20:0568(69)CA - DOL, Employment and Training Administration and AFGE Local 12 -- 1985 FLRAdec CA
[ v20 p568 ]
The decision of the Authority follows:
20 FLRA No. 69 U.S. DEPARTMENT OF LABOR EMPLOYMENT AND TRAINING ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO Charging Party Case No. 3-CA-30603 DECISION AND ORDER /1/ The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Judge's Decision and the Respondent filed an opposition to those exceptions along with cross-exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order as modified below. /2/ The record indicates that on March 31, 1983, Charles Carter, the Respondent's agent, initiated a meeting with Earl Sizemore, a Union Steward, to discuss Sizemore's recent work products. Sizemore left the meeting soon after it began, stating that it was becoming disciplinary and that he wanted his Union representative to be present. Shortly thereafter, Sizemore returned with Douglas Cook, the Union's Head Steward. Carter refused to meet with them and started walking down a hallway. He was followed by Cook and Sizemore. All three were walking at a fast pace and were discussing the incident. Cook was loudly insisting that Sizemore had a right to representation and that a grievance would be filed on Sizemore's behalf. As testified to by Carter, the remarks sounded somewhat threatening and he attempted to assuage Cook by making statements to the effect that there was no need to get emotional and that the matter could be resolved. At the same time, Sizemore, who was following closely on Carter's heels, was complaining about criticisms that had been levied against his work. At a point during this loud exchange, Carter made physical contact with Cook so that Cook fell against a wall. Sizemore, who had been following closely behind Carter, then bumped into him. Cook made several intemperate remarks to Carter who then retreated to his office. Immediately thereafter, Cook and Sizemore followed Carter to his office for the purpose of requesting official time to prepare a response to what had occurred. Cook and Sizemore barged past Carter's secretary and burst unannounced into Carter's office. As Cook began making his request, Carter physically ejected him from the office. In agreement with the Judge's conclusion, the Authority concludes, in the particular circumstances of this case, that Carter's conduct did not rise to the level of an unfair labor practice and shall order that the complaint be dismissed. As a general proposition, physical assaults upon employees while they are engaged in fulfilling their union representational responsibilities under the Statute will not be condoned. The Authority views resort to a physical response in the context of a labor-management dispute by either a union representative or a manager as generally beyond the limits of acceptable behavior at the workplace. However, the Authority also recognizes that resort to such behavior in certain limited instances and in response to particular situations may not rise to the level of an unfair labor practice under the Statute. Where, as in the instant case, the conduct involves innocuous physical contact occurring in the context of a highly charge situation, and which to an extent is provoked by the behavior of a union or management representative, no violation of the Statute will be found to have occurred. As the record in this case indicates, the two instances of physical contact with the Union's Head Steward constituted spontaneous actions which were neither encouraged nor condoned by the Respondent, and which were apparently provoked by the Head Steward's own language and conduct. Thus, in the first instance of contact, and as found by the Judge, Carter was essentially pursued down a hallway and subjected to loud, threatening remarks which were made in a public area and within hearing distance of other employees within Carter's division. The second incident occurred almost immediately thereafter when Carter fled to the sanctity of his office, whereupon Cook and Sizemore barged unannounced into Carter's office, also within view of other division employees. In the particular circumstances of this case, and on balancing Carter's somewhat impulsive behavior with Cook's provocation, the Authority finds, in agreement with the Judge, that Carter's conduct did not constitute a violation of section 7116(a)(1) of the Statute, as alleged. In reaching our decision herein, the Authority is not unmindful of the inherent delays which may result from the processing and determination of unfair labor practice cases, such as that herein, which involve minor confrontations at the workplace. In such