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The decision of the Authority follows:
39 FLRA No. 80
FEDERAL LABOR RELATIONS AUTHORITY
PENSION BENEFIT GUARANTY CORPORATION
NATIONAL TREASURY EMPLOYEES UNION
February 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice is before the Authority on exceptions to the attached decision of the Administrative Law Judge in the above-entitled proceeding. Both the General Counsel and the Union filed exceptions to the Judge's Decision. The Respondent filed an opposition to the exceptions of the General Counsel and the Union.
The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by discharging employee David Power because he engaged in activities protected by section 7102 of the Statute. The Judge found that no violation of the Statute had occurred and recommended that the complaint be dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed.
We find, however, contrary to the Judge, that the Respondent's conduct violated the Statute. Accordingly, we will order the Respondent to offer to reinstate the employee to his former position, to make him whole for any losses suffered as a result of his unlawful discharge, including backpay, to expunge from its files all references to the employee's removal, and to post an appropriate notice.
David Power, a GS-14 General Attorney in the Office of the General Counsel (OGC) at the Pension Benefit Guaranty Corporation (PBGC), was employed as an attorney at PBGC from 1980 until his discharge on April 3, 1989. During his tenure, Power received many commendations for his excellent legal work. Judge's Decision at 3-4.
Beginning in 1984 and continuing until his discharge, Power served as the President of Chapter 211 of the Union. He was "a very aggressive and vocal representative who frequently distributed literature, pamphlets and flyers which were highly critical of Respondent's managers." Id. at 4-5. His negotiations with PBGC's managers were "marked by repeated insults and animosity on both sides." Id. at 5. There was "deep seated hostility" between Power and two of the Respondent's representatives--Frank Tobin, PBGC's Director of Personnel, and Thomas Gabriel, an OGC attorney who was responsible for providing legal assistance on personnel and labor relations matters. Id. at 5, 28.
On April 3, 1989, Power was discharged for misconduct. In particular, he was discharged for: (1) insubordination based on his (a) failure to follow an "OGC Concurrence Matrix," (b) refusal to accept computer messages from an immediate supervisor, and (c) failure to supply a representative writing sample to the Deputy General Counsel; (2) failure to cooperate in an official investigation; (3) threatening an employee with grave physical harm and interfering with the employee's statutory rights; (4) making a false statement in an official investigation; and (5) conversion of Government property.
A. Insubordination charge
1. Failure to follow an OGC Concurrence Matrix
The OGC maintains a "sign-off matrix" which requires supervisory concurrence on all correspondence and other documents going out of the office to ensure that everyone in the OGC is handling cases in the same manner. Judge's Decision at 9.
Power's immediate supervisor was Assistant General Counsel (AGC) Jeanne Beck. Judge's Decision at 3. Beck's immediate supervisor was Deputy General Counsel Carol Connor Flowe. Id. Power was assigned the Anthracite Fund case, in which he was regularly required to send out a cover letter, promissory note and security agreement to the Anthracite Fund Plan trustees. Id. at 9. On August 11, 1988, Power sent an unsigned promissory note and security agreement to the trustees for their signatures without Beck's prior review or concurrence. Id. When Beck discovered that Power had issued these documents without her review, she reminded him by an electronic office (CEO) message of the OGC Concurrence Matrix requirement. Id. at 9-10.
On August 18, 1988, Power sent a memorandum in the Gulf & Western case to the PBGC's Chief Actuary and a PBGC Auditor without Beck's prior review or concurrence. Judge's Decision at 10. Upon learning of this, Beck admonished Power in a September 9 memorandum, reminding him of the requirement for supervisory concurrence. Id.
On November 29, 1988, Power sent two letters to opposing counsel in the Greene case without supervisory concurrence. Judge's Decision at 10. Power also directed a clerical staff person to disregard the concurrence requirement. Id. Power had been working closely with his supervisors on the Greene case and thought that he had their approval on the November 29th document. Id. at 11 n.5. Due to an error on one of these letters, Power issued a revised set of these letters. Id. at 11. He did not obtain a concurrence on the corrected letters. Id. On December 1, 1988, Beck sent a memorandum to Power again reminding him of the Concurrence Matrix and noting that Power's repeated noncompliance, coupled with his instructions to a staff person to disregard the established office policy, was "inexcusable." Id.
2. Refusal to accept computer messages
At PBGC, the computer which sends messages to employees indicates when a message is erased from an employee's computer without being read. Judge's Decision at 11 n.6. On December 8, 1988, at 4:09 p.m., Power "refused" a CEO message that Beck had sent on November 28 regarding the scheduling of a case meeting between Beck and Power. Id. at 11. In a later CEO message sent at 4:24 p.m. that same day, Beck admonished Power for the 4:09 refusal and deletion, and noted that it was the second or third message he had refused. Id. at 11-12. At 4:38 p.m., Power refused this message as well. Id. Power testified that he was busy preparing a brief at the time of these messages and deleted all CEO messages. Tr. at 382-87. He stated that he had deadlines to meet and was too busy to read his computer messages. Judge's Decision at 12.
The following day Beck sent Power a CEO message demanding a written explanation of his last two refusals of her CEO message. Judge's Decision at 12. Power stated that he "was busy with the Kaiser brief the entire week. Was there something urgent you wanted?" Id.
3. Failure to supply a representative writing sample to the Deputy General Counsel
At PBGC, the first-line supervisor of OGC attorneys is responsible for issuing performance appraisals to the staff attorneys in his or her group. Judge's Decision at 6. The performance appraisal done by the AGC is then reviewed by the Deputy General Counsel (DGC), who oversees that section for "consistency" to make sure that one AGC is not being a harsher grader than other AGCs and to maintain a consistent grading curve throughout the group. Id. After the DGC reviews and signs the appraisal, which occurs regardless of whether the attorney grieves the appraisal, the appraisal is ultimately signed by the General Counsel. Id.
On May 25, 1988, Power received his performance appraisal for the period December 9, 1987 to May 12, 1988. Judge's Decision at 6. Lonnie Hassel, who preceded Beck as Power's supervisor, rated Power. Id. As permitted under PBGC procedures, the appraisal was sent to Flowe for review after Power appended comments to the appraisal. Id. On June 11, Power filed a formal grievance over his appraisal. Id. at 9 n.4; GC Ex. 38.
In order to review for consistency the rating that Power had received on one of his objectives, Flowe sent a CEO message to Beck noting that she was reviewing Power's performance appraisal and wished to examine a representative sample of his writing. Judge's Decision at 6. Beck forwarded the CEO message to Power on June 15, 1988, and requested his compliance. Id. Power sent a memorandum to Flowe asking the purpose of her request. Id.
The next morning Flowe told Power that she was the reviewing official on his performance appraisal and directed him to comply with her request. Judge's Decision at 6. In response, Power submitted over 2,100 unstapled papers consisting of lists of documents, pages of court transcripts, letters to Power from opposing counsel, LEXIS printouts, and balance sheets of companies involved in cases assigned to Power, as well as his own writings. Id. at 7.
