United States Capitol Police v. Office of Compliance

United States Court of Appeals
for the Federal Circuit
______________________
UNITED STATES CAPITOL POLICE,
Petitioner
v.
OFFICE OF COMPLIANCE,
Respondent
FRATERNAL ORDER OF POLICE, U.S. CAPITOL
POLICE LABOR COMMITTEE,
Intervenor
---------------------------------------------------------------------------------
OFFICE OF COMPLIANCE,
Petitioner
FRATERNAL ORDER OF POLICE, U.S. CAPITOL
POLICE LABOR COMMITTEE,
Intervenor
v.
UNITED STATES CAPITOL POLICE,
Respondent
______________________
2016-2712, 2017-1024
______________________
2 UNITED STATES CAPITOL POLICE v. OOC
Petitions for review of a decision of the Board of Di-
rectors of the Office of Compliance in No. 15-LMR-01
(CA).
______________________
Decided: January 8, 2018
______________________
KELLY MARISSA SCINDIAN, Office of Employment
Counsel, United States Capitol Police, Washington, DC,
argued for United States Capitol Police. Also represented
by RAFIQUE OMAR ANDERSON, FREDERICK M. HERRERA.
JOHN UELMEN, Office of the General Counsel, United
States Office of Compliance, Washington, DC, argued for
the Office of Compliance. Also represented by HILLARY
BENSON, JULIA AKINS CLARK.
SARA L. FAULMAN, Woodley & McGillivary LLP,
Washington, DC, argued for intervenor. Also represented
by MEGAN KATHLEEN MECHAK.
______________________
Before NEWMAN, CLEVENGER, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
The United States Capitol Police (USCP) petitions for
review of the decision of the Board of Directors of the
Office of Compliance (Board) affirming the Hearing Of-
ficer’s finding that the USCP engaged in unfair labor
practices when it issued Officer James Konczos a Com-
mand Discipline Warning in response to Officer Konczos’s
protected union activity. “Protected activity” refers to 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.” 5 U.S.C. § 7102. Here, the Hearing
Officer found that Officer Konczos was disciplined for
expressing dissatisfaction with the USCP’s unscheduled
UNITED STATES CAPITOL POLICE v. OOC 3
shift, emergency holdover, policy. For its part, the Office
of Compliance (OOC) seeks an order from this court
enforcing the Hearing Officer’s Order. This Order re-
quires the USCP to cease and desist from violating the
Congressional Accountability Act (CAA); expunge the
discipline issued to Officer Konczos from its records; post
a notice to employees informing them that the USCP has
engaged in unfair labor practices; and certify its compli-
ance with the Order. Because substantial evidence shows
that Officer Konczos was disciplined for engaging in
protected union activity, we affirm the Board’s decision.
Because the OOC’s cross appeal does not enlarge the
scope of the judgment, it is unnecessary for us to reach
the cross appeal.
BACKGROUND
A. Emergency Holdover Shift
This appeal stems from a dispute over the USCP’s
practice of requiring officers to work a double-shift when
the need arises, sometimes informing an officer about the
extra shift only at the last minute. The Collective Bar-
gaining Agreement (CBA) negotiated between the Frater-
nal Order of Police (FOP), U.S. Capitol Police Labor
Committee, and the USCP defines “unscheduled addi-
tional duty,” also known as an emergency holdover, as a
manpower need that arises during the current tour of
duty. When an emergency manpower need arises, the
CBA permits the USCP to require officers on the current
tour to be held over to fill posts on a subsequent tour.
This is what happened to Officer Konczos who was told
near the end of his 11:00 p.m. to 7:00 a.m. shift that he
would need to stay on to work the 7:00 a.m. to 3:00 p.m.
shift.