circumstances, the Authority views the collective bargaining relationship to be better effectuated by the timely and amicable efforts of the parties to settle such minor altercations or to resolve such matters through the expeditious use of a contractually agreed-upon grievance procedure. William J. McGinnis, Jr., Member Concurring Opinion of Acting Chairman Frazier: I also agree, in the circumstances of this case, and for the reasons articulated below, that Carter's conduct did not constitute a violation of the Statute. As found by the Judge, employee Sizemore was summoned to a meeting with supervisor Carter and employee Hancock to discuss Sizemore's work performance. At a point during the meeting, Sizemore left for the purpose of calling in union representative Cook. In Sizemore's absence, Carter adjourned the meeting. Shortly thereafter, Cook and Sizemore encountered Carter outside the latter's office and requested to meet. Carter declined the request. The three men proceeded down a hallway, walking at a fast pace and discussing the incident with Sizemore following closely on Carter's heels. Several things occurred next within a relatively short period of time which, in my opinion, created some confusion and established the framework for the type of confrontation which occurred in this case. Cook began by making loud remarks concerning Sizemore's right to union representation and the fact that a grievance would be filed on his behalf. These remarks sounded somewhat threatening to Carter who then attempted to calm the situation. During this exchange, Carter apparently acted impulsively, as found by the Judge, when he put his hands on Cook causing Cook to fall back against a wall. Cook responded by making some intemperate remarks. Simultaneously, Sizemore bumped into Carter with Carter accusing Sizemore of kicking him. Sizemore apologized. Carter next attempted to extricate himself from the situation by retreating to his office, but was followed by Cook and Sizemore who barged uninvited and unannounced into the office. At that point, Carter was placed in the position of having to physically eject Cook from his office. In my view, union representative Cook acted in a provocative manner which prompted Carter to take certain defensive retaliatory actions. As to the first instance of physical contact, I find that Cook's loud remonstrations in a public place after Carter declined to meet with Cook and Sizemore necessarily had an obstructive and provoking effect on Carter and went far beyond the permissible bounds of protected activity granted an exclusive representative under the Statute. With respect to the exchange which occurred in Carter's office, Cook's conduct in barging into a supervisor's office can be viewed as nothing other than belligerent, especially in view of Carter's attempt to extricate himself from the volatile situation by seeking refuge in his own office. Without the mitigating circumstances here presented, Carter's conduct, in my view, would have been unlawful under the Statute. However, where, as here, the union representative provoked the confrontation and acted in a loud, belligerent and obstructive fashion, Carter's defensive, retaliatory conduct, though not condoned, cannot be viewed as excessive. /3/ Accordingly, and in agreement with Member McGinnis, I find that the complaint should be dismissed. Henry B. Frazier III, Acting Chairman ORDER IT IS ORDERED that the complaint in Case No. 3-CA-30603 be, and it hereby is, dismissed. Issued, Washington, D.C., October 30, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 3-CA-30603 Arlean Leland, Attorney for Respondent Edward Helm, Attorney for the Charging Party Donna Ditullio Attorney for the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (1982), commonly known as the Federal Service Labor-Management Relations Statute (hereinafter referred to as the Statute) and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. Pursuant to a charge of unfair labor practices filed by the Charging Party on June 21, 1983, the General Counsel of the Federal Labor Relations Authority (hereinafter, Authority) investigated and, on November 28, 1983, served the complaint initiating this proceeding. The complaint alleges that an agent of Respondent, at its Washington, D.C., location, "physically assaulted" a representative of the Charging Party while the representative "was engaged in representational activities on behalf of a unit employee" (GC1(c), para. 5). /4/ By such act and conduct it is alleged that Respondent has, and is interfering with, restraining and coercing employees in the exercise of their rights guaranteed in Section 7102 of the