At the time that Flowe requested the representative sample, Power was involved in a formal grievance. Judge's Decision at 9 n.4. Power submitted the voluminous material because he thought that Flowe was reviewing his entire appraisal, as opposed to just Objective 2. Id. at 9 n.4.
Flowe was "appalled" at Power's response and Gabriel returned the stack of materials to Power on June 22. Judge's Decision at 7; TR at 350. Flowe requested that Power give her a representative sample of his writing. On July 30, 1988, Power resubmitted the same materials to Flowe and indicated in a cover memorandum that those documents bore on his performance during the rating period. Id. at 7. Power also contested the validity of the review process itself and Flowe's role as the reviewing official. Id. at 7-8.
In response, by memorandum of August 8, 1988, Flowe again returned Power's submission, stating that she was requesting a representative sample in order to "evaluate whether your rating on Objective 2 should be changed." Id. at 8. Power testified that he did not discover exactly what Flowe was reviewing until this memorandum. Id. at 9 n.4. On September 2, Power gave Flowe about 25 written documents. Id. at 8. He disclaimed any characterization of the documents as being a "sample" or representative. Id. at 8. Flowe reviewed Power's submission and, on the basis of that review, raised his rating on Objective 2. Id. at 8-9.
B. Charges relating to failure to cooperate in an official investigation; threats; false statements and conversion of Government property
In the spring, summer and fall of 1988, the Union and the Respondent were negotiating about several topics, including office space and ergonomic furniture for OGC attorneys. Judge's Decision at 12. Tobin was the Respondent's principal negotiator. AGC Philip Hertz and Gabriel assisted Tobin and were present at all sessions during the mediation phase of bargaining with the permanent umpire. Id.
In August 1988, the parties were at impasse on many issues, including ergonomic furniture. Judge's Decision at 12. At the mediation session covering building renovations and ergonomic furniture, the discussion became heated. Gabriel "screamed" at Union negotiators Debra Kolodny and Power, accusing them of bargaining in bad faith. Id. At that point the Union team decided to come back to the table with a comprehensive package on everything and the impasse continued. Id.
The Union negotiators met on August 23, 1988 to work out an agreement on ergonomic furniture for attorneys in the OGC. Judge's Decision at 12. The Union sought this special furniture because the attorneys spent numerous hours daily working at their computers. Id. Tobin claimed that attorneys did not spend enough time at their computer terminals to warrant this special furniture. Power disputed Tobin's assertions. Id. at 13.
On the afternoon of August 23, 1988, Power learned that the OGC attorneys were giving their responses to a computer use survey to Information Service Specialist Donald Morrison. Judge's Decision at 13. Morrison, a GS-9 unit employee in the OGC, trained new employees on the computers and worked as a liaison with the Respondent's Computer Shop Information Management Resources Division (IMRD). Id. At IMRD's request, Morrison asked all the OGC employees to complete a survey. Id. The survey was designed to determine computer usage by attorneys and define necessary improvements to the present system. Id. The employees were asked to specify the number of hours each day that they spent on each computer function and to return the completed survey to Morrison. Power began to collect the survey responses from the OGC employees because he thought that the information was important for bargaining. Id.
Upon learning that Morrison was collecting the surveys, Power asked Morrison if he had the survey responses in his computer. Judge's Decision at 13. Morrison told Power that he did but they were not very reliable. He said that IMRD was going to make a new survey because they did not think this one proved anything. Id. Power asked for a copy of the survey data, but Morrison refused. Later that afternoon, Morrison realized that he could not get his printout during his scheduled time at work due to the printer malfunction. Id. He asked Power to retrieve the survey data when it came through the printer and put it on Morrison's desk. Id.
On August 24, 1988, Power returned to the bargaining table with these computer survey printouts. Judge's Decision at 13. Power took the computer survey printouts and placed them on the table and stated, "We know how much time the lawyers spend at the terminals. This proves that they spend more than half their time using the computers and that means they should get this ergonomic furniture because they need it to be comfortable." Id. at 13-14. Tobin looked at the surveys, stated that he did not believe the surveys were reliable, and questioned their significance. No agreement on ergonomic furniture for the OGC employees was reached at that bargaining session. Id. at 14.
Also on August 24, 1988, Morrison, who was out of the office, was "angrily confronted" on the telephone by his supervisor, Jan Hawkins, about the computer surveys. Judge's Decision at 14. Hawkins told Morrison that Power had been seen retrieving the computer survey forms from the printer. She asked Morrison how Power had gotten access to them. Morrison became afraid because "he had been warned since his arrival at the OGC in April 1988, not to associate with Power in any way, shape or form because he was the Union President." Id. He had also been cautioned about giving information to the Union. Morrison, "being afraid of what would happen to him," told Hawkins that Power must have taken the surveys by accessing Morrison's computer. Id. Hawkins told Morrison that she wanted a written statement from him when he returned to the office. Morrison sent Hawkins a computer message with his fabricated version of how Power had acquired the surveys. Id. Morrison stated that he had given his access code to Power a week earlier because Power's computer was down, and reasoned that Power got the surveys through use of this code. Id.
On September 26, 1988, Tobin issued a sharply worded memorandum to Power accusing him of improperly obtaining the computer surveys through unauthorized access to Morrison's computer. Judge's Decision at 14. Tobin accused Power of dishonest and unprofessional conduct. Id. Tobin's memorandum stated in part that "[y]our conduct certainly brings into question your integrity and judgment." Id. at 15. Tobin ordered Power to return the survey responses by September 28. Id. A copy of the memorandum was sent to Robert M. Tobias, National President, National Treasury Employees Union. Id.
Later that week Morrison told Power that he had heard that management was going to "hang him out to dry" for the computer surveys. Judge's Decision at 15. Morrison admitted that he had told Tobin that Power got the surveys from his computer. Power told Morrison to tell Tobin the truth. Id. After Morrison said he was worried that "they" would come after him, Power assured Morrison that if anything happened to him the Union would file a grievance or unfair labor practice charge. Id.
In the meantime, Tobin contacted Power's supervisor, Beck, and asked her to order Power to return the surveys to him. Judge's Decision at 15. On October 3, 1988, Beck wrote a memorandum to Power, ordering him to return the survey responses to Tobin by noon on October 4, and to give her a written explanation as to why he had not complied with Tobin's order of September 26. Id. The following day, Morrison gave Power a copy of the corrected statement that he had given Tobin on October 3, in which he admitted fabricating the story about how Power had obtained the surveys. Id.
Power attached Morrison's corrected statement to a memo he prepared for Beck. Judge's Decision at 15. In the memo Power stated that he considered a request for a "written explanation" of why he had not complied with Tobin's memo to be an examination of him and he wanted a Union representative present. Id. at 15-16. Power also stated that the premise of Tobin's memorandum was incorrect because he had not obtained the surveys through unauthorized access to Morrison's computer. Id. at 16. Power stated that he would be available with his Union representative on October 6, 1988, if Beck wanted to continue her investigation and examination of him. Id.
