[ v16 p464 ]
The decision of the Authority follows:
16 FLRA No. 70 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1920, AFL-CIO Respondent and UNITED STATES DEPARTMENT OF DEFENSE DEPARTMENT OF THE ARMY, HEADQUARTERS III CORPS AND FORT HOOD FORT HOOD, TEXAS Charging Party Case No. 6-CO-20012 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition thereto. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings made by the Judge at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record in this case, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. /1/ ORDER IT IS ORDERED that the complaint in Case No. 6-CO-20012 be, and it hereby is, dismissed. Issued, Washington, D.C. November 15, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1920, AFL-CIO Respondent and UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, HEADQUARTERS III CORPS AND FORT HOOD FORT HOOD, TEXAS Charging Party Case No.: 6-CO-20012 Joseph F. Henderson, Esq. For the Respondent Sharon D. Hill, Esq. For the Charging Party James E. Dumerer, Esq. Elizabeth A. Martinez, Esq. For the General Counsel Before: FRANCIS E. DOWD Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq. It was instituted by the Regional Director of the Sixth Region of the Federal Labor Relations Authority by the issuance of a Complaint and Notice of Hearing dated July 26, 1982. The Complaint was issued following an investigation of an unfair labor practice charge filed on February 14, 1982, by United States Department of Defense, Department of the Army, Headquarters III Corps and Fort Hood, herein referred to as the Agency or Charging Party. The Complaint alleges that American Federation of Government Employees, Local 1920, AFL-CIO, herein the Respondent, AFGE or Union, by its agent Herbert B. Stimmel, has since on or about February 18, 1982, interfered with, restrained and coerced employees in the exercise of their rights guaranteed in Section 7102 of the Federal Service Labor-Management Relations Statute by removing Gary D. Hammerschmidt from his position as Union steward for having testified in an unfair labor practice hearing conducted under the auspices of the Federal Labor Relations Statute. By such conduct, Respondent is alleged to have violated Section 7116(b)(1) of the Statute. Respondent denies any violation contending that it had independent reasons for removing Hammerschmidt as Union steward. A hearing was held in Temple, Texas, at which time the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine and cross-examine witnesses and argue orally. Briefs filed by the General Counsel and Respondent have been duly considered. Upon consideration of the entire record in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact 1. The Charging Party is an agency within the meaning of 5 U.S.C. 7103(a)(3) of the Statute. The Respondent is a labor organization within the meaning of 5 U.S.C. 7103(a)(4) of the Statute. Herbert B. Stimmel has occupied the position of President, American Federation of Government Employees, Local 1920 since 1978 and is an agent of the Respondent, acting on its behalf. At all times material herein, Respondent has been recognized as the exclusive representative for appropriate units of employees as more fully set forth in G.C. Exh. No. 1(d). Included in these units of 4500 employees are firefighters who work on alternating shifts at four stations on the base. At all times material herein, Respondent and the Agency have been parties to a collective bargaining agreement, effective July 19, 1976, covering employees in the appropriate unit. 2. In December 1981 or early January 1982, steward Gary Hammerschmidt went to the Civilian Personnel Office to ask what procedures were available to bring another union into Fort Hood to represent fire fighters. He was told by Ms. Henson that this was a touchy subject, that AFGE had exclusive rights, and he was referred to the Federal Labor Relations Authority. He then went to see Union President Herbert Stimmel who became rather excited and said there was no way it could be done, that the Union was representing the fire department and doing a fine job. The credited testimony of Stimmel reveals that he instructed Hammerschmidt to drop the matter and assumed that his instruction would be followed. Stimmel had no reason at this particular point in time of suspecting any disloyalty by Hammerschmidt who claimed to be merely inquiring on behalf of another employee, Scott Field. /2/ 3. On January 18, 1982, a hearing was conducted pursuant to the Federal Service Labor-Management Relations Statute concerning unfair labor practice Case No. 6-CA-1209-2. The hearing was based upon a complaint brought by Local 1920 alleging that the Agency violated the Statute by threatening employees with disparate treatment and reprisal because of their activity on behalf of Local 1920. Stimmel appeared at the hearing on behalf of Local 1920. Sharon D. Hill, in her capacity as Counsel for the Agency, called steward Hammerschmidt as a witness. Hammerschmidt was there voluntarily and not pursuant to any