File 2: ALJ's Decision
[ v58 p49 ]
Office of Administrative Law Judges
DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-136, SEIU, AFL-CIO
Case No. AT-CA-00260
George B. DeMarseDonald M. Wilson
For the Respondent
Brent S. Hudspeth, Esq.
For the General Counsel
Fletcher P. Truesdell
For the Charging Party
Before: ELI NASH
Chief Administrative Law Judge
Statement of the Case
On July 31, 2000, the Acting Regional Director for the Atlanta Region of the Federal Labor Relations Authority, pursuant to a charge filed on January 11, 2000, by the National Association of Government Employees, Local R5-136, SEIU, AFL-CIO (herein called the Union) issued a Complaint and Notice of Hearing. The Complaint alleged that the Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (herein called Respondent) violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (herein called the Statute) on or about July 23, 1999, when during a grievance meeting (1) representatives of the Respondent accused Johnny Scott, a bargaining unit employee, of lying and providing a false statement during an investigation regarding an incident and (2) a representative of the Respondent stated that he was only attending the grievance meeting because of protocol and would not believe anything that Scott said. The Complaint also alleged that the Respondent violated section 7116(a)(1), (2) and (4) when on or about November 8, 1999, it issued a proposal to suspend Scott and on or about December 15, 1999, issued a decision to suspend Scott for 14 days. The Complaint alleged that the action to suspend Scott was motivated by his protected activity. [ v58 p50 ]
A hearing in this matter was held in Charleston, South Carolina, on November 14, 2000. The parties were represented and afforded a full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses and file post-hearing briefs. Respondent and the General Counsel filed timely briefs.
Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law and recommendations.
At the outset of the hearing, the General Counsel requested that all witnesses be sequestered. I granted the request, which was unopposed. When the General Counsel called Mr. Walter Truesdell as a witness, Mr. Donald Wilson, a technical representative for the Respondent, raised an issue that Mr. Truesdell had been present in the hearing room during the opening statements of the parties despite the sequestration of witnesses. I overruled the objection.
Later during the hearing, Respondent called Mr. Wilson as a witness. At the time, the General Counsel did not object despite the fact that Mr. Wilson had been present during the testimony of all of the other witnesses who testified at the hearing. Toward the end of Mr. Wilson's testimony, I expressed my concern about the unfairness of having Mr. Wilson testify after having heard all of the other testimony and admonished the Respondent for not making arrangements to have Mr. Wilson testify before the other witnesses had done so. At that time, I stated that I would not strike his testimony. In his post-hearing brief, Counsel for the General Counsel requests that I strike Wilson's testimony in its entirely or in the alternative find it not credible. Noting that neither the General Counsel nor the Respondent fully complied with the sequestration order and that Wilson had a key role in some of the events underlying the allegations in the complaint, I deny the General Counsel's request that Wilson's testimony be struck in its entirety. [n1] I will, however, take into consideration in weighing the credibility of his testimony the fact that Wilson had the benefit of hearing the testimony of all the other witnesses prior to testifying.
Findings of Fact
At all times material to the complaint in this case, Johnny Scott was a police officer assigned to the Ralph H. Johnson Medical Center. At the time of the hearing in the case, he had been employed there for a little over 2 years. Prior to that, he worked as a police officer at a Veterans Affairs hospital in Durham, North Carolina, for an unspecified period of time. At the time of the events material to the complaint in this case, Lt. Dale Hendley was his immediate supervisor and Hector Roman-Lopez was the chief of police.
Scott's Union Activity
Scott was a member of the bargaining unit that is represented by the Union. Scott testified that although he was a Union member, he did not hold any type of office in the Union. In January 1999, Scott received a letter of counseling from Hendley. Scott grieved the letter of counseling with the Union's assistance and by memorandum dated June 22, 1999, the third step grievance official, Johnetta McKinley, granted the grievance.
In March of 1999, Scott received a reprimand for failure to carry out instructions and entering false data on a training record. There was no testimony that Scott grieved this particular action; however, Walter Truesdell, a Union Steward testified that he handled several cases for Scott in 1999.
On or about July 13, 1999, Scott filed a grievance, with the Union's assistance, regarding an incident that occurred on or about June 24, 1999, which will be discussed in further detail later.
As additional support for the claim that Scott was engaged in protected activity and the basis for the section 7116(a)(4) allegation, the General Counsel cited an unfair labor practice charge and complaint. [n2] The charge, which was filed on August 30, 1999, and complaint, which was issued on October 29, 1999, alleged that the Respondent failed to furnish information requested in connection with Scott's grievance.