By memorandum dated October 6, Beck ordered Power to return the surveys to Tobin that day. Judge's Decision at 16. She also disputed Power's asserted right to have a representative. Id. Beck stated that Power could have a Union representative "if and when a disciplinary interview of you takes place[.]" Id. On October 6, Power gave Tobin a copy of the computer survey responses he had obtained from Morrison. Power so informed Beck on the same evening. Id.
On October 5, after Morrison had sent his "corrected statement" to Tobin, he was given an investigatory interview with his supervisor, Hawkins, and management lawyers Hertz and Gabriel. Judge's Decision at 17. Hawkins told Morrison that they were there to discuss his "corrected statement" and the seriousness of filing a false statement with his supervisor. Id. Hawkins asked Morrison why he had initially filed a false statement. Morrison stated that he was afraid of what would happen to him if he had told the truth. Id. Hawkins then turned the investigation over to Gabriel, who discussed the two statements and asked Morrison which statements were true. Id.
Gabriel asked Morrison if he had had any problems with Power in the past. Morrison said that he had and recounted an incident in July 1986 during an internal Union election campaign. Id. Morrison stated that after he had been nominated to run for Executive Vice President of the Union, Power called and asked him why was he running for Union office and what were his qualifications. Id. Morrison recounted that after explaining to Power why he was running for Union office, Power responded that if he continued to pursue it, Power would "cut his nuts off." Id. The meeting then ended. Id.
On October 6, Morrison was ordered to Gabriel's office. Judge's Decision at 17. Gabriel asked for a statement covering what had been discussed the previous day. After Gabriel asked Morrison who else knew about the incident, Morrison said that he had informed his supervisor, Ron Adams, of Power's July 1986 remark. Id. Morrison also told Gabriel that Adams remarked that he (Adams) would not belong to a Union that had a leader that acted like that. Morrison told Gabriel that he had immediately gone up to the payroll office to cancel his dues withholding. Id. Morrison also stated that he had told employees Barbara Robinson and Lillie Connor of this incident. Gabriel then asked Morrison how he could get in touch with them. Id. Morrison said that Adams and Connor were working elsewhere and that he did not have their phone numbers. Id. at 18. Morrison told Gabriel that he could get Robinson's number from the telephone directory. The meeting then ended and Gabriel told Morrison he would type up the statement and give it to him for his review. Id. Later that day, Gabriel gave Morrison the statement he had prepared and Morrison signed it. Id.
Gabriel contacted Connor and Robinson by phone after October 6. Judge's Decision at 18. Both stated that Power had made the remark to Morrison and had apologized to Morrison for making that remark. Id. Tobin telephoned Morrison's past supervisor, Adams, who informed him that he (Adams) had been informed of Power's remark to Morrison at the time it was made. Tr. 259-261. Adams did not report Power's remark to any other management official in 1986. Tr. 262, 264.
Thereafter, Beck and Flowe were briefed on the results of Morrison's interview. Judge's Decision at 18. On October 13, Beck notified Power that he would be investigated with respect to "his dealings with Donald Morrison" on October 18 and he could have his Union representative present. Id. Beck decided that she would question Power about his July 1986 "threat" to Morrison at the investigatory interview. Id.
Power appeared at the investigatory interview on October 18, 1988. Judge's Decision at 18. Beck, Gabriel and Wayne Poll, Director, Internal Audit Department (IAD), were present for the Respondent. Id. Beck began the interview by asking Power a series of questions concerning his acquisition of the computer survey responses. Power answered the questions and gave further information as to how he got the survey responses. Id. Power also discussed the value of the survey to the Union's bargaining position. Power made statements concerning the motivation of Gabriel and his presence at the investigatory interview. Id. at 19.
Beck "suddenly switched topics" and asked Power if he had ever threatened Donald Morrison. Judge's Decision at 19. Power replied, "no, what do you mean by threat?" Id. Beck asked Power if he ever told Morrison he might meet with physical harm if he pursued a certain course of action. Power repeated Beck's question and answered "no, that is ridiculous." Id. Beck asked whether, in connection with Morrison running for Union office in July 1986, Power made a statement to Morrison that he would meet with physical harm. Beck asked Power whether he had told Morrison he would "cut his nuts off" or words to that effect in connection with his entering his name as a candidate. Id. Power asked, "When?" Beck then repeated on or about July 1986. Id. Power responded that Beck was asking questions about a union political campaign involving internal Union matters. He said he did not believe she had the right to ask about that. Id. Power then told Beck that her questioning went beyond the scope of the "Kalkines warning" (Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973)) and he felt it was wholly improper to get into that area because it involved events over 2 years old. Id. Power became angry and stated, "don't confuse the issues with these questions, if you want to fire me, then fire me." Power then went into a lengthy explanation of how he had gotten the surveys from Morrison. Id.
Poll interjected with a question previously asked by Beck and answered by Power. Judge's Decision at 19. Poll asked if Power had looked at documents on Morrison's desk. Id. According to Power, because he had already answered that question earlier in the interview, he became agitated and said to Poll, "this is a hatchet job, you have your credible witness (Donald Morrison). If you are going to take action, do your thing." Beck then asked a number of questions about the survey. Id. Power stated that it was internal Union business. Id. at 19-20. Shortly thereafter, the meeting ended when Power stated that he was finished answering questions and rose from his chair. Id. at 20.
Respondent's management convened a meeting immediately after the interview with Power ended. Judge's Decision at 20. Beck discussed Power's interview with Flowe, and how he had "lied" by stating that he had not threatened Donald Morrison. Id. A decision was made to draft a notice of discipline for Power. Id. Beck asked that the notice of proposed discipline include a listing of the various incidents of insubordination and Power's failure to cooperate in the investigatory interview, but without specifying the discipline to be imposed. Id. at 22. Gabriel was given this assignment, working under Hertz's supervision.
Hertz met with Tobin to draft a letter to the Union's National President, as the internal union election at PBGC was only 3 weeks away and the Respondent wanted to make sure that the Union's National Office had time to intervene. Judge's Decision at 20. The letter was seen and concurred in by General Counsel Ford and/or Deputy General Counsel Flowe. On October 19, a letter was sent to NTEU National President Tobias informing him of Power's statement to Morrison. Id. No action was taken by NTEU. On November 7, 1988, Power was re-elected for another 2-year term. Id.
According to Beck, while the various attorneys in the OGC were researching such issues as the appropriate discipline and union privilege, it came to her attention that Power was continuing to delete messages from his computer without reading them, and failing to adhere to the Concurrence Matrix. Judge's Decision at 22. Because of this behavior, coupled with what had occurred at the interview, Beck determined that removal was the appropriate remedy. Id. In making her decision, she consulted her immediate supervisor, then-DGC Flowe, and Hertz. Id.
On January 19, 1989, Power was given a Notice of Proposed Removal setting forth five specific charges of misconduct. Judge's Decision at 20. Beck proposed that Power be removed from Federal service, in part, because of his conduct towards Morrison. Id. Beck also proposed Power's removal based on her conclusion that he had lied during the October 18 investigatory interview when he was questioned on the remark to Morrison. Id. at 21. With respect to the computer survey incident, Beck proposed that Power be removed because he had obtained the surveys through an "unauthorized source" and "ignored the established procedure between the [Respondent] and NTEU Chapter 211 for requesting information." Id. Based on Power's acquisition of these surveys and refusal to return his "original copy," he was charged with "Conversion of Government Property."
