LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
UNITED STATES CAPITOL
v. Case No. LMR-CA-0037
Date: June 11, 2002
FRATERNAL ORDER OF POLICE,
UNITED STATES CAPITOL
POLICE LABOR COMMITTEE
Before the Board of Directors: Susan S. Robfogel,
Chair; Barbara L. Camens, Alan V. Friedman; Roberta L. Holzwarth;
Barbara Childs Wallace, Members.
DECISION AND REMAND ORDER OF THE
BOARD OF DIRECTORS
I. Statement of the Case
This unfair labor practice case is before the
Board on exceptions to the attached Hearing Officer's Decision filed
by the General Counsel. The Respondent filed an opposition to the
exceptions. The central issue is whether the Respondent violated
the Congressional Accountability Act (1)
("the Statute") by suspending a bargaining unit employee for five
days because he successfully had grieved an earlier disciplinary
action. While we adopt the Hearing Officer's factual findings as
summarized below, we disagree with his interpretation and application
of the controlling evidentiary burdens. Accordingly, we shall remand
the matter to the hearing officer for such further proceedings as
is directed in this decision.
II. Hearing Officer's Decision
A. Discrimination Issue
In June 2000, on-duty Capitol Police Officers,
Franklin Jones and Leon Myers, engaged in a brief verbal and physical
confrontation at the entrance of the Russell Senate Office Building,
Jones' post of duty. Whereupon, the Lieutenant William Perkins,
acting on behalf of the Command Staff, directed Sergeants Thomas
Finkle and David Miller to investigate the incident. During the
several day investigation Lieutenant Perkins individually approached
Sergeants Finkle and Miller and told them in plain terms that Officer
Jones previously had evaded discipline through the negotiated grievance
process [in 1999] and he should not "get away with [the current]
one". Lieutenant Perkins attempted to show the investigators documentation
from Officer Jones' prior disciplinary case, that had been resolved
by his 1999 grievance, but they refused to view it.
Once Sergeants Finkle and Miller completed their
report of investigation, they submitted it to their supervisor,
Lieutenant Perkins, for his review. Their draft report concluded
that Officer Jones and Detective Myers each claimed that the other
had initiated the physical contact and that they had acted in self-defense;
that Detective Myers struck Officer Jones on the chin with a closed
fist; and that there was sufficient evidence to sustain the charge
of Conduct Unbecoming against both Myers and Jones. Lieutenant Perkins
marked up the draft report to add an additional charge only against
Jones, Neglect of Duty. (2) Sergeants
Finkle and Miller disagreed with the change and removed Perkins'
entry. Perkins signed off on the original report and it was sent
forward to the Command Staff. At that point the Internal Affairs
Division ("IAD") conducted an additional investigation and administered
a polygraph examination to Jones and Myers to assess responsibility
for the initiation of the affray. The polygraph results disclosed
deception on the part of both examinees. Consequently, IAD issued
its report recommending that one allegation of Conduct Unbecoming
be sustained against both Jones and Myers.
In February 2001, separate internal Disciplinary
Review Boards ("DRB") were conducted into the charges that Jones
and Myers had engaged in conduct unbecoming an officer. Inspector
Larry Thompson was Presiding Officer at both hearings, but the other
four Board members were not the same individuals at both hearings.
(3) While each case was prosecuted by Respondent's attorney
Benjamin, Jones and Myers were represented by different counsel
and the Hearing Officer concluded "there was also some differences
between the two hearings as to the witnesses called and evidence
Officer Jones's case was heard first and that
DRB found him guilty by a vote of 3-2. He was assessed a five day
suspension. Officer Myers' DRB found him not guilty.
Presiding Officer Thompson testified that neither
DRB considered testimony or documents provided by Lieutenant Perkins
and that he had no communication with Perkins concerning the matters
before the DRB's. (6)
The Hearing Officer analyzed the discrimination
issue by employing the Federal Labor Relations Authority precedent
for mixed motive (7) employment actions. Letterkenny
Army Depot, 35 FLRA 113 (1990). While the Hearing Officer found
that Officer Jones had engaged in protected activity in filing an
earlier grievance, he concluded that the record contained insufficient
evidence to demonstrate that Jones' protected activity was a motivating
factor for his five-day suspension imposed by the DRB. The Hearing
Officer emphasized that the record did not affirmatively establish
that Lieutenant Perkins had communicated his animus against Jones
to the DRB members, and he was not disposed to infer that the DRB
possessed or acted upon that knowledge or animus. The Hearing Officer
also declined to infer discrimination based upon the disparity of
treatment between Jones and Myers, by finding "[T]he different conclusions
of the two DRBs are more readily explained by the variables that
existed in the two cases than by an inference of improper motivation."
