51:0007(2)CA - - Air Force, Grissom AFB, IN and AFGE - - 1995 FLRAdec CA - - v51 p7



[ v51 p7 ]
51:0007(2)CA
The decision of the Authority follows:


51 FLRA No. 2

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF THE AIR FORCE

GRISSOM AIR FORCE BASE, INDIANA

(Activity/Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

(Union/Charging Party)

CH-CA-30596

_____

DECISION AND ORDER

August 18, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed a motion to strike the General Counsel's exceptions and the General Counsel filed a motion to strike the Respondent's motion. The Respondent also filed a reply to the General Counsel's motion to strike.

The complaint alleges that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by suspending the Union Vice-President for activities protected by the Statute.

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. We conclude that the Respondent violated the Statute, as alleged in the complaint.

II. Judge's Decision

The facts are fully set forth in the Judge's decision and are only briefly summarized here.

The Respondent suspended Union Vice-President Melvin Smith for 14 days based on his alleged: (1) use of discourteous, abusive, offensive, and sexually harassing language; (2) unauthorized absence of 2 hours; and (3) deliberate misrepresentation of the facts by failing to inform his supervisor that realignment negotiations had been canceled. The first allegation was based on the following statements by Smith to the Respondent's Chief Negotiator:

"You can't be that fu--ing stupid, lady . . . I always knew you was stupid, I knew you was goddamn stupid[.]"

Judge's Decision at 5, 6 (quoting Tr. at 91, 92). The statements were made during a negotiation session wherein the Union received a letter from the Respondent which canceled previously agreed-upon bargaining over realignment.

Citing 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 1395 (1992) (INS) and Department of the Navy, Naval Facilities Engineering Command, Western Division San Bruno, California, 45 FLRA 138 (1992) (Member Armendariz concurring in part and dissenting in part) (Naval Facilities Engineering Command), the Judge stated that Smith could not be disciplined for his remarks unless his remarks constituted "'flagrant misconduct.'" Judge's Decision at 9. The Judge found that "the use of the 'f' word, as with other profane words, standing alone, does not constitute flagrant misconduct[,]" but that "vicious, vulgar[,] personal attacks of a highly sexual nature during negotiations is [sic] not protected activity." Id. In this regard, the Judge found that Smith and the Union President "combined in a vicious, vulgar, personal attack" on the Respondent's chief negotiator.(1) Id. The Judge concluded that "[t]heir language constituted flagrant misconduct[.]" Id. The Judge further concluded that, because the Union negotiators' conduct was not protected, the Respondent did not violate the Statute by disciplining Smith. Accordingly, the Judge dismissed the complaint.

III. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel contends that Smith was engaged in protected union activity when he made the statements and that, under Authority precedent, Smith's statements were not of such an outrageous or insubordinate nature as to remove them from the protection of the Statute. Among other things, the General Counsel claims that Smith's statements were provoked by the Respondent's cancellation of the realignment negotiations.(2) The General Counsel also alleges that the Judge incorrectly "merged the remarks of [the Union President] and Smith and treated them as one for purposes of his analysis." Exceptions at 9.

The General Counsel alleges that the unauthorized absence and misrepresentation allegations were "nothing more than spurious make-weight charges." Id. at 6 n.2.(3) The General Counsel requests that the Authority order the Respondent to rescind Smith's 14-day suspension, expunge any reference to it from his records, and award him backpay, with interest, and any benefits lost due to the 14-day suspension.

B. Respondent's Motion to Strike, General Counsel's Response and Respondent's Reply

The Respondent moves to strike the General Counsel's exceptions on the ground that the exceptions raise an issue that was not previously raised before the Judge and, as such, are precluded from consideration by section 2429.5 of the Authority's Regulations.(4) The Respondent asserts that the General Counsel argues for the first time in its exceptions that Smith's conduct at the bargaining session should be analyzed separately from that of the Union President.

In response, the General Counsel contends that the Respondent's motion to strike constitutes an opposition or a cross-exception to the General Counsel's exceptions and, as such, is untimely under section 2423.28(b) of the Authority's Regulations.(5)

In reply, the Respondent argues that its motion to strike is not a response to the General Counsel's exceptions, but, rather, a request for legal relief from the opposing party's failure to adhere to section 2429.5 of the Authority's Regulations.