Beck also proposed that Power be fired because of his "Failure To Cooperate In An Official Investigation." Judge's Decision at 21. Beck set forth eight specific instances where she said Power had refused to answer her questions. Id. In developing this particular charge, Beck relied on an IAD (Internal Audit Department) "Summary" of the October 18th investigatory interview produced by Poll. Id. Poll took notes at the interview on October 18, as did Beck and Gabriel. Both Poll and Gabriel circulated their notes to Beck. A rendition was developed by Poll and this was used as the "official record" of the proceeding. Id. The "official record" (IAD Summary) was not provided to Power or the Union after the interview. It was, however, attached to the Notice of Proposed Removal where Power and the Union saw it for the first time. Id. According to Power, the IAD Summary did not accurately reflect what had transpired at the investigatory interview on October 18. Id.
The Notice of Proposed Removal was served on Power on January 19, 1989. Judge's Decision at 22. Because Flowe had already accepted the offer to become General Counsel, and thus would be the deciding official on the case, she asked David Lindeman, an attorney and Director of the PBGC's Corporate Policy and Research Department, to serve as the Oral Reply Official. Id. On February 10, 1989, Power and his NTEU representative presented the oral reply to Lindeman. Id. at 23.
Lindeman asked for the OGC's assistance in drafting his recommendation. Judge's Decision at 23. After the oral reply, Lindeman reviewed the summary and transcript several times, and then consulted with Carol Resch and Harold Ashner, the two OGC attorneys assigned to assist him with the drafting of his recommendation. Id. He consulted with Tobin about other employee discipline and Power's allegation of disparate treatment. Finally, he spoke with Beck regarding Power's allegation of union animus and whether and how she had lost confidence in Power as an attorney under her supervision. Id. Lindeman withheld his decision on the appropriate disciplinary measure to be imposed against Power until the end of the interviewing and drafting process. Id.
Lindeman then submitted a written recommendation on the matter to the deciding official, General Counsel Flowe, on March 29, 1989. Judge's Decision at 23. Lindeman recommended that Beck's findings be upheld in their entirety, and concluded that the proposed penalty of removal was warranted and should be implemented. Id. On April 3, 1989, Flowe upheld the proposed removal. Id.
C. Matters relating to the imposition of discipline
With respect to the imposition of discipline, Article 22 of the parties' collective bargaining agreement provides, among other things, that removal actions "shall normally be preceded by such progressive measures as reprimands, suspensions of less than fourteen (14) calendar days and suspensions exceeding fourteen (14) calendar days, unless the matter giving rise to the removal action is so flagrant and/or serious that discharge for the first or second offense is warranted under Douglas vs. Veterans Administration, 5 MSPB 313 (1981)." Judge's Decision at 24-25.
In this regard, the record contains information regarding the discipline given to other employees. One employee, identified as Employee No. 9, engaged in a fight during working hours with another employee. That employee was first given a notice of proposed removal, which was later reduced to a 60-day suspension. Judge's Decision at 25. The insubordination charge was based on Employee No. 9's refusal, prior to the fight, to return to his place of work. Id. While the other participant in the fight was found to have struck the first blow, the deciding official further concluded that Employee No. 9 had ample opportunity to cease fighting, but declined to do so. Id. The deciding official was unpersuaded by Employee No. 9's argument that the penalty was too severe because he had only received warnings rather than suspensions in the past for his indiscretions. Id.
Employee No. 10, who used extremely vulgar language and engaged in a fight with her supervisor (Employee No. 7), was given a 14-day suspension which was held in abeyance pending the completion of a rehabilitation program. Judge's Decision at 25-26. Employee No. 7 was given a proposed 7-day suspension which was later reduced to a 3-day suspension. Id. at 26.
Employee No. 8, a GS-12 Auditor, was first suspended for 2 days for calling his supervisor "filthy" names. Judge's Decision at 26. Eventually, after continuing such insubordinate conduct, he was suspended for 60 days. When he continued his insubordinate conduct for approximately 4 months, he was discharged. Id.
Employee No. 1, an OGC attorney, received a 45-day suspension for using sick leave for purposes of performing legal work for personal gain, using Government telephones, messenger services, computers and secretarial typing services in connection with private litigation for personal gain, and lying in response to questions regarding the use of such equipment or services. Judge's Decision at 26.
With the exception of Tobin, none of the officials involved in the discharge of Power had any connection with the above-described disciplinary actions. Judge's Decision at 26.
III. The Administrative Law Judge's Decision
The Judge found that Power is an "extremely bright and capable lawyer when it comes to his knowledge of the law and court procedures." Judge's Decision at 28. The Judge further stated that in his capacity as a Union President, Power was "an extremely aggressive union advocate" who challenged management and was highly critical on many occasions, both orally and in writing, of certain management representatives, particularly Tobin and Gabriel. Id. As a result of his actions "and those of Tobin and Gabriel in retaliation," there was "deep seated hostility between Power, Gabriel and Tobin." Id.
The Judge found that the record established that Power had violated the Concurrence Matrix, deleted messages from his computer without reading them, and continued these actions despite being cautioned about them by his supervisor. Judge's Decision at 28, 29. Further, the Judge found that the record established that Power ignored numerous communications from the General Counsel concerning requests for a writing sample, and ignored numerous requests from Respondent's representatives to return the original copy of the computer survey he had obtained from Morrison's computer. Id. at 28. The Judge also found that the record established that during the investigatory interview of Power, he denied threatening Morrison with physical harm and refused to answer a number of questions on the grounds that they related to internal union activity. Id. at 29.
In analyzing the evidence presented, the Judge credited the denials of Power's supervisors, Beck and Flowe, as well as the reviewing official Lindeman, that Power's union activity played any part in the decision to discharge him. Judge's Decision at 29-30. Although the Judge found that there was "deep seated hostility" between Power, Gabriel and Tobin based on Power's activities as Union President, the Judge concluded that "the record fails to support a finding that, other than performing certain ministerial functions in connection with the preparation of the recommended and final decisions to discharge Power," Gabriel and Tobin played any part in the actual decision to discharge Power. Id. at 28, 30.
The Judge stated that although many of the charged indiscretions "might well be classified as minor or innocuous in nature," they established a "continuing pattern of insubordination." Judge's Decision at 30. Based on the continuation of the indiscretions as well as the nature of the indiscretions, the Judge distinguished the disciplinary treatment accorded Power from the discipline given to other employees. Id. The Judge distinguished the disciplinary treatment of Employee No. 1 from Power's treatment by noting that Employee No. 1 would have been discharged but for the timing of the offense, which was just prior to the General Counsel's resignation. He further distinguished the disciplinary treatment of other employees from Power's by finding that "the officials and department handling the discipline of Power were different from those handling the discipline meted out to the other employees." Id. at 28. Accordingly, the Judge determined that it was "difficult to sustain a finding of disparate treatment." Id. at 30.