subpoena. He was there as a character witness to vouch for the honesty of a supervisor with whom he, in his steward capacity, had met and dealt with on labor-management problems. He did not tell his Union President in advance of the hearing that he would be a witness. /3/ As a result, Stimmel was surprised when Hammerschmidt appeared at the hearing (Tr. 110). Hammerschmidt's testimony (G.C. Exh. No. 3) lasted only a few minutes, following which he left the witness stand and departed from the courtroom. He had no conversation with anyone, including Stimmel and proceeded directly to his truck and returned to North Fort Hood. /4/ The hearing concluded at 2:05 p.m. 4. The following also occurred during the course of the January 18 hearing. During a break in the hearing, Hammerschmidt had a conversation with steward John Irwin and former steward David Weber outside the courthouse while they were leaning next to a pickup truck by a drainage ditch. Irwin testified that Hammerschmidt discussed bringing the International Fire Fighters Union, hereinafter IFF, into Fort Hood. Hammerschmidt told them he had already made contact with IFF and a representative from IFF could come up and talk to them about it. According to Irwin, Hammerschmidt said he thought it would be a better union for us because it was a fire fighting union. Weber testified that Hammerschmidt thought the IFF could better represent the fire department. Irwin testified that he reported the above discussion to Stimmel at the hearing and Stimmel's reaction was "somewhat disgusted." According to Stimmel, he was informed at the hearing by other stewards that Hammerschmidt "still wanted to bring it (the other union) in." Based upon my review of the foregoing testimony and the demeanor of the witnesses, I credit Irwin, Weber and Stimmel as to what Hammerschmidt said and the fact that it was immediately reported to Stimmel. /5/ What is not clear, however, is whether the phrase "at the hearing" means during the hearing (e.g. during a break or at lunchtime) or immediately upon conclusion of the hearing, while still at the courthouse. I conclude that, at the latest, Stimmel learned about Hammerschmidt's activity on behalf of IFF at the conclusion of the hearing and before he returned to his office. 5. Stimmel returned to his office and wrote a two-sentence letter advising the Civilian Personnel Office that Gary Hammerschmidt was terminated as steward, effective that same day. (G.C. Exh. No. 3). The document was time-stamped by the Civilian Personnel Office as being received at approximately 3:00 p.m. Stimmel also prepared a memorandum, dated the same day, notifying Gary Hammerschmidt as follows: Please consider this official notification that you are removed as a steward for Local 1920. Two recent events have led me to make this decision. 1. You went to C.P.O. to inquire about bringing another union into Fort Hood. This is a violation of AFGE and the National Constitution, an extremely bad policy for a steward that is supposedly representing Local 1920. 2. Today, January 18, 1982, without consulting with me, you testified for Management in an Unfair Labor case that Local 1920 had filed with F.L.R.A. and a complaint had been issued. I can only assume from your actions that you are much more interested in representing Management than Local 1920. Therefore, to avoid casting an unfavorable image and a possible filing against Local 1920, I hereby terminate you as a representative of Local 1920. The above letter was received by Hammerschmidt a few days later, but by then he already knew of his removal. As far as this record /6/ is concerned he learned about it when he called Stimmel around 4:00 p.m. the afternoon of the hearing to "explain my side of what I did." Stimmel told him he was going to remove him as steward and that he didn't care to listen to his side of the story. 6. At the hearing before me, Stimmel was asked about his letter of January 18 removing Hammerschmidt from his steward position. Stimmel credibly testified that long prior to January 18 he had complaints about Hammerschmidt being "pro-management" by other employees, but he took no action to remove him because he didn't have a replacement available. /7/ The last complaint he received was at the hearing when he was told that Hammerschmidt was "still pursuing trying to get another union in." Later, Stimmel testified that "the incident of the continuing of the trying to get the other union in was the final straw" (Tr. 116, lines 5-6, 19-20). Stimmel was also asked why he included, as a reason for removal, Hammerschmidt's testimony at the FLRA hearing. Stimmel replied that it was not specifically for giving testimony but, rather, because Hammerschmidt failed to consult the Union President in advance. Stimmel's concern was that a steward who appears to be pro-management loses his credibility with the membership and thus damages his effectiveness as a representative. This adverse result could be avoided, according to Stimmel, if there was a logical explanation for Hammerschmidt's action (e.g. to help