IV. Analysis and Conclusions

A. Procedural Issue

We reject the Respondent's motion to strike the General Counsel's exceptions because the Respondent has failed to comply with section 2423.28(b) of the Authority's Regulations. Despite its caption, the Respondent's motion presents arguments about the merits of the General Counsel's exceptions and, as such, is an opposition to the exceptions. As the Respondent did not request permission to file an additional submission, the opposition is untimely filed and will not be considered.(6) See U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1311-13 (1990).

Moreover, even if we were to find the submission properly filed as a motion to strike and, therefore, timely, the Respondent's assertions do not provide a basis for barring the General Counsel's argument under section 2429.5 of our Regulations as presenting an "issue which was not presented in the proceedings before the . . . Judge." The Judge found that the Respondent did not violate the Statute by disciplining Smith because the language of both the Union President and Smith constituted flagrant misconduct. The complaint does not allege, and it is not apparent that it was argued to the Judge, that Smith was or could be disciplined for comments other than his own. Given this, the General Counsel's arguments are in response to the Judge's findings and, as such, could not have been made prior to the Judge's decision. Accordingly, they are not precluded by our Regulations.

B. Merits

Section 7102 of the Statute guarantees employees the right to form, join, or assist any labor organization, or to refrain from such activity, without fear of penalty or reprisal. INS, 44 FLRA 1402. A union representative has the right to use "'intemperate, abusive, or insulting language without fear of restraint or penalty'" if he or she believes such rhetoric to be an effective means to make the union's point. Naval Facilities Engineering Command, 45 FLRA at 155 (quoting Old Dominion Branch No. 46, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 283 (1984)). Consistent with section 7102, however, an agency has the right to discipline an employee who is engaged in otherwise protected activity for remarks or actions that "'exceed the boundaries of protected activity such as 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, 389 (1990) (citation omitted) (Tinker AFB). Remarks or conduct that are of such "an outrageous and insubordinate nature" as to remove them from the protection of the Statute constitute flagrant misconduct. Naval Facilities Engineering Command, 45 FLRA at 156; Tinker AFB, 34 FLRA at 390.

In determining whether an employee has engaged in flagrant misconduct, the Authority balances the employee's right to engage in protected activity, which "permits leeway for impulsive behavior, . . . against the employer's right to maintain order and respect for its supervisory staff on the jobsite." Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 80 (1985) (Defense Mapping Agency) (quoting Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54, 55 (1979) (Puget Sound)). Relevant factors in striking this balance include: (1) the place and subject matter of the discussion; (2) whether the employee's outburst was impulsive or designed; (3) whether the outburst was in any way provoked by the employer's conduct; and (4) the nature of the intemperate language and conduct. Defense Mapping Agency, 17 FLRA at 80-81 (1985) (Authority adopted Judge's decision which noted the foregoing factors to be considered in determining whether an action constitutes flagrant misconduct). However, the foregoing factors need not be cited or applied in any particular way in determining whether an action constitutes flagrant misconduct. Cf. U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212, 217-18 (1995) (Authority denied agency's exceptions contending that an arbitration award was contrary to law because the arbitrator did not apply all of the Defense Mapping Agency factors in determining that the grievant's language did not constitute flagrant misconduct).

In this case, there is no contention that the remarks were made in front of other employees on the job site or that they disrupted the work of the unit. Moreover, it is undisputed that Smith's language was impulsive rather than designed. Although the extent to which Smith's comments were "provoked" by the Respondent's conduct is not clear, the record shows that the comments were made in reaction to a letter from the Respondent canceling certain previously agreed-upon negotiations about which the union had received no prior notification. In addition, while the remarks made by Smith were offensive and should not be condoned, when examined as a whole and in context, they were not of such an outrageous and insubordinate nature as to remove them from the protection of the Statute.(7) In this regard, Smith's remarks are similar to remarks found not to constitute flagrant misconduct in other cases. For example, INS, 44 FLRA at 1402 (grievant calling a supervisor an "asshole" and a "space cadet" did not constitute flagrant misconduct). Cf. Puget Sound, 2 FLRA at 75 (Authority concluded that, under Executive Order 11491, as amended, a union official was improperly suspended for remarking to a supervisor, "I am going to get your ass[,]" when seeking permission to meet with another union official).