Turning to the incidents involving Morrison, namely the alleged physical threat and the computer survey, the Judge stated that he questioned whether any of Power's activities in connection with these items fell within the protection of "internal union activity." Judge's Decision at 30-31. Regarding the survey, the Judge found that despite the contention that the survey was of little, if any, value, the survey was the property of the Respondent and had been obtained from an unauthorized source. Id. at 31. The Judge stated that even if the survey was highly pertinent to the ongoing negotiations between the Union and management, Power did not have the right to appropriate the Respondent's property from an unauthorized source and then refuse an order from his supervisor to return it. Id. In the Judge's view, Power's refusal to return the surveys after an order from his supervisor, along with his refusal to answer certain questions during the subsequent investigatory interview, was "the straw that broke the camel's back" because the activities occurred just about the time that Beck became aware that Power had refused to follow the Concurrence Matrix. Id.
Regarding the alleged threat of physical harm, the Judge found that "to the extent that one might conclude that the alleged physical threat . . . fell within the protection of "internal union activity," the inclusion of this incident as a ground for discharge did not invalidate the Judge's earlier findings and conclusions because the Judge was "convinced that irrespective of the threat to Morrison, Power would have been discharged for his other indiscretions, i.e. continued insubordination." Judge's Decision at 31 n.13.
The Judge concluded that the General Counsel failed to prove by a preponderance of the evidence that Power was discharged because he engaged in protected union activities. Judge's Decision at 31. Accordingly, the Judge recommended that the unfair labor practice complaint be dismissed. Id.
IV. The Positions of the Parties
A. The General Counsel
The General Counsel argues that the Judge failed to apply the proper legal analysis in a case involving discrimination in violation of section 7116(a)(1) and (2) of the Statute. In particular, the General Counsel argues that the Judge failed to follow the analytical framework set out in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), and instead based the case on a simple credibility finding. The General Counsel also excepts to the Judge's failure to find that several of the specifications in Power's discharge involved protected activity or demonstrated union animus and were, therefore, invalid.
The General Counsel argues further that the Judge made improper findings regarding the disparate treatment issue. In particular, the Judge stated that because disciplinary action against other employees was carried out by different officials and departments than those involving Power, disparate treatment could not be sustained. The General Counsel argues that established precedent does not suggest that disparate treatment must be established only by a comparison to the subject supervisor's prior disciplinary action, but rather to the agency as a whole. Additionally, the General Counsel asserts that the Judge erred by failing to find that the decision to discharge Power was motivated by union animus. In this regard, the General Counsel maintains that the Judge's conclusion that there was no violation of the Statute does not comport with his findings of fact. The General Counsel points to the Judge's consistent finding that Tobin and Gabriel had deep-seated animosity toward Power. The General Counsel asserts that the Judge subsequently minimizes this animus and erroneously found that Tobin and Gabriel played only a "ministerial function" in Power's termination.
The General Counsel maintains that it established a prima facie case, and its prima facie case was not rebutted by the Respondent. As a remedy, the General Counsel requests that the Authority direct the Respondent to offer Power immediate and full reinstatement to his former position, to make him whole for any losses due to his unlawful discharge, including full backpay with interest, to expunge from its files all references to Power's removal and to post an appropriate notice.
B. The Union's Exceptions
The Union claims that the Judge failed to apply the proper analytical framework for cases alleging violations of section 7116(a)(2) of the Statute, as clarified by the Authority in Letterkenny. The Union further argues that the Judge improperly failed to find that several alleged acts of misconduct cited as a basis for Power's discharge involved protected activity.
The Union excepts to the Judge's finding that certain management officials performed only "ministerial functions," arguing that this conclusion is contradicted by undisputed record evidence. Additionally, the Union asserts that the Judge erroneously concluded that disparate treatment may not be established through instances of discipline imposed by supervisors other than the supervisor of the employee involved. The Union further claims that the Judge erroneously concluded that Power engaged in a "continuing pattern of insubordination;" and failed to find that despite the Respondent's claim that Power's alleged misconduct caused a loss of trust and confidence, the Respondent continued to assign important agency litigation to Power until the time of his termination.
C. The Respondent's Opposition
The Respondent claims that the General Counsel and the Union are attempting to relitigate the case before the Authority. The Respondent claims that the Judge's credibility determinations defeat the General Counsel's claim of discrimination. The Respondent argues that the specifications of misconduct against Power must be considered as an "amalgam of offenses" and not individually as isolated incidents. Respondent's Opposition at 24. Additionally, the Respondent claims that the Judge applied the proper analytical framework in dismissing the complaint. The Respondent asserts that the Judge properly determined that Power was not engaged in protected activity. Finally, the Respondent argues that the Judge properly declined to infer animus in the discharge of Power and properly concluded that there was no evidence of disparate treatment in this case.
V. Analysis and Conclusions
We disagree with the Judge's conclusion that the General Counsel failed to establish that Power's discharge was motivated by his union activities. We find that Power's union activity was a motivating factor in the Respondent's decision to discharge Power. Further, we conclude that the Respondent did not demonstrate that it would have taken the same action in the absence of the protected activity.
A. The Authority's Decision in Letterkenny
Shortly before the Judge issued his decision in the instant case, the Authority issued its decision in Letterkenny. In that case, we stated:
In all cases of alleged discrimination, whether "pretext" or "mixed motive," the General Counsel must establish 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 in connection with hiring, tenure, promotion, or other conditions of employment.
Letterkenny, 35 FLRA at 118.
If the General Counsel makes the required prima facie showing, a respondent may seek to rebut that showing by establishing, by a preponderance of the evidence, the affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity. Id. at 122-23. This analysis, we noted, is consistent with the framework applied in the private sector by the National Labor Relations Board. Id. at 122.
B. Application of Letterkenny in this Case
Application of this analytical framework to the instant case requires an in-depth review of the evidence adduced at the hearing. We begin with an examination of Power's union activities.
Power was the President of the NTEU's Chapter 211 from 1984 through the events leading to his discharge. Judge's Decision at 4. The record indicates, and the Judge found, that no dispute exists over the fact that Power was "an extremely aggressive union advocate who did not hesitate to challenge management." Id. at 28. The Judge further found no dispute that on many occasions, both orally and in writing, Power was "highly critical of certain management representatives, particularly Tobin and Gabriel." Id.
During the spring, summer and fall of 1988, representatives of the Union and Respondent, including Power, Tobin and Gabriel, were engaged in collective bargaining negotiations on several topics. Id. at 12. The record indicates, and the Judge found, that a review of the 1988 negotiations indicates that animosity persisted between Power and management's representatives. Id. The record further indicates that in the fall of 1988, an internal union election took place at PBGC in which Power campaigned and was re-elected as President for a 2-year term. Judge's Decision at 18, 20. Moreover, in June 1988 Power filed a grievance over his performance appraisal. Id. at 9 n.4; GC Ex. 38. Thus, it is clear that Power was engaged in protected activities.
