45:0138(14)CA - - Navy, Naval Facilities Engineering Command, Western Division, San Bruno, CA and NFFE Local 2096 - - 1992 FLRAdec CA - - v45 p138

Other Files: 


[ v45 p138 ]
45:0138(14)CA
The decision of the Authority follows:


45 FLRA No. 14

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING COMMAND

WESTERN DIVISION SAN BRUNO, CALIFORNIA

(Respondent/Agency)

and

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES, LOCAL 2096

(Charging Party/Union)

9-CA-00100

9-CA-00134

DECISION AND ORDER

June 11, 1992

Before Chairman McKee and Members Talkin and Armendariz.1/

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administration Law Judge. The Respondent filed an opposition to the exceptions and cross-exceptions. The General Counsel filed an opposition to the Respondent's cross-exceptions.

The consolidated complaint alleges that, by the manner in which it structured and implemented a reduction-in-force (RIF)/reorganization, the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute). The complaint also alleges that the Respondent violated section 7116(a)(1) and (2) by reprimanding a Union steward and by failing to select the steward for a position because of the steward's protected Union activity.

The Judge concluded that the Respondent did not violate the Statute by the way in which it structured and implemented the RIF/reorganization or by failing to select the Union steward for a position. The Judge also concluded that the Respondent violated section 7116(a)(1) by reprimanding the steward.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II. Background

On June 7, 1988, the Union was certified as the exclusive representative of a bargaining unit consisting of "[a]ll Resident Officer in Charge of Construction (ROICC) employees working for the Western Division, Naval Facilities Engineering Command, including all Construction Representatives, Engineering Technicians, Procurement Assistants, Stenographers, Clerks and Clerk Typists employed in the nine (9) western states, including Alaska, and all employees duty-stationed in San Francisco Bay." General Counsel's Exhibit 9.

The Union succeeded an American Federation of Government Employees (AFGE) local as the exclusive representative of the unit. After certification, the Union "encountered difficulty and delay in having its [dues] checkoff authorizations processed and the AFGE authorizations terminated . . . ." Judge's Decision at 4. In addition, the Respondent refused to post a list of the Union's stewards. The Union generally was "active" in filing unfair labor practice charges and grievances, including a charge relating to the processing of its dues authorizations, and "raised employee complaints concerning training and smoking . . . ." Id. at 5. The Union and the Respondent reached agreement on a collective bargaining agreement in December 1988.

For fiscal year 1990, the budget for the Naval Facilities Engineering Command (Command) was reduced by approximately $20 million and, on May 30, 1989, the Command requested all field activities, including the Respondent, to develop plans to accommodate the reduction. On July 14, 1989, the Respondent requested authorization from the Chief of Naval Operations (CNO) to, as relevant here, conduct a reduction-in-force (RIF) involving 159 of Respondent's civilian employees.2/ On the same date, the Respondent notified the Union of the anticipated RIF and provided the Union with a copy of the request to the CNO. The Respondent's notification included a listing of competitive areas for certain positions.

On July 24, 1989, the Union replied to the Respondent's notification. The Union stated that it did not agree with the Respondent's competitive areas, and requested detailed information on the proposed RIF action as well as a meeting at such time as the Respondent was authorized to conduct the RIF. On July 26, 1989, the Union requested, in writing, further information from the Respondent and a meeting no later than August 15, 1989. The Union also stated:

It is becoming clear to the Federal [e]mployees in [t]his [b]argaining [u]nit that your [July 14 notification] was not giving the true picture of what you are really planning for the Western Division in FY90. There is now enough information surfacing . . . that it is clear [that] a true [r]eduction-[i]n-[f]orce is not the true [i]mpact of your planned actions . . . you have failed to inform [the Union] you are also planning . . . [a] [r]eorganization of [t]he . . . [c]onstruction [r]epresentatives . . . which is where [the Union's] membership has come from . . . . This appears to be discrimination more than budget . . . .

General Counsel's Exhibit 16 at 2.

Following a series of meetings among Respondent's managers and supervisors in July and August 1989, a decision was made to, among other things, eliminate construction representative (Con Rep) positions (GS-8/10) and establish new engineering technician positions (GS-10/11). When questioned about the decision by an official from the Command, a representative of the Respondent asserted that "by requiring contractors to do more quality control and by using Engineering Technicians with broader technical experience[,] they could do the same amount of construction quality assurance with fewer Engineering Technicians than . . . otherwise would be required . . . ." Judge's Decision at 7-8.

By letter dated August 24, 1989, the Respondent informed the Union that it planned to restructure its offices by, among other things, eliminating Con Rep positions and establishing new engineering technician positions, referred to as construction management technician (CMT) positions. Respondent listed the following unit positions to be abolished: 124 construction representatives; 14 procurement clerks; 10 clerk typists; 7 engineering technicians; 3 administrative assistants; 2 contract specialists; 1 support services specialist; and 1 program assistant. Enclosure 1 to Respondent's Exhibit 13.3/ The Respondent also stated:

The reduction in budget for FY90 has required management to restructure part of its organization in order to continue to pursue the mission of the organization under the reduced budget. . . . These decisions have been made based on legitimate business factors driven by budget constraints. They were not made discriminately to "bust" the Union as you contend. In order to continue to support mission requirements within the budget constraints a new position description was established. . . . It is the intention of this command to reassign current GS-11 level employees into this new position from positions identified for reduction-in-force. We intend to announce the remaining positions under Merit Promotion and select current GS-9 and GS-10 level employees who would be adversely affected by the RIF. . . .

Respondent's Exhibit 13 at 2.

On August 25, 1989, John Teale, a Union steward, "reacted" to the Respondent's August 24, RIF notification by writing a letter, in his capacity as Union steward. Judge's Decision at 10. The letter was addressed to the "UNION MEMBERSHIP AND UNAFFILIATED LOWER ECHELON STAFF" and stated, in part:

WAR HAS BEEN DECLARED!!! AUGUST THE 25th shall forever remain a day of infamy on my calendar. August 25th 1989 was the day when [the Western Division] made it a personal WAR against ME!

