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60 FLRA No. 50
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
September 13, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator William P. Murphy filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.
For the reasons that follow, we find that the award is contrary to law and we modify it.
II. Background and Arbitrator's Award
The grievant, a seasonal customer service representative, was issued a memorandum regarding unauthorized visitors on April 27, 2001. Award at 2. On April 30, the Union filed a grievance on the grievant's behalf protesting a portion of the memorandum. Shortly thereafter, on May 7, the supervisor directed the grievant to meet in her office to discuss the April 27 memo. Upon entering her office, the supervisor directed the grievant to sit, which he refused to do by noting that he had a bad back. Id. at 8. The supervisor also notified the grievant that she wished to have a counseling session pertaining to the memo's circulation. Id. at 5-6, 8. At this point, the grievant asserted that he wanted a Union representative present and, shortly thereafter, he left the meeting without permission. Id. at 8.
Subsequently, the grievant was notified by the Agency that, as relevant here, he had allegedly engaged in four counts of misconduct. Award at 3-4. Based on these allegations the grievant was given a ten-day suspension by the Agency, which was reduced to five days after review in the internal grievance process. The grievant appealed this five-day suspension to arbitration.
At the hearing, the Arbitrator stated that the issue presented was:
The issue in this case is whether the 5-day suspension of [the] grievant . . . was "for such cause as will promote the efficiency of the Service," as required by Article 38, Section 1, C of the National Agreement between the parties.
Award at 2.
In resolving this issue, the Arbitrator determined that the disputed discipline was based entirely on the grievant's conduct during the May 7 meeting. Based on the record, the Arbitrator determined that the grievant's behavior during the May 7 meeting was "rude" but was not threatening or disruptive. [n2] See Award at 7-10. As the only "valid" charge in the suspension, according to the Arbitrator, was that the grievant was rude, the Arbitrator found that under the Agency's penalty guidelines, the grievant should have received an admonishment as opposed to a suspension. Accordingly, the Arbitrator reduced the grievant's penalty to an admonishment. Id. at 10.
III. Positions of the Parties
A. Union's Exception
The Union argues that during the course of the May 7 meeting, the grievant became engaged in protected activity when he requested a Union representative pursuant to § 7114(a)(2)(A) or (B) and that "[a] discussion regarding the subject matter of a grievance is a `formal meeting[.]'" Exception at 7. It further contends that the Agency discriminated against the grievant by disciplining him based on this protected activity. Id. at 6 (citing Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny)). As such, it asserts that the Arbitrator's [ v60 p231 ] award is contrary to law because the Agency could only discipline the grievant if the grievant engaged in "flagrant misconduct." Id. at 8 (citing Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7 (1995)).
B. Agency's Opposition
The Agency argues that the grievant was not denied Union representation during the May 7 meeting. Opposition at 5. It contends that "no examination took place since [the] [g]rievant did not remain in his manager's office long enough for the meeting . . . to take place." Id. at 6. In any event, the Agency argues that its discipline of the grievant was not based on anti-union animus, but rather merely on his conduct. Id. at 6, 7.
IV. Analysis and Conclusions
The Arbitrator's Decision is Contrary to Law
When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).
The Union argues that the grievant was engaged in protected activity during the meeting with his supervisor, and, as such, that his decision to leave the meeting, even if rude, was not sufficient to warrant discipline. For the following reasons we agree and modify the award to render it consistent with the law.