Using the Letterkenny framework, we turn now to analyze whether the Respondent's discharge of Power was motivated by consideration of this protected activity. The Judge made a credibility determination, crediting the denials of Beck, Flowe and Lindeman that Power's union activity played any part in the decision to discharge Power. Judge's Decision at 29-30. We do not reverse this credibility determination.
However, the record evidence and the Judge's own factual findings demonstrate to us that, contrary to the Judge's conclusion, Tobin and Gabriel played a meaningful part in the decision to discharge Power. In particular, the evidence demonstrates that the participation of Tobin and Gabriel consisted of more than "ministerial functions" in connection with the preparation of the recommended and final decisions to discharge Power. We find that the Judge erroneously focused on the intent of the deciding officials (Beck, Flowe and Lindeman) and ignored the role that was played by Tobin and Gabriel, two management officials found by the Judge to have "deep seated hostility" toward Power. In this regard we note that the Judge failed to make any finding about the role that the recommended notice and final notice of discipline--documents generated and reviewed by these officials--played in the decision to discipline Power.
The record indicates that Tobin and/or Gabriel were active participants in many of the events which formed the basis for Power's discharge. For example, Tobin initiated the request to Power's supervisor, Beck, that she order Power to return the surveys to Tobin. Judge's Decision at 15. Gabriel vigorously questioned Morrison about the alleged "threat" made by Power and followed up by interviewing employees who knew about the alleged threat. Judge's Decision at 17-18. Gabriel took part in the investigatory interview of Power. Id. at 18-19. Gabriel also was involved in the exchange of documents which took place during Power's performance appraisal review, returning the stack of documents to Power on one occasion. Tr. at 350. While participation alone of two management officials with established animosity toward a unit employee who is an active union President does not mandate a finding that the disciplinary process was tainted by union animus, the record evidence in the instant case persuasively demonstrates that the participation of Tobin and Gabriel was more than ministerial and tainted the process.
The record evidence demonstrates that Gabriel did not merely perform "ministerial" functions but was, rather, an active factfinder. Gabriel conducted a large portion of the investigatory interview of Morrison. Judge's Decision at 17. Indeed, it was Gabriel who asked Morrison, during the interview concerning Morrison's corrected statement, if he had any problems with Power in the past. Id. at 17. The following day, Gabriel pursued the incident with Morrison and, as the Judge found, was informed by Morrison that his supervisor, and two other employees knew of this "threat." Id. at 17. Gabriel contacted the two employees, who verified that Power had made the remark to Morrison but also told Gabriel that Power had apologized to Morrison for making that remark. Id. at 18. Gabriel's pursuit of the matter, in view of the entire context, the staleness of the "threat," and the clearly figurative nature of the remark, was itself provocative and indicates that Gabriel was intent on building a case against Power. Subsequently, Beck was briefed on the Morrison interview, including the alleged threat. Beck decided to question Power during the October 18th investigatory interview about his 1986 remark to Morrison. Id. at 18.
Further, Gabriel attended Power's investigatory interview. Judge's Decision at 18. Gabriel participated in a meeting with Tobin, Beck and Poll prior to the Power interview. Tr. 60, 131-132. At this meeting, the management representatives discussed the upcoming interview and went over anticipated and proposed questions to be asked. Tr. 132; GC Ex. 59. After this meeting, these management representatives--excluding Tobin--were present at the investigatory interview of Power. Judge's Decision at 18. During the investigatory interview, Power made a statement concerning Gabriel's motivation and his presence at the investigatory interview. Id. at 19; Jt. Ex. 2(d) at 4.
The record evidence demonstrates that following the investigatory interview Gabriel prepared the notice of proposed discipline. Judge's Decision at 20, 22. Beck asked that the notice of proposed discipline list the various incidents of insubordination and failure to cooperate in the investigatory interview, but without specifying the discipline to be imposed. Id. at 22. Gabriel drafted a report cataloging all of Power's alleged offenses. In drafting this notice, Gabriel neglected to include relevant exculpatory information. For example, the notice states that it is based on several episodes of Power's misconduct, "all of which have either occurred within the recent past or have been brought to management's attention for the first time during that time period." Jt. Ex. 2. This statement fails to include evidence known to Gabriel, and found by the Judge, that Morrison informed Respondent's management, through his supervisor, Ron Adams, at the time that Power made the alleged threat. Judge's Decision at 17. Indeed, Morrison told Gabriel that it was the comment of his supervisor, Adams, that he (Adams) would not belong to a union with a leader that acted that way which led Morrison to immediately cancel his dues withholding. Id. at 17. The record indicates that Adams was, in fact, informed of this remark in July 1986 and did not attempt to pursue any discipline of Power at that time. Tr. 257-258, 262. Following Gabriel's discussion with Morrison, Tobin telephoned Adams. Tr. 259-263. Further, Adams testified that he informed Tobin that he (Adams) had been aware that Power had made a threatening remark at the time it was made. Tr. 259-261.
Thus, the notice of proposed discipline prepared by Gabriel and cataloging all the incidents in which Power was allegedly involved neglected to include relevant exculpatory information. This relevant information included the fact that a management representative was aware of the remark at the time it was made 2 years earlier and had not proposed or taken any disciplinary action. Again, we note that this "threat" served as the basis for another specification (specification # 4) in Power's discharge relating to making a false statement in an official investigation.
Turning to the role played by Tobin in Power's discharge, we note that Tobin is the PBGC's Director of Personnel and is the agency official responsible for reviewing all employee disciplinary actions for technical accuracy, legal sufficiency, logic, completeness, and, most important in this case, consistency of penalty. Tr. 191-92; 776-78.(1) Tobin reviewed several drafts of Beck's Notice of Proposed Removal as well as the final determination by Flowe to fire Power. Tr. 145, 191. In this regard we note that Tobin had spoken to Morrison's past supervisor, Adams, and knew that Adams--a management official--was aware that Power had made a threatening remark to Morrison at the time it was made. Tr. 259-61. Yet Tobin did not disturb the language of the notice stating that all of the cited misconduct had "either occurred within the recent past or have been brought to management's attention for the first time during that time period." Jt. Ex. 2. However, in our view, the key role played by Tobin in Power's discharge was his discussion with Lindeman, the reviewing official, regarding the appropriate nature of the penalty of discharge.(2)
The record establishes that Tobin was responsible for ensuring that discipline was consistent throughout PBGC. The record also demonstrates that many employees were disciplined, but not discharged, for a variety of misconduct. Thus, Employee No. 1, an attorney in OGC, received a 45-day suspension essentially for practicing private litigation for personal gain through use of his Government employment resources, including using sick leave for performing legal work, using Government telephones, messenger services, computers and secretarial typing services, as well as lying in response to questions regarding the use of such resources and making false statements in an official investigation. Judge's Decision at 26; GC Ex. 9, 9(c).