This afternoon we . . . were informed as to who [the Western Division] had decided had to go

. . . . Naturally the DEATH LIST included ALL OF THE CON REPS plus THE ONE AND ONLY GS-9 ENGINEERING TECH. The bastards (for that is the most fitting adjective short of pure unadulterated profanity that sufficiently describes that bed of rattlesnakes in San Bruno) would have saved their poor typist a few hunts and pecks on the typewriter by simply typing [nine] Con Reps and John Teale.. . . .

[The Union President] also informed me that Admiral Montoya who was intending leaving the Navy in December has decided to leave now in October so as it will give him plenty of time to commence to begin a new organization supplying Title II's to the Navy. (And I thought such intrigue went out of style fifty years ago. I've got news for you all. Intrigue, guile and graft is still with us and I guess it will always be although I will interject that in Russia not too long ago, such antics would result in ten well aimed pieces of lead right between the ears.) Not so in America.

Another gem is that [the Western Division] have overstepped their authority. They are legal to RIF 50 bodies ONLY. . . . Over fifty must come from OPM -- Not Captain Smith and certainly not from Sicilian Frank. (I do hope I don't get kneecapped for the latter remark . . . if I do you will know who is responsible.)

[The Union President] suggests that if The Navy ultimately is successful in screwing you and me out of our jobs it will be a precedent that will effectively Bust every union in the Federal system including AFGE as well as our own NFFE.

[The Union President] informed me that the NFFE is commencing legal action against [the Western Division] in Washington on Monday next, 28 August. [The Union President] asks that we all do one thing (well several) write letters to everyone you can think of, Senators, Congressmen, The President (George Bush), newspapers, radio and TV stations. Let everyone know what a bunch of bastards are running things for the Navy from San Bruno. It is time to pull out all the stops. Blackmail is a good way to start. If you have anything on any of these sons of bitches let us know (quietly). Anything we can hold over their heads like they are doing with us. . . .

Patriotism and efficiency and zeal are rewarded by pure treachery. I wouldn't be surprised if Ruccolo hasn't written this entire fiasco up as a &%$#ing Benny Sug for what he can get out of it, he is that kind a fellow.

General Counsel's Exhibit 21 at 1-2. Teale distributed the letter to four or five Union members.

In September 1989, the Respondent and the Union engaged in impact and implementation bargaining regarding the planned RIF and entered into an agreement. On October 10, 1989, the CNO authorized the Command to conduct a reduction-in-force of 159 employees.

By letter dated October 27, 1989, the Respondent officially informed the President of the Union of "management's discontent" regarding Teale's August 25 letter. Judge's Decision at 12. In its October 27 letter, the Respondent stated, in part, as follows:

The serious nature of the derogatory statements made in [Teale's letter] regarding management officials compel me to formally express management's discontent of the poor judgment displayed by the steward. Management takes exception to the insulting statements made in [the letter]. Management recognizes that, inevitably,there will be differences between Labor and Management and certainly each party has the right to robustly express its views within the legitimate bounds of the Federal Labor-Management Relations arena. In the instant case, however, [m]anagement strongly feels that the steward involved has exceeded these bounds at the detriment of our Labor-Management relationship.

General Counsel's Exhibit 13.

On November 3, 1989, the Respondent issued Teale a letter of reprimand "for use of derogatory and insulting language about other personnel in your memo dated 25 August 1989[.]" General Counsel's Exhibit 22. The Respondent stated, in part:

3. The manner in which you presented your views of management actions relating to the anticipated reduction-in-force crossed the line of acceptability. You overstepped your responsibility as an employee and a Union Steward in making such statements about your employer's management officials.

. . . .

5. While I believe your memo was written out of sheer frustration associated with the anticipated reduction-in-force, the manner in which you refer to members of management and present your mistaken conclusions for actions taken, is a display of profound bad judgment warranting disciplinary action.

General Counsel's Exhibit 22. On November 13, 1989, Teale sent a letter to Frank Ruccolo, Construction Director, stating that Teale regretted "maligning" Ruccolo and "becoming involved with this or any other union." General Counsel's Exhibit 23. Teale also advised Ruccolo that Teale was resigning from the position of Union steward.

On November 16, 1989, the Respondent informed the Union that "during the week of November 27, 1989, affected employees would be issued a 60 calendar day notice of the RIF[.]" Judge's Decision at 13. The Respondent sent RIF notices to 127 bargaining unit employees, "[c]onsisting of 109 [c]onstruction [r]epresentatives, one [e]ngineering [t]echnician and 17 other employees." Id. at 14.

At the San Francisco Bay office, 15 construction representatives were issued RIF notices, including William Smith, the acting Union President. There were four GS-10 vacant CMT positions at the San Francisco Bay office and two GS-10 vacant CMT positions at the Concord office. Smith applied for one of the GS-10 CMT vacancies in the San Francisco Bay office. Smith was in the final group from which the selections were made, but was not selected. On December 26, 1989, the Respondent issued a new vacancy announcement for GS-9/10 CMT positions at the San Francisco Bay and Concord offices. As Smith previously applied for such positions he was automatically considered under the new vacancy announcement. Smith was not selected for a position. Smith filed an unfair labor practice (ULP) charge against the Respondent for its failure to select him for a position under either of the vacancy announcements. In settlement of the ULP charge, Smith "was made whole and his RIF action was rescinded[.]" Id. at 19.

In the El Toro office, Union steward Chavez was 1 of 18 applicants for 6 GS-10 CMT vacancies. Chavez received the highest score of all the applicants, but was not selected. Chavez filed an ULP charge against the Respondent when he was not selected. The Respondent settled the ULP charge by rehiring Chavez as a GS-10 engineering technician in the El Toro office and making him whole.

