United States, Department of Agriculture, Food and Nutrition Service, Alexandria, Virginia (Respondent) and National Treasury Employees Union (Charging Party)

[ v61 p16 ]

61 FLRA No. 4

UNITED STATES
DEPARTMENT OF AGRICULTURE
FOOD AND NUTRITION SERVICE
ALEXANDRIA, VIRGINIA
(Respondent)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Charging party)

WA-CA-04-0160

_____

DECISION AND ORDER

June 8, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This unfair labor practice (ULP) 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 cross-exceptions and an opposition to the Respondent's exceptions. [n2] 

      The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by terminating a probationary employee in retaliation for her exercise of protected activity. The Judge found that the Respondent violated the Statute as alleged, and ordered the Respondent to offer the employee reinstatement and make her whole.

      Upon consideration of the Judge's decision and the entire record, we conclude, for the reasons discussed below, that the Respondent did not commit an unfair labor practice. Accordingly, we dismiss the complaint.

II.     Background and Judge's Decision [n3] 

      The Respondent hired the probationary employee involved in this case as a systems accountant on November 3, 2002. Her probationary period was one year. Shortly after starting work, the employee requested a flexible work schedule, as permitted by the parties' collective bargaining agreement with supervisory approval. Her supervisor approved her request, and the employee was permitted over the next few months to change the hours and days that she worked within the flexible schedule several times.

      On March 20, 2003, the employee went to her supervisor's office to request permission to make another change to the hours of her flexible schedule so that she could have the second Monday of each pay period off. Initially, the supervisor told the employee that she could not grant her request because another employee already had Mondays off. [n4]  The employee questioned the supervisor as to why that would pose a problem, claiming that the duties of the two employees did not conflict. The supervisor explained that a certain percentage of employees needed to be present at the workplace each day. [n5] 

      Shortly thereafter, the employee returned to the supervisor's office and told her that if she were to have Mondays off, there would still be a high enough percentage of employees in the office to satisfy the terms of the parties' agreement. The supervisor replied that the percentage required by the parties' agreement was only a minimum, and that the supervisor had the authority to require that a higher percentage of employees be present if it is necessary to fulfill the responsibilities of the office. Nevertheless, the supervisor agreed to approve [ v61 p17 ] the schedule for the upcoming pay period, but informed the employee that it would only be effective until June 28, when the office begins year-end activities and the workload would be greater. [n6] 

      The next day, the supervisor sent the employee an e-mail stating that the employee's new schedule could not be implemented until the beginning of the following pay period on April 6, because schedule changes needed to be submitted ten days prior to the beginning of a quarter. [n7]  The supervisor told the employee that she would permit the requested schedule to be effective April 6, and reiterated that it would be re-evaluated at the end of the quarter according to workload. The employee returned to the supervisor's office and told her that the portion of the parties' agreement that requires changes to be submitted ten days prior to the beginning of the quarter "[did] not apply to [her,]" because it referred to changes in tours of duty, not changes to the hours of a flexible schedule, and asked her "how it was that the previous times [she] changed [her] hours, [the supervisor] never brought this up[.]" GC Exhibit 8.

      After leaving the supervisor's office, the employee consulted with the Union about the requirements of the parties' agreement in regard to changing the hours of a flexible schedule. The Union representatives that the employee spoke to advised her make the request again, document the conversations she had with her supervisor with e-mails, and contact them if she didn't get the Monday off. The employee then sent an e-mail to the supervisor informing her that the employee's interpretation of the parties' agreement was correct. The supervisor disagreed, and suggested that the employee talk to a representative in personnel for clarification. From March 21 to March 27, the employee continued to insist through several e-mails to the supervisor that she was entitled to change her flexible schedule hours prior to each pay period.

      Ultimately, the supervisor sent the employee an e-mail on March 27 notifying the employee that the desired schedule would become effective on April 6, and again stated that the schedule was "approved through June 28, 2003[,]" when the workload of the branch would be greater due to year-end testing that takes place on a monthly basis from the end of June through October. GC Exhibit 8 at 2.

