44:1395(115)AR - - AFGE, National Border Patrol Council and Justice, INS, El Paso Border Patrol Sector - - 1992 FLRAdec AR - - v44 p1395



[ v44 p1395 ]
44:1395(115)AR
The decision of the Authority follows:


44 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL BORDER PATROL COUNCIL

(Union)

and

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

EL PASO BORDER PATROL SECTOR

(Agency)

0-AR-2161

DECISION

May 28, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Alan R. Rothstein filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator found that the grievant's 4-day suspension for disrespectful conduct was for just cause and denied the grievance. For the following reasons, we conclude that the award is deficient because it is contrary to section 7102 of the Statute.

II. Background and Arbitrator's Award

At the time of the incidents that led to the disciplinary action, the grievant was employed as a Border Patrol Agent and was serving in the capacity of Field Services Coordinator for the Union. On July 10, 1990, the grievant was off-duty and at home when he received a telephone call from his second-line supervisor regarding the grievant's requests for official time and leave without pay (LWOP) to perform Union duties. The grievant answered the telephone "National Border Patrol Council," because the telephone was in the name of and paid for by the Union. Award at 4. The Arbitrator noted, however, that the telephone number was the same as that provided to the Agency by the grievant as his home telephone number. The supervisor informed the grievant that the latter's official time request had been approved in part and denied in part by the Agency. The supervisor also informed the grievant that, after he had used the approved time, he should advise the Agency if additional time was needed. The grievant replied, "I'm advising you now, asshole. Asshole." Id. On September 25, 1990, during a similar telephone conversation, the grievant called the same supervisor "a space cadet" when the supervisor told the grievant to submit a requested change in leave through official channels. Id. The Agency suspended the grievant for 4 days for disrespectful conduct to his supervisor.

At the arbitration hearing, the parties stipulated to the following issue:

[W]as the disciplinary action taken against the grievant for just and sufficient cause and for such reasons as promote the efficiency of the Service? If not, what shall be an appropriate remedy?

Id. at 2.

Before the Arbitrator, the Union asserted, among other things, that the grievant's language constituted protected speech under section 7102 of the Statute. The Union claimed, in this regard, that the telephone conversations pertained to the grievant's official time and LWOP requests, that the official time and LWOP approval provisions of the parties' collective bargaining agreement apply only to Union representatives, and that the grievant was acting in his Union capacity during the conversations with the supervisor. The Union also stated that the telephone conversations were private and, therefore, had no effect on the efficiency of the Agency.

The Arbitrator rejected these arguments. In the Arbitrator's view, the central issue was whether the telephone conversations were held between a supervisor and a subordinate employee or between a supervisor and a Union official engaged in authorized business under the Statute. The Arbitrator recognized that the use of intemperate language by a union official in the context of a collective bargaining relationship might be protected speech, provided certain criteria are satisfied. However, the Arbitrator concluded that the remarks made by the grievant in this case did not meet the requirements of protected speech because the telephone conversations did not occur within the context of a labor-management relationship. The Arbitrator determined that the conversations at issue occurred between a subordinate employee and a supervisor, inasmuch as the conversations related to the use of leave. The Arbitrator reasoned that when requests for official time are made by employees, who also happen to be Union officials, it is only in the employees' capacity as employees that the Agency can exercise leave approval authority.

According to the Arbitrator, the supervisor's knowledge that the grievant was a Union official and that the telephone was in the Union's name was not sufficient to place the conversations into the context of labor-management relations. The Arbitrator noted that the telephone number was listed as the grievant's home telephone number and that the conversations between the grievant and his supervisor took place while the grievant was off-duty, and in response to the grievant's off-duty inquiry regarding his leave requests. The Arbitrator determined that the grievant had a duty to inform the supervisor that he considered their conversations to be labor-management business before the grievant's remarks could be considered protected speech.

The Arbitrator found that the grievant's conduct occurred during private telephone conversations. The Arbitrator explained that, in his view, intemperate language may be used during a grievance presentation or a bargaining session to show union members that the union can stand up to management. However, the Arbitrator found that in a private conversation, speech cannot be used for such purposes because it would not assist the union and because a supervisor is not likely to change a course of action after being insulted. In this case, the Arbitrator determined that the words spoken by the grievant were used in a derogatory manner and were intended to evoke an emotional response from the supervisor. The Arbitrator rejected the Union's claim that the grievant used derogatory terms merely to express his sense of frustration with the situation. The Arbitrator concluded that there were more appropriate means available to the grievant to convey his sense of frustration.

The Arbitrator also concluded that the employee-supervisor relationship extended to off-duty hours. The Arbitrator noted that Article 4(J) of the parties' agreement authorizes the Agency to discipline an employee for off-duty conduct if that conduct is likely to have an impact on the employee's work performance.(1) The Arbitrator found that the derogatory terms were a direct affront to employee-employer relations and that the grievant's conduct was "highly likely to have negative repercussions in the work environment[.]" Award at 14. Consequently, the Arbitrator concluded that there was a sufficient nexus between the grievant's conduct and his performance to justify the disciplinary action.