Teale applied under the November 8, 1989, vacancy announcement, for a GS-10 CMT position at all locations, except Alaska, San Francisco Bay, Concord, Stockton, and Long Beach. Teale was not selected for a position. Teale also applied for a position under the new GS-9/10 CMT vacancy announcement, but was not selected. The Union filed the ULP charge in Case No. 9-CA-00100, alleging that the Respondent violated section 7116(a)(1) and (2) of the Statute by issuing Teale a letter of reprimand and refusing to select him for a vacant position because of his protected Union activity.

On December 15, 1989, the Union filed a grievance alleging that the RIF violated law, rule, and regulation. On December 18, 1989, the Union filed the ULP charge in Case No. 9-CA-00134 alleging that the Respondent violated the Statute by attempting to "bust the Union" by the manner in which it structured the RIF. General Counsel's Exhibit 1(e). On January 10, 1990, the Respondent denied the Union's grievance regarding the RIF.

III. Administrative Law Judge's Decision

A. Procedural Issue

The Judge rejected the Respondent's contention that the complaint in Case No. 9-CA-00134 was barred by section 7116(d) of the Statute. The Judge found that the issues raised by the grievance were not the same issues as those raised by the ULP complaint. In particular, the Judge agreed with the General Counsel's contention that the grievance did not raise the issue, raised in Case No. 9-CA-00134, that the Respondent unlawfully discriminated against unit employees by selecting their positions for abolishment in retaliation for the Union's protected activity. Accordingly, the Judge found that the unfair labor practice complaint was not barred by section 7116(d) of the Statute.

B. Case No. 9-CA-00134

The Judge concluded that the General Counsel did not make a prima facie showing that protected activity was a motivating factor in the Respondent's decision to abolish the construction representative positions.

The Judge found that nothing in the record "indicates, or even suggests, that Union activity was a consideration" in the Respondent's decision to eliminate the Con Rep position. Judge's Decision at 27. The Judge stated that the only "Union animus" shown by the General Counsel concerned the harassment of Chavez by his supervisor, which was "not an allegation of the [c]omplaint . . . ." Id. The Judge found that "[o]ther indicia relied upon by [the] General Counsel" did not constitute Union animus. Id. In this regard, the Judge concluded that the Respondent's delay in processing the Union's dues authorizations and terminating AFGE's authorization was due to administrative time lag and "the desire of some employees, with the support of the Union, to continue their AFGE deductions in order to maintain AFGE health insurance . . . ." Id. at 28. The Judge also concluded that the Respondent's refusal to post the Union's steward list on bulletin boards was not improper because the Union "'jumped the gun'" in posting the steward lists before the parties had negotiated over the numbers, locations, official time and procedural aspects for Union stewards. Id. Moreover, although the Judge found that there was "some hostility to the Union by a few supervisors at two ROICC offices," he concluded that "such isolated conduct certainly would not justify an inference that the decision to" eliminate Con Rep positions "was motivated by Union animus." Id. The Judge found no merit in the General Counsel's contentions that the Respondent made false statements to Congressional representatives and the Union to cover up the fact that the RIF would eliminate the Con Rep position.

Finally, the Judge rejected the General Counsel's contentions that the Respondent's actions with respect to Smith, Chavez, and Teale evidenced that the Respondent's RIF selections were motivated by consideration of union activity. The Judge stated that he expressed "no opinion" as to whether the Respondent failed to select Smith or Chavez for job openings because of their Union activity. Id. at 20. With respect to Teale, the Judge concluded that the Respondent abolished all engineering technician positions, including the one GS-9 position occupied by Teale, and that Teale "was not singled out . . . ." Id. at 31.

In conclusion, the Judge noted that "[t]he General Counsel bears the burden to establish by a preponderance of the evidence that an unfair labor practice has been committed." Id. The Judge found that the General Counsel "ha[d] not established that protected union activity was a motivating factor in Respondent's decision" to eliminate the Con Rep positions. Id.

The Judge further found that the Respondent demonstrated that there was a legitimate justification for its action and the same action would have been taken even assuming that consideration of protected Union activity was a motivating factor. According to the Judge, to satisfy necessary budget cuts, the Respondent "changed its 'method of doing business' from daily on-site inspection to [c]ontractor [q]uality [c]ontrol." Id. at 26. In the Judge's view, this change "meant the abolishment of the [c]onstruction [r]epresentatives whose function was to provide daily on-site inspection[.]" Id. The Judge concluded that the decision to eliminate daily on-site inspection was "a sound, legitimate and rational[e] response to the reduction in force required." Id. The Judge noted that, by abolishing all engineering technicians, supervisory construction representatives, and construction representative positions and "replacing them with 70 CMTs . . . [the] Respondent reduced it workforce by 85[.]" Id. The Judge concluded that "there was a legitimate justification for its action and, . . . [it] would have taken the same action even in the absence of protected activity." Id. at 31 (footnote omitted). Accordingly, the Judge recommended dismissal of the complaint in Case No. 9-CA-00134.

C. Case No. 9-CA-00100

1. Reprimand

As relevant here, the Judge determined that Teale wrote his letter of August 25 as a Union steward. The Judge further determined that the Respondent issued Teale the November 3 reprimand because of statements he made in the August 25 letter. Citing Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974) (Letter Carriers) the Judge noted that section 7102 of the Statute guarantees employees' rights "to form, join, or assist any labor organization." Judge's Decision at 32 (quoting 418 U.S. at 277). The Judge also noted that section 7102 of the Statute protects employees' right "to publicize matters affecting unit employees' terms and conditions of employment[.]" Id. at 35 (quoting Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA 1044, 1048 (1987). The Judge pointed out, however, that the protection afforded under section 7102 "is not absolute[.]" Id. at 34.