      Sometime at the end of March, the Union president contacted the employee's third-line supervisor to discuss the conflict that had been occurring between the employee and the supervisor. The third-line supervisor told the Union president that the employee had "performance problems." Tr. at 23.

      On April 1, the employee sent the supervisor another e-mail, informing her that she had talked to the personnel representative and confirmed that changing the flexible schedule hours was not the same as changing the tour of duty, and informed the supervisor that she would be submitting a new set of hours for the next pay period for her approval.

      During the employee's midpoint performance review on April 2, the supervisor told the employee that she needed to show more initiative, and to limit her social interaction. Tr. at 78-82. The supervisor also told the employee that she needed more communication, and that weekly status reports were not being updated sufficiently. Tr. at 78. The employee disagreed with the supervisor regarding the weekly status reports, and told the supervisor that she had been a few weeks behind, but that she had updated them that day. Tr. at 79. The employee suggested that the supervisor look on the network to see her recent updates. Id. The supervisor went over the performance standards for the fiscal year with the employee and asked her to sign them. The employee did not receive any written documentation of the midpoint performance review.

      Later that day, the employee and the supervisor exchanged e-mails regarding the employee's request to change previously scheduled annual leave to sick leave for the following Monday. On April 3, in response to an e-mail from the supervisor questioning why she was changing her leave request, the employee stated

[p]lease let me reiterate that I previously informed you that I would have to reschedule two appointments scheduled for [Monday, March 31]. I will be attending those appointments plus another the week of April 14th and therefore will be using 12 hours of sick leave.

GC Exhibit 8.

      On April 3, the employee's second-line supervisor met with the employee and told her that she "might want to stop pursuing the issue of her [flexible] schedule because she was a probationary employee and was in danger of being fired[.]" Judge's Decision at 10. During the last week in April, the employee's first-line supervisor called the Union secretary into her office and [ v61 p18 ] asked her if she was the person with whom the employee had been talking about the flexible schedule issue. Id., Tr. at 192. When the Union secretary told her that she was, the supervisor said "I am so angry with her. Doesn't she know that I could fire her?" Id., Tr. at 192.

      In May, the supervisor became concerned about delays on the employee's projects. On May 22, the employee and the supervisor scheduled a meeting to discuss one of the delayed projects. An hour and a half after the meeting was scheduled to start, the supervisor called the employee and informed her that she had been waiting in her office for the employee to arrive for the meeting. The employee replied that it was "not possible" that the supervisor had been waiting for her because she had gone to the supervisor's office but that the supervisor was not there. Tr. at 129. After hanging up the phone, the employee immediately went into the supervisor's office and insisted that the supervisor was not in her office at the scheduled time. The supervisor disagreed. The employee did not have the necessary materials with her to discuss the project, and the meeting ended shortly thereafter.

      Later that day, the supervisor requested that the employee submit daily status reports on her projects because many were past due. The employee did not comply with this request, and sent the supervisor only one e-mail on the same day, at the end of which the employee asked if all employees were required to submit daily updates, or was "this strictly geared toward [her.]" Id. at 5. The supervisor forwarded this e-mail to her supervisor on May 27.

      Several days later, the supervisor asked the employee why she hadn't received the daily updates. The employee responded that she thought they were no longer required, and agreed to continue to send them, after telling the supervisor that it was "a little redundant if [the contractors were] sending [the supervisor] bi-weekly updates[.]" Tr. at 91.

      During a staff meeting held on June 12 to discuss the status of outstanding projects, the supervisor reassigned two of the employee's overdue projects to other staff members. After the staff meeting, the employee went to the supervisor's office to question why her projects were reassigned. The supervisor told the employee that she was concerned about the delays, but at the employee's request, agreed to return the projects to the employee.