Finally, the Arbitrator rejected the Union's argument that the Agency violated the grievant's due process rights. The Arbitrator found that the Agency properly had afforded the grievant an opportunity to be heard and had conducted a thorough investigation of the incident.

Accordingly, the Arbitrator concluded that there was just and sufficient cause for the disciplinary action and denied the grievance.

III. Positions of the Parties

A. Union

The Union excepts to the award on the basis that it is contrary to the Statute, and because it fails to draw its essence from the parties' collective bargaining agreement. The Union also requests that the Arbitrator's award be set aside.

The Union contends that the Arbitrator erred in concluding that the grievant's requests for official time or LWOP to conduct Union business were made as a subordinate employee. The Union claims that, under the parties' agreement, accredited Union officers are eligible to use official time and LWOP to conduct Union business and that the Arbitrator's attempt to classify official time and LWOP as regular employee leave is contrary to the agreement. The Union also argues that official time to perform representational duties is essential to the functioning of Federal employee unions and that requests for official time are protected activity. The Union claims that the award would require the Union to hire non-employees to conduct all Union activities, and that such a requirement would preclude any meaningful protected activities by employees.

The Union also contends that the Arbitrator improperly extended the scope of the employment relationship. The Union claims that the employer's control over an employee's off-duty conduct is narrow and that the employer cannot discipline an employee for off-duty actions that have no impact on the work relationship. The Union asserts that because the grievant was acting in his capacity as a Union representative, his outburst did not have an impact on his work and, therefore, no nexus existed to justify disciplinary action under Article 4(J) of the agreement.

The Union also claims that the Arbitrator misapplied the criteria for determining whether speech is protected under the Statute. Specifically, the Union argues that speech need not be uttered in public to be protected. The Union contends that comments made in private meetings are afforded greater protection than comments made in the presence of others because public comments tend to undermine supervisory authority. The Union argues that the subject matter of the conversations involved official time and LWOP to perform representational duties; the nature of the grievant's conduct was not intolerable in a labor-management context; the grievant's response was provoked by the supervisor's refusal to follow the settlement of a previous unfair labor practice charge; the conduct was impulsive; and the grievant's actions did not constitute flagrant misconduct.

The Union argues that the parties should be given leeway to deal with each other in whatever manner they choose, within the parameters of the Statute, even if their course of conduct is destructive to their relationship. The Union also claims that there is no requirement in law, rule, regulation, Authority case law, or the parties' agreement that requires Union officials to put the Agency on special notice that requests for official time and LWOP to conduct Union business constitute protected activity.

B. Agency

The Agency contends that the Union has failed to state a basis on which an exception could be granted. The Agency claims that the Union is merely disagreeing with the Arbitrator's findings of fact and interpretation of the agreement, and that such contentions provide no basis for finding the award deficient.

Initially, the Agency agrees with the Union that the Arbitrator improperly determined that the grievant was acting only as a subordinate employee at the time of the incidents giving rise to the disciplinary action. The Agency claims that the grievant was acting both in his capacity as an employee and also as a Union official. However, the Agency asserts that the Arbitrator's determination is not relevant to his finding that the grievant's language was not protected speech "because the rights exercised by employees to request release from duty on official time are the same as those exercised by [U]nion officials." Opposition at 17. Therefore, the Agency claims that the Arbitrator would have applied the same factors to determine whether an offensive outburst could constitute protected speech regardless of whether the outburst was made by an employee or a Union official.

The Agency further argues that the Arbitrator correctly determined that the grievant's language did not constitute protected speech. The Agency states that the Arbitrator made all the factual findings necessary to determine that the disciplinary action did not interfere with any right to engage in protected activity, and that the Authority may not substitute its judgment for that of the Arbitrator.

IV. Analysis and Conclusions

We conclude that the award is deficient because it is contrary to section 7102 of the Statute.

In its exceptions, the Union contends that the grievant's requests for official time and LWOP to conduct Union business constitute protected activity under section 7102 of the Statute. The Authority has held that when exceptions to an arbitration award raise the question of whether a grievant was disciplined for conduct while engaging in protected activity, the Authority will review the record in the case to determine whether the conduct for which the grievant was disciplined was committed while the grievant was engaged in activities protected by the Statute and whether that conduct exceeded the boundaries of the protection of the Statute. U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, 32 FLRA 252, 254 (1988). An award sustaining discipline for conduct committed while an employee is engaged in protected activity is contrary to the Statute unless the conduct exceeded the bounds of the protection of the Statute. Id.

In this case, the Arbitrator determined that the grievant requested official time and LWOP to perform Union duties in his capacity as a subordinate employee, rather than in his capacity as a Union representative. On this basis, the Arbitrator concluded that the grievant was not engaged in protected activity at the time he made the requests because he was not involved in labor-management activities and, therefore, that the remarks made to the supervisor were not protected.

