United States, Department of the Air Force, Aerospace Maintenance, and Regeneration Center, Davis Monthan Air Force Base, Tucson, Arizona (Respondent) and John Pennington (Charging Party)

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58 FLRA No. 162     

UNITED STATES
DEPARTMENT OF THE AIR FORCE
AEROSPACE MAINTENANCE
AND REGENERATION CENTER
DAVIS MONTHAN AIR FORCE BASE
TUCSON, ARIZONA
(Respondent)

and

JOHN PENNINGTON
(Charging Party)

DE-CA-01-0276

_____

DECISION AND ORDER

July 11, 2003

_____

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 attached decision of the Administrative Law Judge (Judge) filed by the Respondent. The General Counsel (GC) filed an opposition to the exceptions.

      The Judge concluded that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by giving a bargaining unit employee a notice of reprimand based on protected activity.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order consistent with our discussion below.

      In adopting the Judge's finding that the employee was engaged in protected activity, we agree with the Judge that the meeting between the employee, his supervisor and the union steward concerned a grievance within the meaning of § 7103(a)(9) of the Statute. We also agree with the Judge that the employee was engaged in protected activity because he was pursuing a contractually negotiated right to bring "matters of personal concern to the attention of appropriate officials," as set forth in Article 2, Section 5 of the parties' agreement. Judge's Decision at 14, 18-19.

      The Judge applied the framework in Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny) to the facts in this case. 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.

      We have held that 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." United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 58 FLRA 44, 47 (2002) (quoting Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 53 FLRA 1500, 1514 (1998)). In light of the court's decision in Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002), we take this opportunity to clarify that 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 or otherwise exceeded the boundaries of protected activity. In this regard, the court stated that "[f]lagrant misconduct is a sufficient, but not necessary, condition for a loss of privilege under § 7102 [of the Statute]." 294 F.3d at 201. As the court noted in discussing earlier Authority precedent, "`flagrant misconduct' [i]s only illustrative of exceeding the boundaries of protected activities." Id. at 202 (emphasis in original). [n1] 

      If conduct that exceeds the boundaries of protected activities is established, the conduct loses its protection under the Statute and can be the basis for discipline. If the conduct retains its protection, it cannot be the basis for discipline. "In effect, in such a case, it is not legitimate for an agency to discipline for conduct occurring during the course of protected activity that [does not exceed the boundaries of protected activities]." Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 53 FLRA 1500, 1516 (1998). Under the Letterkenny framework, the agency has the burden of establishing its affirmative defense by a preponderance of the evidence, and the GC has the overall burden of establishing the violation by a preponderance of the evidence on the record as a whole.

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