Based on the foregoing, and on the Statute, prior precedent compels us to find that Smith's remarks did not constitute flagrant misconduct. Therefore, the Respondent violated section 7116(a)(1) and (2) by disciplining Smith, based, in part, on those remarks. See, e.g., id.

V. Remedy

The Authority will order a make-whole remedy where there is discrimination in connection with conditions of employment based on unlawful consideration of protected union activity and the respondent has not shown that it would have taken the same action in the absence of such consideration. E.g., Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 43 FLRA 1414, 1418 (1992).

In this case, there is no evidence or contention that the Respondent would have disciplined Smith in the absence of consideration of the remarks he made at the negotiation session. Therefore, we find that a make-whole remedy, requiring that the Respondent expunge the suspension from Smith's records and make him whole for loss of pay and benefits he incurred, is appropriate and necessary to effectuate the purposes and policies of the Statute.(8) Accordingly, we will order the Respondent to: (1) rescind Smith's 14-day suspension; (2) expunge all references to the suspension from Smith's personnel records and any other agency files; (3) make Smith whole for any backpay, including interest, and benefits lost due to the suspension.

VI. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Grissom Air Force Base, Indiana, shall:

1. Cease and desist from:

(a) Interfering with, restraining, or coercing its employees by disciplining Melvin Smith or any representative of the American Federation of Government Employees, AFL-CIO, the exclusive representative of a unit of its employees, for protected conduct engaged in while performing union representational duties.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured them 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 14-day suspension given to Melvin Smith and make Smith whole by reimbursing him for the losses he incurred as a result of the 14-day suspension, including backpay with interest, and any other benefits lost due to the suspension.

(b) Post at its facilities throughout the Department of the Air Force, Grissom Air Force Base, Indiana, where bargaining unit employees represented by the American Federation of Government Employees, AFL-CIO, 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 Commanding Officer, 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

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 disciplining Melvin Smith or any representative of the American Federation of Government Employees, AFL-CIO, the exclusive representative of a unit of our employees, for protected conduct engaged in while performing union representational duties.

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

WE WILL expunge from our files all records of, and references to, the 14-day suspension given to Melvin Smith and make Smith whole by reimbursing him for the losses he incurred as a result of the 14-day suspension, including backpay with interest, and any other benefits lost due to the suspension.

___________________________
(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 of the Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe Street, Suite 1150, Chicago, Illinois 60603, and whose telephone number is: (312) 353-6306.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF THE AIR FORCE GRISSOM AIR FORCE BASE, INDIANA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

Charging Party

Case No. CH-CA-30596

Major David L. Frishberg
For the Respondent

Philip T. Roberts, Esquire
For the General Counsel

Mr. Fred Hartig
For the Charging Party

Before: WILLIAM B. DEVANEY
Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq.(1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether certain statements, made by Union officials at a bargaining session to a female representative of Respondent, which were vile, obscene and of an explicitly sexual nature, constituted protected activity. For reasons fully set forth hereinafter, I find the statements did not constitute protected activity and that the discipline imposed for misconduct did not violate §§ 16(a)(1) or (2) of the Statute.

This case was initiated by a charge filed on April 15, 1993 (G.C. Exh. 1(a)), which alleged violations of §§ 16(a) (1), (3), (4) and (8) of the Statute; and by an amended charge filed on July 22, 1993 (G.C. Exh. 4(b)), which alleged violations of §§ 16(a)(1), (2) and (4) of the Statute. The Complaint and Notice of Hearing issued on November 23, 1993 (G.C. Exh. 4(d)); alleged violations of §§ 16(a)(1) and (2) only; and ordered that the hearing be held at a date, time and place to be determined. By Notice dated December 8, 1993 (G.C. Exh. 4(h)), this case, and a number of other cases, were set for hearing on January 26, 1994, in Indianapolis, Indiana, pursuant to which a hearing was duly held in Indianapolis, Indiana, on January 26, 1994, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument, which Respondent exercised. At the conclusion of the hearing, February 28, 1994, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, on separate motions of Respondent and of General Counsel, to which the parties did not object, for good cause shown, to March 28, 1994. General Counsel and Respondent each timely mailed a brief, received on, or before, April 5, 1994, which have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

Findings of Fact

    1. The American Federation of Government Employees, Local 3254 (hereinafter, "Union") is the exclusive representative of a unit of all appropriated fund professional and non-professional employees at Grissom Air Force Base, Indiana (hereinafter, "Respondent")(G.C. Exhs. 4(d) and (f)).