At approximately 5:50 a.m. on June 26, 2014, Ser-
geant James Floyd telephoned Sergeant Danny McElroy
informing him that he needed two officers to be held over
from the Capitol Visitor Center (CVC) 11:00 p.m. to
4 UNITED STATES CAPITOL POLICE v. OOC
7:00 a.m. Section C-1 shift to work the 7:00 a.m. to 3:00
p.m. CVC C-2 shift. 1
At 6:10 a.m., Sergeant McElroy contacted Officer
Konczos, who was working his regular 11:00 p.m. to
7:00 a.m. C-1 shift in the House Intelligence Area, to
notify Officer Konczos that he had been drafted to cover
the 7:00 a.m. to 3:00 p.m. C-2 shift at the North Screening
Door of the CVC. Officer Konczos responded that he could
not work the shift because he needed to take his car for
service in time to report to his regularly scheduled shift at
11:00 p.m. Sergeant McElroy informed Officer Konczos
that this did not excuse him from working the additional
shift, but that he could “1301 it away.” The term “1301”
refers to Article 18, Section 18.03 of the CBA between the
USCP and the FOP. By completing a CP-1301 form, an
officer can obtain a qualified substitute to work an addi-
tional shift in his or her place. However, a 1301, by its
express terms, applies when an officer has more than
24 hours prior to the beginning of the additional, sched-
uled shift to obtain a qualified substitute. J.A. 768–80
(Standard Operating Procedure COP-USB-003).
At 6:30 a.m., shortly after the phone call between Ser-
geant McElroy and Officer Konczos, Officer Carlos Ford—
a USCP Officer who assists other officers in finding
qualified substitutes—called Officer Konczos to inform
him that Officer Albert Law had agreed to work the C-2
shift. Officer Law then sent a text message to Officer
Konczos to complete a CP-1301 form. Officer Konczos
replied via text, “you can if you want, I’m not staying.”
Officer Law also called Sergeant Floyd, the supervisor for
the C-2 holdover shift, to inform him that he (Law) would
be working the holdover shift in place of Officer Konczos.
1The CVC Section C-1 shift covers the House Intelli-
gence Area. The CVC Section C-2 shift covers the North
Screening Door.
UNITED STATES CAPITOL POLICE v. OOC 5
An email from Lieutenant Kathleen McBride sent at
7:44 a.m. confirmed that Sergeant Floyd was aware of the
substitution.
At 6:44 a.m., Officer Konczos emailed USCP Police
Chief Kim Dine with the subject line “Unscheduled
drafts.” J.A. 630. The email reminded Chief Dine that
Officer Konczos, as Chairman of the FOP, had previously
raised the issue of emergency holdovers with him numer-
ous times at regularly scheduled labor-management
relations meetings without a satisfactory solution:
In numerous emails and face to face meetings we
have addressed this issue [unscheduled drafts]
with you. . . . As I explained to you before, the un-
scheduled drafts do nothing but disrupt officers[’]
lives, this happens just about every day, every
section, every division. How fair do you think it is
for an officer to be told at the last minute that
they are drafted . . . for 8 hours?? Please don’t tell
me you are looking into manpower numbers, we
have heard that for months.
Id. Officer Konczos then referred to his own situation
that morning, when he was drafted with little advanced
notice for a holdover shift. Id. And he criticized the
disruptive nature of emergency holdovers on officers’
lives. Id. Officer Konczos ended his email: “I fully expect
to be suspended at 7:00 a.m., but I’m to the point I honest-
ly don’t care.” J.A. 630–31. At 7:15 a.m., Officer Konczos
was relieved at his post by the officer scheduled to work
the next C-1 shift and clocked out.
Officer Law clocked in at USCP Headquarters at
7:29 a.m. and began working the 7:00 a.m. C-2 shift at the
north door of the CVC at 7:44 a.m. Because the north
door of the CVC does not open until 8:15 a.m., Officer Law
6 UNITED STATES CAPITOL POLICE v. OOC
was on patrol from the time he arrived until 8:15 a.m. 2
Officer Law then worked the holdover shift until 3:00 p.m.