The Trash-Can Incident
At the time of what I shall refer to as the trash-can incident, Jack Terrell was the Chief of Environmental Management Service (EMS), which was responsible for housekeeping at the Ralph S. Johnson Medical Center. [n3] [ v58 p51 ] Lillian Tarleton was Terrell's administrative assistant. According to Tarleton, during the period preceding the trash-can incident, Terrell experienced ill health and deaths in his family. Tarleton also stated that shortly before the trash-can incident, EMS had gotten in trouble or, as she characterized it, was "blasted" at a meeting for not having enough trash cans in the lobby of the Medical Center.
On or about June 24, 1999, Scott, who was recovering from knee surgery and assigned to light duty, was working as an "ambassador" for the hospital and posted at the information desk in the lobby. The revolving door in the lobby was malfunctioning and was blocked with a trash can and what Scott characterized as police tape.
Terrell and Tarleton were making rounds and saw the door blocked with a trash can. Terrell asked Scott, the only other person present, who had blocked the door. According to Tarleton, Terrell specifically framed his question in terms of who blocked the door with the trash can. Scott responded that the police and security service had secured or blocked the door. Tarleton and apparently Terrell heard Scott's response as stating that the police and security service used the trash can to block the door. Scott testified that he responded in terms of police and security securing the door with police tape.
According to Scott, Terrell was angry and using profanity. Although Tarleton was not questioned regarding Terrell's demeanor in the lobby, her testimony indicated that the point at which, from her perception, Terrell became visibly upset did not occur until they were in Hendley's office and Scott denied telling him that the police service had blocked the door with the trash can. Based on the surrounding circumstances, it is evident that Terrell was irritated that the trash can was used to block the door. Although Terrell may not have demonstrated the level of anger that Scott's testimony suggested or used profanity, I find it is likely that his irritation was apparent to Scott and Scott's description of him as angry was not far from the mark.
Terrell and Tarleton proceeded to the police office where Terrell asked Hendley why his officers were using trash cans to block the door citing Scott as the source of the information that the police had done so. Hendley radioed Scott and asked who blocked the doors with the trash can. Scott responded by coming to Hendley's office. When Scott arrived, Terrell made a statement to the effect that Scott had told him that the police service used a trash can to block the door and Scott denied that he had said that. Both Hendley and Tarleton describe the ensuing dialog between Scott and Terrell as basically consisting of Terrell stating "bullshit," you did tell me that and Scott responding "bullshit," I did not. Hendley and Tarleton described Terrell as then saying that he was not discussing it with Scott any more. Scott testified that during the exchange between himself and Terrell, Terrell stated that he did not have to listen to this "lying son of a bitch" anymore. [n4] In testimony, Hendley and Tarleton flatly denied that Terrell used this phrase in his exchange with Scott.
Terrell than proceeded to leave the room. Scott was standing in the doorway, according to his account, frozen or, according to Hendley and Tarleton's accounts, blocking Terrell's exit. According to Hendley and Tarleton, Terrell asked Scott a couple of times to move but Scott did not do so. Terrell pushed past (according to Hendley and Tarleton) or went around (according to Scott) Scott and left the room. Terrell then turned and, according to Hendley and Scott, "got in Scott's face" and admonished Scott not to stand in his way again when he asked Scott to move.
According to Hendley, after Terrell and Tarleton left, Scott informed him that Officer Aguilar had put the trash can in the doorway. According to Scott, he told Hendley that Officer Aguilar had secured the door with police tape.
Hendley and Scott described the encounter as lasting only a few minutes. According to Tarleton, Terrell was not hostile to Scott at the outset but got "upset" when Scott denied telling him that the police service blocked the doors with a trash can and got angry when Scott blocked his exit. Tarleton also described it as a "crazy, bad scene." Hendley stated that Terrell contacted him shortly after the encounter and described Terrell as being very upset about the incident. Scott testified that during the incident he thought it might be a set up and was afraid.
On the same or next day, Hendley and Tarleton prepared statements describing the incident, which were submitted into evidence at the hearing. According to Hendley and Tarleton, Terrell prepared one as well; however, it was not submitted into evidence. Although Hendley acknowledged that he played a role in obtaining statements from Terrell and Tarleton as well as a co-op student, who had been outside his office during the [ v58 p52 ] incident, [n5] shortly after the event, he did not solicit one from Scott until Chief Roman-Lopez requested that he do so.
With respect to whether Terrell actually called Scott a "lying son of a bitch," I find that Tarleton and Hendley's accounts of what transpired at the meeting in Hendley's office more reliable than that of Scott in terms of accurately reflecting what occurred. Their accounts are consistent with the written statements that they prepared very soon after the incident. Their roles in the exchange between Terrell and Scott were that of observers and, consequently, their perceptions and observations are less likely to be influenced by emotion than those of Scott who felt that he was under attack.