Statute, /5/ and thereby has, and is engaged in an unfair labor practice, in violation of Section 7116(a)(1) of the Statute. /6/ Respondent denies that its agent committed the unfair labor practice alleged, or that it has engaged or is engaging in unfair labor practices. A hearing in Washington, D.C., was commenced on March 1, 1984, continued until March 16, and concluded on that day. The parties appeared, adduced evidence, and examined witnesses. The General Counsel made a closing statement, at TR 460-470. Respondent filed a brief on May 16, pursuant to an order, sought by Respondent, which extended the briefing time to that date. Charging Party filed its brief on May 15. /7/ Based upon the record made in this case, my observation of the demeanor of the witnesses, and the arguments of counsel, I enter the following findings and conclusions, and recommend entry of the following order. Findings of Fact 1. It is admitted that, during all times material herein, the Charging Party (also referred to as the Union) is and has been a "labor organization," and the Respondent is and has been an "agency" within the meaning of Sections 7103(a)(4) and (3) of the Statute. 2. It is also admitted that, during all times material herein, Charles Carter has been, and is now an agent acting on Respondent's behalf at its 601 D Street, Washington, D.C., location. For approximately two years, he has been Chief of Respondent's Division of Agricultural Certification. 3. Since June 1952, Douglas Cook has been a GS13 Manpower Analyst employed by Respondent in its Division of Testing. Since September 1982, he has been Head Steward of the Union. As such he directs the stewardship program and provides representation on particularly difficult or unusual cases. Prior to the incidents here involved, he represented an employee before Mr. Carter and won a promotion and large cash settlement for the employee. See TR 28-30. 4. Since May 1982, Earl Sizemore has been a GS-12 Manpower Development Specialist, in Mr. Carter's division. For roughly 10 or 12 years, Mr. Sizemore has been a steward for the Union. 5. John Hancock is a GS14 Manpower Development Specialist, also in Mr. Carter's division. Mr. Hancock is the "primary conduit" for assignments in that division (TR 345). 6. The following is my assessment of the credibility of the witnesses based upon my observation of their demeanor, as well as other factors, discussed as to each. a. Mr. Cook's testimony was consistent, and inherently credible. With the exception of Mr. Carter, Mr. Cook's account of the alleged assaults was not contradicted by any witness who was in a position to observe, fully, what happened. Indeed, his testimony was supported by them in some important particulars, as will be detailed. I fully credit his testimony. b. Mr. Carter did not hold up well on cross-examination (see TR 242-251) and, on some important details, was contradicted not only by Messrs. Cook and Sizemore, but also by Mr. Hancock and Ms. Adams, both of whom he supervises, and both of whom exhibited reluctance in becoming involved in this proceeding, (see TR 233-234, 442-445 and 446-448) thereby rendering any testimony of theirs which is harmful to Mr. Carter, particularly trustworthy. Compare TR 150-151 and 237, with TR 400 and 422, 81, 25 and 44, as to whether Mr. Carter slammed his door shut on Mr. Cook. Compare also TR 391 and 70, as to whether he realized Mr. Cook would be returning to the meeting momentarily. Compare also TR 164 with his April 13, 1983 letter to the Union's president, attached to GC1(a), as to whether he knew that Mr. Cook was a Union representative. Compare also TR 237-238 with TR 395 and 399, as to whether he raised his voice at the point of one alleged assault. Compare also TR 238-239 with TR 421, 21-22 and 95-96, as to whether Messrs. Cook and Sizemore immediately followed Mr. Carter back to his office after the first alleged assault. Compare also TR 175-176 with TR 382 and 431, as to whether the April 1, 1983 meeting between himself and Messrs. Hancock and Sizemore was routine in nature. Compare also TR 182 and 186-190 with TR 368, as to when, and at whose instigation Mr. Hancock wrote a memorandum concerning a flare-up of Mr. Sizemore. Mr. Carter exhibited both a lack of candor and accuracy in giving his testimony. Accordingly, I do not credit it wherein it conflicts with that of other witnesses. c. Mr. Hancock was a reluctant, somewhat irritable witness who had to be subpoenaed to testify. His account of the events which he was in a position to witness seemed honest, although his memory of some details was poor. Insofar as his memory served him, I credit his