His supervisor Sergeant Floyd did not discipline him for
arriving late to his shift, and Officer Law was paid for the
entire duration of the shift. At 6:12 p.m., Officer Law
faxed a completed CP-1301 form to the USCP to obtain
the required supervisory signatures.
B. USCP Investigation and Issuance of the Command
Discipline Warning
On June 30, 2014, the USCP assigned Captain An-
drew Bolinger to investigate whether Officer Konczos
should be disciplined for the events on June 26, 2014. As
part of the investigation, Captain Bolinger reviewed two
emails sent by Lieutenant McBride on June 26, 2014.
The first email at 7:35 a.m. to Deputy Chief Matthew
Verderosa indicated that Officer Konczos left without
completing a CP-1301 form. The email also indicated that
Officer Law had texted Officer Konczos regarding filling
out a CP-1301 form and that Sergeant McElroy expressed
a desire to address Officer Konczos’s alleged insubordina-
tion upon Officer Konczos’s return to duty. The second
email at 7:44 a.m. noted that Chief Dine had asked Depu-
ty Chief Verderosa to investigate the matter. It further
stated that Officer Law had informed Sergeant Floyd he
would be at the USCP as soon as possible to cover Officer
Konczos’s emergency holdover shift. On July 3, 2014,
both Officer Konczos and Sergeant McElroy gave sworn
statements about the events on June 26, 2014. In his
sworn statement, Officer Konczos explained that Officer
2The USCP characterizes the gap between when Of-
ficer Konczos clocked out and when Officer Law reported
to work as an hour. The record, however, shows that
Officer Law clocked in at 7:29 a.m., fourteen minutes
after Officer Konczos clocked out.
UNITED STATES CAPITOL POLICE v. OOC 7
Ford informed him Officer Law would work the emergen-
cy holdover in his place.
On July 21, 2014, Captain Bolinger issued Officer
Konczos a Command Discipline Warning, which stated
that Officer Konczos was absent without leave. The
Command Discipline Report did not mention that Officer
Law had worked the emergency holdover shift or other-
wise address this potentially mitigating factor. When
Officer Konczos questioned Captain Bolinger about this at
a July 21, 2014 meeting, Captain Bolinger did not provide
a response. On July 25, 2014, Deputy Chief Verderosa
approved and signed the Command Discipline Warning.
Deputy Chief Verdosa admitted that, although he knew
Officer Law was to cover the holdover shift, he did not
investigate whether Officer Law actually worked that
shift.
PROCEDURAL HISTORY
On May 20, 2015, the General Counsel of the OOC
filed an administrative complaint alleging that Officer
Konczos engaged in protected activity when he emailed
Chief Dine regarding emergency holdovers on June 26,
2014. This protected activity, the General Counsel fur-
ther alleged, was the motivating factor in the USCP’s
decision to issue the Command Discipline Warning.
After a two-day hearing, the Hearing Officer issued
an Order finding that the USCP engaged in unfair labor
practices when it issued a Command Discipline Warning
to Officer Konczos because the discipline was motivated
by Officer Konczos’s protected activity. Specifically, the
Hearing Officer found that the USCP violated §§ 220(a)(1)
and (c)(2) of the Congressional Accountability Act and
5 U.S.C. §§ 7102, 7106, 7111–7117, 7119–7122, and 7131.
Moreover, the Hearing Officer rejected the USCP’s posi-
tion that Officer Konczos had been absent without leave,
given that Officer Law had covered the unscheduled shift.
Because that was the only identified reason for disciplin-
8 UNITED STATES CAPITOL POLICE v. OOC
ing Officer Konczos, the Hearing Officer concluded that
Officer Konczos’s protected activity—the email criticizing
the USCP’s emergency holdover practice—was a motivat-
ing factor in Officer Konczos’s discipline. The Hearing
Officer then ordered the USCP to expunge any reference
of the discipline issued to Officer Konczos. He also di-
rected the USCP to post a notice to employees indicating
that the USCP had violated the CAA.