a friend) so that this explanation could be passed along to the other Union members. On cross-examination, however, Stimmel also revealed that by failing to discuss this in advance Hammerschmidt had not shown him proper respect as president. Thus, it appears that Stimmel also was personally affronted by Hammerschmidt's surprise appearance as a witness and, as he told Hammerschmidt on the telephone later that day, he was embarrassed to admit to the Union attorney that Hammerschmidt was a Union steward. On cross-examination, Stimmel was also asked why he refused to listen to Hammerschmidt's side of the story when Hammerschmidt called him after the hearing. Bearing in mind that Stimmel had already taken action to remove Hammerschmidt as a steward as of the time of this conversation, Stimmel replied as follows: "No, because he couldn't convince me otherwise, because he had done the final, ultimate thing to be removed in my opinion." Essentially the issue to be resolved herein is whether the "final ultimate" reason for Hammerschmidt's removal as a steward was his continuing efforts to bring in another Union or his giving testimony at the hearing. Discussion and Conclusions of Law A. Applicability of the Statute Section 7102 of the Statute provides as follows with respect to "employee rights:" Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right . . . . Section 7116(a)(4) makes it an unfair labor practice for an agency: to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information under this chapter. No comparable language exists in Section 7116(b) with respect to unfair labor practices by unions. Nevertheless, the Complaint herein alleges a violation of Section 7116(b)(1) which makes it an unfair labor practice for a labor organization "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter." The Complaint relies on a decision by the Authority in which it adopted an Administrative Law Judge's decision finding the union therein violated Section 7116(b)(1) by removing a union steward because he gave testimony in a Federal Labor Relations Authority hearing. /8/ Pertinent language in the Authority's decision is as follows: In so adopting, the Authority finds that the right guaranteed to employees under section 7102 of the Statute to form, join, or assist any labor organization, or to refrain from such activity, is sufficiently broad to include within its scope the right of an employee to appear as a witness in an Authority proceeding to which a union is a party and to give testimony supporting or opposing the union's interest in that proceeding. In this regard, it is no less interference with the section 7102 statutory right for a union to discipline or discriminate against an employee for giving testimony in an Authority proceeding than it is for an employer to do so as proscribed under section 7116(a)(4) of the Statute. Such interference with employee rights under section 7102 is thus a violation of section 7116(b)(1) of the Statute. However, this should not be construed as abrogating the union's control of its own internal affairs in the absence of a statutory violation such as here involved. The Authority also noted that its order requiring reinstatement of the steward to his union position was confined to the circumstances of the case where it was found that "except for his testimony at the Authority proceeding" the steward would not have been removed from his union position. Although the Authority is not bound by National Labor Relations Board precedent, Counsel for General Counsel correctly notes in her brief that the Authority's interpretation and finding is consistent with case law arising under the National Labor Relations Act which similarly contains no specific prohibition with respect to labor organizations. /9/ Moreover, in a recent decision by the United States Court of Appeals for the District of Columbia Circuit, the Court upheld a negotiability determination by the Authority and stated as follows: /10/ Reference to private sector precedent decided under the National Labor Relations Act (NLRA) is appropriate in this case . . . . The lack of any prior judicial decisions under the Act, especially when combined with the relative paucity of applicable legislative history, makes analogies to comparable legal developments in the private sector relevant and useful as a guide for this court's reasoning. We take this opportunity, however, to stress that the degree of relevance of private sector case law to public sector labor relations will vary greatly depending upon the particular statutory provisions and legal concepts at issue. This court, for instance, has recently recognized that the structure, role, and functions of the Authority were closely patterned after those of the NLRB and that relevant precedent developed under the NLRA is therefore due serious consideration. /11/ Although the Authority's NTEU decision has not yet reached the Circuit Courts under this Statute, there is court precedent for a similar conclusion reached by the NLRB in its interpretation of similar statutory