      On July 9, the supervisor sent the employee an e-mail saying that the employee's current schedule had expired on June 28 and she would need to revert to her previous schedule. The supervisor asked the employee to see her to discuss the matter, and attached a March 27 e-mail where she stated that the schedule was approved through June 28. The employee replied through a lengthy e-mail, stating that she "wasn't aware that [her] `approval' still applied[,]" and asked that the supervisor "explain to [her] why this was not discussed before yesterday when [the supervisor] kn[ew she] could've submitted a revised schedule, if necessary[.]" GC Exhibit 10. The employee went on to state that her "productivity ha[d] improved drastically since [she] switched to this schedule[, she did] not see the need . . . to have to revert back to the previous one[,]" and that the other employees' schedules did not pose a conflict. Id. Finally, the employee asked the supervisor if she "realiz[ed] [that] her previously approved schedule was the one where [she] worked 12 hour days and had 3.5 days off for the pay period[.]" Id. The employee asked the supervisor if she was sure she wanted her out of the office that many days, and that she thought it would be more beneficial to everyone to stick to her current schedule.

      Later that day, the supervisor called the employee into her office and told her that the schedule she wanted her to revert back to was not the schedule the employee referred to in her e-mail, but a previous schedule where the employee worked 8-hour days and did not have Mondays off. In response, the employee claimed that the supervisor was "violating the Union guidelines." Tr. at 108. The supervisor then called a human resources (HR) representative on speaker phone to discuss the requirements for approving and changing flexible schedules.

      After the conversation with the HR representative, a "heated discussion" between the employee and the supervisor ensued, at the end of which the employee left the office and slammed the door, knocking a clock off the wall and causing another employee "to look out of his cubicle." [n8]  Judge's Decision at 5.

      [ v61 p19 ] On July 10, the employee submitted another schedule request to the supervisor that would give her the second Monday of that pay period off.

      On July 11, the supervisor denied the request in an e-mail, responding that

[a]s previously stated to you several times in my verbal and written communications, coverage of Branch Operations during the year-end period of July-October are critical. Because of the sensitive and overwhelming responsibility of executing year-end duties, I must maximize the number of employees present each day. Before submitting your request, I had advised you that your off-day request can not be [the] second Monday of the pay period because it coincides with that of another branch employee involved with the year end execution. Consequently, your schedule change request dated July 10, 2003 is denied.

GC Exhibit 10 at 2-3.

      The employee responded to the supervisor's e-mail, and forwarded her response to several Union representatives. The employee stated that she was "totally confused" as to why her schedule posed a problem, and claimed that she was told at a June staff meeting that she did not need to switch her schedule. Id. at 2. The employee also stated that "[m]onths ago, [she] adjusted [her] life around [her] work schedule and just like anyone else, [she needed] advance notice of when [her] schedule needs to be changed[.]" Id. The employee stated that she was "more than willing to submit another schedule for the [following pay period], but either way you look at it, [she would] need to take off the second [of the next pay period]." Id. The supervisor responded that the schedule was not approved beyond June 28.

      Also on July 11, the employee asked one of her co-workers to talk to her supervisor about how much overtime each employee would be entitled to for the next pay period because it was a busy time of year for the office. Upon discovering that she and another employee received less overtime than other employees, the employee went to her supervisor's office and questioned why she had received fewer overtime hours than "everyone else." Tr. at 113. The supervisor explained that the two employees who received more overtime had more duties regarding the year-end activities than the employee and the other employee who received fewer hours.

      On July 14, during the employee's probationary period, the Director of the Accounting Division, who was the employee's second-line supervisor, called the employee and told her that she needed to see her in her office. The employee replied that she would be there "in five minutes." Tr. at 115. The second-line supervisor told the employee she was needed immediately. Upon entering the office, because the second-line supervisor was accompanied by an HR representative, the employee thought she was going to be "written up" because the supervisor had told her during the July 9 meeting that she "wasn't happy with her performance." Tr. at 115. However, the employee was given a termination letter, and told the meeting was held to notify her of her termination.

      The termination letter informed the employee that she was being terminated for "unsatisfactory performance" and an "unproductive working relationship with [her] supervisor." GC Exhibit 11. The letter additionally stated that the employee was being terminated at this time because she had "failed to make substantial progress in these areas" during her employment. Id. The letter included an e-mail from the supervisor to the Director of the Accounting Division and other higher-level management officials that provided specific details regarding the employee's performance, her failure to follow the supervisor's instructions and communicate delays caused by contractors, and incidents that illustrated the "adversarial relationship" that the employee created with her supervisor. Id. [n9] 

      Subsequently, the Union filed a charge, and the GC issued a complaint, alleging that the Respondent violated the Statute by terminating the employee because of her protected activity.