In crediting the accounts of Tarleton and Hendley with respect to this particular remark, I do not find that Scott deliberately or consciously misrepresented what occurred. To someone such as Scott who at the time the incident occurred was unaware of Terrell's history of personal stress or that Terrell was recently "blasted" about trash cans, Terrell's behavior would appear irrational, bizarre and threatening. Moreover, at the time of the incident, Scott had recently received a reprimand and letter of counseling and likely tended to feel besieged as was demonstrated by his comment that he suspected a possible set up. According to Hendley and Tarleton's descriptions, Terrell challenged Scott's veracity in a forceful manner during the June 24 exchange. The filters that Scott brought with him to the incident combined with the time lag of over 2 week between the events and the preparation of his statement could easily result in Scott interpreting and remembering Terrell's statements as referring to him as a lying son of a bitch. In any event, I find that Scott's description amounted only to an exaggeration of what actually occurred rather than a deliberate fabrication.
Scott's Grievance Regarding the Incident
At Chief Roman-Lopez's request, Hendley eventually requested a statement regarding the June 24 incident from Scott. On or about July 13, 1999, Scott prepared a statement. Scott testified that while he was attempting to prepare his statement, Hendley told him about an incident in which Hendley had come to the assistance of another police officer who was involved in a confrontation with an irate veteran. According to Scott, this caused him to focus on the fact that Hendley had failed to come to his defense during his confrontation with Terrell and he featured that in his statement. Among other things, Scott's statement, which is dated July 13, 1999, alleged that Terrell had called him a lying son of a bitch and that he responded in kind.
According to Scott, he took his statement to the Union office and Union representative Walter Truesdell suggested that he should file a grievance about the incident. A first step grievance filed on or about July 13, 1999, asserted that Lt. Hendley permitted Terrell's "disrespectful and demeaning treatment" of Scott and, as remedy, requested an apology from Hendley.
The July Grievance Meeting
On or about July 23, 1999, a meeting was held to discuss the July 13 grievance. Present at the meeting were Scott; Walter Truesdell; Arthur Pinckney, another Union representative; Hendley and Wilson. [n6] During the meeting, Wilson presented Scott with a copy of his July 13 statement and asked him whether he wanted to make any changes in the statement. Scott declined to do so and, according to Scott and Truesdell, Wilson repeated the question one or two more times during the meeting. At the hearing in this case, Wilson testified that he believed the July 13 statement was relevant to the grievance and, in addition, he had several concerns about Scott's honesty, trustworthiness and suitability to be a police officer.
Truesdell and Scott testified that at the grievance meeting, Hendley made a statement that he wouldn't believe anything that Scott said and would believe anyone other than Scott. [n7] Hendley and Wilson denied that the statement was made. Other than asserting that Hendley made the statement during the grievance meeting, neither Truesdell nor Scott provided much information on the specific details surrounding the remark. In his testimony, Truesdell described the remark as occurring in conjunction with Wilson presenting Scott with a copy of his statement and asking him if he wanted to change it. Truesdell testified that Wilson joined Hendley in making the alleged statement. [n8]
What emerges from the testimony of Scott, Hendley, Truesdell and Wilson, is that the issue of whether [ v58 p53 ] Scott's written statement of July 13 was true became the central focus of the grievance meeting. This is corroborated by Hendley's response denying the step one grievance which focused solely on the July 13 statement and stated that he found the statement "false in nature." Jt. Exh. 5. It is likely that during the grievance meeting, both Hendley and Wilson communicated the fact that they did not believe Scott. Moreover, it is evident that Hendley and Wilson generally did not trust Scott. Hendley's distrust of Scott was illustrated by his testimony at the hearing in this case that the two generally didn't communicate and attributed that to a history of Scott denying things he had told Scott. Wilson made quite clear in his testimony at the hearing that he viewed Scott as dishonest and untrustworthy. Hendley may not have expressed his sentiments about Scott's truthfulness as strongly as Scott and Truesdell assert and it is likely that during the step one grievance meeting it was Wilson who aggressively challenged Scott's truthfulness. Although they may be overstating what Hendley actually said, I credit Scott and Truesdell that during the grievance meeting both Hendley and Wilson communicated to Scott that they didn't believe Scott and generally doubted Scott's trustworthiness.