    2. The host unit at Respondent had been the 305th Air Refueling Wing, an active duty unit. The 434th Wing, a reserve unit that includes a fighter component and a tanker component, had been a tenant at Respondent (Tr. 41-42). In 1991, the Base Closure Commission recommended, and the President approved, that Grissom, while not to be closed, should be realigned; that the 305th Air Refueling Wing be deactivated and its planes sent to other bases; and that on, or about, September 30, 1994, Grissom be turned over to the reserves, i.e., the 434th Wing would then become the host (Tr. 42). The Union was notified of the realignment in 1991, requested bargaining and, on February 12, 1992, the parties signed off on ground rules for realignment and contract negotiations (G.C. Exh. 16; Tr. 46). The ground rules provided, inter alia, that each team would consist of four negotiators, including the Chief Negotiator; that realignment negotiations would be held on Thursday from 0800 to 1130 and that contract negotiations would be held on Fridays from 0800 to 1130; and that, "9. The union teams (Contract and Realignment) will be given a total of 144 hours a week of official time . . . to be used for both negotiations and preparation time. This time is agreed to be used on Wednesdays, Thursdays and Fridays. 10. It is agreed that the 144 hours . . . will be used for both Realignment and on going Contract negotiations. 11. The union team will be given an aggregate total of 256 hours for preparation time (used for purpose of Realignment negotiations). This preparation time is to be used prior to 6 Mar 92. . . ." (G.C. Exh. 16).

    3. By letter dated March 25, 1992 (G.C. Exh. 18), the Union submitted a list of 18 issues over which it wished to negotiate (G.C. Exh. 18; Tr. 52). The parties negotiated over the items, one at a time, from March 1992, but by December 11, 1992, had resolved only about three or four of the issues listed in the Union's letter of March 25 (Tr. 55). Also, at some point (the date was not shown) after negotiating on two Articles of the Union's choice, one of which was resolved by agreement and the other the Union requested mediation, other contract negotiations had been postponed (G.C. Exh. 31).

    4. Present at the December 3, 1992, negotiating session for the Union were: Fred Hartig,(2) Chief negotiator; Melvin David Smith(3); James L. Dicken; and Troy Prior (Tr. 56, 88, 114, 140-141, 182, 198, 212). Present on December 3, 1992, for Respondent were: Ms. Sula C. Smith, Chief Negotiator; Lieutenant Colonel Michael A. Moran; Ms. Patricia Craddock; and John A. Pepper (Tr. 56, 140, 181-182, 198, 212).

The first order of business was to sign an agreement on training and development (Tr. 56). All four people on each team signed the agreement and Ms. Sula Smith made and distributed copies (Tr. 56). Then, Ms. Sula Smith handed Mr. Hartig the following letter:

"FROM: 305 MSSQ/MSCE 3 December 1992

SUBJ: Negotiations, AFGE Local 3254 and Grissom Air Force Base

TO: Fred Hartig, President, AFGE Local 3254

"1. You requested, on behalf of Local 3254, to enter into full contract negotiations. After much discussion, you and management agreed that negotiations could be postponed until August 1993. We requested that the verbal agreement be put in writing to assure complete understanding. You did submit to the Civilian Personnel Office an agreement to be signed by management and Local 3254 expressing that you would agree to postponing the contract negotiations if certain stipulations would be agreed to by management.

"2. After consideration of the entire proposal to postpone the contract negotiations, management cannot agree to all the stipulations requested so therefore, we will enter into full contract negotiations as you previously requested.

"3. This means that ground rules for full contract negotiations must be negotiated. The Parking Proposal submitted to the realignment negotiating team applies to current contract article XXXXV; as such, we will defer negotiations on that subject until full contract negotiations begin. Our original agreement regarding contract negotiations resulted in negotiating the two articles of your choice. Management did not agree to add, supplement, or change any other contract article. An agreement was reached on one of the articles, Performance Evaluations, and you have unilaterally requested mediation on the compressed work schedule portion of the Work Schedule article. Since we will be entering into full contract negotiations, we will be prepared to finalize that article at that time. With that said, the ground rules for realignment and contract negotiations are no longer valid.