With respect to cases where statements were found to be protected by the Statute, the Judge examined Internal Revenue Service, North Atlantic Service Center (Andover, Massachusetts), 7 FLRA 596 (1982) (distribution of union leaflet criticizing a supervisor's behavior and referring to the supervisor as "this season's holiday turkey" was found protected); U.S. Department of Housing and Urban Development, Region VI, and U.S. Department of Housing and Urban Development, Region VI, San Antonio Office, Case No. 6-CA-20311, ALJ Decisions Report No. 36 (April 12, 1984) (posting of union correspondence criticizing and accusing management of perjury found protected); and Department of Treasury, Internal Revenue Service, Memphis Service Center, 16 FLRA 687 (1984) (union steward's conduct in referring to a supervisor as a "fool" during a grievance meeting was found protected).

With respect to cases where statements were found to be outside the ambit of protected activity, the Judge examined Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71 (1985) (Defense Mapping) (employee's conduct in using profanity during a grievance meeting was not protected); United States Forces Korea/ Eighth United States Army, 17 FLRA 718 (1985) (Eighth Army) (union president's letter to foreign newspaper making derogatory and defamatory statements about U.S. Government officials was not protected); and Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 26 FLRA 114 (1987) (Veterans Administration), aff'd sub nom., American Federation of Government Employees, Local 2031 v. FLRA, 878 F.2d 460 (D.C. Cir. 1989) (union president's article disparaging a manager by using racial epithets and racial stereotyping was not protected).

The Judge compared the facts in Defense Mapping, Eighth Army, and Veterans Administration, to those in the instant case. The Judge noted that, although Teale's letter was "quite different from the racial discrimination involved in Veterans Administration," Teale had resorted to racial stereotyping. Judge's Decision at 37. The Judge further noted that Teale used the same profanity which was found indefensible in Defense Mapping. In the Judge's view, Teale's statements to the Respondent were not disloyal as in Eighth Army, because "there was no foreign country involved." Id. at 37. Based on Letter Carriers, the Judge concluded that Teale's letter was protected as "uninhibited, robust, and wide-open debate[.]" 418 U.S. at 273. Accordingly, the Judge found that the Respondent's reprimand of Teale violated section 7116(a)(1) of the Statute.4/

2. Failure to Select Teale

The Judge found that the General Counsel failed to establish by a preponderance of the evidence that the Respondent's failure to select Teale for any of the vacant GS-10 CMT positions for which he applied resulted from prohibited discrimination. In particular, the Judge concluded that the Respondent did not discriminate against Teale by failing to select him for a position at the Northwest, Everett, or El Toro offices because there were other nonselectees, with higher promotion point totals than Teale and/or the selectees, who had not engaged in Union activity. The Judge found that Teale had a higher promotion point total than the selectees at Barstow and China Lake. However, noting that the General Counsel did not rely on this fact, the Judge concluded that the point total comparison were insufficient to establish a prima facie case of discrimination.

The Judge noted that employees at Barstow were selected for the Barstow positions and employees at China Lake were selected for the China Lake positions. The Judge concluded that these selections were based on "'homer' preference." Id. at 40. The Judge stated that he could not evaluate the selections at the other locations where Teale applied because there was no evidence offered concerning them.

The Judge also found that the evidence did not establish that the Respondent's failure to select Teale for GS-9 CMT vacancies in San Francisco and Concord was based on his protected Union activity. The Judge noted that no evidence was offered concerning the GS-9 vacancy at Concord. The Judge also noted that the only evidence offered concerning the GS-9 vacancy at San Francisco was a position vacancy application which showed the five selected employees. The Judge pointed out that two of the selectees had also applied for positions at the Everett office and, for those positions, one had a higher score and one had a lower score than Teale. The Judge concluded that the mere fact that one selectee's score was lower than Teale's "is not sufficient to make a prima facie case of discrimination . . . ." Id. at 41.

In sum, the Judge found that the General Counsel had not established that the Respondent's failure to select Teale for any of the vacant CMT positions was motivated by consideration of his protected Union activity. Accordingly, he recommended that the allegation be dismissed.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel filed 44 separate exceptions to the Judge's decision. In its brief in support of exceptions, the General Counsel consolidated its arguments into the following 5 exceptions.

First, the General Counsel contends that the Judge's conclusions concerning the RIF/reorganization are erroneous and inconsistent with the evidence. The General Counsel argues that the Judge failed to apply the correct standard to determine whether the General Counsel had made a prima facie showing that protected activity was a motivating factor in Respondent's structuring of the RIF/reorganization. The General Counsel maintains that the record contains a "wealth of evidence" establishing that protected activity was a motivating factor in the Respondent's RIF/reorganization decisions. General Counsel's Brief in Support of Exceptions at 4.

Second, the General Counsel contends that the Judge "throughout his decision, made suppositions and excused certain conduct by drawing conclusions that had no bas[i]s in the record[.]" Id. at 13.

Third, the General Counsel argues that the Judge erred in failing to discredit Construction Director Ruccolo's testimony that the managers and supervisors recommended Respondent's elimination of the Con Rep positions. The General Counsel maintains that "the clear preponderance of the evidence demonstrat[ed] that Ruccolo should not have been believed[.]" Id. at 14.

Fourth, the General Counsel excepts to the Judge's finding that the Respondent established that there was a legitimate justification for the manner in which it structured the RIF/reorganization.

Fifth and finally, the General Counsel maintains that the Judge's analysis of the evidence is inconsistent. The General Counsel contends that the Judge selectively used evidence which would assist him in dismissing the complaint and ignored evidence which undermined his decision.

B. Respondent's Opposition and Cross-Exceptions

In its opposition, the Respondent contends that the General Counsel failed to show that protected activity was a motivating factor in the Respondent's structuring of the RIF/reorganization. The Respondent argues that "[t]he General Counsel presented no evidence to show that the decision was aimed at busting the union." Respondent's Opposition at 4. The Respondent also maintains that the General Counsel failed to prove that "there was disparate treatment accorded unionists seeking to be retained or rehired with those who were in fact retained or rehired." Id. at 5.