Employee No. 7, a male supervisor, who engaged in a physical altercation with a female employee, ultimately pinning the employee against a wall in the garage, received a proposed 7-day suspension which was reduced to 3 days. Judge's Decision at 26; GC Ex. 6, 7(a). The employee with whom Employee No. 7 was fighting received a 14-day suspension for provoking a fight with her supervisor, use of obscene language, threatening and attempting to inflict bodily harm and insubordination. This employee, Employee No. 10, had her suspension held in abeyance pending completion of a rehabilitation program. Judge's Decision at 25-26; GC Ex. 17, 17(a).
Another employee, Employee No. 9, engaged in a fistfight with another employee which continued throughout the work area and ended only after his immediate supervisor threatened to hit both employees with a trash can to break up the fight. Employee No. 9 was charged with insubordination based on his refusal to return to work as his supervisor directed; his proposed removal from the Federal service was reduced to a 60-day suspension. Judge's Decision at 25; GC Ex. 17, 17(a).
Finally, Employee No. 8 was progressively disciplined for calling the supervisor names and making accusations against him. The employee was first suspended for 2 days; after continuing the conduct, Employee No. 8 was suspended for 60 days; and when the insubordinate conduct continued for a period of approximately 4 months, Employee No. 8 was discharged. Judge's Decision at 26; GC Ex. 8. Tobin was aware of these disciplinary actions. Judge's Decision at 26.
Lindeman, the reviewing official, withheld his decision on the appropriate disciplinary measure to be imposed against Power until the end of the interviewing and drafting process. Judge's Decision at 23. Lindeman testified that "there were points that were raised in Power's defense that needed some scrutiny and some investigation." Tr. 746. In this regard, Lindeman consulted with Tobin about other employee discipline and Power's allegation of disparate treatment. Judge's Decision at 23. In particular, Lindeman wanted to be sure that the agency was not doing something to Power if it had "stayed [its] hand in doing something to somebody in the past." Tr. 749. Lindeman testified that his conversation with Tobin was "to try and find out more about disciplinary actions of similar gravity and what they had done and what were the similar and distinguishing characteristics." Tr. 747. In talking with Lindeman, Tobin provided information that was, at best, incomplete and possibly misleading regarding prior discipline of other employees. During a telephone conversation lasting more than a half hour, Tobin spoke with Lindeman about disciplinary action against other employees. Tobin told Lindeman that he "regarded this as a unique circumstance, without any parallel or precedent in the corporation's history." Tr. 749; 762; 171. However, Tobin did not provide Lindeman with any records of past disciplinary actions of other employees or documentation of the progressive discipline that was meted out to employees. Tr. 760-762; 796-799.
Moreover, Lindeman testified that as to Employee No. 1, he thought Employee No. 1's activities were "at least of comparable magnitude" to Power's. Tr. 750. However, it was Lindeman's understanding from his conversation with Tobin that removal had been recommended in that situation but the General Counsel had not approved removal. Tr. 750. According to the record, however, removal of Employee No. 1 was never proposed. Tr. 797. In his testimony, Tobin admitted that while he personally recommended removal of Employee No. 1, the notice of proposed discipline was for suspension, not removal. Tr. 797.
Lindeman spoke only to Tobin about Power's disparate treatment claim and relied on Tobin's characterization of other actions compared to Power's case. Tr. 746-47; Judge's Decision at 23. Lindeman's final recommendation stated that he had checked with the PBGC's personnel offices for any comparable case of cumulative offenses and found none. Jt. Ex. 4(a) at 14. Thus, the record evidence indicates that Tobin did not fully apprise Lindeman of the other disciplinary action at PBGC that in our view was relevant.
As discussed above, the actions of Gabriel and Tobin constitute more than ministerial functions which played no part in the actual decision. In disagreement with the Judge's decision, we find that Gabriel and Tobin played a significant role in the decision to discharge Power. In this regard, Gabriel played a major role in amassing material regarding one of the charges against Power (threatening an employee with grave physical harm and interfering with the employee's statutory rights) which served as the basis for an additional charge (making a false statement in an official investigation) in his discharge. Having uncovered the alleged threat by Power, Gabriel pursued the incident in a subsequent meeting. Gabriel was informed by Morrison that he had told his supervisor, Adams, and two other employees of Power's alleged threat. Gabriel contacted the two employees who confirmed that Power had made the remark and subsequently apologized to Morrison for the remark. Moreover, Gabriel attended Power's investigatory interview during which Beck questioned Power about the alleged threat. Subsequently, Gabriel prepared a report in the form of a notice of discipline, at Beck's request, listing all of Power's alleged offenses. This listing was apparently needed by Beck to assess the incidents and to determine, based on this notice, what discipline was appropriate. Indeed, Beck testified that she wanted the various incidents that had happened to be written up so that she could "take a look at them and consider whether discipline was appropriate and if so, what kind of discipline was appropriate." Tr. 80. Gabriel, who was hostile to Power, prepared a notice which failed to include important exculpatory information. Based on this notice, and in reliance on it, Beck decided to discharge Power.
Similarly, Tobin played a significant role in Power's discharge. As discussed, Lindeman relied on Tobin's characterization of past disciplinary actions of other employees when he was reviewing Power's allegation of disparate treatment. In this regard Lindeman believed from his discussion with Tobin that unique circumstances had prevented a proposed removal in the comparable case of Employee No. 1. In reliance on this information and Tobin's assertions that there were no other comparable cases, Lindeman determined that there was no disparate treatment in Power's proposed removal.
Contrary to the Judge's finding (Decision at 31 n.13), it is unclear to us whether, if the notice had included information of the knowledge of a PBGC supervisor concerning the threat, Beck, Flowe or Lindeman would have sought or approved discharge of Power. We note that that is particularly true in view of the fact that Specification 4 in Power's discharge is based on the 2-year old "threat" and questions related to it. It appears that Gabriel provided a document that, in its entirety, suggested strong discipline. Likewise, Tobin's actions in providing incomplete information to Lindeman regarding the appropriate discipline suggested that discharge was appropriate. As a result of the roles of Tobin and Gabriel, we find that Power's discharge was motivated in some part by the union animus of Gabriel and Tobin.
The NLRB has found that even where the deciding official is ignorant of an employee's union activity, the discharge of that employee based in part on a discussion with a supervisor who is aware of the employee's union activity and hostile to the union is sufficient to constitute a prima facie showing of a violation of section 8(a)(3) of the National Labor Relations Act. Hambre Hombre Enterprises, Inc., 228 NLRB 136 (1977), enf'd, 581 F.2d 204 (9th Cir. 1978) (Hambre Hombre).
In the instant case, Beck was aware of Power's union activity, although the Judge credited her denial of union animus in Power's discharge. However, the Judge found that Tobin and Gabriel were hostile to Power and, as demonstrated above, both Tobin and Gabriel played a considerable role in the discharge of Power. This role had an effect similar to that of the supervisor who engaged in a discussion with the deciding official in Hambre Hombre Enterprises, Inc.. That is, in both cases the employees with knowledge of and hostility to union activity influenced the discharge decision: in Hambre Hombre, the supervisor through her discussion with the deciding official; and in the instance case, Gabriel through the preparation of the Notice of Proposed Discipline and Tobin through his transmittal of information regarding disparate treatment to the reviewing official.