      Applying the framework established in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Judge found that the GC established a prima facie case of discrimination based on protected activity. First, the Judge found that "[i]n asserting her rights under the [parties' agreement, the employee] was engaged in protected activity within the meaning of § 7102 of the Statute[.]" Judge's Decision at 14. The Judge found that "although [the employee's] presence at the meeting of July 9 might not have been protected activity, it had an undeniable connection to the contractual dispute concerning her [flexible] schedule." Id. In addition, the Judge found that the employee's "challenge to [the supervisor's] scheduling decisions" did not constitute flagrant misconduct or "[exceed] the boundaries [ v61 p20 ] of protected activity for any other reason." Id. at 18.

      Next, the Judge found that the GC established that the Respondent based the employee's termination on her protected activity. Id. at 17. In this regard, the Judge found that the only evidence of alleged misconduct leading to the employee's termination was in connection with her protected activity, and that she would not have been terminated on July 14 if she had not created an adversarial relationship with her supervisor over the flexible schedule change.

      Turning to the Respondent's affirmative defenses, the Judge found that the employee's conduct at the July 9 meeting "fell far short" of flagrant misconduct, and that the Respondent failed to establish that it would have terminated her when it did in the absence of the protected activity. Id. at 18. The Judge found that the decision to terminate the employee "was not made until after the meeting of July 9[,]" Id. at 12, and that he did "not credit [the supervisor's] testimony that the decision to terminate [the employee] was made before the meeting." Id. In this regard, the Judge rejected the Respondent's contention that the termination was based on the employee's performance. The Judge also found that although no record of the April midpoint review was offered into evidence, he did not draw an adverse inference because "it was equally available to each of the parties." Judge's Decision at 10 n. 14.

      The Judge acknowledged the "continuing problems with [the employee's] performance[,]" and that the employee "had a tendency to continually question [the supervisor's] decisions[.]" Id. at 12. The Judge also found that "[those] problems, if uncorrected, might eventually have led to [the employee's] termination before the end of her probationary period." Id. at 13. Nonetheless, the Judge concluded that the employee would not have been terminated on July 14 "had she and the Union not continued to maintain that [the supervisor] was relying on an incorrect interpretation of the [parties' agreement]." Id.

      Thus, the Judge found that the Respondent violated § 7116(a)(1) and (2) of the Statute. To remedy the violation, the Judge recommended ordering the Respondent to offer the employee reinstatement and make her whole for any loss of pay, allowances or differentials which she normally would have earned had she not been terminated, less any amounts earned through other employment, plus interest. The Judge also recommended a cease and desist order and a notice posting.

III.      Positions of the Parties

A.      Respondent's Exceptions

      According to the Respondent, this case "involves the right of an [a]gency to terminate a probationary employee for unsatisfactory performance and for creating an adversarial working relationship with her supervisor." Exceptions at 5. The Respondent asserts that "[t]he motivating factor for the termination was unsatisfactory performance, with several instances of the employee not carrying out instructions from the supervisor." Id. (emphasis in original). In this regard, the Respondent contends that the two occasions when the employee and the supervisor met to discuss the employee's work schedule

were not the reason for the termination. Instead, the reasons for the termination, as presented by the Agency, were nonperformance and conduct exhibited by the employee during the July 9th meeting. It was the employee's conduct during that meeting . . . that was taken into consideration in terminating the employee. The Agency has clearly demonstrated, by a preponderance of the evidence, that: (1) the "motivating" and primary reason for the termination remained at all times, the unsatisfactory performance; and (2) the termination for unsatisfactory performance would have taken place, even if the July 9th meeting had not taken place.

Id. at 6 (emphasis in original).

      More specifically, the Respondent disputes the Judge's finding that the employee was engaged in protected activity. The Respondent argues that "the nature of [the employee's] conduct was far from `protected activity,' but amounted to disrespectful, defiant and insubordinate behavior." Id. at 18. In addition, the Respondent claims that there was no evidence of union animus, noting in particular that the supervisor approved the employee's initial flexible schedule and the fact that other probationary employees working under her supervisor's supervision also participated in the flexible work schedule. Id. at 14.