In its cross-exceptions, the Respondent excepts to the Judge's decision that the complaint in Case No. 9-CA-00134 is not barred by section 7116(d) of the Statute. The Respondent asserts that the grievance sought "[a] reversal of the Reduction-In-Force." Id. at 2. The Respondent contends that the Union seeks the same remedy and relies on the "same set of circumstances and facts" in Case No. 9-CA-00134. Id. The Respondent also excepts to the Judge's determination that the Respondent's reprimand of Teale violated section 7116(a)(1) of the Statute. Citing Veterans Administration, the Respondent argues that Teale's derogatory comments toward, Ruccolo, an Italian American "goes beyond the ambit of protected activity . . . ." Id. at 3.

C. General Counsel's Opposition

The General Counsel argues that the Judge properly found that the grievance did not bar the complaint in Case No. 9-CA-00134. The General Counsel asserts that although the grievance and ULP involve the same facts, different issues are involved.

The General Counsel also contends that the Judge properly found that Teale's letter was within the protection of the Statute. Citing Internal Revenue Service, 16 FLRA 687 (1981), the General Counsel argues that "Teale's choice of language may not have been restrained but it was justifiable." General Counsel's Opposition at 2.

V. Analysis and Conclusions

A. Case No. 9-CA-00134

1. Procedural Issue

Section 7116(d) of the Statute provides, in pertinent part:

(d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. . . .

To determine whether a complaint is barred by section 7116 of the Statute, the Authority examines whether the subject matter of the unfair labor practice charge is the same, in terms of factual predicate and theory, as the subject of a grievance. See generally Bureau of the Census, 41 FLRA 436, 446-47 (1991).

The record reflects that the grievance alleged that the planned RIF violated law, rule, and regulation because: (1) no feasibility study was conducted to determine if the RIF action was cost effective; (2) the RIF eliminated the quality review functions required by the procurement regulations; (3) the competitive areas of the RIF did not comply with the parties' collective bargaining agreement; (4) management personnel were placed in bargaining unit positions and detailed to supervisory positions; and (5) the "RIF approval was obtained based on inaccurate and misleading information." Respondent's Exhibit 1(a). On the other hand, the ULP charge alleged that the Respondent violated section 7116(a)(1) and (2) of the Statute by attempting "to bust the Union" by the manner in which it structured the RIF. General Counsel's Exhibit 1(e).

We conclude, in agreement with the Judge, that the issues raised by the grievance are not the same as those raised by the unfair labor practice complaint in Case No. 9-CA-00134. Accordingly, we find that the complaint in Case No. 9-CA-00134 is properly before the Authority and not barred by section 7116(d) of the Statute. See, for example, Veterans Administration Medical Center, Long Beach, California, 41 FLRA 1370, 1378-79 (1991) petition for review filed sub nom. Department of Veterans Affairs Medical Center, Long Beach, California v. FLRA, No. 91-70640 (9th Cir. Oct. 23, 1991) (unfair labor practice case not barred by section 7116(d) because the matter raised under the grievance procedure was the propriety of the underlying disciplinary action taken by the respondent).

2. Merits

In Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), we addressed the analytical framework that the Authority applies in cases alleging violations of 7116(a)(2) of the Statute. We reaffirmed that the General Counsel bears the burden of establishing by a preponderance of the evidence that an unfair labor practice has been committed. We noted that in all cases of alleged discrimination, the General Counsel must establish that: (1) the employee 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 in connection with hiring, tenure, promotion, or other conditions of employment. Id. at 118.

We also noted that when the General Counsel makes the required prima facie showing, a respondent may seek to rebut that showing by establishing, by a preponderance of the evidence, the affirmative defense that: (1) there was a legitimate justification for its actions; and (2) the same action would have been taken in the absence of protected activity. Id. at 123. We pointed out that if the respondent rebuts the General Counsel's prima facie showing by a preponderance of the evidence, thereby establishing that it would have taken the allegedly unlawful action even in the absence of protected activity, the General Counsel has not established a violation of the Statute. Id. at 119.

The Judge found that the General Counsel did not establish a prima facie case that protected activity was a motivating factor in the Respondent's decision to eliminate the Con Rep positions. The Judge further found that the Respondent established that there was a legitimate justification for its actions and the same actions would have been taken even assuming that consideration of protected activity was a motivating factor. We find it unnecessary to determine whether the General Counsel established a prima facie case because, even if the Judge erred, we agree with the Judge's finding that the Respondent demonstrated, by a preponderance of the evidence, that there was a legitimate justification for its decision to abolish the Con Rep positions and that it would have taken the same action in the absence of consideration of protected activity.

In this regard, the Respondent presented evidence that it was required by the Command to plan and conduct a reduction-in-force because of a significant reduction in the agency's fiscal year 1990 budget. The evidence revealed that the Respondent held meetings of its supervisors and managers to obtain their recommendations concerning various organizational and functional changes which would accomplish the workload with decreased resources. After these meetings, the Respondent decided to: (1) adopt contractor quality control; (2) abolish the Con Rep position classification; and (3) create a new engineering technician position classification. The Judge noted that, by its actions, the Respondent reduced its workforce by 85 employees. The Judge credited the testimony of the Respondent's witnesses that the decision to eliminate the construction representative positions was wholly an operational decision to accomplish the workload with reduced staffing. Although the General Counsel excepts to these credibility resolutions, we note that the demeanor of witnesses is an important factor in resolving issues of credibility and only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. U.S. Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, California, 38 FLRA 567, 569 (1990).

