accordingly, the court "remand[ed] for such an explanation." Id.

Finally, the court stated that the Authority should have considered in its decision whether Employee No. 6, an executive assistant, GM-14 supervisory attorney in the OGC, was similarly situated to Power. The court noted that Employee No. 6 was directed to resign or be removed for misconduct that "was in some respects analogous to Power's." Id. at 670 (footnote omitted).

In summary, the court remanded the case to the Authority for proceedings not inconsistent with its decision, "including the direction that the FLRA consider [E]mployee #6 in conducting its disparate treatment analysis." Id.

IV. Analysis and Conclusions

In determining whether Power was subject to disparate treatment in this case, we must examine whether Power was treated differently from similarly situated employees. See PBGC v. FLRA, 967 F.2d at 667. In making such a determination, the Authority considers the totality of the facts and circumstances of the case. The Authority compares, among other things, the consistency of treatment received by an employee who engaged in protected activity with that received by other employees: (1) from the same supervisor, United States Department of Transportation, Federal Aviation Administration, El Paso, Texas, 39 FLRA 1542, 1553-54 (1991); and (2) in the workplace as a whole, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 37 FLRA 161, 172-74 (1990).

Moreover, in determining whether employees are similarly situated in circumstances where an adverse or disciplinary action was taken against an employee who engaged in protected activity and against one who did not, we find that it is relevant to compare: (1) the nature of the misconduct, National Labor Relations Board v. United States Postal Service, 888 F.2d 1568, 1571 (11th Cir. 1989); (2) the positions the employees occupied, Reeves Brothers, Inc., Eagle and Phenix Division, 207 NLRB 51, 53-54 (1973); (3) the employees' past disciplinary records, Aratex Services, Inc., 300 NLRB 115, 116 (1990); and (4) the extent to which employees were previously warned that their conduct may result in discipline, Fast Food Merchandisers, Inc., 291 NLRB 897, 898-99 (1988). We also find that it is appropriate to examine the elements listed in Douglas v. Veterans Administration, 5 MSPR 280, 305-06 (1981) (Douglas) that are relevant to a particular adverse action decision and the extent to which a respondent consistently relied on the Douglas elements, or any other factors, when imposing adverse or disciplinary actions. We note that the weight given to the above-noted factors may vary with the circumstances presented in a specific case.

The record before us is insufficient to make the determinations required by the court's remand. Specifically, with respect to Employee No. 6, the Judge made no findings and the record does not otherwise provide sufficient information to determine whether Employee No. 6 was similarly situated to Power. Further, with respect to Employee No. 9, the record shows that Employee No. 9 received a 60-day suspension for fighting on duty and for engaging in gross insubordination by refusing to follow his supervisor's repeated directions. Employee No. 9 had previously received warnings for engaging in similar misconduct, but the Respondent decided not to discharge him, as was originally proposed. See General Counsel's Exhibit No. 17(a). However, despite the statement of one employee that Employee No. 9's supervisor was "afraid of him[,]" the record is unclear on the extent to which the Respondent considered the effect of Employee No. 9's misconduct on his supervisor's confidence in him in determining what disciplinary action to impose. General Counsel's Exhibit No. 17 at 14. Moreover, as to Employee No. 1, the record is unclear as to the extent of the warnings received by that employee in the spring of 1986 or any time prior to the imposition of discipline.(2) The record is also unclear on the extent to which the Respondent considered Employee No. 1's potential for rehabilitation in deciding to suspend rather than discharge Employee No. 1. See PBGC v. FLRA, 967 F.2d at 668. Accordingly, we will remand this case to the Judge for further processing.(3) See, for example, INS and National Park Service, National Capital Region, United States Park Service, 44 FLRA 1537 (1992).

On remand, the Judge is 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, is to determine in a recommended decision and order whether Power was subject to disparate treatment. In setting out the following factors to consider, we note that the Judge and the parties may expand the factual inquiries as to these employees to include any other information that would assist in determining whether Power was similarly situated to any of the employees and whether there was disparate treatment. With respect to Employee No. 6, the Judge should hear evidence on matters including, among other things: (1) how long Employee No. 6 spent as an executive assistant, GM-14 Supervisory Attorney; (2) what type of appointment Employee No. 6 held in that position; (3) how long Employee No. 6 spent in any other position at PBGC; (4) the time frame and nature of Employee No. 6's misconduct leading to his resignation; (5) whether Employee No. 6 received any warnings; and (6) Employee No. 6's prior work and disciplinary records. With respect to Employee No. 9, the Judge should hear evidence on, among other relevant factors, the effect of Employee No. 9's misconduct on his supervisor's confidence in him. With respect to Employee No. 1, the Judge should consider, among other things, General Counsel's Exhibit No. 13 to determine whether Employee No. 1 received any warnings about his conduct. The Judge should also hear evidence on, among oth