provisions. /12/ B. The Causation Test in "Mixed Motive" Cases By way of background, it should be noted that in cases arising under the Executive Order, the Assistant Secretary of Labor utilized an "in part" test in determining whether discrimination against an employee was motivated by his or her protected activities under the Order. Thus, where an agency had a legitimate basis for its management action against an employee, but union considerations also played a part, the agency would be held to have violated the Order. It was only necessary to show that one of the reasons for the agency's action was based upon the employee's union or protected activity. /13/ The "in part" test used by the Assistant Secretary was no different than the test utilized by the National Labor Relations Board in cases involving the private sector. In a case arising under the Statute, however, the Authority decided in 1981 to reevaluate the test or standard previously used in Executive Order cases. Thus the Authority said: /14/ This case is one of first impression under the Statute in that it, for the first time, affords the Authority an opportunity to address the question of what test should be applied under the Statute in situations where consideration of an employee's participation in activities protected by the Statute played a part in a management decision adversely affecting that employee. Citing the Supreme Court's decision in Mt. Healthy, /15/ the Authority concluded as follows: In such circumstances the Authority finds that the burden is on the General Counsel to make a prima facie showing that the employee had engaged in protected activity and that this conduct was a motivating factor in agency management's decision not to promote. Once this is established, the agency must show by a preponderance of the evidence that it would have reached the same decision as to the promotion even in the absence of the protected conduct. In the Authority's view, the application of such a test will serve to balance the legitimate interests and purposes of government with those rights assured to employees and their representatives under the Statute. Such a test serves the purposes of the Statute by making it possible to more thoroughly analyze the relationship between the agency action and the protected conduct of an employee. Under this test, therefore, both the General Counsel and the agency will have an opportunity to adduce evidence as to the motivating factors involved in the action or decision of the agency which is the basis of the complaint. If it is established by a preponderance of the evidence that the same action or decision of the agency would have taken place even in the absence of the protected activity, a complaint of violation of section 7116(a)(1) and (2) of the Statute will not be sustained. Conversely, if it is not established by a preponderance of the evidence that the action or decision would have taken place in any event, the Authority will find a violation under section 7116(a)(1) and (2) of the Statute. In reaching this conclusion the Authority relied upon its own independent analysis of the Federal Labor-Management Relations Statute. /16/ C. Application of the Authority's Test to this Case. The two-part test established by the Authority in the Internal Revenue case has been met herein. On January 18, after completion of a Federal Labor-Management Relations Authority hearing, Union President Herbert Stimmel returned to his Union office and prepared two documents. One notified the Civilian Personnel Office that Hammerschmidt's status as a Union steward was terminated; the other notified Hammerschmidt of the reasons for his termination. His status as a member of the Union was not affected, nor was any action taken to affect his status as an employee. General Counsel's Exhibit No. 5, the Union's letter to Hammerschmidt, sets forth two reasons for his removal: (1) his inquiries with respect to bringing in another union; and (2) his testimony in the FLRA hearing without prior consultation with Stimmel. /17/ On the fact of the document itself, it's not clear which of these two reasons was the motivating factor or real reason for the action taken. However, the main theme running through the document is that Hammerschmidt's conduct was incompatible with his obligations as a steward representing Local 1920. Under the Authority's new test, the General Counsel has the burden of making a prima facie showing that the employee engaged in protected activity and that this was a motivating factor in the decision to remove him from his steward's position. I conclude, based on the documentary evidence and the testimony of Stimmel, that a motivating factor in removing Hammerschmidt was the fact that he appeared as a witness and gave testimony at the FLRA hearing. Clearly, under the Authority's decision in the NTEU case, Hammerschmidt was engaged in protected activity. Therefore, the General Counsel has met his burden in making a prima facie case. Respondent, in order to meet its burden of showing it would have reached the