In cases alleging discrimination, the Authority applies the framework in Letterkenny, 35 FLRA at 118. Under that framework, the party making such an assertion establishes a prima facie case of discrimination by demonstrating that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee. Once the prima facie showing is made, an agency may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of the protected activity. When the alleged discrimination concerns discipline solely for conduct that occurs during protected activity, a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity. United States Dep't of the Air Force, Aerospace Maintenance and Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003) (Monthan Air Force Base). "[I]t is not legitimate for an agency to discipline [solely] for conduct occurring during the course of protected activity that [does not exceed the boundaries of protected activities]." Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 53 FLRA 1500, 1516 (1998) (Prisons). Under the Letterkenny framework, the agency has the burden of establishing its affirmative defense by a preponderance of the evidence. [n3]
Applying the foregoing we note that the Arbitrator determined that the grievant's supervisor called the grievant into her office May 7 "for a counseling session on the circulation of [the] memo" and that "circulation was the basis of [the grievant's] grievance[.]" Award at 5-6. Consistent with this finding, the May 7 meeting stemmed from and was premised upon the grievant's decision to file a grievance over the circulation of this memo. The Authority has previously found that pursuing a grievance, whether it be filing the grievance or attending grievance meetings, constitutes protected activity under 5 U.S.C. § 7102. See, e.g., Monthan Air Force Base, 58 FLRA at 636 (upholding Judge's decision finding that employee participating in a grievance meeting was engaged in protected activity.) Therefore, the Arbitrator's factual findings support a conclusion that the grievant was engaged in protected activity during the May 7 meeting. [ v60 p232 ]
Moreover, the record clearly reflects that the disputed discipline was "based on [the grievant's] conduct at the May 7" meeting, and, as such, that this protected activity was a motivating factor for the discipline. Award at 5. As the discipline was based on conduct occurring during protected activity, the grievant has established a prima facie case of discrimination under Letterkenny. See Prisons, 53 FLRA at 1516 ("it is not legitimate for an agency to discipline for conduct occurring during the course of protected activity that is not flagrant misconduct").
In these circumstances, the grievant's conduct is subject to discipline only if it exceeded the bounds of protected activity. Monthan Air Force Base, 58 FLRA at 636. Here, the Arbitrator found and there is no dispute that the grievant was merely "rude." Award at 10. This conduct is almost identical to the conduct in dispute in Monthan Air Force Base, where an employee's act of leaving a grievance meeting without permission did not exceed the bounds of protected activity. Id. Accordingly, consistent with Monthan Air Force Base, the grievant's conduct in this matter does not exceed the bounds of protected activity.
Based on the foregoing, we find that the Arbitrator's decision to uphold the Agency's discriminatory discipline is contrary to law, and we will modify it.
The award is modified to direct the Agency to rescind the grievant's admonishment and make the grievant whole.
File 1: Authority's Decision in 60
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 60 FLRA No. 50 - Authority's Decision
Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.
Footnote # 2 for 60 FLRA No. 50 - Authority's Decision
The Agency had contended that the grievant waved his finger at his supervisor prior to leaving and that this gesture was threatening. However, the Arbitrator determined that even if such finger pointing occurred, it was probably done to emphasize a point, and not in a threatening manner. Id. at 7.
Footnote # 3 for 60 FLRA No. 50 - Authority's Decision
In cases where discipline is based solely on conduct that occurs during protected activity, this framework recognizes that the second element of the prima facie case (discipline was motivated by protected activity) is inherently satisfied and the second element of the affirmative defense (respondent would have taken same action in the absence of protected activity) is inherently inapplicable. This is because, when a respondent takes an action based solely on conduct that occurs during protected activity, it is obvious that the respondent was motivated by the activity and could not have taken the action in the absence of it. This does not mean that the framework is being applied improperly or needs modification. Instead, it simply recognizes that, as with other multi-part tests, only those parts that apply need be evaluated. See, e.g., United States Dep't of Justice, Immigration and Naturalization Serv., 55 FLRA 892, 901-02 (1999) (Member Cabaniss dissenting on other grounds) (agency's affirmative defense that it was not obligated to bargain because union proposal was nonnegotiable does not apply where agency did not provide sufficient opportunity to bargain); see also Letterkenny, 35 FLRA at 120 (in a pretext case, where the "motive asserted by a respondent to be lawful is found to be unlawful[,]" it is not necessary to determine whether respondent would have taken same action absent unlawful motive).