The Events of August 11
On August 11, Scott and Truesdell had a step two grievance meeting with Chief Roman-Lopez. On that day, Scott was working with Hendley as his "partner." Scott was scheduled to work overtime at the end of his shift; however, Scott confused the dates of his overtime assignment and failed to stay for the overtime assignment. At the hearing, Scott asserted that although Hendley saw him preparing to depart at the end of the shift, Hendley did not remind him that he was scheduled to stay and work overtime. Rather, according to Scott, Hendley called him later at home and informed him that he was supposed to have worked overtime.
Other Actions Relating to Scott's Grievance
Roman-Lopez denied Scott's grievance at step two and the Respondent's Chief Operating Officer denied the grievance at step three. During the course of the grievance, the Union requested information that it asserted was needed to pursue Scott's grievance and on August 30, 1999, filed an unfair labor practice charge alleging that the Respondent had failed to respond to the information request. On October 29, 1999, a complaint was issued on the August 30 charge.
The Disciplinary Action Against Scott
On or about November 8, 1999, Roman-Lopez issued a proposal to suspend Scott for 14 days. The proposed suspension was based on four charges all of which were labeled second offenses. The first charge was "use of physical aggression." It directly related to the trash-can incident and alleged that Scott had blocked Terrell's exit from Hendley's office. The second charge was "making a false statement to a management official." That charge, which also directly related to the trash-can incident, alleged that Scott made inconsistent statements about who blocked the door. The third charge was "submitting a false statement in connection with an official investigation." That charge was based on two "specifications." Specification 1 alleged that Scott's statement dated July 13 that Terrell called him a "lying son of a bitch" was not true. Specification 2 alleged that three times during the July 23 meeting, Scott maintained that the "lying son of a bitch" statement was true when it was not. The fourth charge was "absence without leave." That charge alleged that despite having advance notice of his August 11 overtime assignment, Scott had failed to report for duty or obtain approved leave.
On or about December 15, 1999, Mr. R.J. Vogel, the Respondent's Chief Executive Officer, notified Scott that he sustained the charges in the proposed suspension and decided to suspend Scott as proposed. Scott served the suspension during the first two weeks of January 2000.
Roman-Lopez testified that Scott's suspension was based on the existence of a number of infractions. According to Roman-Lopez's testimony at the hearing, he did not view the confrontation between Terrell and Scott standing alone as particularly serious but was more concerned about the alleged "false statements" by Scott. The only explanation that Roman-Lopez offered for the delay in instituting disciplinary action was that they were letting the incident between Scott and Terrell and the grievance play themselves out. Wilson, who testified that he advised Roman-Lopez on the issue, took a harsher view of the seriousness of the incident between Scott and Terrell. Wilson testified that the delay in instituting disciplinary action was due to his workload.
The 7116(a)(1) allegation
Insofar as the complaint alleges that the Respondent violated section 7116(a)(1) based on the alleged statements by Hendley and Wilson at the step one grievance meeting, I find that there is no evidence that Hendley told Scott that he was only attending the meeting because of protocol as the complaint alleges. As to [ v58 p54 ] Hendley's and Wilson's statements at the step one grievance meeting to the effect that they thought Scott was lying and would not believe anything he said, I do not find such statements violated the Statute as alleged.
The standard for determining whether a management statement violates section 7116(a)(1) is an objective one. E.g., Ogden Air Logistics Center, Hill Air Force Base, Utah, 34 FLRA 834, 837-38 (1990). The question is whether, under the circumstances, the statement could reasonably tend to coerce or intimidate an employee or whether an employee could reasonably have drawn a coercive inference from the statement. E.g., id. Although the circumstances surrounding the making of the statement are taken into consideration, the standard is not based on the subjective perceptions of an employee or an employer's intent. E.g., id.
It has been remarked that passions run high in labor disputes and accusations are commonplace. See, e.g., Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 731 (5th Cir. 1970). Grievance meetings "arising out of disputes between employer and employee are not calculated to create an aura of total peace and tranquility where compliments are exchanged." Id. By their very nature, grievance meetings require "a free and frank exchange of views" and "bruised sensibilities may be the price exacted for industrial peace." Id. At such meetings, parties serve as advocates for their respective positions and in the normal course of debate the veracity of one of the participants may be brought into question. Id.
The actions of Hendley and Wilson in expressing their distrust and disbelief of Scott occurred during the course of a grievance meeting. I find that their statements were relevant to the matter in dispute and under discussion, that is, Scott's confrontation with Terrell and Hendley's alleged failure to defend or assist Scott during that confrontation. In view of this context, even though their statements and conduct were bruising and arguably heavy-handed I do not find that they would reasonably tend to coerce or intimidate a bargaining unit employee.