same decision (i.e. removal of Hammerschmidt as a steward) even in the absence of the protected conduct, introduced evidence showing that on the day of the hearing, Hammerschmidt talked to two stewards, Irwin and Weber, and attempted to sell them on the idea of bringing in the International Fire Fighters Union because it would represent them better than AFGE. Stimmel was informed of this conduct by Hammerschmidt at the hearing. There certainly is no doubt in my mind that Hammerschmidt, by attempting to promote acceptance of a different union, was engaging in conduct inconsistent and incompatible with his obligation of being loyal to the Union which appointed him steward. If a union in conducting its own internal union business cannot rid itself of disloyal stewards it certainly cannot effectively function. Prior to January 18, Hammerschmidt asked about the procedure for bringing in another union but he conveyed the impression he was asking on behalf of someone other than himself. He was told to drop the matter. It seems reasonable to me that Stimmel, when being told on the day of the hearing that Hammerschmidt was continuing to foster the idea of bringing in another union, now realized with certainty that Hammerschmidt was acting for himself, and quite clearly against the interests of Local 1920. Whatever doubts Stimmel may have had before about Hammerschmidt were resolved on January 18. As steward Irwin testified, Stimmel was disgusted when he was informed at the hearing of Hammerschmidt's efforts to supplant AFGE with the International Fire Fighters. As far as Stimmel was concerned this was the "final straw" and as soon as he returned to his office he took steps to remove Hammerschmidt as steward. In my opinion, Hammerschmidt's conduct in this respect was not protected activity and therefore the Union had a lawful reason for removing him, consistent with the Union's right to enforce discipline. /18/ Thus, Respondent has shown by a preponderance of the evidence that it had a motivating factor, independent from Hammerschmidt's protected activity. In determining which of two competing motives was the real or "but for" reason for removing Hammerschmidt as steward, I must rely of course on the Authority's test as enunciated in Internal Revenue Service. Based upon my evaluation of the entire record in this proceeding, I find and conclude that a preponderance of the evidence establishes that Respondent Union, even in the absence of Hammerschmidt's protected activity, would have removed him from his steward position on January 18, 1982 because of his efforts to bring in a rival union. /19/ From the Union's point of view, Hammerschmidt's protected activity paled in comparison to his unprotected activity of bringing in another union. This latter conduct was in the nature of a "capital offense" and I believe it triggered the decision to remove Hammerschmidt as steward. Accordingly, I conclude that Respondent did not violate Section 7116(b)(1) as alleged in the Complaint. ORDER It is hereby ordered that the Complaint in Case No. 6-C0-20012 be, and it hereby is, DISMISSED in its entirety. FRANCIS E. DOWD Dated: March 28, 1983 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ In adopting the Judge's decision, the Authority notes with approval his reliance on the decision of the U.S. Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). Further, subsequent to the Judge's decision herein, the Supreme Court issued its decision in N.L.R.B. v. Transportation Management Corp., . . . U.S. . . . , 103 S.Ct. 2469 (1983), finding permissible and therefore affirming the National Labor Relations Board's construction of the National Labor Relations Act, as amended, which is similar to the approach taken by the Authority in "dual motive" cases. See, e.g., Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981). /2/ Scott Field was called as a rebuttal witness and he testified that, in fact, he did ask Hammerschmidt to find out how to bring in another union. However, it apparently was not an isolated inquiry. The two of them discussed the matter several times at every shift change over a period of three or four weeks. Field testified that he thought a steward would be better able to obtain the requisite information and he asked Hammerschmidt, who worked on A shift, because it was more "convenient" than asking a B shift steward. Irwin, Street, Leslie, and Weber (all of whom testified for the Union herein) were stewards on the B shift. I conclude that Field's inquiry was prior to January 18, 1982 and, in so doing, rely on Hammerschmidt's recollection of the date of his meeting with Stimmel. /3/ I do not credit Hammerschmidt's testimony that he attempted to call Stimmel during the 2-day period prior to the hearing and I note he didn't talk to Stimmel at the hearing. The record established that the Union had two phones and other employees had no difficulty getting through to the Union office. /4/ Apparently Stimmel immediately followed Hammerschmidt from the courtroom, thus giving the impression that he was going to speak