B. Coercive Statement Issue
Paragraph 13 of the Third Amended Complaint alleges
that Lieutenant Perkins had conversations with Sergeants Finkle
and Miller (9) during which Perkins sought to
target Officer Jones for disciplinary action because of Jones' earlier
successful grievance. In addition, the General Counsel introduced
hearing testimony of bargaining unit employee Officer Lucas that
Sergeants Finkle and Miller later informed him of Perkins' attempts
to influence their investigation into Jones' conduct.
(10) The General Counsel did not allege this conversation with
the bargaining unit employee in any complaint, nor did he submit
it was in issue at any time during the hearing. The General Counsel
first raised that allegation of an independent violation in his
The Hearing Officer declined to decide the lawfulness
of the conversation between the Sergeants and Officer Lucas because
it was neither alleged in the complaint nor raised at the hearing
so as to inform Respondent that it was an issue, and the underlying
facts were not fully litigated at the hearing.
III. Positions of the Parties
The General Counsel contends that the Hearing
Officer erred by not determining that he had made out a prima
facie case of discrimination under Letterkenny, supra.
The General Counsel further contends that after he demonstrated
that Lieutenant Perkins, a management operative in the disciplinary
process, bore an unlawful animus against Officer Jones, it was not
incumbent upon him to prove with direct evidence that Perkins had
expressed his animus to officials operating at later stages of the
disciplinary process. Finally, the General Counsel argues that the
unalleged coercive statement should be considered on its merits
because the complaint provided the Respondent with adequate notice
of the "matters of fact and law asserted".
The Respondent advocates the inferences and conclusions
of the Hearing Officer. Respondent submits that Lieutenant Perkins
was unsuccessful in prejudicing the investigation of Sergeants Finkle
and Miller against Jones, and that the record does not disclose
that the DRB's were aware of Perkins' animus or of Jones' prior
grievance. Respondent argues that the coercive statement issue was
not alleged in any of the complaints, nor was it raised or litigated
at the hearing. Respondent submits that it was taken by surprise
when the General Counsel surfaced the allegation in his post-hearing
brief and that had it been apprised earlier it would have prepared
a focused defense and examination for witnesses Lucas, Finkle and
IV. Analysis and Conclusions
A. Evidentiary Burdens
Under Wright Line, 251 NLRB 1083 (1980), enforced,
662 F.2d 899 (1st Cir. 1981), cert denied, 455 U.S. 989
(1982), approved by the Supreme Court in NLRB v. Transportation
Management Corporation., 462 U.S. 393, 402-03 (1983), the NLRB required
its General Counsel to "make a prima facie showing sufficient
to support the inference that protected [i.e. union-related] conduct
was a motivating factor in the employer's decision" to take adverse
action. Wright Line, 251 NLRB at 1089. The Courts have been critical
of that prima facie case formulation, borrowed from civil
rights Title VII discrimination law, and instead have indicated
that the General Counsel's burden is to prove by a preponderance
of the evidence that anti-union animus was a substantial motivation
or factor in an employer's decision to discipline an employee. Director,
Office of Workers' Compensation v. Greenwich Collieries, 512
U.S. 267 (1994); Valmont Industries, Inc. v. National Labor
Relations Board, 244 F.3d 454 (5th Cir. 2001); Sheehan,
et al. v. Department of the Navy, 240 F.3d 1009 (Fed. Cir.
2001); NLRB v. CWI of Maryland, 127 F.3d 319 (4th Cir.
1997); Southwest Merchandising Corp. v. NLRB, 53 F.3d 1334
(D.C. Cir. 1995); and Holo-Krome Co. v. NLRB, 954 F.2d
108 (2d Cir. 1992).
The Federal Labor Relations Authority adopted
the Wright Line doctrine. Letterkenny Army Depot, 35 FLRA 113 (1990).
We now do so, but, in accord with the aforementioned judicial precedent,
we prescribe a preponderance of evidence standard for the General
Counsel to establish a rebuttable presumption of discrimination
in mixed motive cases arising under 5 U.S.C. §7116(a)(1) &
(2), as applied by section 220(a) of the Congressional Accountability
Act, 2 U.S.C. §1351(a). If the General Counsel succeeds in
that showing, the burden of persuasion then shifts to the employer
to rebut the presumption by establishing, through a preponderance
of the evidence, that it would have taken the same action even absent
the employee's protected activity.