"4. All realignment negotiations, the ground rules associated with realignment negotiations, and all official time for realignment negotiations will cease as of the end of the negotiations meeting on 3 December 1992. Any future meetings to discuss the Training Committee plans and recommendations will be by mutual consent of the current assigned chief negotiators.

"5. Please contact me to discuss the date, time, and place for the initial meeting to discuss the ground rules for full contract negotiations. Management will appoint two members to negotiate the ground rules. . . ." (G.C. Exh. 31).

Mr. Hartig became angry, his voice became louder and louder, his face became red and he made some vile comments to Ms. Smith (Tr. 142), including, "We're going to shove this up your a--" (Tr. 67, 142, 183, 200) and that ". . . the FLRA will shove this up your a--" (Tr. 67). Ms. Smith told Mr. Hartig that she didn't think that language was appropriate(4) (Tr. 92, 142, 183, 201) and Mr. Hartig replied, "I don't give a f--- what you think" (Tr. 68, 184). Mr. Hartig repeatedly screamed, are you, ". . . refusing to negotiate. . . ." (Tr. 143) but Ms. Smith's reply that no, she was not refusing to negotiate but wanted to negotiate (Tr. 143, 202) was either ignored or fell on deaf ears. Only Mr. Hartig had the letter, but, at about this point, Mr. Melvin Smith reached over and pulled the letter over in front of himself so he could read it (Tr. 90). As he read the letter, he got mad and said loudly, "You can't be that f-----g stupid, lady" (Tr. 91), as Mr. Smith and Col. Moran (Tr. 183) stated; "You're f-----g stupid, lady" (Tr. 59-60, 78) as Mr. Hartig, Ms. Smith (Tr. 144) and Ms. Craddock (Tr. 202-203) said; "You're f-----g stupid" (Tr. 116), as Mr. Prior said.  Mr. Melvin Smith stated that he then(5), ". . . started yelling. I says, 'I always knew you was stupid, I knew you was god damn stupid,' and all that." (Tr. 92), as Mr. Smith stated; "I always thought you were stupid and now I know it." (Tr. 144), as Ms. Smith and Ms. Craddock stated (Tr. 202) (Mr. Hartig seems by inference to have agreed with Ms. Smith's and Ms. Craddock's statement (Tr. 78)). Shortly, thereafter, Mr. Hartig called a caucus (Tr. 60) and the Union members left the negotiating room and went downstairs and outside to the covered porch area. (Tr. 60, 146). Respondent's negotiators remained in the negotiating room for a time, but after a while, someone asked, "Why are we staying" since it appeared that there was no prospect for productive negotiations (Tr. 146). All were taken aback by what had occurred and agreed that it would be best if they broke off and left. So, they got their coats, gathered up their papers and left (Tr. 147). As they approached the Union negotiators on the porch area, Mr. Hartig asked Ms. Smith, "Are you ending the negotiating session?" and Ms. Smith replied, "Yes, we are. And it's time for you folks to go back to work" or "You all should return to work." (Tr. 93, 147, 188, 206). Mr. Hartig told Ms. Smith, "You can suck my(6) d---." (Tr. 147-148, 188, 206, 217). Mr. Hartig told his team members to contact their supervisors (Tr. 94).