to him. In fact, there was no such conversation. Perhaps, Stimmel changed his mind or was merely going to the lavatory or drinking fountain. In these circumstances, I place no special significance in Stimmel's action and draw no adverse inferences from it. Nor do I reach any conclusion based on the testimony of Sharon Hill that Stimmel became red in the face and appeared "visibly upset" during Hammerschmidt's testimony. Stimmel's face also reddened at times in his testimony before me but I concluded (correctly or not) that this had something to do with his blood pressure, rather than his being upset or angry. /5/ I specifically discredit Hammerschmidt's version. He admits the conversation took place but would have us believe he was merely mentioning Field's interest in the matter, rather than his own. Having already been told by Stimmel to drop the matter, his weak explanation for bringing up the subject again was to let men on another shift know that someone on their shift was interested in getting another union. I found his testimony to be incredible. /6/ As noted in fn. 3, I don't believe Hammerschmidt made a genuine effort to contact Stimmel before the hearing. He also did not talk to him at the hearing or remain afterwards to attempt to talk to him. Neither Counsel asked him whether he received a phone call after the hearing from the Civilian Personnel Office to inform him of his removal. For some reason, however, he felt compelled to call Stimmel to explain his side of it (Tr. 32, 33). /7/ Whatever reasons Stimmel may have had to remove Hammerschmidt prior to January 18 are irrelevant. The fact is that those reasons did not result in the Union removing him prior to January 18. Moreover, with respect to alleged criticism of Hammerschmidt as a steward, I note that in October 1980 he received a document from the Union recognizing his outstanding service as a steward and Union member. Even in Stimmel had some reservations about Hammerschmidt between October 1980 and January 1982, no action was taken until the events of January 18, 1982. /8/ National Treasury Employees Union and National Treasury Employees Union, Chapter 53, herein referred to as NTEU, 6 FLRA 218, 6 FLRA No. 37 (1981). /9/ IBEW Local Union No. 34, AFL-CIO, 208 NLRB 638 (1974); Local 138 Operating Engineers (Charles Skura), 148 NLRB 679, 57 LRRM 1009, cited with approval in NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, 391 U.S. 418 (1968). /10/ Library of Congress v. Federal Labor Relations Authority, No. 82-1240, CCA-DC, February 25, 1983. /11/ See Turgeon v. FLRA, supra note 10, 677 F.2d at 939-904; Dep't of Defense v. FLRA, supra note 8, 659 F.2d at 1144. See also Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 584 (D.C. Cir. 1982) (interpreting scope of the Authority's remedial discretion by looking to Supreme Court interpretation of similar language in the NLRA). /12/ See fn. 9. Also, for a comprehensive discussion concerning the balancing of internal union prerogatives with the protection of the integrity of the Authority's processes, see Chief Judge John H. Fenton's decision in Local 1738, American Federation of Government Employees and Veterans Administration Hospital, Salisbury, North Carolina, Case No. 4-CO-47, OALJ 82-93 (June 16, 1982), pending before the Authority on review. /13/ Directorate of Supply Operations, Defense Logistics Agency, Headquarters, Defense Logistics Agency, 2 FLRA 937, 2 FLRA No. 118 (1980). /14/ Internal Revenue Service, Washington, D.C., hereinafter referred to as Internal Revenue, 6 FLRA 96, 6 FLRA No. 23 (June 17, 1981), petition for review pending in the U.S. Court of Appeals for the District of Columbia Circuit. /15/ Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). /16/ The analytical approach adopted by the Authority is mixed motive cases under Section 7116(a)(1) and (2) has also been adopted by the National Labor Relations Board in cases under Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Wright Line, a Division of Wright Line, Inc., 251 F.2d 899 (1 Cir. 1981), cert denied 102 S.Ct. 1612 (1982). For a discussion of a most recent Court decision on this issue, see NLRB v. New York University Medical Center, Docket No. 82-4137 (January 21, 1983), in which the Second Circuit held that the Board improperly shifted the burden of persuasion to the employer. The Court remanded to the Board to determine which of competing motives was the real or "but for" cause of the discipline. As noted therein (with appropriate citations), the Board's Wright Line test has been rejected by three other Circuit Courts and accepted by four Circuit Courts. /17/ In my opinion, Hammerschmidt had a statutory right to be a witness in the FLRA hearing regardless of whether he consulted the Union President in advance. /18/ Section 7116(c) of the Statute specifically "does not preclude any labor organization from enforcing discipline . . . to the extent consistent with the provisions of this chapter." /19/ Internal Revenue Service, supra fn. 14; New York University Medical Center, supra, fn. 16.