We reject the Arbitrator's finding that the grievant was acting solely in his capacity as an employee when the requests were made. In our view, the Arbitrator's finding that the grievant was acting solely as an employee when he requested LWOP and official time was premised on an erroneous view that the Agency could approve an employee's request for LWOP and official time only when the request was made by the employee qua employee. While drawing a distinction between an employee of the Agency and "a paid [union] professional," the Arbitrator failed to recognize that an employee serving as a Union official can request and be granted LWOP and official time while serving in that capacity. Award at 9. An employee who is representing a labor organization is no less an employee of an agency simply because that individual serves in a representative capacity. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 35 FLRA 1146, 1151 (1990) (agency employee representing union on 100 percent official time continued to occupy status as agency employee). Nonetheless, when an employee who is serving in a representative capacity requests leave to engage in union activities, that employee is requesting such leave in his or her representative capacity.

In this case, neither party disputes the Arbitrator's finding that the grievant was an employee of the Agency at the time he requested official time and LWOP. However, both parties disagree with the Arbitrator's characterization of the grievant as being only a "subordinate employee" at the time he made the requests. Instead, the Union contends, and the Agency agrees, that the grievant was also an appointed Union official and was acting in that capacity when he made the official time and LWOP requests. In fact, despite his finding to the contrary, the Arbitrator also acknowledged that "only an employee who is also a Union official would request Agency approval of use of official time for Union business (see Article 32, Section D)." Id. Under these circumstances, we conclude that the grievant was acting in his capacity as a Union official when the official time and LWOP requests were made.

Additionally, it is undisputed that the grievant's requests for official time and LWOP were made for the purpose of engaging in "[U]nion duties." Id. at 4. The record indicates that the parties' agreement contains provisions authorizing the Agency to relieve Union officials of their official duties while they are serving as Union officials and to approve official time for Union business. Although it is unclear from the record under which agreement provisions the grievant sought official time and LWOP, it is clear that the grievant was acting as a Union official when he made the requests for official time and LWOP and that the purpose of such time was to conduct Union business.

Section 7102 of the Statute guarantees employees the right to engage in activities on behalf of an exclusive representative without fear of penalty or reprisal. We are persuaded, based on our analysis of the record, that the grievant was engaged in protected activity under section 7102 of the Statute when he sought approval of the official time and LWOP requests in order to perform Union duties. Consequently, the remarks made by the grievant to the supervisor that led to the grievant's discipline were made during the course of protected activity and were themselves protected unless the remarks exceeded the boundaries of the Statute.

In order to exceed the protection of the Statute, the grievant's remarks must have constituted "flagrant misconduct." See U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 385, 390 (1990) (Tinker II). In our view, the grievant's remarks were not of such an outrageous or insubordinate nature so as to remove them from the protection of the Statute. We note that the remarks were made in private telephone conversations, occurred while the grievant was off-duty, and did not involve any defamatory utterances. While we do not condone the grievant's conduct, we are not persuaded that, given the circumstances of this case, the remarks constituted flagrant misconduct. See, for example, Long Beach Naval Shipyard, Long Beach, California, and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002 (1987) (no flagrant misconduct found where union official made remarks to police officer during altercation with employee); Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54, 75 (1979) (union official was improperly suspended for remarking to a supervisor, "I am going to get your ass[,]" among other things, when seeking permission to meet with another union official). See also Thor Power Tool Co., 148 NLRB 1379, 1380 (1964) (National Labor Relations Board found that union grievance committee member was engaged in protected activity during grievance discussion and was unlawfully discharged for muttering term "'horse's ass[]'" to plant superintendent), enforced, 351 F.2d 584 (7th Cir. 1965). Compare Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553 (1990) (flagrant misconduct found where the grievant disregarded an order to terminate a telephone conversation concerning union business when a life threatening situation required his attention). Consequently, we conclude that the remarks made by the grievant fell within the ambit of protected activity.

Having made this finding, we also find that the grievant could not be disciplined for that conduct. See Tinker II, 34 FLRA at 391. Because the award sustains discipline for protected activity under section 7102 of the Statute, the award is contrary to law and must be modified. An appropriate remedy is to sustain the grievance. Id. Additionally, we will order that all references to the suspension be expunged from the grievant's personnel file and that the grievant be reimbursed for any lost pay, allowances, or differentials resulting from the 4-day suspension. In so ordering, we find that the Agency's action of improperly disciplining the grievant for engaging in protected activity under section 7102 of the Statute constituted an unjustified or unwarranted personnel action under the Back Pay Act, 5 U.S.C. § 5596. We further find that the discipline directly resulted in the loss of pay, allowances, or differentials and that, but for such action, the grievant would not have suffered the loss. In our view, such an order is mandated under the Back Pay Act and will fully remedy the grievance.(2)

V. Decision

The Arbitrator's award is vacated and the following is substituted in its place:

The grievance is sustained. All references to the suspension shall be expunged from the grievant's personnel file. Also, in accordance with 5 U.S.C. § 5596(b)(1)(A)(i), the Agency shall reimburse the grievant for an amount equal to all or any part of the pay, allowances, or differentials the grievant would have received had the 4-day suspension not been imposed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. That provision states: