United States Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Respondent) and National Association of Government Employees, Local R5-136, SEIU, AFL-CIO (Charging Party/Union)

[ v58 p44 ]

58 FLRA No. 11

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-136, SEIU, AFL-CIO
(Charging Party/Union)

AT-CA-00260

_____

DECISION AND ORDER

September 10, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the decision of the Administrative Law Judge (Judge) filed by the Respondent and cross-exceptions filed by the General Counsel (GC). The General Counsel also filed an opposition to the Respondent's exceptions and a motion to strike certain arguments made by the Respondent.

      The complaint alleges that the Respondent violated § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by certain statements made by management officials at a grievance meeting. The complaint also alleges that the Respondent violated § 7116(a)(1), (2), and (4) by disciplining an employee for filing a grievance and an unfair labor practice charge and violated § 7116(a)(1) and (2) by disciplining that employee for certain statements the employee made in a grievance meeting.

      The Judge found that the Respondent violated § 7116(a)(1) and (2) by disciplining the employee for statements made by the employee in a grievance meeting and issued a remedy. [n1] 

      For the reasons that follow, we agree with the Judge that the Respondent violated § 7116(a)(1) and (2) of the Statute by disciplining the employee for the statements he made in the grievance meeting. We modify the Judge's order by explicitly providing for interest on the award of backpay to the employee.

II.     Background and Judge's Decision

A.     Background

      The facts, set forth in detail in the Judge's decision, are summarized here.

      Approximately two weeks after a heated incident between one of the Respondent's police officers (officer) and the Respondent's Chief of Environmental Management Services (EMS) in the office of the police officer's supervisor (supervisor), the Respondent's Chief of Police requested, and received, a written statement from that officer. In his statement (hereinafter "the written statement"), the officer claimed that, during the incident, the Chief of EMS called him "a lying son-of-a-bitch." Judge's Decision at 5.

      About the same time that the police officer provided his written statement to the Chief of Police, the officer also filed a grievance alleging that his supervisor violated the parties' collective bargaining agreement by permitting the Chief of EMS to treat him without respect, and requested an apology from the supervisor.

      At the first step grievance meeting, a representative of the Respondent presented the officer with a copy of his written statement and asked the officer whether he wanted to make any changes in his statement. The officer declined to make any changes. The Respondent's representative repeated the question one or two more times during the meeting, each time asking whether the officer wanted to make any changes in his statement. On each occasion, the officer declined to make changes.

      The officer's supervisor denied the grievance at the first step, stating that he found the officer's statement "'false in nature'." Id. (quoting Jt. Exh. 5). The grievance was denied at each of the subsequent steps of the grievance procedure. During the processing of the grievance, the Union requested information pertaining to the grievance from the Respondent and, when the Respondent failed to provide the requested information, the Union filed an unfair labor practice charge. [ v58 p45 ]

      The Respondent's Chief of Police subsequently issued a proposal to suspend the officer for 14 days. As relevant here, the proposed suspension was based on a specification that three times during the first step grievance meeting the officer maintained that his written statement was true when it was not. The Respondent's Chief Executive Officer sustained the charges in the proposed suspension and suspended the officer for 14 days. The officer subsequently served the suspension.

B.     Judge's Decision

      The Judge found that the Respondent violated § 7116(a)(1) and (2) by disciplining the officer for maintaining the truth of his written statement during the first step grievance meeting.

      In particular, the Judge found that the officer's participation in the first step grievance meeting was protected activity under the Statute. He also found that an agency "has the right to discipline an employee who is engaged in otherwise protected activity for action that exceeds the boundaries of protected activity such as flagrant misconduct." Judge's Decision at 14 (citing United States Dep't of Defense, Defense Logistics Agency, 50 FLRA 212, 215 (1995)).

      As to the instant case, the Judge stated that "[a]llowing management to subject an employee to discipline because it feels the employee made statements during a grievance meeting that were untrue would inhibit employees and [u]nions in pursuing their rights to file and process grievances." Id. at 15 (citing Veterans Administration Regional Office, Denver, Colorado, 2 FLRA 668, 675 (1980) and Graphic Communications International Union, Local 388M, 300 NLRB 1071, 1072 (1990) (Local 388M)). He also noted, however, that there is a "legitimate concern" with respect to "the need to protect the integrity of the grievance and arbitration process from [the] damage that false testimony may inflict." Judge's Decision at 15.

      The Judge referenced National Labor Relations Board (NLRB) decisions. According to the Judge, under NLRB decisions, "conduct associated with the filing of grievances can lose its protection if a false claim is made in bad faith." Id. (citing United Parcel Service of Ohio, 305 NLRB 433, 434 (1991)). The Judge stated further that, in order to demonstrate that an employee's allegedly false statement has lost its protection, it must be shown that "the employee engaged in a deliberate and conscious deception." Id. (citing Big Three Industrial Gas & Equipment Co., 212 NLRB 800 (1974), enf'd 512 F.2d 1404 (5th Cir. 1975) (Big Three)).

      Applying the principles derived from NLRB decisions, the Judge found that, "with respect to an allegedly false statement made in the course of processing a grievance, generally, an agency must show that the statement was a deliberate, conscious deception on the part of the employee in order to constitute flagrant misconduct." Id. at 16. The Judge also found that the officer did not "deliberately or consciously" misrepresent what had occurred. Id. at 6. The Judge concluded, for the reasons set forth in his decision, that the officer's "description amounted only to an exaggeration of what actually occurred rather than a deliberate fabrication." Id. at 7.

      In addition, the Judge found that, although the Respondent treated its questioning of the officer during the first step grievance meeting as part of an official investigation, that meeting remained a part of the grievance process as far as the officer's "rights and protections under the Statute are concerned." Id. at 16.

      Based on the foregoing, the Judge concluded that the officer had not engaged in flagrant misconduct. Consequently, because the Respondent's disciplinary action was motivated by the officer's protected activity, the Judge found that the GC had established a prima facie case under § 7116(a)(2).

      The Judge then considered whether the Respondent had established, as an affirmative defense, that it had a legitimate justification for its disciplinary action and that, even in the absence of protected activity, it would have imposed the same discipline. In this regard, the Judge noted that the discipline had also been based on other charges and the Respondent may have imposed some form of discipline even if the charge regarding the officer's statement at the grievance meeting were eliminated as a ground for discipline. According to the Judge, the Respondent did not submit any evidence as to the form of discipline that it would have imposed if that charge were disregarded.

      Consequently, the Judge found that the Respondent had not "shown by a preponderance of the evidence that the same action, i.e., a 14-day suspension, would have been taken in the absence of the charge and specification that were based on [the officer's] protected activity." Id. at 17. Accordingly, the Judge concluded that the Respondent had "violated [§] 7116(a)(1) and (2) when it imposed discipline on [the officer] based on conduct that occurred while he was engaged in protected activity." Id. As a remedy, the Judge ordered the Respondent to rescind the officer's 14-day suspension and make the officer whole for all losses incurred as a result of that suspension. [n2]  [ v58 p46 ]

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent excepts to the Judge's use of NLRB law as the basis for his finding of a violation and to his conclusion that the officer's statements at the first step meeting were protected activity. According to the Respondent, there is "no statutory or regulatory restriction incumbent on an agency that prevents management officials from 'investigating' facts or statements during a grievance process." Exceptions at 11. Citing LaChance v. Erickson, 522 U.S. 262 (1998) (LaChance), the Respondent argues that employees do not have a right to falsely deny charged activity and, thus, that false statements in a grievance proceeding do not constitute protected activity. The Respondent claims that, as long as an employee is afforded statutory and constitutional procedural protections, an agency can discipline that employee for such statements.

      Citing LaChance, 522 U.S. at 267, the Respondent asserts that "the fact that [the employees] were not under oath is irrelevant, since they were not charged with perjury, but with making false statements during an agency investigation, a charge that does not require sworn statements." Exceptions at 13. The Respondent thus disagrees with the NLRB precedent cited by the Judge, in particular Big Three. Specifically, the Respondent maintains that an agency "does not have to meet a standard of 'perjury' to charge and prove an employee with making false statements during an investigation." Id.

      The Respondent, citing Dep't of the Air Force, Grissom AFB, Indiana, 51 FLRA 7 (1995) (Grissom), additionally claims that the Judge erred in failing to hold the officer to a higher standard of truthfulness, because he was a police officer, in determining that his misconduct was "flagrant." In this regard, the Respondent claims to have established by a preponderance of the evidence that the officer's written statement was false and, thus, that it has established "a charge of falsification in agency investigations[.]" Id. at 22.

      Finally, the Respondent cites Merit Systems Protection Board precedent and argues that the GC has failed to establish, by a preponderance of the evidence, that it engaged in retaliation for protected activity within the meaning of 5 U.S.C. § 2302(b)(9). Specifically, the Respondent claims that the GC has failed to establish a connection between the protected activity and the Respondent's conduct, that is, "that the protected activity was the causation 'in fact for the adverse action.'" Id. at 23, citing, e.g., Webster v. Dep't of Army, 911 F.2d 679, 690-91 (Fed. Cir. 1990).

      The Respondent did not address the GC's motion to strike its arguments.

B.     General Counsel's Opposition

      The GC argues that LaChance is "not on point" and the Respondent's "reliance is clearly misplaced." Id. at 8. According to the GC, LaChance concerns employees who had been charged with misconduct and who made false statements in connection with the agency's investigation of that misconduct. The GC states that the false statements in that case did not involve protected activity and that the officer in this case had not been charged with misconduct. Further, the GC distinguishes LaChance on the ground the false statements in that case were in the context of an investigation, while the officer's statements at issue in this case were made in a grievance meeting.