The OOC Board affirmed the Hearing Officer’s deci-
sion on July 5, 2016. The USCP appealed that decision on
September 27, 2016. We have jurisdiction pursuant to
2 U.S.C. § 1407(a)(1)(A) (2012).
DISCUSSION
Under 2 U.S.C. § 1407(d), we may set aside a final de-
cision of the Board of the OOC only if it was:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not consistent with law; (2) not made consistent with
required procedures; or (3) unsupported by substantial
evidence.” 2 U.S.C. § 1407(d). The Supreme Court has
held that the substantial evidence standard requires
affirmance of a final agency decision if the record contains
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Fed. Trade
Comm’n v. Ind. Fed’n of Dentists, 476 U.S. 447, 454 (1986)
(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474,
477 (1951)).
In cases alleging discrimination based on protected
union activity in violation of 5 U.S.C. § 7116(a), the OOC
Board applies the framework set forth in Letterkenny
Army Depot. 35 F.L,R.A. 13 (1990). Section 7116(a)
states that it is unfair labor practice for an agency, among
other things, “(1) to interfere with, restrain, or coerce any
employee in the exercise by the employee of any right
under this chapter . . . [and] (4) to discipline or otherwise
discriminate against an employee because the employee
has filed a complaint, affidavit, or petition, or has given
UNITED STATES CAPITOL POLICE v. OOC 9
any information or testimony under this chapter.”
5 U.S.C. § 7116(a)(1), (a)(4). Under the Letterkenny
framework, in order to establish a prima facie case of
discrimination, the OOC must show that: “(1) the employ-
ee 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.” Id. at 118. If the OOC is able to make a
prima facie case of discrimination, the burden shifts to the
USCP to show, by a preponderance of the evidence, that
“(1) there was a legitimate justification for its action; and
(2) the same action would have been taken even in the
absence of protected activity.” Id.
Although we have not yet had an occasion to consider
the Letterkenny framework, we note that two other circuit
courts have applied it for Federal Labor Relation Authori-
ty (FLRA) cases. See Pension Benefit Guar. Corp. v.
FLRA, 967 F.2d 658, 666–67 (D.C. Cir. 1992) (applying
the Letterkenny framework to determine whether the
Pension Benefit Guaranty Corporation’s decision to
terminate an employee constituted an unfair labor prac-
tice under 5 U.S.C. § 7116(a) and remanding for the
FLRA to conduct a further disparate treatment analysis);
Midder v. FLRA, 121 F.3d 705, *3 (5th Cir. 1997) (un-
published) (applying the Letterkenny framework to con-
clude that the Bureau of Engraving and Printing Western
Currency Facility did not commit unfair labor practice
under 5 U.S.C. §§ 7101–7135 when it terminated an
employee for engaging in and later lying about inappro-
priate workplace activities). Neither party suggests a
different framework should apply here, and after consid-
ering the matter, we conclude that the OOC Board
properly considered this case under the Letterkenny
framework. If the USCP’s justification for its discipline is
found to be pretextual, then it is unnecessary to deter-
mine whether it would have taken the action absent the
protected activity because such actions, by definition,
10 UNITED STATES CAPITOL POLICE v. OOC
would not have been taken for nondiscriminatory reasons.
Letterkenny, F.L.R.A. at 120; see Golden State Foods
Corp., 340 N.L.R.B. 382, 385 (2003).
A. Prima Facie Case of Discrimination
As an initial matter, the parties do not dispute that
Officer Konczos engaged in protected activity when he
raised the USCP’s practice of emergency holdover shifts
with Chief Dine during regularly scheduled labor-
management meetings and when he reiterated the sub-
stance of those conversations in his June 26, 2014 email
to Chief Dine. The USCP contends, however, that the
portion of Officer Konczos’s email protesting his own
personal holdover on June 26, 2014 does not constitute a
protected activity.