The 7116(a)(1), (2) and (4) allegations
The General Counsel makes two arguments in support of his allegation that the suspension was motivated by Scott's protected activity. First, the General Counsel argues that Respondent violated section 7116(a)(1), (2), and (4) by suspending Scott based on his role in filing grievances and unfair labor practice charges. Second, the General Counsel argues that Respondent violated section 7116(a)(2) by basing the disciplinary action, in part, on statements that Scott made at a grievance meeting.
The Analytical Framework
The analytical framework that the Authority articulated in Letterkenny Army Depot, 35 FLRA 113 (1990) is relevant to the 7116(a)(1), (2) and (4) allegations in this case. Under that framework, the General Counsel must establish by a preponderance of the evidence that an employee against whom an alleged discriminatory action is taken was engaged in protected activity and that consideration of such protected activity was a motivating factor in connection with hiring, tenure, promotion and other conditions of employment. See, e.g., U.S. Department of the Air Force, 437th Airlift Wing, Air Mobility Command, Charleston Air Force Base, Charleston, South Carolina, 56 FLRA 950, 953 (2000); Department of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 55 FLRA 1201, 1205 (2000) (Warner Robins). Under Letterkenny, if the General Counsel makes such a prima facie showing, the respondent may seek to establish by a preponderance of the evidence that there was a legitimate justification for its action and the same action would have been taken even in the absence of the consideration of protected activity. See, e.g., Warner Robins, 55 FLRA at 1205. Assuming that the General Counsel makes a prima facie showing, the agency's defense requires establishment of both elements of the affirmative defense set out in Letterkenny. National Federation of Federal Employees, Local 11 and U.S. Department of the Air Force, Fairchild Air Force Base, Washington, 53 FLRA 1747, 1755 (1998) (Fairchild Air Force Base). The Letterkenny framework applies for resolving complaints of discrimination under section 7116(a)(4) of the Statute. See, e.g., Warner Robins, 55 FLRA at 1205.
The Authority has held that although closeness in time between an agency's employment decision and protected activity may support an inference of illegal motivation, it is not conclusive proof of a violation. See, e.g., id.
The General Counsel's First Argument
The evidence in this case establishes that Scott was engaged in protected activity and that the Respondent had knowledge of that activity. In support of his first argument, the General Counsel asserts that the timing of the disciplinary action and severity of the penalty imposed support a finding that the disciplinary action as a whole was motivated by Scott's protected activity. Also, the General Counsel asserts that this is demonstrated [ v58 p55 ] by the fact that the Respondent did not initiate any investigation of Scott until after he filed a grievance.
Roman-Lopez testified that he did not contemplate taking disciplinary action against Scott when he requested that a statement regarding the June 24 incident be obtained from Scott. During cross examination, Roman-Lopez agreed that at that stage, he did not contemplate "any kind of investigation." Tr. 148. Although Roman-Lopez may not have labeled it as such, I find that the Respondent's actions in collecting witness statements regarding the June 24 incident can be fairly characterized as an investigation. Consequently, I find that, in fact, the Respondent began investigating the incident involving Scott and Terrell prior to the point at which Scott filed a grievance.
Although Roman-Lopez acknowledged that he did not view the confrontation between Terrell and Roman-Lopez as very serious, he stated that he was concerned about issues of truthfulness and false statements that were connected with it. The discrepancies between Scott's July 13 statement and those of other witnesses fit within that concern and occurred simultaneously with the filing of Scott's grievance. As to the alleged AWOL incident, it occurred while Scott's grievance was pending. Thus, the events underlying the disciplinary action paralleled Scott's grievance and the information request underlying the unfair labor practice charge and complaint in terms of time. Any relationship in time between the disciplinary action, on the one hand, and Scott's grievance and the related unfair labor practice charge and complaint, on the other, can be attributed to the simple fact that they had underlying events in common.
I do not view Roman-Lopez's statement that the delay in proposing the disciplinary action against Scott was to allow the incident with Terrell and Scott's grievance to play out as showing that the grievance was a motivating factor in the decision to take disciplinary action. Although the statement is cryptic and open to interpretation, I find that without more it does not show a retaliatory motive for the disciplinary action.
I find that the timing of the disciplinary action relative to Scott's protected activity by itself does not support an inference that the disciplinary action was motivated by Scott's protected activity and there is no additional evidence that would make the timing suspect. In particular, there is no evidence that Scott was a Union leader or prominent activist. Rather, it appears that his Union activity was limited to filing grievances under the negotiated grievance procedure. The unfair labor practice charge that was filed relating to his July 13 grievance was actually filed by the Union and concerned a failure to provide information requested by the Union in conjunction with Scott's grievance. There is no evidence that Scott played any role in the investigation of the unfair labor practice charge. Rather, the only apparent relationship that Scott had to that charge was that the information request that formed the basis for the charge related to his grievance. It is also apparent that relations between Scott and his supervisors were strained prior to the Union activity that the General Counsel cites as motivating the 14-day suspension. Specifically, the record reveals that earlier in the year, Scott had been given both a written counseling and a reprimand. Also, as described above, it appears that Hendley did not trust Scott. Scott, for his part, testified that working for Hendley was "intimidating at all times." Tr. 41.