    5. Mr. Melvin Smith went to the Union office (Tr. 94) and he testified that he called his shop(7) but his supervisor, Mr. Daro Johnson, was not in and he had told Ms. Gross, another employee in the shop, who answered the telephone, that he would call back later (Tr. 95). Mr. Smith further testified that about 45 minutes later, he called his shop again, but again, Mr. Johnson was not in and that he told Mr. Bobby Stevens, another fellow employee, who answered the telephone, that he would call back later (Tr. 95). Mr. Smith called again "right before lunchtime" and talked to Mr. Johnson (Tr. 95). There is no dispute that Mr. Smith did not tell Mr. Johnson that realignment negotiations had ended (Tr. 107, 108, 226, 227). Mr. Smith testified that he, ". . . told him [Johnson] that I was going to be on official time in the afternoon for representational." (Tr. 95). Mr. Johnson testified that Mr. Smith, ". . . told me he needed some prep time because he was getting ready to go do some training in Cleveland. And I told him it was okay because, 'You were already on prep time for negotiation and the time that you needed to do the paperwork to go to this training . . . go ahead." (Tr. 226). I do not credit Mr. Smith's testimony. First, his statement that he told Mr. Johnson "I'm not going to be working contract negotiations this afternoon" (Tr. 96) is inconsistent with his later concession that he had not told Mr. Johnson that negotiations had been cancelled (Tr. 108). Second, Mr. Smith's statement that Mr. Johnson told him, "'Well, you didn't need to call me," and I said, 'Well, that's right. I just wanted to keep you informed,' and hung up." (Tr. 96), closely follows, and strongly supports, Mr. Johnson's testimony. Accordingly, I credit Mr. Johnson's testimony that Mr. Smith said he needed some prep time.

    6. The conduct of Messrs. Hartig and Smith was immediately reported by Ms. Sula Smith to the legal office (Tr. 149). She was so upset and distraught that she had to go home (Tr. 149), but after about an hour and a half returned to work and prepared her statement of what had occurred that morning at the negotiating session (G.C. Exh. 47, Attachment 1). The other members of Respondent's negotiating team also prepared statements, either that day or the following day, December 4, 1992 (G.C. Exh. 47, Attach- ment 2, 3 and 4). Ms. Smith continued to have serious emotional problems and was required to seek mental counseling, at her personal expense (Tr. 154).

    7. By memorandum dated December 16, 1992 (G.C. Exh. 47) Mr. Johnson gave Mr. Melvin Smith notice of a proposed 14 day suspension (G.C. Exh. 47; Tr. 97, 98). Three grounds were asserted: "a. Use of discourteous, abusive, offensive, and sexually harassing language."; "b. Unauthorized absence of 2 hours."; and "c. Deliberate misrepresentation." (G.C. Exh. 47; Tr. 98). Mr. Smith made an oral reply to Mr. John Burks on February 8, 1993 (Tr. 98, 254) and by memorandum dated March 5, 1993, Mr. Burks, Aircraft Engine Mechanic Foreman, affirmed the proposed suspension (G.C. Exh. 48; Tr. 98, 225).

Mr. Hartig also was disciplined for his conduct during the negotiating session of December 3, 1992 (Tr. 71); took his case to arbitration and lost (Tr. 71), although he stated, "It's under appeal." (Tr. 71).

Conclusions

The central and controlling issue in this case is whether the language used by the Union negotiators at the negotiating session of December 3, 1992, constituted protected activity. I am well aware that the Supreme Court, in a case under the Executive Order, held, inter alia, that,

". . . the same federal policies favoring uninhibited, robust, and wide-open debate in labor disputes are applicable. . . .(8) (Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 (1974) (hereinafter referred to as, "Letter Carriers").

and that,

". . . we see nothing in the Executive Order which indicates that it intended to restrict in any way the robust debate which has been protected under the NLRA. Such evidence as is available, rather, demonstrates that the same tolerance for union speech which has long characterized our labor relations in the private sector has been carried over under the Executive Order. . . ." (id., at 275).

I am also well aware that the Authority has adopted the reasoning of Letter Carriers, supra, Department of the Navy, Naval Facilities Engineering Command, Western Division, San Bruno, California, 45 FLRA 138, 155-156 (1992) (hereinafter referred to as, "San Bruno"). Indeed, the Authority has made it clear that, ". . . to exceed the protection of the Statute . . . remarks must have constituted 'flagrant misconduct.'" American Federation of Government Employees, National Border Patrol Council, 44 FLRA 1395, 1402 (1992); San Bruno, supra, 45 FLRA at 156. Profanity and/or insults uttered during negotiations must be accepted as "intemperate, abusive, or insulting language", supra, n.7, which may be used without fear of restraint or penalty, see, for example: Department of Treasury, Internal Revenue Service, Memphis Service Center, 16 FLRA 687, 696 (1984). The use of the "f" word, as with other profane words, standing alone, does not constitute flagrant misconduct. Negotiations are not Sunday School exercises; nevertheless, vicious, vulgar, personal attacks of a highly sexual nature during negotiations is not protected activity. Messrs. Hartig and Smith combined in a vicious, uncouth, rude, vulgar and profane personal attack on Ms. Sula Smith. Mr. Hartig's voice was loud, his face red and his manner threatening when he shouted, inter alia, "We're going to shove this up your a--" and, ". . . the FLRA will shove this up your a--"; when Ms. Smith said that language was not appropriate, Mr. Hartig shouted in reply, "I don't give a f--- what you think". Mr. Smith joined in and said loudly, "you can't be that f------ stupid, lady"; and then yelled, "I always knew you was stupid, I knew you was god damn stupid" or "I always thought you were stupid and now I know it". Then, outside as they were leaving, Mr. Hartig told Ms. Smith, "You can suck my d---." Their language constituted flagrant misconduct; was not protected conduct; and both Mr. Hartig and Mr. Smith were disciplined for their flagrant misconduct. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 17 FLRA 71 (1985).