We find that substantial evidence supports the
Board’s affirmance of the Hearing Officer’s conclusion
that Officer Konczos’s email in its entirety is a protected
activity. This is particularly true when the email is
considered in the context of multiple instances before the
June 26, 2014 incident in which Officer Konczos raised
the issue of emergency holdover shifts to Chief Dine.
Additionally, on June 27, 2014, in a conversation with
Assistant Chief Malloy, Officer Konczos expressed his
disappointment that—despite previous assurances from
Chief Dine and Chief Malloy that the USCP would be
flexible in working with officers—the USCP was not, in
fact, flexible with officers held over for shifts on short
notice. Officer Konczos’s reference to his June 26, 2014
emergency holdover shift can thus be reasonably viewed
as an example of the disruptive nature of the USCP’s
staffing policies and his disappointment in the lack of a
resolution.
Accepting that Officer Konczos’s June 26, 2014 email
reasonably can be viewed as a protected activity, the next
question is whether such activity was a motivating factor
in the USCP’s decision to issue him a Command Disci-
UNITED STATES CAPITOL POLICE v. OOC 11
pline Warning. We find that substantial evidence sup-
ports the Board’s affirmance of the Hearing Officer’s
conclusion that Officer Konczos’s protected activity moti-
vated the USCP’s decision to issue a Command Discipline
Warning.
The USCP only identified one reason for disciplining
Officer Konczos: that he was absent without leave. But,
substantial evidence in the record supports the conclusion
that Officer Konczos was not absent without leave. While
we respect the USCP’s right to enforce its employment
policies and understand that adequate staffing is crucial
to the USCP’s mission of protecting Congress, the USCP
has not presented a policy or standard operating proce-
dure under which what transpired on the morning of June
26, 2014 would result in declaring Officer Konczos absent
without leave. 3
In its briefs, the USCP sets forth three primary ar-
guments why Officer Konczos was absent without leave:
he clocked out at 7:15 a.m. (1) without obtaining a super-
visor’s consent to leave, (2) without waiting for Officer
Law to arrive before he departed, and (3) without filling
out a CP-1301 form. The USCP’s employment policies,
however, do not clearly require Officer Konczos to do any
of the above in the context of finding a replacement for an
emergency holdover.
First, under the USCP Rules of Conduct Directive
2053.013, Rule B3, “[e]mployees who fail to appear for
duty at the date, time, and place without consent of a
supervisor are Absent without Leave.” J.A. 777. Ser-
geant McElroy informed Officer Konczos over the phone
that he could find a qualified substitute. Officer Konczos
3 Officer Konczos has only been formally charged with
being absent without leave, not some other form of insub-
ordination.
12 UNITED STATES CAPITOL POLICE v. OOC
clocked out only after he learned that Officer Law had
agreed to work as his substitute. Further, Sergeant
Floyd, the supervisor who requested the emergency
holdover shift, knew that Officer Law was coming in to
work the C-2 shift and expressed no objections. Accord-
ingly, there was supervisory knowledge and consent for
Officer Law to work the emergency holdover shift in
Officer Konczos’s place.
Moreover, the USCP did not present any policies re-
quiring Officer Konczos to leave his regularly scheduled
C-1 post, report to the C-2 post, and wait for Officer Law
to arrive. 4 Rather, Officer Konczos left at the end of his
shift, per usual, knowing that a qualified substitute had
been found to work the emergency holdover shift. 5
4 The USCP asserts that its officials expected Officer
Konczos to work the C-2 shift until Officer Law arrived, at
which time the officers would complete a CP-1301 form.
It did not, however, present any policies demonstrating
that this course of action is required and that an officer
who fails to wait for his replacement in emergency holdo-
ver situations is considered absent without leave.