On the basis of the entire record, we conclude that, even assuming that the General Counsel established a prima facie case, the Respondent established that there was a legitimate justification for its decision to abolish the construction representative positions and that it would have taken the same action in the absence of consideration of protected activity. Therefore, we find, in agreement with the Judge, that the Respondent did not violate section 7116(a)(1) and (2) of the Statute as alleged, and we will dismiss the complaint in Case No. 9-CA-00134.

B. Case No. 9-CA-00100

1. Reprimand

We agree with the Judge's conclusion, for the reasons stated by the Judge, that Teale's August 25, 1989, letter to Union members was protected by the Statute. In so doing, we note two things.

First, we find many of Teale's remarks, including his ethnic reference, offensive and we do not condone them. However, our sensibilities are not at issue here and the protections of the Statute are not extended only to such comments as we condone. See Old Dominion Branch No. 46, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 283 (1984) (Austin) ("federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point."). Instead, Teale's letter is protected unless Teale's remarks constitute "flagrant misconduct." 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). See also American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, El Paso Border Patrol Sector, 44 FLRA No. 115 (1992), slip op. at 8-9. In this regard, our task is to determine whether the remarks were "of such an outrageous or insubordinate nature so as to remove them from the protection of the Statute." Id. slip op. at 8.

Second, the issue before us is not whether the use of an ethnic reference constitutes protected activity. Instead, the issue is whether the use of such a reference removes activity from the protection of the Statute. For example, Pioneer Finishing Corp. v. NLRB, 667 F.2d 199, 203 (1st Cir. 1981) (after determining that "message conveyed by [employee's] activities was protected," court concluded that "particular wording" did not "remove [the] activities from the sphere of protection"). As such, it is necessary to examine Teale's letter as a whole, and in the context of the facts and circumstances of this case, to determine whether it is protected. See Austin, 218 U.S. at 286 (court stated that its conclusion that union's use of particular epithet was protected by Federal law was "not to say that there might not be situations where the use of this writing or other similar rhetoric in a labor dispute could be actionable[.]").

When examined as a whole and in context, it is clear that the thrust of Teale's letter was a condemnation of the Respondent's decision to conduct a major reduction in force. As indicated by its text, the letter was written on the same afternoon as Teale was informed of the particular individuals who were to be subject to the upcoming RIF.5/

The letter mentions several individuals by name, both unit and nonunit employees, and requests unit employees to engage in various activities in response to the decision to conduct the RIF. As relevant here,6/ the letter includes one ethnic reference to one individual.

Unlike the newsletter article in Veterans Administration, Teale's letter was not replete with disparaging racial stereotyping and defamatory racial insults. Also, the "entire thrust of the newsletter" in Veterans Administration was criticism of one manager through racial epithets and stereotyping. 26 FLRA at 117. The thrust of Teale's letter, on the other hand, was criticism of management for its decision to conduct a RIF.7/ We find that, read as a whole and in the context of the circumstances of this case, Teale's use of an ethnic reference did not remove the letter from the ambit of protected activity. Accordingly, we adopt the Judge's finding that the Respondent's reprimand of Teale violated section 7116(a)(1) of the Statute.

2. Respondent Violated Section 7116(a)(1) and (2) of the Statute by Failing to Select Teale for Any of the Vacant CMT Positions

We find, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (2) of the Statute by failing to select Teale for any of the vacant CMT positions. We note three things.

First, the Respondent unlawfully reprimanded Teale for engaging in protected activity. The Respondent strongly disagreed with and vehemently disapproved of Teale's letter and, in the Respondent's view, Teale had "overstepped [his] responsibility as an employee and a Union [s]teward" in making such statements. General Counsel's Exhibit 22. Second, the Respondent's reprimand of Teale coincided with the announcement of the vacant CMT positions. We note, in this regard, that Teale wrote his letter on August 25, 1989, and was not reprimanded until November 3, 1989, just 5 days before the Respondent announced the vacant CMT positions. Third, Teale was the only engineering technician designated to be terminated by the RIF. The other engineering technicians were transferred to newly created CMT positions. We conclude, based on these facts and the record as a whole, that the General Counsel established a prima facie case that consideration of protected Union activity was a motivating factor in the Respondent's failure to select Teale for a CMT vacancy.

Based on the entire record, we also conclude that the Respondent did not establish a legitimate justification for its failure to select Teale for any of the vacant CMT positions. In our view, the record does not support the Respondent's contention that Teale was not selected because his "score was average" and he "did not possess any special skills or abilities[.]" Respondent's Brief to the Judge at 13. In this regard, the record reflects that at the Northwest office, both the selected employee and alternate had higher promotion totals than Teale. However, with respect to the six positions at the El Toro office, Teale's promotion point totals exceeded that of every selectee except one and for the positions at Barstow and China Lake, Teale had a higher promotion point total than the selectees. Moreover, with regard to three positions at the Everett office, Teale's score was one point higher than one of the selected employees.

The record also reflects that the Respondent failed to explain the underlying basis for its selection decisions. We note, in particular, that the Respondent did not produce documentary evidence or testimony from any selecting official to explain the requirements for selection, why Teale was not selected, and/or why the selectees were selected over Teale. Moreover, we find no basis in the record for the Judge's conclusion, which was not argued by the Respondent, that the selections at Barstow and China Lake were based on "'homer' preference[.]" Judge's Decision at 40. We also find that the fact that there were other nonselectees, with higher promotion points totals than Teale and/or the selectees, who had not engaged in protected activity, does not establish a legitimate justification for the Respondent's failure to select Teale. See Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 43 FLRA 1414 (1992) (Headquarters, XVIII Airborne Corps) (the existence of other best qualified candidates was irrelevant in determining whether the respondent established that it would not have selected the employee even in the absence of consideration of the employee's protected activity).

In sum, we conclude that the Respondent failed to rebut the General Counsel's prima facie case that consideration of protected Union activity was a motivating factor in the Respondent's failure to select Teale for a CMT vacancy. As the Respondent failed to establish a legitimate justification for its actions, we find that the Respondent failed to select Teale because of his protected Union activity and, thereby, violated section 7116(a)(1) and (2) of the Statute.