Perhaps Ms. Sula Smith earned no kudos for diplomacy by her letter of December 3, 1992, to Mr. Hartig; but even the most cursory examination would have shown that negotiations were not being terminated, but only that realignment negotiations were ended and the parties would now move to full contract negotiations. She did nothing to provoke the loud, obscene diatribe inflicted upon her by Messrs. Hartig and Smith. She did not raise her voice, she did not use abusive or foul language, and she did not make derogatory comments (Tr. 124). Union negotiator Dicken was embarrassed by the conduct of Hartig and Melvin Smith (Tr. 215). Col. Moran was "taken back"; disappointed that people he had worked with for 10 1/2 months would say those kind of things; disgusted (Tr. 184); asked, "Do we really have to take that kind of language?" (Tr. 186). Ms. Craddock was shocked, appalled and embarrassed (Tr. 201); and Ms. Sula Smith had never heard such language used (Tr. 146), was surprised, hurt and quite embarrassed (Tr. 142). Indeed, as noted above, as a result of the vile and abusive personal attack of Messrs. Hartig and Smith, Ms. Sula Smith had to seek counseling, at her personal expense.

There is no probative evidence that the disciplinary action taken was because of the engagement in protected activity as officers of the Union.(9) To the contrary, there is no question that the conduct in question occurred; that the incident was reported immediately after it occurred; that an investigation was promptly activated by the report of the incident; and that discipline was imposed because of the flagrant misconduct. Whether the asserted charges of unauthorized absence of two hours and/or deliberate misrepresentation would have been sustained if grieved, they were factually correct, as I have found, and can not be deemed to demonstrate pretext(10); but even if these two charges were without basis, the first and primary charge of "Use of discourteous, abusive, offensive, and sexually harassing language" was not pretextual in any manner.

Because the conduct was not protected, Respondent did not violate §§ 16(a)(1) or (2) of the Statute for its discipline of Mr. Melvin D. Smith for his flagrant misconduct on December 3, 1992. Accordingly, it is recommended that the Authority adopt the following:

ORDER

The Complaint in Case No. CH-CA-30596 be, and the same is hereby, dismissed.

________________________
WILLIAM B. DEVANEY
Administrative Law Judge

Dated: July 29, 1994
Washington, DC




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


Authority's Footnotes Follow:

1. The Union President's comments are set forth in the Judge's decision and will not be repeated here.

2. The General Counsel requests the Authority to take official notice of the decision of the Administrative Law Judge in Department of the Air Force, Grissom Air Force Base, Indiana, Case No. OALJ 94-56 (July 19, 1994), to which no exceptions were filed with the Authority, that the Respondent's cancellation of the realignment negotiations constituted an unfair labor practice. As there is no assertion or other basis on which to conclude that it would be improper to do so, pursuant to section 2429.5 of the Authority's Regulations, the request is granted.

3. The Judge concluded that, although he would give "no credence to [the unauthorized absence and misrepresentation] charges" if he were an arbitrator deciding their merits, "they were factually correct . . . and cannot be deemed to demonstrate pretext[.]" Judge's Decision at 10 n.10 (citing Tr. at 268).

4. 5 C.F.R. § 2429.5 provides, in pertinent part:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the Regional Director, Hearing Officers, Administrative Law Judge, or arbitrator. . . .