      The GC disputes the Respondent's argument that any false statement must constitute flagrant misconduct. First, the GC maintains, the argument ignores the legal standard applied by the Judge, namely, that the Respondent must show deliberate and conscious deception. Second, according to the GC, the Respondent ignores the Judge's finding that the officer's written statement concerning the incident was "'an exaggeration of what actually occurred'" and that the officer "'had not deliberately and intentionally falsified any claim[.]'" Id. at 9. In this regard, the GC maintains that the Respondent apparently disagrees with the Judge's credibility findings and notes that, absent a clear determination that such findings are incorrect, the Authority will not disturb them.

      According to the GC, the Respondent, in its exceptions to the Judge's finding of a violation, made several arguments that it had had the opportunity to raise, but did not make, before the Judge. Specifically, the GC references the Respondent's argument concerning the timeliness of the officer's grievance and its claim that the Authority should reconsider the flagrant misconduct test. Opposition at 7-8. The GC contends that, under § 2429.5 of the Authority's Regulations, the Authority should disregard those arguments.

      Finally, the GC contends that the Back Pay Act requires payment of interest to accompany any award of backpay and argues that, in order to avoid any confusion in compliance proceedings, the Judge's award should be [ v58 p47 ] revised to explicitly provide for interest as part of his make whole remedy.

IV.     Analysis and Conclusions

A.     Preliminary Matter

      Under § 2429.5 of its Regulations, the Authority "will not consider . . . any issue which was not presented in the proceedings before the . . . Administrative Law Judge.[.]" As noted by the GC, the Respondent argues that: (1) the officer's grievance was untimely filed and, therefore, his statements in the grievance meeting do not constitute protected activity; and (2) the Authority should reconsider the "flagrant misconduct" test." The record indicates that the Respondent did not raise these arguments before the Judge.

      Accordingly, based on § 2429.5 of the Authority's Regulations, we decline to consider the Respondent's arguments.

B.     The Respondent Violated § 7116(a)(1) and (2) of the Statute by Disciplining the Officer in the Circumstances of this Case

      The Judge correctly applied the framework established by the Authority in Letterkenny Army Depot, 35 FLRA 113 (1990) for resolving complaints of alleged discrimination in violation of § 7116(a)(2) of the Statute. Under that framework, the GC establishes a prima facie case of discrimination by demonstrating 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. Once the GC makes the required prima facie showing, an agency 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 the protected activity. When the alleged discrimination concerns discipline for conduct occurring during protected activity, "a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct." Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 53 FLRA 1500, 1514 (1998). If flagrant misconduct is established, the conduct loses its protection under the Statute and can be the basis for discipline. Id. at 1515. While the agency has the burden of establishing its affirmative defense by a preponderance of the evidence, the GC has the overall burden of establishing the violation by a preponderance of the evidence on the record as a whole.

      Applying the Letterkenny framework, the Judge found that the GC had established a prima facie case that the Respondent had violated § 7116(a)(1) and (2) of the Statute by disciplining the officer for statements made at the grievance meeting. The Respondent has not established that the Judge erred in making that finding.

      The Judge further found that the Respondent did not establish an affirmative defense to that violation. In this regard, we find that the Respondent has failed to establish that the officer's participation in the grievance meeting, including his statements made at the meeting, was not protected activity.

      Moreover, the Respondent has failed to establish that the officer engaged in flagrant misconduct so as to lose the protection of the Statute. In this regard, the Respondent has not shown that the standard applied by the Judge to assess whether the officer's statements constituted flagrant misconduct was improper. [n3]  Nor has the Respondent shown that the Judge erroneously relied on NLRB precedent in formulating that standard. We also note that the Judge's decision does not require the Respondent to meet the standard of perjury, that is, providing false testimony while under oath, in order to discipline an employee for making a false statement.

      Further, the Respondent has not demonstrated that, because it questioned the officer at the grievance meeting, the officer thereby lost his protection under the Statute. Specifically, the Respondent has not established that LaChance is applicable to the facts of this case. In LaChance, the Supreme Court held that government agencies may discipline an employee because the employee intentionally made false statements during an investigation concerning an underlying charge of misconduct. LaChance, 522 U.S. at 268. The grievance meeting in this case did not concern charges of misconduct against the officer and it originated as, and remained throughout, a meeting concerning the officer's grievance against the Respondent. There is no indication that LaChance applies in this context.

