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 (“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.