testimony. d. Mr. Sizemore's testimony was basically consistent and corroborated by that of Mr. Cook, insofar as Mr. Cook had knowledge of the events in issue. However, he may have been somewhat biased because he was disciplined, on the recommendation of Mr. Carter, over events here in issue. I therefore give less credence to his testimony wherein it directly conflicts with that of Mr. Hancock. But I find that Mr. Sizemore was a more credible witness than Mr. Carter. e. The other two witnesses were Carol Adams, Mr. Cook's secretary, and Avis Smith, another Manpower Development Specialist in Mr. Carter's division. Both appeared anxious to vindicate their supervisor and somewhat antagonistic towards the attorney for the Charging Party. Ms. Smith seemed somewhat confused. However, she and Ms. Adams appeared to give an honest account of as much of the events at issue as they were in a position to overhear and observe; and I fully credit their testimony. 7. On March 31, 1983 Mr. Carter discussed with his superior some problems with Mr. Sizemore's work, and the need to talk with Mr. Sizemore about these problems. Mr. Carter and his superior both "knew," from prior encounters with Mr. Sizemore, that he "could possibly overreact" to criticisms and "become hostile and combative" (TR 141). 8. Also on March 31, Mr. Hancock gave an assignment to Mr. Sizemore on which Mr. Sizemore had already done some work. Mr. Sizemore completed the assignment within a few hours, and placed a memorandum concerning it on Mr. Hancock's desk. Early the next morning, Mr. Sizemore went into Mr. Hancock's office to inquire about the memorandum. Mr. Hancock advised Mr. Sizemore that he was rewriting it, because Mr. Sizemore had "ma(de) a federal case out of it" (TR 60). Mr. Sizemore expressed his disagreement, and told Mr. Hancock that he "didn't like his manner of criticizing (his) work" (TR 62). Mr. Sizemore spoke in an angry tone of voice, and used words regarded by Mr. Hancock as profane. See TR 305 and R4, page 3. Mr. Hancock ordered Mr. Sizemore out of his office. Mr. Sizemore then approached him with a clenched fist, and said "are you going to make me" (TR 305). Mr. Hancock replied that he was not, and resumed his work. Within a few seconds, Mr. Sizemore left Mr. Hancock's office. 9. Shortly after the Hancock-Sizemore incident, Mr. Hancock advised Mr. Carter of "the flare up" of Mr. Sizemore in his office, and also of several of his work products which needed considerable revision (TR 308). Mr. Sizemore noticed Mr. Hancock going into Mr. Carter's office. Shortly thereafter, Ms. Adams advised Mr. Sizemore that Mr. Carter wanted to meet with him later on in the morning, and that Mr. Hancock would be at the meeting. Mr. Sizemore became suspicious and sought out Douglas Cook, to advise him to stand by to represent him at the meeting. Mr. Cook agreed to do so. 10. The Carter-Hancock-Sizemore meeting took place, as planned. Although Mr. Carter testified that such meetings of the three occurred routinely, "maybe once a week" (TR 175-176), Mr. Hancock could not recall another such meeting, and Ms. Adams testified that they did not occur often. TR 382 and 431. Accordingly, I find that this was not a routine meeting of the three. All three agree that Mr. Carter stated the purpose of the meeting as being to discuss some of Mr. Sizemore's recent work products. See TR 66-67, 130, 136, and 309. They also agree that, shortly after it began, Mr. Sizemore declared that it had become disciplinary in nature and that he wanted to have a union representation. See TR 69-70, 137, 206, and 309. Mr. Sizemore testified that Mr. Carter first brought up the subject of "discipline," in regard to one of the work products discussed (TR 69). Mr. Hancock testified that Mr. Sizemore brought up the subject, and that Mr. Carter then told Mr. Sizemore that the meeting was not to discipline him. See TR 309 and 387-391. Mr. Carter corroborated the testimony of Mr. Hancock. See TR 129 and 136-139. I credit the testimony of Mr. Hancock on this point. Mr. Sizemore began "screaming about (union) representation and discipline" (TR 387), and left the meeting, in a rush, "looking very angry" and with "his hair kind of blowing" (TR 418). 11. Mr. Sizemore left the meeting with the statement that he was going to get his union representative (see TR 70 and 309). /8/ Mr. Sizemore testified that he said that he "would be back in a minute" (TR70). Although Mr. Hancock could not recall that Mr. Sizemore made a statement about being right back with his union representation, it was Mr. Hancock's "perception" that he was going to do just that (TR 391). I credit Mr. Sizemore's statement that he told Messrs. Carter and Hancock that he would be back in a minute. Mr. Carter, nevertheless, adjourned the meeting and left his office. 