B. Respondent's Discipline of Officer
A supervisor's statement displaying animus towards
an employee for engaging in protected activity may establish that
a disciplinary action was motivated in part by that protected activity.
This is particularly true where the declarant supervisor had any
role in the complained of action. Tic-The Industrial Company Southeast,
Inc. v. National Labor Relations Board, 126 F.3d 334, 338 (D.C.
Cir. 1997); Tualatin Elec. Inc., 319 NLRB 1237, 1239 (1995); and
Ultrasystems W. Constructors, Inc., 310 NLRB 545 (1993). The Federal
Labor Relations Authority has found prior protected activity to
have at least partially motivated a complained of action where an
involved supervisor made comments connecting the action with the
protected activity. U.S. Department of Agriculture, U.S. Forest
Service, 49 FLRA 1020, 1024, 1032-33 (1994); Department of the Air
Force, Ogden Air Logistics Center, 35 FLRA 891, 900 (1990); and
March Air Force Base, 27 FLRA 279, 283-85 (1987).
The Hearing Officer found that Lieutenant Perkins
urged his investigating subordinates to make a tight case against
Officer Jones because Jones the year previously had escaped discipline
by filing a successful grievance. Perkins also engaged in an unsuccessful
attempt to add a charge of "neglect of duty" solely against Jones.
Significantly, Perkins did not address his attention toward Detective
Myers, who, according to the investigation reports and the hearing
testimony of high Respondent officials Thompson and Ruhan, was just
as guilty of misconduct as was Jones. The only apparent distinction
between those individuals' circumstances was Jones' protected prior
Our unease with the Hearing Officer's analysis
concerns his apportionment of the burdens of persuasion in this
matter. Had the Hearing Officer found that the General Counsel established
that Jones' suspension was partially motivated by his protected
activity, under Letterkenny, the burden of persuasion would have
shifted to the Respondent to prove, by a preponderance of the evidence,
that it would have suspended Jones irrespective of his protected
activity. We believe that the Hearing Officer misapplied Letterkenny
to his findings of fact in not concluding that the General Counsel
had proved, by a preponderance of the evidence, that Respondent's
discipline of Jones was at least partially motivated by his prior
In this case, there is evidence of animus coupled
with that of disparate treatment. Lieutenant Perkins, a high ranking
official of Respondent, wanted to treat Jones more severely than
Myers because Jones had exercised his statutorily protected grievance
rights. Perkins attempted to influence the investigatory process
to that goal. In the end, Jones was disciplined and Myers was not.
This case is made more difficult by the fact that the discipline
of Jones and Myers was not ultimately determined by Perkins or his
own superiors but by the DRB's. Neither party, nor our own research,
disclosed precedent addressing the application of Wright Line or
Letterkenny in such circumstances.
The Hearing Officer's approach to the problem
was to require direct evidence linking the animus to the disparate
treatment, e.g., that Perkins actually influenced the DRB's to treat
Jones more harshly than Myers, to prove practical motivation on
account of protected activity. Such direct evidence is virtually
never available in discrimination cases and, therefore, the Wright
Line/Letterkenny paradigm provides for such proof through circumstantial
evidence. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466 (9th Cir. 1966); Montgomery Ward & Co., 316 NLRB
1248 (1995), enf'd 97 F.3d 1448 (4th Cir. 1996). Knowledge of protected
activity by the employer's disciplinary decision-makers may be inferred
from such factors as: (1) the timing of the alleged discriminatory
action; (2) the respondent's general knowledge of union activities;
(3) respondent's animus; and (4) disparate treatment. Id.
While the fact finder may not mechanically impute the knowledge
of a lower-level supervisor to the decision-making supervisor, adequate
circumstantial evidence does permit such conclusions. Poly-America,
Inc. v. NLRB, 260 F.3d 465, at 490 (5th Cir. 2001).
In our view, the evidence of Perkins' animus
and the disparity in the discipline imposed upon Jones and Myers
warrants a finding that the General Counsel met its burden of establishing
by a preponderance of the evidence that Jones' prior protected activity
was a substantial motivation or factor in Respondent's decision
to discipline him. Further, the record does not allow us to modify
that view based on the role played by the DRB's. While the DRB's
operate as an administrative tribunal in Respondent's disciplinary
matters, they are comprised of members of Respondent's workforce.
