FEDERAL LABOR RELATIONS AUTHORITY STATUTORY TRAINING PROGRAM

1. FEDERAL LABOR RELATIONS AUTHORITYSTATUTORY TRAINING PROGRAM Interference and Discrimination Jean M. Perata Deputy Regional Director FLRA, S.F. Region jperata@flra.gov; 415.356.5000, ext. 2012

2. Interference – The Legal Basis • 5 U.S.C. § 7102 Employee’s Rights • Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

3. Examples of Protected Activity • Filing a grievance • Asserting a contractual right • Requesting union representation • Representing the union in a matter • Attending union meetings • Refusing to join a union • Executing a dues allotment • Testifying at an arbitration hearing See U.S. Dep't of the Air Force, Aerospace Maintenance & Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003); U.S. Dep’t of Labor, Employment & Training Admin., S.F., Cal., 43 FLRA 1036 (1992)

4. Free Speech Proviso • Personal opinions are protected - 5 U.S.C. § 7116(e): • The expression of any view, argument, opinion or the making of any statement which – (1) publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election, (2) corrects the record with respect to any false or misleading statement made by the person, or (3) informs employees of the Government’s policy relating to labor-management relations and representation, Shall not, if the expression contains no threat or reprisal of force or promise or benefit or was not made under coercive conditions, (A) constitute an unfair labor practice under any provision of this chapter, or (B) constitute grounds for the setting aside of any election conducted under any provision of this chapter.

5. Interference by An Agency • It is a violation of § 7116(a)(1) for an agency to interfere with, restrain or coerce an employee in the exercise by the employee of any right under the Statute.

6. Examples of this Conduct • Threatening employees with reprisal if they exercise their rights under the Statute. FEC, 6 FLRA 327 (1981) • Making implied threats against union representatives for assisting employees in filing and prosecuting grievances under the negotiated grievance procedure. U.S. Penitentiary, Florence, Colo., 52 FLRA 974 (1997)

7. Objective Standard • While the circumstances surrounding the making of the statement(s) are taken into consideration, the standard is not based on the subjective perceptions of the employee or on the intent of the management representative. U.S. DOJ, Fed. Bureau of Prisons, FCI, Safford, Ariz., 59 FLRA 318 (2003) (citing Dep’t of the Air Force, Scott Air Force Base, Ill., 34 FLRA 956 (1990)).

8. Discrimination Defined • 5 U.S.C. § 7116(a)(2) It is an unfair labor practice for an Agency to encourage or discourage Union membership in a labor organization by discriminating in connection with hiring, tenure, promotion or other conditions of employment.5 U.S.C. § 7116(a)(4) It is an unfair labor practice for an Agency to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under the Statute.

9. DISCRIMINATION • The same test is applied to cases alleging discrimination, pursuant to section 7116(a)(4) of the Statute, as to cases alleging discrimination as to section 7116(a)(2) of the Statute. Dep’t of Veterans Affairs Medical Ctr., Brockton and West Roxbury, Mass.,43 FLRA 780 (1991)

10. Discrimination Evidence must initially demonstrate a prima facie case- • Elements of a prima facie case: 1. Employee was engaged in protected activity; 2. Discriminatory action was taken against the employee; and 3. Employee’s protected activity was a motivating factor in the Agency’s treatment of the employee. Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny)

11. Letterkenny Factors Was there protected activity? Was the Agency aware of the protected activity? Was there discriminatory action taken against employee? How were other employees who were not engaged in protected activity treated? Would the action have been taken in the absence of protected activity? Is there evidence of anti-Union animus? Was the protected activity a motivating factor in the discriminatory action?

12. If Action Was Motivated by Protected Activity • Under Letterkenny, even if the evidence shows a link between the protected activity and the action taken, no violation will be found if: • There was a legitimate justification for the action; and • The same action would have been taken even in the absence of the protected activity.

13. Pretext or Mixed Motive • If it can be shown that the reasons for taking the action are false or pretextual, then there is no legitimate justification for the action. • In cases of mixed motive (action based on both lawful and unlawful considerations) the decision is still based on whether there are legitimate reasons and the same action would have resulted, absent protected activity.

14. RELATED MATTER • What if management takes an action against an employee for what the employee did or said during a grievance meeting. • Is that lawful? What test should be applied in this situation?

15. Not All Conduct involving Protected Activity Is Protected • Conduct that constitutes “flagrant misconduct or otherwise exceeds the boundaries of protected activity” loses its protection U.S. Dep’t of Agriculture, Food & Nutrition Serv., Alexandria, Va., 61 FLRA 16 (2005); U.S. Dep't of the Air Force, Aerospace Maintenance and Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003)

16. Flagrant Misconduct Factors To Consider • Place and subject matter of discussion; • Whether an outburst was planned or impulsive; • Whether conduct was provoked; and • Nature of any intemperate language or conduct. Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7 (1995)