VI. Summary

In Case No. 9-CA-00134, we conclude that the Respondent did not violate section 7116(a)(1) and (2) of the Statute by the manner in which it structured and implemented the RIF/reorganization and we will dismiss this allegation in the consolidated complaint.

In Case No. 9-CA-00100, we find that the Respondent violated section 7116(a)(1) and (2) of the Statute when it reprimanded Union Steward John Teale for writing a letter critical of management and when it failed to select him for any of the vacant CMT positions.

VII. Remedy

Section 7105(g) and 7118 of the Statute vest the Authority with broad remedial powers to correct violations of the Statute. See generally National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). Such remedial powers have been exercised, in appropriate circumstances, by directing the retroactive promotion of an employee who had been unlawfully discriminated against on the basis of protected union activity, ordering reinstatement of a wrongfully discharged employee and providing for rehire of an employee previously involved in union activities. See, respectively, Headquarters, XVIII Airborne Corps, 43 FLRA at 1418; Pension Benefit Guaranty Corporation, 39 FLRA 905, 932 (1991) petition for review filed sub nom. Pension Benefit Guaranty Corp. v. FLRA, No. 91-1180 (D.C. Cir. Apr. 17, 1991); U.S. Department of the Air Force, 3245th Air Base Group, Hanson Air Force Base, Bedford Massachusetts, 37 FLRA 1231, 1232 (1990).

In this case, we find that the purposes and policies of the Statute will most appropriately be effectuated by ordering the Respondent to offer John Teale employment in the position of Engineering Technician (CMT), GS-802-10, and to make him whole for any losses he incurred as a result of the failure to select him, and to expunge from its files all records of and references to the reprimand given to Teale on November 3, 1989.

VIII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Navy, Naval Facilities Engineering Command, Western Division, San Bruno, California, shall:

1. Cease and desist from:

(a) Issuing a letter of reprimand to John Teale or any employee because the employee, acting on behalf of the National Federation of Federal Employees, Local 2096, the exclusive representative of its employees, writes a letter critical of management, which is protected by the Statute, or engages in other protected union activity.

(b) Failing to select for a position or otherwise discriminating against John Teale or any other employee because the employee has engaged in or might, if rehired, engage in activities protected by the Statute.

(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:

(a) Expunge from its files all records of, and references to the reprimand given to John Teale on November 3, 1989.

(b) Offer John Teale employment in the position of Engineering Technician (CMT), GS-802-10, as referred to in vacancy announcement (90) 05 (007), dated November 8, 1989, or a substantially equivalent position, and make him whole for the losses he incurred as a result of the failure to select him, consistent with applicable law and regulation.

(c) Post at its facilities throughout the Naval Facilities Engineering Command, Western Division, San Bruno, California, where bargaining unit employees represented by the National Federation of Federal Employees, Local 2096 are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander Naval Air Pacific, and they shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The allegations in Case No. 9-CA-00134 are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT interfere with, restrain, or coerce our employees by issuing a letter of reprimand to John Teale or any employee because the employee writes a letter critical of management, which is protected by the Statute, or engages in other protected Union activity.

WE WILL NOT fail to select John Teale, or any other employee, for a position because the employee has engaged in or might, if rehired, engage in activities protected by the Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL expunge from our files all records of, and references to the reprimand given to John Teale on November 3, 1989.

WE WILL offer John Teale employment in the position of Engineering Technician (CMT), GS-802-10, as referred to in vacancy announcement (90) 05 (007), dated November 8, 1989, or a substantially equivalent position, and make him whole for the losses he incurred as a result of the failure to select him, consistent with applicable law and regulation.

(Activity)

Dated: By:

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103 and whose telephone number is: (415) 744-4000.

________________________________________________________________________

Member Armendariz: Concurring in Part and Dissenting in Part

I concur with my colleagues' opinion to the extent specifically set forth below. First, I agree that the issues raised by the grievance are not the same as those raised by the unfair labor practice complaint in Case No. 9-CA-00134, and, thus, Case No. 9-CA-00134 is not barred by section 7116(d) of the Statute. Second, I agree that, even assuming the General Counsel established a prima facie case in Case No. 9-CA-00134, the Respondent established that there was a legitimate justification for its decision to abolish the Con Rep positions and that it would have taken the same action in the absence of consideration of protected activity. Third, I agree that the Respondent violated section 7116(a)(1) and (2) of the Statute in Case No. 9-CA-00100. Specifically, the General Counsel established a prima facie case of discrimination for failure to select Teale in Case No. 9-CA-00100 by establishing that: (1) the Respondent's November 3, 1989, reprimand of Teale for his August 25, 1989, letter coincided with the announcement of the vacant CMT positions; (2) Teale was the only engineering technician designated for termination pursuant to the reduction-in-force; and (3) Teale was the only engineering technician not transferred to the newly created CMT position, all of which the Respondent failed to rebut by establishing a legitimate justification for its actions.

However, I dissent from my colleagues' opinion as set forth below. I would not find that Teale's statement about his supervisor, ". . . Sicilian Frank . . . I do hope I don't get kneecapped for [that] remark . . . if I do you will know who is responsible[,]" was protected as part of uninhibited, robust, and wide-open debate. General Counsel's Exhibit 21 at 1-2. Name calling by ethnic stereotyping is not part of, and has no place in, the rough and tumble of robust debate, and is inconsistent with the clearly expressed public policy against ethnic discrimination in the work place. Equal Opportunity Act of 1972, Pub. L. No. 92-261.