5. 5 C.F.R. § 2423.28(b) provides that any party may file an opposition to exceptions, and/or cross-exceptions, with the Authority within 10 days after service of any exceptions to an Administrative Law Judge's decision.

6. The exceptions were served on the Respondent, by mail, on September 26, 1994. Accordingly, under 5 C.F.R. §§ 2423.28 and 2429.22, the Respondent had until close of business on October 11, 1994, to file an opposition. The Respondent's motion was filed on October 26, 1994.

7. In addition to the circumstances in which Smith made his remarks, we note that, in a previous negotiation session between the Union and the Respondent, a management representative used similar language in referring to a Union negotiator. Specifically, there is uncontradicted testimony in the record that, during a previous bargaining session, the Agency's chief negotiator asked his Union counterpart: "Are you fu--ing stupid?" Tr. at 119.

8. We express no view regarding the merits of other charges against Smith or whether the Respondent may now institute discipline against Smith based on those charges.




ALJ's Footnotes Follow:

1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(2) will be referred to, simply, as, "§ 16(a)(2)".

2. Mr. Hartig was also President of the Union.

3. 11/ Mr. Smith was also Executive Vice President of the Union.

4. 12/ I do not credit Mr. Hartig's testimony that Ms. Smith's response to his language had been,

". . . She said those type of words don't bother her, keep it up. That's exactly what she said." (Tr. 68).

First, it is directly contradicted by the testimony of Mr. Melvin Smith, Ms. Sula Smith, Col. Moran and Ms. Craddock. Second, I found the testimony of Ms. Smith, Col. Moran and Ms. Craddock convincing and wholly credible in all respects, while the testimony of Mr. Hartig concerning his conduct on December 3, 1992, was not convincing. Indeed, although Mr. Hartig admitted his statements about what would be done with her letter (Tr. 67) and that he used the "f" word (Tr. 68), he denied having made any vulgar remarks because he could perceive no vulgarity in his comments (Tr. 66, 67, 68). Accordingly, I fully credit the testimony of Ms. Smith, Col. Moran and Ms. Craddock.

5. I do not credit Mr. Smith's testimony that, after he told Ms. Smith, words to the effect, "You're f-----g stupid, lady", Ms. Sula Smith said to him, "You got anymore insults for me? Those don't bother me." (Tr. 91), before he said, I always knew you was stupid. . . ." First, his statement is directly contradicted by the testimony of Ms. Sula Smith, Col. Moran and Ms. Craddock and is not supported by the testimony of Mr. Hartig (Tr. 59-60) or of Mr. Prior (Tr. 116). Second, I found the testimony of Ms. Smith, Col. Moran and Ms. Craddock convincing and wholly credible in all respects and, therefore, I credit their testimony.

6. Mr. Hartig admitted he made the statement but insisted he used the letter "a" (Tr. 74) rather than the personal pronoun "my"; but his testimony is contradicted by the testimony of Ms. Smith (Tr. 147-148), Col. Moran (Tr. 188), Ms. Craddock (Tr. 206) and Mr. James L. Dicken (Tr. 217), and Mr. Hartig's testimony is not credited. Accordingly, I find that Mr. Hartig said "my" in his statement to Ms. Smith.

7. The negotiating session ended at about 8:30 a.m. (Tr. 74, 107) so, presumably, his call would have been shortly thereafter.

8. I.e., as the Court stated,

". . . Linn [Linn v. Plant Guard Workers, 383 U.S. 53 (1966)] recognized that federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty. . . ." (Letter Carriers, supra, 418 U.S. at 283).

9. Proffered testimony which occurred after the date of the disciplinary action, by a person not involved in the disciplinary action was rejected (Tr. 128-129).

10. Mr. Smith conceded that he did not tell Mr. Johnson that negotiations had ended; conceded that he left no message that he had called before he reached Mr. Johnson at about 11:30 a.m.; and the record is clear that Mr. Johnson was not informed that Mr. Smith had called before about 11:30. Further, I have found that Mr. Smith either requested "prep." time or when Mr. Johnson mentioned "prep." time he acquiesced. While Mr. Johnson had a basis for these charges, I stated at the hearing that, on the basis of testimony and evidence, if I were an arbitrator deciding the merits, I would give no credence to these two charges (Tr. 268). <