5 At oral argument in particular, the USCP focused
on the issue of consent. The USCP argued that Officer
Konczos did not have supervisory consent to leave his
post. Aside from reiterating the language in Rule B3,
however, the USCP did not present any policies at oral
argument directly addressing emergency holdover situa-
tions. Thus, from the record before us, Officer Konczos
was not required by policy to report to the C-2 shift to
wait for Officer Law. Officer Konczos knew that he had a
substitute working the C-2 shift in his place and left his
C-1 post when he was relieved, as was routine. Hypothet-
ically, if the USCP had a policy or standard operating
procedure requiring an officer to report to the next shift
and wait for his replacement to arrive to ensure no per-
UNITED STATES CAPITOL POLICE v. OOC 13
Further, there is no official USCP policy regarding
CP-1301 forms when officers are notified they have to
work an unscheduled shift the very next shift. Rather,
1301 applies when an officer has more than 24 hours prior
to the beginning of the additional, scheduled tour of duty
to obtain a qualified substitute. J.A. 768–80 (Standard
Operating Procedure COP-USB-003, “Additional Duty
Substitute Request” states: “The requesting employee is
permitted to find only one (1) substitute employee up to
24 hours prior to the beginning of the scheduled tour of
duty.”). The USCP’s 1301 policy is thus, by its terms,
inapplicable to this case.
Second, the USCP was fully aware of Officer
Konczos’s protected activity when it chose to discipline
him. This supports the Board’s affirmance of the Hearing
Officer’s finding that the USCP’s decision to discipline
Officer Konczos was motivated by the protected activity.
The USCP contends that Officer Konczos’s protected
activity could not be a motivating factor in issuing him
the Command Discipline Warning because Captain
Bolinger was not even aware of the protected activity
when he instituted a disciplinary investigation. However,
Captain Bolinger admitted to reviewing Officer Konczos’s
statement issued as part of the investigation. This state-
ment reads: “I emailed Chief Dine and AC Malloy about
the ongoing issues with unscheduled holdovers, told him
he didn’t care about his officers, and how I expected to be
suspended (this email was sent as Chairman of the
USCP-FOP Labor Committee).” Captain Bolinger thus
was at least aware or should have been aware of the
protected activity when deciding whether or not to disci-
pline Officer Konczos.
sonnel gap in emergency holdover situations, this case
may have come out differently. But these facts are not
before us.
14 UNITED STATES CAPITOL POLICE v. OOC
Third, the USCP’s failure to investigate whether a
qualified substitute worked in Officer Konczos’s place
lends credence to the Board’s finding that Officer
Konczos’s protected activity motivated the USCP’s subse-
quent discipline. As the USCP does not have formal
policies regarding substitutions for emergency holdover
shifts, an investigation into whether another officer
worked in Officer Konczos’s place is an integral inquiry
into whether Officer Konczos was truly absent without
leave. Here, the Hearing Officer found that, from the
information forwarded to him as part of the investigation,
Captain Bolinger knew or should have known that
(1) Sergeant McElroy informed Officer Konczos he was
authorized to find a qualified substitute; and (2) Officer
Law notified Sergeant Floyd and Officer Konczos he
would cover for Officer Konczos. Despite being provided
this evidence, Captain Bolinger testified that he never
initiated an investigation into whether Officer Law
worked the C-2 shift for Officer Konczos. As the Hearing
Officer reasonably found and the Board affirmed, a failure
to conduct such an inquiry supports a finding that the
investigation was likely biased against Officer Konczos.
Consequently, substantial evidence supports the
Board’s finding that the OOC met its burden in establish-
ing a prima facie case of discrimination under the first
two Letterkenny prongs.
B. Justification for Discipline
Having found that substantial evidence in the record
supports the Board’s finding of a prima facie case of
discrimination, the inquiry next shifts to whether the
USCP had a legitimate justification for its action and
whether the same action would have been taken in the
absence of the protected activity. Letterkenny, 35 F.L.R.A.
at 118. We conclude that substantial evidence supports
the Board’s affirmance of the Hearing Officer’s finding of
pretext. That is, substantial evidence supports the con-
UNITED STATES CAPITOL POLICE v. OOC 15
clusion that the Command Discipline Warning would not
have issued absent the protected activity.