      In asserting that the Judge erred in finding that the Respondent did not establish an affirmative defense, the Respondent contends that although the Judge acknowledged the employee's unsatisfactory performance, he "failed to correctly allocate the burden of proof in this case." Id. at 10. The Respondent argues that the supervisor provided specific examples of the employee's poor performance when she testified that the employee [ v61 p21 ] was late on several assignments, completed many projects well past the scheduled due date, and failed to follow up with contractors as necessary. The Respondent contends that this evidence established a rebuttal to the GC's prima facie case.

      Finally, the Respondent contends that the Judge "incorrectly concluded that [the supervisor] testified [that] the decision to terminate [the employee] was made before the July 9 meeting." Id. at 15. According to the Respondent, the decision to terminate the employee was made on July 9, not before then.

B.      GC's Opposition

      The GC asserts that the Judge correctly found that the employee's termination was motivated by her protected activity.

      First, the GC claims that the Judge correctly found that the GC established a prima facie case. In this regard, the GC argues that the Judge properly found that the employee was engaged in protected activity when she asserted her rights under the parties' agreement regarding her schedule change, and when she sought assistance from the Union about the matter. The GC also argues that the Respondent's exceptions omit statements made by various supervisors that establish union animus and support the GC's prima facie case.

      Further, the GC asserts that "[t]he evidence clearly showed, as found by the [Judge], that [the employee] would not have been terminated on July 14, 2003, had she and the Union not continued to maintain that [the supervisor] was relying on an incorrect interpretation of the collective bargaining agreement in her scheduling decisions." Id. at 15. In this regard, the GC claims that the Respondent did not introduce any evidence into the record to support the claim that the employee was terminated due to poor performance. The GC asserts that the Respondent's exceptions cite the supervisor's unsupported testimony, and ignore evidence regarding the employee's overall performance and the supervisor's positive statements about the performance of her staff, including the employee. Further, the GC claims that the employee never received any performance counseling nor was she informed that she had performance deficiencies.

      The GC also contends that the Respondent attempts to categorize the employee's conduct as "`insubordinate'" for the first time in its exceptions, and that such an argument "was not used to describe her conduct in the letter of termination . . . or during the entire hearing[.]" Id. at 18. Citing United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003) (Davis Monthan Air Force Base), the GC asserts that the employee did not engage in flagrant misconduct or otherwise exceed the boundaries of protected conduct. Id. at 19.

      Finally, the GC asserts that the Authority should not overrule the Judge's credibility determination that the supervisor did not decide to terminate the employee prior to the July 9 meeting. Moreover, the GC argues that this determination "was not relevant to the Judge's final conclusions that [the employee] was terminated from employment because of her protected activity and that Respondent failed to establish a legitimate reason for her termination. Id. at 22.

C.      GC's Cross-Exceptions

      First, the GC excepts to the Judge's failure to draw an adverse inference from the fact that the Respondent did not introduce the employee's April 2003 performance review. In this regard, the GC contends that the Judge incorrectly concluded that the document was equally available to both parties, as the employee never received a copy. Citing IRS, Philadelphia Serv. Ctr., 54 FLRA 674, 682 (1998), the GC contends that the "[r]espondent's failure to introduce the progress review as evidence should warrant the adverse inference that if it was introduced it would have been favorable to [the employee] and consistent with [the employee's] testimony concerning the positive progress review." Cross-exceptions at 5.

      In addition, the GC excepts to the Judge's failure to include evidence of the Respondent's disparate treatment of the employee in the establishment of the GC's prima facie case. In this regard, the GC argues that the evidence revealed that the employee's progress review was identical to that of another probationary employee who did not seek union assistance and became a permanent employee. Further, the GC argues that, while the Respondent cited the lack of communication about project delays and the failure to submit weekly summaries as reasons for the employee's termination, other employees in the same position "often neglected to complete their weekly summaries during their probationary periods for weeks with no ramifications." Id. at 8. As such, the GC asserts that "[s]uch a finding of disparate treatment serves to strengthen General Counsel's prima facie case, and undermines any assertion by Respondent that the termination of [the employee] was for legitimate performance related reasons." Id. at 7 (emphasis omitted). [ v61 p22 ]

IV.      Analysis and Conclusions

      This case involves the Respondent's termination of a probationary employee. It is well settled that a probationary employee can be terminated for a good reason or even for no reason at all. Indian Health Serv., Crow Hosp., Crow Agency, Mont., 57 FLRA 109, 114 (2001) (Crow). It is equally well settled that a probationary employee cannot be terminated for an illegal reason, and termination for a reason in violation of the Statute constitutes an unfair labor practice. Id.