12. A few minutes later, Mr. Sizemore returned with his union representative, Mr. Cook. They encountered Mr. Carter in the hallway outside Mr. Carter's office suite. Mr. Sizemore told Mr. Carter that the meeting could resume "now that he had his union representative" (TR 16 and see also TR 71). Mr. Carter refused to meet with them. Messrs. Cook and Sizemore understood Mr. Carter to say "Come with me" (TR 17 and 54) or words to that effect. See TR 72-73. /9/ In any event, the trio proceeded down the hallway, past Mr. Carter's office, around several corners, and into the 8200 hallway, going at a fast pace. Messrs. Cook and Carter were walking side by side. Mr. Sizemore followed, coming closer and closer, as Mr. Carter's voice dropped to a whisper, and leaning over so that he could hear what was being said. During this walk through the hallways, all three were talking. Mr Cook was loudly insisting that Mr. Sizemore had a right of representation, and that he would file a grievance on his behalf (see TR 19, 72 and 231). The remark about the grievance sounded "threatening" to Mr. Carter (TR 144). Mr. Carter was saying such things as: "Doug, just let me talk to you;" "(t)here's no need to file a grievance;" "(t)he matter can be resolved;" "it's not necessary to get so emotional," and "(w)e'll deal with the issue when you file your grievance." See TR 20, 72, 146, 159, 223, 226, 231-232, 452 and 454. Mr. Sizemore was interjecting complaints about Mr. Hancock's criticism of his work as the trio walked through the hallway. See TR 451-452. 13. At a midpoint in the 8200 corridor, Mr. Carter suddenly slowed down and shoved Mr. Cook with the heel of his hand, hard enough so that Mr. Cook fell against the wall. See TR 18-21 and 75. /10/ Mr. Cook said: "You hit me. Now you've got your ass in a jam." TR 20, 76-77 and 452. Simultaneously, Mr. Sizemore, who, unbeknownst to Mr. Carter, had been following very closely on his heels, bumped into Mr. Carter. Mr. Carter accused Mr. Sizemore of kicking him. See TR 146. Mr. Cook then said: "He didn't kick you. You're crazy" (TR. 76). Mr. Sizemore apologized, saying he did not mean to kick Mr. Carter. Mr. Carter then asked Mr. Cook to repeat what he had said a second or so ago; and Mr. Cook did, repeating: "You've got your ass in a jam" (TR 76). Mr. Cook acknowledged that this use of language was uncharacteristic for a church leader. See TR 20 and 27. 14. Avis Smith encountered the trio twice in the 8200 hallway, about less than a minute apart-- once on her way to Mr. Carter's office, when they were just rounding a corner into the 8200 hallway (TR 452), and once on her way back to her own office, when she saw them standing in a "cluster" (TR455). She overheard the "ass-in-a-jam" remark. See TR 452. However, she did not observe Mr. Sizemore run into Mr. Carter, or Mr. Cook "up against the wall," or any "physical contact between Mr. Carter, Mr. Cook and Mr. Sizemore" (TR 453). Thus, she would have missed seeing both physical encounters-- the Sizemore-Carter one and the Cook-Carter one-- as they occurred simultaneously. 15. After the 8200 hallway incident, Mr. Carter returned to his office. Messrs. Cook and Sizemore quickly decided that they should request official time for Mr. Sizemore from Mr. Carter, in order to prepare "some further response" (TR 21). Accordingly, they followed Mr. Carter back to his office suite. 16. Both Messrs. Cook and Sizemore walked into Mr. Carter's office suite and past his secretary. Without asking Mr. Carter's secretary to announce him, Mr. Cook proceeded into Mr. Carter's office in the suite. Mr. Cook managed to say "On behalf of-- " (TR 24 and see also TR 22), before Mr. Carter jumped from his chair, behind his desk, and said: "I'm not going to meet with you. Get out of here" (TR 22 and see also TR 81). As Mr. Cook backed toward the door, again uttering "On behalf of-- " (TR 25 and see also TR 22), Mr. Carter came around his desk to Mr. Cook, put his hands on Mr. Cook's arms, swung him around, pushed him out the door, and slammed the door so hard that it slammed into Mr. Cook before slamming shut. /11/ Mr. Hancock and Ms. Adams were sitting at their desks, outside Mr. Carter's office, at the time of this event. Neither could view, fully, what occurred; and neither saw Mr. Cook shoved by Mr. Carter. See TR 380, 424-425, and 439. Mr. Hancock heard the "milling around," looked up from his desk, in an office facing Mr. Carter's office, observed Mr. Cook three feet outside Mr. Carter's office and leaning forward and away from Mr. Carter's doorway, and then heard the door to Mr. Carter's office slam shut. See TR 314, 315, 375, 401-402, 421 and 422. This observation is consistent with Mr. Cook's testimony that he received a hard shove from Mr. Carter, ejecting him forcefully from his office. 