As to the severity of the discipline, the General Counsel asserts that it was excessive relative to the infractions for which it was imposed. The disciplinary action was based on a number of alleged infractions, all of which were identified as second offenses. The General Counsel offered no evidence to support his contention that the penalty was excessive. [n9] The evidence does not support a finding that the severity of the discipline imposed on Scott demonstrates that the disciplinary action was motivated by his Union activity.
The evidence does not support finding that Scott's grievance and the unfair labor practice charge and complaint were a motivating factor for the disciplinary action. Consequently, I reject the General Counsel's first argument in support of the alleged violation. I find, however, that the General Counsel's second argument has merit.
The General Counsel's Second Argument
It is well established that an employee's right to file and process grievances under the negotiated grievance procedure is protected activity within the meaning of section 7102 of the Statute. E.g., Equal Employment Opportunity Commission, 24 FLRA 851, 855 (1986), aff'd mem sub nom. Martinez v. FLRA, 833 F.2d 1051 (D.C. Cir. 1987). It follows that an employee's participation in the presentation of a grievance is also protected. See Department of Defense, Defense Mapping [ v58 p56 ] Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 80 (1985) (DMA, St. Louis). Cf. United States Postal Service v. NLRB, 652 F.2d 409, 411-12 (5th Cir. 1981) (U.S. Postal Service) (employee participation in informal grievance meeting is protected by section 7 of National Labor Relations Act (NLRA)). Thus, Scott's participation in the grievance meeting on July 13, 1999, was protected activity.
As a general matter, an employer has the right to discipline an employee who is engaged in otherwise protected activity for action that exceeds the boundaries of protected activity such as flagrant misconduct. See U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212, 215 (1995). Only those remarks or actions that are of such outrageous and insubordinate nature so as to remove them from the protection of the Statute constitute flagrant misconduct. See, e.g., id.
As is the case with other protected activity, conduct associated with filing grievances is not absolutely protected and may under certain circumstances lose its protection. See DMA, St. Louis, 17 FLRA 71. Cf., e.g., United Parcel Service of Ohio, 305 NLRB 433, 434 (1991) (UPS of Ohio) (under the NLRA, this principle is also applied). In this regard, an employee's rights to file and pursue grievances must be balanced against an agency's right to maintain discipline. See DMA, St. Louis. Cf., e.g., U.S. Postal Service, 652 F.2d at 411 (this principle is also applied under NLRA).
Allowing management to subject an employee to discipline because it feels the employee made statements during a grievance meeting that were untrue would inhibit employees and Unions in pursuing their rights to file and process grievances. See Veterans Administration Regional Office, Denver, Colorado, 2 FLRA 668, 675 (1980). Cf. Graphic Communications International Union, Local 388M (Georgia Pacific), 300 NLRB 1071, 1072 (1990) (GCIU) (it is essential to the integrity of the grievance and arbitration process that witnesses feel free to testify before an arbitrator without fear of reprisal from either the employer or union). The need to protect the integrity of the grievance and arbitration process from damage that false testimony may inflict is also a legitimate concern. See Big Three Industrial Gas & Equipment Co., 212 NLRB 800 (1974), enf'd, 512 F.2d 1404 (5th Cir. 1975) (Big Three Industrial Gas).
NLRB decisions indicate that an employee's protection under the NLRA is not removed because statements made by an employee during the course of processing a grievance are inaccurate. See Clara Barton Terrace Convalescent Center, 225 NLRB 1028, 1034 (1976). See also Roadmaster Corp., 288 NLRB 1195, 1197 (1988) (in addressing employer's claim that an employee allegedly falsified grievance forms, the NLRB found that because the employee's actions were not intended to deceive the employer, and were not extraordinary, obnoxious, or wholly unjustified, they did not lose their protection under the NLRA). The NLRB has indicated, however, that conduct associated with the filing of grievances can lose its protection if a false claim is made in bad faith. See UPS of Ohio, 305 NLRB at 434 (1991). Review of NLRA precedent indicates that to establish that conduct that occurs in the context of the processing of grievances and constitutes an alleged falsehood is not protected under the NLRA, an employer must show bad faith on the part of the employee. That is, the employer must show that the employee engaged in a deliberate and conscious deception. Cf. GCIU, 300 NLRB at 1073 and Big Three Industrial Gas (insofar as giving false testimony at an NLRB or arbitration proceeding, the NLRB has adopted a standard that an employer or union must establish perjury in order to lawfully discipline and employee or member for doing so).