Like the Board, and the courts, we are "reluctant to adopt a rule that would permit the company to launder the 'bad' motives of certain of its supervisors by forwarding a dispassionate report to a neutral superior." Boston Mutual Life Insurance Co. v. NLRB, 692 F.2d 169, 171 (1st Cir. 1982). Where evidence of improper motivation has been presented, the existence of a causal relationship between such animus and the discharge can properly be inferred by the factfinder. Grand Rapids Die Casting Corp. v. NLRB, 831 F.2d 112, 118, rehearing denied, 833 F.2d 605 (6th Cir. 1987).
Having found that the Judge reached the wrong conclusion regarding the role that Tobin and Gabriel's union animus played in the disciplinary process, we find that their animus motivated in some part the decision to discharge Power. Consistent with Letterkenny, we find that the General Counsel established a prima facie case.
Continuing the analysis mandated by Letterkenny, we turn to whether the Respondent has established by a preponderance of the evidence that (1) there was a legitimate justification for its action and (2) the same action would have been taken in the absence of protected activity. Letterkenny, 35 FLRA at 122-23. The Judge found that the Respondent demonstrated that Power engaged in insubordinate acts, and we do not condone any such acts. However, we find that, even assuming that the Respondent established that it had a legitimate justification for taking some form of disciplinary action against Power, the Respondent has failed to demonstrate by a preponderance of the evidence that it would have taken the same action--discharge of the employee--in the absence of the protected activity. In this regard, we note that the Judge found that many of Power's indiscretions "might well be classified as minor or innocuous in nature." Judge's Decision at 30.
Initially, we note our agreement with the Respondent's claim that the specifications against Power must be considered as a whole and not individually. However, considering Power's conduct in its totality, including the context of some of the conduct, and contrary to the Judge, we find that Power's conduct was not sufficiently distinguishable from the conduct of other employees to merit the harsher discipline of discharge. In particular, we note that Employee No. 1, an attorney in OGC who was given a 45-day suspension for his action in using Government resources in furtherance of his private practice, presents a case of misconduct at least comparable to that of Power. Employee No. 1, like Power, was charged with making false statements in an official investigation as well as with lying to supervisors. GC Ex. 9, 9(c). Yet Power, an aggressive union advocate, was discharged from Federal service. Similarly, the misconduct of the other employees discussed above, which constitutes fairly egregious conduct ranging from physical assaults to obscene verbal threats, resulted in suspensions only and not in discharge. Finally, significantly, unlike the one other employee (Employee No. 9) who was ultimately discharged, Power was not accorded progressive discipline. We conclude, based on the record before us, that Power was treated differently from other employees in terms of the discipline imposed. We therefore conclude that the Respondent has failed to prove that it would have taken the same action in the absence of Power's union activity.
In reaching this conclusion, we disagree with the Judge's analysis of the disparate treatment issue. We find that the Judge erroneously distinguished the discipline of Employee No. 1, finding that "but for the timing of his actions, . . . Employee No. 1 escaped discharge." Judge's Decision at 30. The relevant inquiry is the actual discipline that was imposed on the employee and not what the agency may have wanted to do in other circumstances. In this regard, we note that removal was never even proposed for Employee No. 1. In our view the Judge erroneously focused on the officials and departments handling the discipline of other employees. Judge's Decision at 30. The proper inquiry is an examination of the actions of the employer as a whole and not those of individual officials. See Department of the Navy, Navy Resale System, Field Support Office, Commissary Store Group, Norfolk, Virginia, 16 FLRA 257, 263 (1984); Department of Transportation, FAA, Boston Air Route Traffic Control Center, Nashua, New Hampshire, 11 FLRA 318, 327 (1983).
Based on the foregoing, we conclude that the General Counsel has established by a preponderance of the evidence that the discharge of Power was motivated by his protected activity. Further, even assuming that the Respondent established that it had a legitimate justification for taking some form of disciplinary action against Power, the Respondent has failed to demonstrate by a preponderance of the evidence that it would have taken the same action--discharge of the employee--in the absence of the protected activity. Accordingly, we find that the Respondent violated section 7116(a)(1) and (2) of the Statute.
Sections 7105(g) and 7118 of the Statute vest the Authority with broad remedial powers to correct violations of the Statute. See generally National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). Such remedial powers have been exercised, in appropriate circumstances, by ordering reinstatement of a wrongfully discharged employee, providing for the rehire of an employee previously involved in union activities, and directing the retroactive promotion of an employee who had been unlawfully discriminated against on the basis of protected union activity. See, respectively, United States Marine Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA 725 (1981); U.S. Department of the Air Force, 3245th Air Base Group, Hanscom Air Force Base, Bedford, Massachusetts, 37 FLRA 1231 (1990), and National Treasury Employees Union v. U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA 501 (1990); United States Department of Defense, Department of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas, 18 FLRA 142 (1985).
In this case, we believe that the purposes and policies of the Statute will most appropriately be effectuated by ordering the Respondent to offer Power immediate and full reinstatement to his former position, to make him whole for any losses due to his unlawful discharge, including full backpay, and expunge from its files all references to Power's removal. See id.
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations, and section 7118 of the Statute, the Pension Benefit Guaranty Corporation shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against, David Power, or any other employee, because the employee has engaged in activities protected by the Statute.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request, offer David Power immediate and full employment to his former position as a GS-14 General Attorney, or, if that position is not available, to a substantially equivalent position, and make him whole for the losses he incurred as a result of unlawfully discharging him by providing him with backpay, with interest, from April 3, 1989, until such time as he is reemployed in compliance with this Order, and by providing him with all benefits and privileges retroactive to April 3, 1989, consistent with applicable law and regulation.
(b) Upon request, expunge from David Power's personal files all references to his removal from the Federal service.
(c) Post at the offices of Pension Benefit Guaranty Corporation, 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 Executive Director 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discharge, or otherwise discriminate against, David Power, or any other employee, because the employee has engaged in activities protected by the Statute.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured them by the Statute.
WE WILL upon request, offer David Power immediate and full employment to his former position as a GS-14 General Attorney, or, if that position is not available, to a substantially equivalent position, and make him whole for the losses he incurred as a result of unlawfully discharging him by providing him with backpay, with interest, from April 3, 1989, until such time as he is reemployed in compliance with this Order, and by providing him with all benefits and privileges retroactive to April 3, 1989, consistent with applicable law and regulation.
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 of compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington, D.C. Region, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.
(If blank, the decision does not have footnotes.)
1/ As noted above, the parties' collective bargaining agreement provides for timely discipline and further provides that removal actions normally be preceded by progressive discipline.
2/ We note that in his testimony Tobin himself recognized that his discussion regarding penalties with Lindeman was not simply a ministerial function. See Tr. 153 (in response to a question from the Judge as to whether Tobin's participation in the discharge was merely clerical, Tobin responded "yes, aside from a telephone conversation that I had with Lindeman over penalties").