      In Letterkenny, the Authority articulated its analytical framework for addressing allegations of discrimination claimed to violate § 7116(a)(2) of the Statute. Under that framework, the GC has the burden to establish 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 connection with hiring, tenure, promotion, or other conditions of employment. See Crow, 57 FLRA at 113 (2001); Letterkenny, 35 FLRA at 118.

      Once the GC makes the required prima facie showing, the 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 in the absence of the protected activity. See id. If the respondent establishes an affirmative defense, then the Authority will conclude that the GC has not established a violation of the Statute. See Letterkenny, 35 FLRA at 119. 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." See Davis Monthan Air Force Base, 58 FLRA at 636, citing Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192, 202 (D.C. Cir. 2002) (315th Airlift Wing) ("flagrant misconduct" is "illustrative of," but not the only type of, action that could justify removal from the protection of § 7102 of the Statute).

      Under the first part of the GC's prima facie case, the GC has the burden to establish by a preponderance of the evidence that the employee against whom the alleged discriminatory action was taken was engaged in protected activity. The Authority has adopted the National Labor Relations Board's doctrine that invocation of a right rooted in a collective bargaining agreement is protected activity. See United States Dep't of Labor, Employment & Training Admin., San Francisco, Cal., 43 FLRA 1036, 1039 (1992) (Dep't of Labor), citing NLRB v. City Disposal Sys., Inc., 465 U.S. 822 (1984). At the time of her termination, the employee in this case was invoking her right to use a flexible work schedule, which is a right that comes from the parties' collective bargaining agreement. [n10]  Therefore, we find that the employee was engaged in protected activity.

      Under the second part of the GC's prima facie case, the GC has the burden to show that the employee's protected activity was a motivating factor in connection with hiring, tenure, promotion, or other conditions of employment. The GC did not make this showing. Rather, the record demonstrates that the employee was terminated because of her performance and conduct, not because of her invocation of her contractual right to use flexible schedules with supervisory approval. The record is clear that throughout the employee's probationary period, the employee requested to use flexible schedules and received supervisory approval to use such schedules. The fact that the Respondent had granted approval on several occasions for the employee to use flexible schedules prior to the meeting on July 9th demonstrates that her desire to continue using such a schedule was not a motivating factor in the Respondent's decision. Rather, the employee's conduct at that meeting, culminating in her slamming the door and causing the clock to fall off the wall, was the "final straw" that led to her termination. The record supports the Respondent's contention that it was the employee's conduct at that meeting, combined with concerns over her performance and poor working relationship with her supervisor, that led to her termination. Accordingly, we find that the GC did not establish that the employee's invocation of a contractual right (which she had invoked without any reprisal in earlier instances throughout her probationary period) was a motivating factor in connection with her termination.

      Moreover, even if we were to assume that the GC had established that the employee's invocation of a contractual right was a motivating factor in connection with her termination, we would nonetheless find that the Respondent established the affirmative defense that there was a legitimate justification for its action, and that it would have taken the same action in the absence of the protected activity.

      As stated above, 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 [ v61 p23 ] activity. As the D.C. Circuit stated in 315th Airlift Wing, 294 F.3d at 202, "flagrant misconduct" is "illustrative of," but not the only type of, action that could justify removal from the protection of § 7102 of the Statute." The Authority has not, to date, held what other types of actions could justify removal from the protection of § 7102 of the Statute. In such circumstances, it is appropriate to consider relevant precedent from the National Labor Relations Board (NLRB). In this regard, in a concurring opinion in AFGE, 59 FLRA 767, 771 (2004), Chairman Cabaniss discussed this area and noted several relevant NLRB decisions.