When there are comparable provisions under the Statute and the NLRA, decisions of the NLRB and the courts interpreting the NLRA have a high degree of relevance to similar circumstances under the Statute. E.g., American Federation of Government Employees, National Council of HUD Locals 222 and U.S. Department of Housing and Urban Development, 54 FLRA 1267 (1998). Both the NLRA and the Statute contain provisions that protect employee activity in filing and processing grievances. Consequently, the principles that pertain to allegedly false statements made in the context of grievance proceedings that are applied under the NLRA are relevant under the Statute.
Under Authority precedent, in order for an agency lawfully to discipline an employee for conduct that occurs in the course of processing a grievance, the employee's action must amount to flagrant misconduct. See DMA, St. Louis, 17 FLRA 71. Following the principles applied under the NLRA, I find that with respect to an allegedly false statement made in the course of processing a grievance, generally, an agency must show that the statement was a deliberate, conscious deception on the part of the employee in order to constitute flagrant misconduct.
Scott's participation at the July grievance meeting, including his affirmation of his earlier statement that Terrell called him a lying son of a bitch, was protected [ v58 p57 ] activity. In this regard, Scott's claims with respect to Terrell's treatment of him during the June 23 confrontation related to the grievance, which asserted that Hendley failed to assist Scott in the face of "disrespectful and demeaning" treatment by Terrell. Moreover, Wilson acknowledged at the hearing that his questioning of Scott about Scott's statement was related to the grievance. The fact that the proposal for disciplinary action suggests that Scott's action on July 23 in affirming his earlier statement occurred in the context of an official investigation does not remove his action from the protection of the Statute. Rather, I find that although Wilson may have used the grievance meeting as a vehicle to "investigate" Scott's trustworthiness, it remained a grievance meeting insofar as Scott's rights and protections under the Statute are concerned.
As discussed above, I find that Scott's statement that Terrell called him a lying son of a bitch did not amount to a deliberate, conscious deception. I further find that Scott did not engage in flagrant misconduct at the July grievance meeting when he declined to disavow his earlier statement to that effect. Because the suspension issued to Scott was based on Scott's conduct at the July grievance meeting, the disciplinary action was motivated by Scott's protected activity. Applying the Letterkenny framework, I find that the General Counsel has made a prima facie showing that Scott's protected activity was a motivating factor in the disciplinary action taken against him.
The question then becomes whether the Respondent has established by a preponderance of the evidence that there was a legitimate justification for its action and the same action would have been taken even in the absence of the consideration of protected activity. As discussed above, to successfully defend against the General Counsel's showing, the Respondent must satisfy both elements of the affirmative defense set out in Letterkenny. Fairchild Air Force Base, 53 FLRA at 1755. That is, the Respondent must establish that (1) there was a legitimate justification for its action and (2) the same action would have been taken even in the absence of the consideration of protected activity.
Respondent argues that even assuming that one of the charges on which the disciplinary action was based involved Scott's protected activity, the other three were not. Consequently, the Respondent asserts that disciplinary action must be allowed to stand. The Respondent may have imposed some form of discipline even if the charge relating to Scott's conduct at the July grievance meeting was eliminated from the alleged infractions. The Respondent, however, did not submit any evidence to show what form of discipline would have been imposed if that charge were disregarded.
Testimony by the officials who proposed (Roman-Lopez) and decided on (Vogel) the disciplinary action indicates that it was based on the series or variety of incidents or infractions identified in the proposal. Nothing in their testimony indicates that specification 2 of charge 3 had no effect on the determination of what type of disciplinary action was taken. I find that the Respondent has not shown by a preponderance of the evidence that the same action, i.e., a 14-day suspension, would have been taken in the absence of the charge and specification that were based on Scott's protected activity. Consequently, the Respondent has not satisfied the elements necessary to successfully defend against the General Counsel's prima facie showing that Scott's protected activity was a motivating factor in the 14-day suspension that was imposed on him. See Fairchild Air Force Base.
Accordingly, I find that the Respondent violated section 7116(a)(1) and (2) when it imposed discipline on Johnny Scott based on conduct that occurred when he was engaged in protected activity. I find that the Respondent did not violate section 7116(a)(4) as alleged. I further find that the Respondent did not violate section 7116(a)(1) based on the alleged statements made by Hendley and Wilson during the July grievance meeting.