17. Mr. Cook is 50 years old, weighs about 200 pounds, and is about 5 feet, 10 inches tall. Mr. Sizemore is 50 years old, weights about 195 pounds, and is roughly 6 feet tall. Mr. Carter appears to be considerably younger than 50 years, engages in a variety of sports and regular exercise, weighs 150 pounds is and 5 feet, five and one-half inches tall. Mr. Cook does not claim that he was "physically harmed" by Mr. Carter (TR 54). 18. On April 13, 1984, Mr. Carter sent the following letter to Jay Edelson, the President of the Union: This is a letter of complaint with regard to the conduct of a Union representative, Mr. Doug Cook on April 1, 1983. In my view, Mr. Cook's conduct was not conducive to a constructive labor-management relationship. Mr. Cook was loud and boisterous in confronting me in a hallway; he used abusive and profane language; and he attempted to force his way into my office, after leaving the hallway. I feel that such actions by Mr. Cook were not in the best interest of the union nor the employee. Those actions also disrupted the work of other employees and therefore impaired the efficiency of the office. Finally, he has impaired his effectiveness in communicating with me on labor-management matters. Based on this letter, identifying Mr. Cook as a "Union representative," and the admission of Mr. Carter that he heard Mr. Sizemore say that he was going to get a union representative, as he left the Carter-Hancock-Sizemore meeting, I find that Mr. Carter knew that Mr. Cook was acting as a union representative during the April 1 incident at issue. 19. On April 21, 1983, Mr. Carter proposed suspension of Mr. Sizemore for five days. See CP1. Reason #1 was "Improper Office Conduct on April 1, 1983," including his having "responded to Mr. Hancock's remarks (at a meeting with him on April 1) with profanity." See finding 8, above. Reason #2 was "Striking a Supervisor," namely Mr. Carter in the hallway collision between the two. See finding 13, above. Mr. Sizemore was, in fact, suspended without pay for five days, for the above reasons. See TR 112. Discussion and Conclusions The General Counsel has established that Respondent's agent gave a Union representative two shoves while he was attempting to represent an employee. See findings 3, 12, 13, 15, and 18, above. However, it was also shown that the shoves were provoked by actions of the Union representative and did not, under the totality of the circumstances established, rise to the level of an unfair labor practice. In the field of labor relations, a certain amount of "robust debate" and "impulsive behavior" is tolerated, when engaged in by union representatives. See, e.g., Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54, 55(1979), hereinafter referred to as Navy. Such tolerance should also be extended to words and actions of managers acting impulsively in response to a provocation by union representatives. The manager here was subjected to loud threats of filing a grievance against him, in public hallways of the agency and within hearing distance of other employees in his division. This was demeaning to him, as a manager, and left doubt as to his ability "to maintain order and respect . . . on the job site." See Navy, FLRA at 55, He was further subjected to the indignity of being told by the union representative, in the hallway, that he was "crazy" and that he had "his ass in a jam"-- a remark that was overheard by a passing employee in the manager's division. After the manager, in effect, fled from this encounter to the sanctity of his office, he was followed by the union representative, who barged past the manager's secretary and into his office, without announcement or appointment. Shoving a union representative while he is performing his statutory duties, can be neither defended nor endorsed as a proper response by a manager to a labor relations dispute. But neither can it be held to be so excessive a response to the situation in which the union representative had placed the manager, that it can be denominated as an unfair labor practice. Cases cited by the General Counsel, at TR 467-469, in support of the complaint, involve much more egregious behavior by managers than is here involved-- twice spraying liquid mace in the face of an employee (Empire Corporation, 212 NLRB No. 81, at page 623); grabbing an employee by the shirt and forcing other