      Among other things, Chairman Cabaniss stated that the NLRB has long noted that an employee engaged in protected activity can, "by opprobrious conduct," lose the protections of the National Labor Relations Act (NLRA). See, e.g., Atlantic Steel Co., 245 NLRB 814, 816 (1979), citing Hawaiian Hauling Serv., Ltd., 219 NLRB 765, 766 (1975). The Chairman further stated that in Aroostook County Reg'l Ophthalmology Ctr. v. NLRB, 81 F.3d 209, 215 n.5 (D.C. Cir. 1996), the court noted that, even in the context of protected activity, "employers have lawfully disciplined employees for misconduct short of that which is flagrant, violent, or extreme." The Chairman noted that these holdings continue to be cited to with approval. See, e.g., Felix Industries, Inc. v. NLRB, 251 F.3d 1051, 1054-55 (D.C. Cir. 2001).

      Another example of a decision in which the NLRB addressed this area is Carolina Freight Carriers Corp., 295 NLRB 1080 (1989) (Carolina Freight Carriers). There, the NLRB held that an employee who honestly and reasonably believes that an employer is acting contrary to the employee's collectively bargained rights is entitled to complain to the employer about such action. Id. at 1083. However, the NLRB further held that if the employee's conduct is "too far out of line," such conduct is not protected. Id. The Board found that "standing alone," the way the employee demanded his rights under the parties' agreement during a particular incident was not so extreme as to lose the protections of the NLRA. Id. However, the Board found that the employee's pattern of conduct over a period of time, including coming "close to insubordination in the way he spoke of and to his supervisors," was such that the protections of the Act did not apply. Id. Thus, the Board found that the respondent's actions were not based on the fact that the employee was attempting to obtain the right he believed he had under the parties' agreement, but on the manner in which the employee complained that the respondent was not honoring his collectively-bargained rights.  [n11]  Id. at 1084.

      The record in this case demonstrates similar circumstances to those in Carolina Freight Carriers. In this regard, the record described above shows that the employee repeatedly questioned her supervisor's decisions, failed to carry out supervisory instructions, and had several interactions with her supervisor that were contentious and obstinate. During almost the entire probationary period, the employee's attitude and conduct were problematic and, on some occasions, insubordinate. The employee insisted that she would be taking the Mondays off that she requested - whether it be through taking sick time, a personal day, or being granted the flexible schedule she desired - regardless of the supervisor's instruction and the needs of the office. In addition, the record supports the supervisor's testimony that the employee routinely sent the supervisor adversarial e-mails.

      After the initial schedule request in March, the employee repeatedly questioned the supervisor as to why she would not permit two employees to have Mondays off. After the supervisor granted her requested schedule, the employee continued to send multiple e-mails insisting that she was entitled under the parties' agreement to have her schedule implemented immediately. Although this persistence could arguably be construed as the assertion of her rights under the agreement, the record reflects that this disagreement was not the basis for the employee's termination. As described above, the employee persisted in challenging each of her supervisor's instructions, including but not limited to those related to her work schedule. In addition, the employee initially questioned the supervisor's decision that she could not take the same Monday off as another employee even before the employee's rights under the parties' agreement became an issue.

      On July 9, after sending yet another e-mail insisting that she be granted her desired schedule and asking the supervisor to "explain to [her] why [the expiration of the schedule on June 28] was not discussed before [the previous day,]" the employee's conduct escalated into the incident during which she slammed the door and knocked the clock off the wall, which was overheard by another employee in the office. GC Exhibit 10. After the supervisor again explained that it would interfere with the Respondent's operations to grant her every second Monday off, the employee insisted that "either way you look at it[,]" she would "need to take off the second Monday of [the next pay period.]" Id. In addition, the employee's response when the Director of the Accounting Division called her into her office on July 14 that she would be there in "five minutes[,]" is illustrative of the employee's tendency to not defer to supervisory [ v61 p24 ] authority and instead attempt to set her own work schedule. Tr. at 115.

