Department of the Air Force, 315TH Airlift Wing, Charleston Air Force Base, Charleston, South Carolina (Respondent) and American Federation of Government Employees, Local 1869 (Charging Party/Union)

[ v57 p80 ]

57 FLRA No. 25



(Charging Party/Union)




April 18, 2001


Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached Decision and Order of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions and a cross-exception. The Respondent did not file an opposition to the General Counsel's cross-exception.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when it suspended a Union representative for activity protected by the Statute. The Judge found a violation, rejecting the Respondent's defense that the Union representative's activity constituted flagrant misconduct.

      Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Decision and Order, as modified to include interest on backpay. See 5 U.S.C. 5596(b)(2).

      In adopting the Judge's conclusion that the Union representative did not engage in flagrant misconduct, we note the Judge's finding of fact, to which the Respondent does not except, [n2] that the disputed conduct was "assuming a physical position with respect to [the supervisor] that was so close as to have involved some `touching' and . . . his use of certain threat-like gestures and an angry demeanor, accompanied by a sort of ranting, all in the course of 10 to 20 seconds." Judge's Decision at 15. The Judge also found, however, that the touching was only "marginal." Id. at 11. In making these factual findings, and others, the Judge carefully resolved inconsistencies between witnesses' testimony. See id. at 9-13. In so doing, the Judge found that differences in the testimony were attributable to: (1) the witnesses' location within the office during the incident; (2) the brevity and unexpected nature of the incident; and (3) personal sensitivities between certain witnesses.

      In continuing to assert that the Union representative engaged in flagrant misconduct, the Respondent relies on a characterization of the conduct -- as "acts of physical violence [and] inappropriate touching" -- that is at odds with the Judge's factual findings. Exceptions at 19. The Respondent also relies on testimony that was specifically discounted by the Judge. In particular, the Respondent relies on testimony of the fabrication flight superintendent in support of its claim that the Union representative "pinn[ed the supervisor's] body with his own body against a counter with no means of escape." Id. at 16. However, the Judge specifically found that this testimony was not the most reliable on this point. See Judge's Decision at 11.

      Based on the foregoing, we adopt the Judge's conclusion that the Respondent violated the Statute. In so doing, we conclude that the Judge correctly applied the relevant factors for resolving the issue of alleged flagrant misconduct set forth in Dept' of the Air Force, Grissom AFB, Indiana, 51 FLRA 7, 11-12 (1995). In particular, we find supported by the record, and therefore adopt, the Judge's findings that the incident: (1) occurred in a private office, outside the presence of any nonsupervisory employees other than those involved; (2) was impulsive; (3) was somewhat provoked by the supervisor. See Judge's Decision at 14-15.

      While we do not condone what the Judge described as "both verbal outbursts and allegedly belligerent nonverbal conduct" (Judge's Decision at 14), we note that similar conduct has been found protected. See Air Force Flight Test Center Flight Test Center, Edwards Air Force Base, Col., 53 FLRA 1455 (1998) (Flight Test Center). Further, in a related context, the [ v57 p81 ] Authority found that a manager did not violate § 7116(a)(1) when the manager "made physical contact with [a union representative] so that [the representative] fell against a wall." United States Dep't of Labor, Empl. and Training Admin., 20 FLRA 568, 569 (1985) (USDOL). As the dissent correctly points out, the Authority has considered physical responses by union and management representatives to be "beyond the limits of acceptable behavior." United States Dep't of Justice, United States Marshals Service and United States Marshals Service, District of New Jersey, 26 FLRA 890, 901 (1987). However, the Authority has never adopted a per se rule that any touching violates the Statute. Situations where such conduct is protected are no doubt rare, but the Judge's undisputed finding that the touching in this case was "marginal," Judge's Decision at 11, as well as his careful evaluation of the witnesses' testimony, convince us that this is such a situation.

      The dissent relies repeatedly on the assertion that the Union representative engaged in assault and battery. See Dissent, slip op. at 10, 12. However, even if a technical assault and battery occurred, a matter over which we have no jurisdiction or expertise, there is no reason to believe that it is dispositive of the question of flagrant misconduct. [n3]  Our dissenting colleague likewise relies on, and finds "extremely important," the Judge's reference to the incident in question as an "attack." Dissent, slip op. at 10 & n.3, 12. In so doing, the dissent ignores the context of the Judge's finding. In this regard, the Judge's reference was expressly made in connection with a mitigation of the seriousness of the conduct, the complete statement of which follows:

The instant case is similar to Flight Test Center in several ways. The differences do not tend, in their totality, to make a stronger case for the flagrancy of the misconduct. While the actual "touching" here might add some weight to the Respondent's claim, I conclude that it is at least balanced by other considerations. One . . . is that there was some evidence of provocation. Another is the brevity of the attack and its cessation without the necessity for outside interference. Moreover, [the Union representative] having engaged in this attack knowingly in [the fabrication flight superintendent's] presence, while in one sense adding to the appearance of recklessness, at the same time reduced the probability and accompanying fear that the incident would result in physical harm.

Judge's Decision at 16.

      Finally, we reject any notion that adoption of the Judge's decision indicates that we either condone workplace violence or find that the conduct in question furthers the goal of facilitating communication between parties. See Dissent at 10, 12-13. Finding conduct protected by the Statute does not indicate that we condone the conduct, and characterizing the incident in this case as workplace violence adds heat, but no light, to the discussion. Finally, finding the Union official's conduct protected does not indicate that it is an example of effective communication. The Statute protects those who conduct labor relations ineffectively as well as those who conduct it effectively, as long as they do not cross the line and engage in flagrant misconduct.

II.     Order

      Pursuant to § 2423.41 of the Authority's Regulations and § 7118 of the Federal Service Labor Management Relations Statute, the Department of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, South Carolina, shall:

      1.     Cease and desist from:

      (a)     Disciplining an employee for engaging in activity protected by the Statute.

      (b)  &