employees to separate them (Shultz, Snyder and Steele Lumber Co., 198 NLRB No. 72, at page 424); putting an employee's neck in an arm lock, grabbing him by the arm, and kicking his foot out from under him (Greyhound Taxi Co., 234 NLRB No. 134, at page 785); and punching an employee in the face and neck (Hot Bagels and Donuts, 227 NLRB No. 234, at page 1608). Another case cited by the Charging Party at page 6 of its brief, involved such egregious conduct by an owner as driving his car at excessive speed to disperse pickets and actually sideswiping one (Green Briar Nursing Home, Inc., 201 NLRB No. 73, at page 505 (1973)). Balancing here the union representative's provocation and the manager's impulsive behavior in response, all in the light of the recognized need of management to maintain order at the job site, I cannot conclude that the General Counsel proved, by a preponderance of the evidence, /12/ that an unfair labor practice occurred. In view of the above conclusions, it is unnecessary to reach other questions raised by the parties. Ultimate Findings and Recommended Order The General Counsel having failed to prove, by a preponderance of the evidence, that an unfair labor practice occurred or is occurring, it is hereby ORDERED that this complaint should be, and hereby is dismissed. Isabelle R. Cappello Administrative Law Judge Dated: July 25, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Acting Chairman Frazier's opinion is set forth, infra. /2/ In its cross-exceptions, the Respondent excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. /3/ For a discussion of similar situations arising under the National Labor Relations Act, as amended, see, e.g., H.O. Kline Transportation, Inc., 259 NLRB 299(1981) wherein a manager's conduct in scuffling with a union steward was found not to be violative of the Act inasmuch as the steward had badgered the manager and provoked the confrontation; Michael M. Schaefer, 246 NLRB 181(1979), enforced sub nom. Michael M. Schaefer v. NLRB, 697 F.2d 558 (3rd Cir. 1983), wherein a manager's retaliatory conduct towards employees was deemed not excessive in view of the degree of provocation caused by such employees; Evacuation Construction, Inc., 248 NLRB 649(1980), enforcement denied on other grounds, 660 F.2d 1015 (4th Cir. 1981), where an altercation caused by belligerent employees did not interfere with the exercise of their rights under the Act; Cabot Corporation and Payne and Keller of Louisiana, Inc., 223 NLRB 1388(1976), aff'd sub nom. International Chemical Workers Union Local 483 v. NLRB, 561 F.2d 253 (D.C. Cir. 1977), where defensive conduct on the part of the employer did not violate the Act; and Cosmo Graphics, Inc., 217 NLRB 1061(1975), in which the circumstances surrounding conduct toward picketing employees, including shoving one such employee, absolved such conduct of its possible illegal character. /4/ "GC" refers to the exhibits of the General Counsel. Other abbrevations to be used are as follows. "R" refers to the exhibits of the Respondent, and "CP" to those of the Charging Party. "RBr" refers to the brief of the Respondent, and "CPBr" refers to the brief of the Charging Party. "TR" refers to the transcript. Transcript corrections are made pursuant to 5 CFR 2423.19(r) and are attached hereto as Appendix A. /5/ Section 7102 provides, in pertinent part: Sec. 7102. Employees' 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, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right-- (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities . . . /6/ Section 7116(a)(1) provides: Sec. 7116. Unfair labor practices (a) For the purposes of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . /7/ Attached to the Charging Party's brief are some materials relating to a grievance filed on behalf of William A. Burrell. These materials do not constitute a published EEO decision as stated at page 4 of the brief. And see TR 471. Nor do they appear to constitute any other type of document of which judicial notice may properly be taken. Accordingly, no consideration has been given these materials in reaching the conclusions in this decision. /8/ I do not credit Mr. Carter's denials to the contrary, at TR 139 and 229. See finding 6, above. /9/ Mr. Cook admitted being puzzled by Mr. Carter's remark. See TR 55. I find that Messrs. Cook and Sizemore probably misunderstood him. /10/ I do not credit Mr. Carter's denial, at TR 147, that he put his hands on Mr. Cook. /11/ I do not credit Mr. Carter's denials that this took place. See, e.g., TR 151-152, 238, 242-251, and 272-273. See finding 6, above. /12/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7).