The majority reliance on Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 283 (1984) (Court held that union's use of the term "scab" in its newsletter was protected under Executive Order 11491), Pioneer Finishing Corp. v. NLRB, 667 F.2d 199, 203 (1st Cir. 1981) (First Circuit held that employee-prepared and distributed leaflets which allegedly contained inaccurate or misleading statements were protected by the Act unless shown to be deliberately or maliciously false), American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, El Paso Boarder Patrol Sector, 44 FLRA No. 115 (1992) (Authority held that the use of the term "asshole" did not remove the employee's remarks from the protection of the Statute), and 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) (Authority found no basis in the record on which to conclude that the grievant's refusal to obey an order was so "impolite, antagonistic, or disrespectful" such that his conduct would fall outside the ambit of the Statute's protection) is misplaced. Teal's remark was an ethnic slur and, as such, undermined the clearly expressed public policy against ethnic discrimination in the work place. See majority opinion, slip op. at 18. Slurs, whether ethnic, racial, sexual, or religious, differ in character from: (1) inaccurate and misleading statements; (2) profanity; (3) impolite, antagonistic, and disrespectful conduct; and (4) insulting epithets, such as "scab." For example, the term "scab," while derogatory, does not carry with it the same vilification of an individual by reference to an entire ethnic, racial, sexual, or religious group, but rather is descriptive of a particular course of conduct.

It is my opinion that the majority's approach on this issue cannot be reconciled with the policy articulated by the Authority in Veterans Administration, Washington,D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 26 FLRA 114 (1987) (Veterans Administration), aff'd American Federation of Government Employees, AFL-CIO, Local 2031 v. FLRA, 878 F.2d 460 (D.C. Cir. 1989) (AFGE v. FLRA). In AFGE v. FLRA, the court upheld the Authority's determination in Veterans Administration that the remarks at issue "constituted 'the disparagement of a manager based on racial stereotyping,' and that, as such, they did not fall within the protection of the [S]tatute." AFGE v. FLRA, 878 F.2d at 465 (quoting Veterans Administration.) Moreover, the court went on to hold that "[t]he FLRA could reasonably conclude that, due to the inherently disruptive nature of statements tending to generate or to exacerbate racial conflict in the work place, such statements 'ha[ve] no place in the Federal labor-management relations program.'" Id. (quoting Veterans Administration).

Perhaps a line may be drawn between situations where employees exceed the bounds of civil conduct in a moment of exuberance or in a moment activated by improper provocation*/ and situations where employees exceed the bounds of civil conduct after taking time to reflect on an event or circumstance. However, I do not need to address that issue here because the instant case would not even test the elasticity of such a line. In the instant case, Teale, in reaction to written information supplied by the Respondent to the Acting President of Local 2096 and in the absence of any personal face to face confrontation with management, crafted a memorandum deliberately including an ethnic slur and then distributed the memorandum at the work place.

In light of the Authority's holding in Veterans Administration that the use of such slurs are "inexcusable[,]" Veterans Administration, 26 FLRA at 117, and in light of the court's statements in AFGE v. FLRA, I would not find that the use of even one ethnic slur, especially under the circumstances in the instant case, has a place in the Federal labor-management relations program as part of uninhibited, robust, and wide-open debate. Therefore, I cannot join with the majority's finding in Case No. 9-CA-00100 that Teale's use of an ethnic slur was protected by the Statute. Consequently, I cannot concur with the majority's holding in Case No. 9-CA-00100 that the Respondent's November 3 reprimand violated section 7116(a)(1) of the Statute.




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

1/ The opinion of Member Armendariz, concurring in part and dissenting in part, follows this decision.


 2/ The Respondent's request stated, in pertinent part:

To realistically accommodate a declining workload and a resulting reduction in the budget, as many as 289 positions must be eliminated at [the Western Division]. Analysis of attrition data indicates that approximately 130 employees will voluntarily separate prior to the projected effective date of the RIF. Therefore, a RIF must be instituted if [the Western Division] is to meet its total targeted reduction.

Respondent's Exhibit 3.

 3/ Although, as stated by the Judge, Respondent's Exhibit 13 contains a listing of 124 construction representatives, including 121 at the GS-9 level, the Judge stated that the Respondent notified the Union that 123 construction representative positions (of which 120 were at the GS-9 level) were to be abolished. Judge's Decision at 6. As neither party excepts to the Judge's statement, we assume that the discrepancy is irrelevant.

 4/ Regarding the reprimand, the Judge found that there was no basis for concluding that section 7116(a)(2) of the Statute was violated and recommended dismissal of that allegation. As no exceptions were filed to the Judge's dismissal of the section 7116(a)(2) allegation, the matter will not be addressed further.

5/ One of those individuals was Teale himself. It is reasonable to conclude, and there are no assertions to the contrary, that Teale wrote the letter in the heat of the moment. Indeed, in its reprimand of Teale, the Respondent asserted its belief that the letter was written "out of sheer frustration associated with the anticipated reduction-in-force[.]" G.C. Exh. 22. As such, we do not find support in the record for our dissenting colleague's suggestion to the contrary. 

6/ In its cross-exceptions, the Respondent bases its argument that the letter is not protected solely on the inclusion of the ethnic reference.

7/ In addition to the Secretary of the Navy, three management officials are mentioned by name in the letter. The individual about whom the ethnic reference was made is mentioned in the letter two additional times: once by his full name and once by his surname only.

FOOTNOTE  - To Member Armendariz Opinion

*/ See, for example, J.W. Microelectronics Corp., 259 NLRB 327 (1981) (employee's statement, "all caucasians are animals[,]" held to be protected by the Act because the statement was made in a moment of exuberance during a face to face employee-management meeting regarding management's inaction with respect to racially motivated attacks on African-American employees by caucasians); Associated Grocers of New England, Inc., 227 NLRB 1200 (1977) (employee's statement, "nigger lover[,]" held to be protected by the Act because the employee was improperly provoked by a management official who was walking past the picket line with his arm around an African-American striker replacement and asked the striking employee "[h]ow do you like my colored boy?").