      Consistent with Carolina Freight Carriers, the July 9 incident, standing alone, was not so extreme as to lose the protections of the Statute. However, the pattern of behavior exhibited by the employee demonstrates that the Respondent's action was not based on the fact that the employee was attempting to obtain the rights she believed she had under the collective-bargaining agreement; but on the employee's conduct as a whole and the manner in which the employee sought to obtain those rights. See Carolina Freight Carriers at 1084. Therefore, we find that this case presents circumstances that "otherwise exceed[] the boundaries of protected activity" and remove the employee from the protection of § 7102 of the Statute. See Davis Monthan Air Force Base, 58 FLRA at 636. [n12] 

      In addition, the General Counsel has not established that an inference of discriminatory motive based on disparate treatment is warranted. [n13]  The testimony of two other probationary employees reflects only that one of the other employees received similar feedback during her midpoint performance review and occasionally experienced project delays due to contractors, and that both were at times inconsistent with submitting routine weekly updates. The GC did not present any evidence that the other probationary employees were argumentative or insubordinate, or otherwise presented performance or behavioral problems in the workplace.

      Accordingly, we find that an inference of discriminatory motive based on alleged disparate treatment is not warranted and that a prima facie case was not established, and dismiss the complaint. [n14] 

V.      Order

      The complaint is dismissed.


APPENDIX

Article 20 HOURS OF WORK

. . . .

Section 20.02. Definitions

. . . .

(a) Maxiflex Schedule - a type of flexible work schedule that contains core hours on fewer than 10 workdays in the biweekly pay period and in which a full time employee has a basic work requirement of 80 hours for the biweekly pay period, but in which an employee may vary the number of hours worked on a given workday or the number of hours each week within the limits established

. . . .

Section 20.03 Work Schedules

. . . .

(4) Regardless of work schedules adopted by an FNS activity, at least 40% of the employees in each work unit must be present during core hours.

Section 20.09. Advance Supervisory Approval

(1) All work schedules, flexiplace arrangements, or changes in work schedules and flexiplace arrangements are subject to prior supervisory approval. The approval or disapproval of an employee's request of a work schedule or flexiplace will be based upon whether the approval of the work schedule or flexiplace request will interfere with the Employer's ability to accomplish its work.

(2) In addition, once a work schedule or flexiplace request is approved, the Employer reserves the right to make changes in employee's work schedules or flexiplace, if it is determined that changes in employees work schedule or flexiplace are necessary for the Employer to accomplish its work.

GC Exhibit 2 at 42-45. [ v61 p25 ]

Article 20 HOURS OF WORK FNS HEADQUARTERS [local supplement]

. . . .

Section 20.02. Definitions:

. . . .

(1) . . . . Core Hours for employees on a maxiflex schedule will be from 10:00 AM - 1:00 PM, on Tuesdays, Wednesdays and Thursdays, unless on approved leave or in a non-pay status. Any deviation from the available hours for employees on maxiflex must have supervisory approval.

. . . .

Section 20.09. Advance Supervisory Approval:

. . . .

(3) Tour of duty schedules should be submitted to the supervisor 10 calendar days prior to the first pay period of the quarter. The approved tour of duty form establishes the employee's tour of duty for the quarter.

GC Exhibit 3 at 3.


File 1: Authority's Decision in 61 FLRA No. 4
File 2: Opinion of Member Pope
File 3: ALJ's Decision


Footnote # 1 for 61 FLRA No. 4 - Authority's Decision

   Member Pope's dissenting opinion appears at the end of this decision.


Footnote # 2 for 61 FLRA No. 4 - Authority's Decision

   The Respondent's exceptions were timely filed, accompanied by one copy, with the Authority's Case Control Office (CCO). CCO advised the Respondent to correct a procedural deficiency by providing four copies as required by 5 C.F.R. § 2429.25. See Index, Attach. 3. The Respondent provided the required copies and filed a motion requesting a waiver of the deadline for filing those copies. As the exceptions themselves were timely filed and the procedural deficiency was minor, we grant the waiver.


Footnote # 3 for 61 FLRA No. 4 - Authority's Decision

   The Judge found that, in "view of the timing of [the employee's] termination and of the evidence as to the Respondent's motivation," it was not necessary to describe