In arguing that it had a legitimate justification to dis-
cipline Officer Konczos, the USCP pointed out there was
no officer working for Officer Konczos from 7:15 a.m. to
8:15 a.m. when Officer Law reported for duty; Officer
Konczos failed to execute a CP-1301 form before he left;
no specific supervisor approved Officer Konczos to leave;
and the USCP supervisors expected that Officer Konczos
would stay until Officer Law showed up. These argu-
ments, however, are unpersuasive. First, as we noted
earlier, the policies surrounding a CP-1301 form are not
applicable to emergency holdover shifts when an individ-
ual is drafted fewer than 24 hours before the shift is
scheduled. Second, regardless of whether the gap be-
tween when Officer Konczos clocked out and when Office
Law began working the C-2 shift was an hour or 14
minutes, the USCP did not present any policies showing
that Officer Konczos was required to report to the C-2
shift and wait for his replacement. Third, Officer Konczos
clocked out only after learning that a qualified substitute
would work in his place. This qualified substitute was
approved by Sergeant Floyd, the supervising officer of the
C-2 shift. And because Sergeant McElroy gave permis-
sion for Officer Konczos to find a qualified substitute to
work in his stead, both Sergeants implicitly gave Officer
Konczos permission to leave once his regularly scheduled
shift was over and a substitute had been found. The
USCP has not presented any policies or standard operat-
ing procedures requiring more explicit consent in the
emergency holdover situation.
Moreover, as explained above, the USCP’s failure to
investigate whether a qualified substitute worked the C-2
shift suggests that its decision to discipline Officer
Konczos was pretextual. The USCP contends that it was
not obligated to investigate whether a substitute worked
for Officer Konczos because there was still a period of 14
16 UNITED STATES CAPITOL POLICE v. OOC
minutes (or an hour) during which neither Officer
Konczos nor Officer Law was working. Because Officer
Konczos had only transferred his emergency holdover
shift through informal channels, he was still, in the
USCP’s view, responsible for the shift until Officer Law
arrived. Again, the USCP did not present any policies
requiring Officer Konczos to report to the location of the
emergency holdover shift and wait for his replacement.
Further, the comparator cases that the USCP cites
are inapposite because those cases address instances in
which there was an issue with the CP-1301 paperwork
and the substitute officer failed to work the additional
shift. The closest comparator case that the USCP pre-
sents is one in which Officer 1 was assigned an additional
shift; Officer 1 transferred his duties to Officer 2 but did
not fill out a CP-1301 form; and Officer 2 failed to show
up for the additional duty shift. In that instance, Officer
1 was deemed absent without leave. Unlike those cases,
where it was uncertain from the record whether the
officer assigned the additional shift actually obtained a
qualified substitute, it is clear that Officer Konczos ob-
tained a qualified substitute because Officer Law actually
worked the emergency holdover shift. In fact, Officer Law
clocked in only 14 minutes after Officer Konczos clocked
out. And at no time did Sergeant Floyd complain to the
USCP about a shortage of personnel.
Accordingly, in light of the investigation’s failure to
inquire into whether a substitute worked in place of Office
Konczos, and because the USCP did not provide compara-
tor cases in which a qualified substitute worked the
emergency holdover shift, the Board’s finding of pretext is
supported by substantial evidence.
CONCLUSION
Substantial evidence supports the Board’s affirmance
of the Hearing Officer’s findings that the USCP engaged
in unfair labor practices by issuing Officer Konczos a
UNITED STATES CAPITOL POLICE v. OOC 17
Command Discipline Warning. We therefore affirm the
Board’s decision.
AFFIRMED