As remedy, I recommend that the Respondent be ordered to rescind the 14-day suspension imposed on Johnny Scott on or about December 15, 1999, and make Scott whole for all losses he incurred as a result of the 14-day suspension. In recommending this remedy, I note that the Respondent has not provided any evidence that would show what type of discipline it would have imposed in the absence of specification 2 of charge 3. Thus, I have no basis for recommending what, if any, form of discipline should be allowed to stand. [n10] Cf. Fairchild Air Force Base (Authority upheld an arbitrator's award that set aside a 14-day suspension that had been imposed for three acts of misconduct, only two of which involved protected activity).
It is therefore recommended that the Authority adopt the following order: [ v58 p58 ]
Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, shall:
1. Cease and desist from:
(a) Discriminating against Johnny Scott, or any other employee, because of the exercise of protected rights assured them by section 7102 of the Statute.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Rescind the 14-day suspension imposed on Johnny Scott by decision dated December 15, 1999, for which a motivating factor was conduct that occurred while he was engaged in activity protected by the Statute. Expunge from all personnel files and documents any references to the 14-day suspension.
(b) Make Johnny Scott whole for all loss of pay and any other right, privilege or benefit lost due to the 14-day suspension imposed on him by decision dated December 15, 1999.
(c) Post at its facilities at Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, where bargaining-unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, in writing, within 30 days of this Order, as to what steps have been taken to comply.
IT IS FURTHER ORDERED that the allegations in the complaint that the Respondent violated section 7116(a)(1) by statements made to Scott by representatives of the Respondent at the step one grievance meeting and section 7116(a)(4) be, and they are, hereby dismissed.
Issued, Washington, DC, July 18, 2001.
Chief Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discriminate against Johnny Scott, or any other employee, because of their exercise of protected rights assured them by section 7102 of the Federal Service Labor-Management Relations Statute.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL rescind the 14-day suspension imposed on Johnny Scott by decision dated December 15, 1999, for which a motivating factor was conduct that occurred while he was engaged in activity that was protected by the Federal Service Labor-Management Relations Statute. WE WILL expunge from all personnel files and documents any references to that 14-day suspension.
WE WILL make Johnny Scott whole for all loss of pay and any other right, privilege or benefit lost due to the 14-day suspension imposed on him by decision dated December 15, 1999.
Date: __________ By:__________________________
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Marquis Two Tower, 285 Peachtree Center Avenue, Suite 701, Atlanta, GA 30303-1270, and whose telephone number is: (404) 331-5212.
File 1: Authority's Decision in 58 FLRA No. 11
File 2: ALJ's Decision
Footnote # 1 for 58 FLRA No. 11 - ALJ's Decision
Cf. F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 155 (1996) (in upholding my exclusion of the testimony of a rebuttal witness that the respondent sought to call, in violation of a sequestration order, the Authority cited among the circumstances supporting that exclusion the fact that I did not rely on the testimony that the witness was intended to rebut).
Footnote # 2 for 58 FLRA No. 11 - ALJ's Decision
Footnote # 3 for 58 FLRA No. 11 - ALJ's Decision
Footnote # 4 for 58 FLRA No. 11 - ALJ's Decision
On direct examination, when asked how he responded, Scott testified that he didn't move and no one said anything. On cross- examination, Scott testified that he replied that if there was a lying son of a bitch, it was Terrell. When I raised this apparent discrepancy with Scott at the hearing, he responded that he might have misunderstood the question during direct examination.
Footnote # 5 for 58 FLRA No. 11 - ALJ's Decision
Footnote # 6 for 58 FLRA No. 11 - ALJ's Decision
Footnote # 7 for 58 FLRA No. 11 - ALJ's Decision
The complaint in this case also alleges that Hendley stated that he was only attending the meeting because of protocol. No evidence was submitted at the hearing to support this particular allegation. In fact, Scott testified that he did not recall Hendley saying that. Tr. 54.
Footnote # 8 for 58 FLRA No. 11 - ALJ's Decision
Truesdell also testified that Chief Roman-Lopez made a virtually identical statement to Scott at the step 2 grievance meeting. The complaint in this case, however, encompassed only the allegation that Hendley made the statement.
Footnote # 9 for 58 FLRA No. 11 - ALJ's Decision
Although Scott and the General Counsel argue that Hendley deserved some blame for Scott's failure to report for his overtime assignment on August 11, I find that the responsibility for reporting for his overtime assignment rested with Scott not with Hendley. Hendley's failure to remind Scott that he was scheduled to work overtime does not support a finding that disciplining Scott for AWOL was unwarranted.
Footnote # 10 for 58 FLRA No. 11 - ALJ's Decision