      In any event, even if LaChance sanctions discipline of an employee for making a false statement in a grievance meeting, the Judge found that the officer did not intentionally make false statements at the grievance meeting. Given the Judge's finding, which the Respondent does not challenge, applying LaChance would not lead to a different result. [ v58 p48 ]

      As to the Respondent's argument based on Grissom, even assuming that false statements by a police officer constitute flagrant misconduct under that case, as noted above, the Judge found that the officer had not made such false statements.

      Finally, with respect to the Respondent's claim that the Judge erred by failing to apply 5 U.S.C. § 2302(b)(9), we find that the Respondent has failed to provide any support for this claim. In particular, the Respondent has failed to establish that the analytical framework governing § 2302(b)(9) is controlling in discrimination cases arising under § 7116(a)(2) of the Statute or that the Judge erred in relying on Authority precedent which applies § 7116(a)(2).

      In conclusion, the Respondent's arguments are inapposite. Consequently, the Respondent has not established an affirmative defense under the Letterkenny framework. In the absence of such a defense, there are no grounds for disturbing the Judge's decision.

      Accordingly, we deny the Respondent's exceptions. [n4] 

V.     Order  [n5] 

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statue, the United States Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, shall:

      1.      Cease and desist from:

           (a)     Discriminating against Johnny Scott, or any other unit employee, because of the exercise of protected rights assured them by § 7102 of the Statute.

           (b)     In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

           (a)     Rescind the 14-day suspension imposed on Johnny Scott by decision dated December 15, 1999, for which a motivating factor was conduct that occurred while he was engaged in activity protected by the Statute. Expunge from all personnel files and documents any references to the 14-day suspension.

           (b)     Make Johnny Scott whole by paying him backpay, with interest, for all loss of pay suffered by him due to the 14-day suspension imposed on him by decision dated December 15, 1999.

           (c)     Post at its facilities at the United States Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, United States Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (d)     Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, in writing, within 30 days of this Order, as to what steps have been taken to comply.

      IT IS FURTHER ORDERED that the remaining allegations of the complaint, be, and they hereby are, dismissed. [ v58 p49 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT discriminate against Johnny Scott, or any other employee, because of the exercise of protected rights assured them by § 7102 of the Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the 14-day suspension imposed on Johnny Scott by decision dated December 15, 1999, for which a motivating factor was conduct that occurred while he was engaged in activity protected by the Statute.

WE WILL expunge from all personnel files and documents any references to the 14-day suspension.

WE WILL make Johnny Scott whole by paying him backpay, with interest, for all loss of pay suffered by him due to the 14-day suspension imposed on him by decision dated December 15, 1999.

      ________________________
(Activity)

Date:__________ By:_________________________

      (Signature) (Title)

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Marquis Two Tower, 285 Peachtree Center Avenue, Suite 701, Atlanta, GA 30303-1270, and whose telephone number is: (404) 331-5212.


File 1: Authority's Decision in 58 FLRA No. 11
File 2: ALJ's Decision


Footnote # 1 for 58 FLRA No. 11 - Authority's Decision

   The Judge dismissed the other allegations of the complaint. The GC does not except to these dismissals and they will not be addressed further in this decision. We note, in this regard, that the Respondent mistakenly contends that the Judge erred in finding that it imposed discipline on the officer in retaliation for his filing a grievance against his supervisor or an unfair labor practice against the Respondent. The Judge made no such finding.


Footnote # 2 for 58 FLRA No. 11 - Authority's Decision

   The Judge noted that he took no position on whether any discipline was warranted and that his decision concerned only whether the discipline actually imposed was lawful.


Footnote # 3 for 58 FLRA No. 11 - Authority's Decision

   This case involves discipline of an employee engaged in protected activity based on alleged false statements, rather than discipline of an employee based on physical activity. As such, the court's decision in Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002), is not applicable.


Footnote # 4 for 58 FLRA No. 11 - Authority's Decision

   The proposed suspension was also based on three other charges, as well as an additional specification that the written statement was not true. As for the other charges, the first alleged that the officer had used physical aggression against the Chief of EMS by blocking the exit from the supervisor's office. Second, it was alleged that the officer made a false statement to a management official, specifically, inconsistent statements about who blocked the door. Third, it was alleged that the police officer was absent without leave when he failed to work scheduled overtime after completion of the second step grievance meeting. The discipline imposed on the officer was based on each of the charges and specifications contained in the proposed suspension, but the complaint in this case alleges that the Respondent violated the Statute based only on discipline of the officer for the alleged falsity of his statements at the grievance meeting. GC Exh. 1, Complaint, ¶¶ 15-18. Thus, neither the three charges noted above nor the specification that the written statement was not true, are involved in this case.


Footnote # 5 for 58 FLRA No. 11 - Authority's Decision

   Consistent with Authority precedent, we will modify the Judge's Order in this case to clarify that the remedy includes backpay with appropriate interest. See, e.g, United States Dep't of Agriculture, Forest Service, Chattahoochee-Oconee National Forests