We cannot discern from the record the extent to which the DRB's
act independently of the Respondent's command staff. Therefore,
we find that the role of the DRB's is best considered as part of
Respondent's burden of establishing, by a preponderance of the evidence,
that it would have reached the same result irrespective of Jones'
prior grievance activity. (11) Viewing Respondent's
demonstrated animus in concert with the Respondent's disparate treatment
of Jones and Myers warrants, in our view, that the Respondent bear
the burden of persuasion, by a preponderance of the evidence, of
demonstrating that its ultimate decision-makers would have reached
the same result irrespective of Jones' prior grievance activity.
We believe that the precedential nature of this
decision and the paucity of hearing record evidence in this case,
warrant the exercise of our discretion, pursuant to Section 406(e)
of the Congressional Accountability Act and Section 8.01(d) of the
Office's Procedural Rules, to remand the matter to the Hearing Officer
for further proceedings consistent with this decision.
The Hearing Officer, in his sound discretion,
shall reopen (14) the record to receive evidence
addressing the issue of whether Respondent would have disciplined
Jones notwithstanding his protected grievance-filing activity. Such
evidence may encompass, but is not limited to, the following areas:
- Any material qualitative and/or quantitative
difference in the testimonial and documentary evidence presented
at both hearings.
- The independence of the two DRB's that heard
the cases against Jones and Myers.
- Whether any DRB members knew of Jones' grievance
and/or of Perkins' or any other Respondent official's animus against
- Respondent's recent DRB history disclosing
the conviction rate for personnel charged with Conduct Unbecoming,
particularly for those cases involving physical altercations between
two or more police officers.
C. Coercive Statement
The Office of Compliance's Procedural Rules at
§5.01 (d) accord a Hearing Officer discretion to permit
complaint amendments subject to the following conditions: "that
all parties to the proceeding have adequate notice to prepare to
meet the new allegations; that the amendments, as appropriate, .
. . relate to the charge(s) investigated . . . by the General Counsel;
and that permitting such amendments will not unduly prejudice the
rights of the employing office, the labor organization, or other
parties, unduly delay the completion of the hearing, or otherwise
interfere with or impede the proceedings".
The Federal Labor Relations Authority held that
where a complaint is silent or ambiguous about specific issues that
are later raised at a hearing, it may still consider and dispose
of those issues if the record shows that they were fully and fairly
litigated. Bureau of Prisons Office of Internal Affairs, 52 FLRA
421 (1996); U.S. Department of Labor, 51 FLRA 462 (1995). When a
complaint is ambiguous and the record does not clearly show that
the respondent otherwise understood (or should have understood)
what was in dispute, fairness requires that any doubts about due
process be resolved in favor of the respondent. American Federation
of Government Employees, Local 2501, 51 FLRA 1657, 1660-64 (1996).
We believe that the Hearing Officer properly
exercised his discretion in deciding, on due process grounds, that
he should not consider the lawfulness of the comments of Sergeants
Finkle and Miller to bargaining unit employee Lucas. That conversation
was neither alleged in original or amended complaints nor was it
advanced by the General Counsel at the hearing as an independent
violation. Only in the General Counsel's post-hearing brief did
he first seek an unfair labor practice finding regarding that conversation.
While the Complaints did allege the antecedent
conversation between Sergeants Finkle and Miller and Lieutenant
Perkins, which the Sergeants later conveyed to Lucas, that allegation
related solely to proof of discrimination rather than to an unlawful
coercive statement. Accordingly, the Respondent had no reason, until
receiving the General Counsel's post-hearing brief, to feel it had
to defend itself from an independent unfair labor practice allegation.
Consequently, the Respondent did not, for good reason, fully litigate
that matter at the hearing.
Accordingly, we affirm the Hearing Officer's
decision in this respect.
Pursuant to Section 406(e) of the Congressional
Accountability Act, and Section 8.01(e) of the Office's Procedural
Rules, this matter is remanded to the Hearing Officer, to reopen
the record consistent with this decision, and upon closing the record
to render a supplemental decision to the Board.
I certify that I have served a copy of the Decision
of the Board of Directors by facsimile and first class mail, postage
prepaid, on the parties listed below.
Gary Green and Cheryl Polydor, Esquires
Office of Compliance
110 Second Street, S.E.
John Adams Building, SA-200
Washington, D.C. 20540-1999
John Caulfield, Esquire
U.S. Capitol Police Board
119 D Street, N.E.
Washington, D.C. 20510
Jerome P. Hardiman, Esquire
6464 Blarney Stone Court
Springfield, VA 22152
DATED THIS 11 day of June, 2002 at Washington,
La Shean Kelly
Secretary to the Board of Directors
Office of Compliance