File 2: Opinion of Chairman Cabaniss
[ v57 p83 ]
Dissenting Opinion of Chairman Cabaniss:
Even if one agrees with the parsing [n1] attempted by the Judge to limit the description of the physical contact by the Union's representative with the supervisor, the following conduct is still described: the Union representative engaged in an "attack" verbally and physically against the supervisor by physically touching up against her while not being in complete control of himself and acting in an angry manner, effectively backing her up against a counter and forcing her to lean backward in an attempt to get away from him, and that the representative was using threat-like gestures so forcefully that she could reasonably fear being hit by some unpredictable blow from him.
I doubt that one really needs to review a legal dictionary to conclude that the conduct above amounts to an assault as well as a battery, but the seventh edition of Black's Legal Dictionary confirms the impact of improper touching and reasonable apprehension of harm. With today's concern over workplace violence, I am concerned that anyone would condone such conduct by not finding it to be "flagrant misconduct." However, even if one were able, based upon the language of that test, to find that "flagrant misconduct" was not present, I would hold, as our precedent has pointed out in the past, that "flagrant misconduct" is not the sole and exclusive example of conduct that exceeds the boundaries of protected activity. If the Authority really intends to follow a test that could condone an assault and battery situation by not declaring it to be outside the boundaries of protected activity, it is time to reevaluate how we look at and define such activity.
The majority refers to Air Force Flight Test Center, Edwards Air Force Base, 53 FLRA 1455 (1998) (Flight Test Center) to buttress its conclusion that the representative's actions do not rise to the level of "flagrant misconduct." [n2] Specifically, in Flight Test Center, we adopted this same Judge's reasoning for analyzing questions involving our approach to "flagrant misconduct." Generally, that analysis dictates that we look at the totality of the circumstances to determine whether an employee, while engaged in protected activity, committed flagrant misconduct.
The majority argues that the union representative's actions in Flight Test Center, which were found to be protected, are similar enough to the actions at issue here. I disagree. Unlike Flight Test Center, which has some similarity to this case, this union representative engaged in an improper physical contact with a management official during what the Judge referred to as an "attack." [n3] This contact is extremely important given that, in Flight Test Center we reaffirmed a previous decision where we stated that "[a] physical response, in the context of a labor-management dispute, by either the union representative or a manager is deemed beyond the limits of acceptable behavior." United States Marshals Service, 26 FLRA 890, 901 (1987) (Marshals Service) (emphasis added) (the physical response in that matter included physical contact which took place during protected activity). Therefore, in keeping with our precedent, I would conclude that a physical response, such as what occurred here, is beyond the limits of acceptable behavior for an employee engaged in protected activity. [n4]
There are many other aspects of the Judge's decision and rationale that are troubling. The interaction in question was a performance feedback session. It is not being argued that the Agency improperly precluded the representative from being present, and in this matter the Agency was well within its rights to ask the Union, given the nature of the proposed meeting, why it was [ v57 p84 ] present, and to advise the Union that it had no right to be present. I fail to see how this constitutes some form of "provocation" as found by the Judge. The Judge further goes on to place some value on the "frustration" felt by the representative in this instance, even though it is the representative's failure to understand the Union's rights under the Statute that gives rise to his frustration. The Judge also places some relevance as to the supervisor's comment to the representative that she was intimidated by him. [n5] Given the representative's conduct in the present instance, it is just as likely that her comment could have helped diffuse what we now know became a confrontational situation.
The other inconsistencies between the Judge's findings and his conclusion are equally troubling. For example, the Judge found that the supervisor tried to retreat "as much as possible" during the attack or that the testimony of the fabrication flight superintendent, which to this extent the Judge never discredited, offered that the supervisor could not retreat any further from the Respondent because she was already bending backwards over a counter in an effort to get away. [n6] Judge's Decision at 11; Transcript at 217. The Judge also specifically found that the supervisor was in reasonable fear of being hit by an "unpredictable blow" during this confrontation given that the representative was not in complete control and was using certain "threat like-gestures" described by the supervisor as making a fist with his finger pointing out directed towards her head. [n7] Judge's Decision at 10, 12, 15, Transcript at 117-19, 153. Instead, all of this is downplayed in the majority's decision by reference to only a portion of the Judge's decision that states "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," and noted that the contact was "marginal." Majority, slip op. at 2. While accurately describing those limited portions of the Judge's findings, I believe this statement does little but gloss over and trivialize significant facts also found by the Judge. And, as noted, supra, there is nothing to indicate that a "marginal" battery is any less of a battery.
Accordingly, based on a review of the entire record, I would find that the representative's actions were beyond the limits of acceptable behavior for an employee engaged in protected activity. Therefore, for the reasons noted above I disagree with the majority's decision and would dismiss the charge.
Finally, while the majority and I assuredly share the same principled idea that the Statute protects intemperate behavior [n8] by either party when engaged in protected activity so as to reasonably facilitate communication between the parties, I do not concur that improper physical contact, with or without threatening gestures or conduct constituting an assault, furthers this goal. [n9] In fact, I believe the opposite is true, and that the majority's decision to find this behavior protected will chill the very open communication Congress intended.
Footnote # 1 for 57 FLRA No. 25 - Opinion of Chairman Cabaniss
The Judge goes out of his way to find that the victim of the attack did not, at least according to the Judge, testify to being touched, or the extent or pressure of such touching. Given the credited testimony from others that such a touching took place, I believe the victim's testimony that the representative was "belly to belly" and "toe to toe" with her is sufficiently precise enough to conclude that she thought the representative was touching up against her. Further, to the extent this was such a pressing issue for the Judge (no pun intended), I question his failure to seek clarification on his own. Finally, regarding the Judge's efforts to downplay the extent or pressure of the physical contact against the supervisor while she was leaning backward in an attempt to get away from the representative, I see very little, if any, legal value in this instance from this hoped for diminishment of the physical contact, given the improper nature of any battery, regardless of its degree or severity, and the fact that this battery was accompanied by an assault.
Footnote # 2 for 57 FLRA No. 25 - Opinion of Chairman Cabaniss
For clarity, as the majority's opinion does not touch upon this concept, i.e., that where an employee is engaged in protected activity it would be an unfair labor practice for an agency to take disciplinary action against that employee, unless his misconduct was "flagrant".
Footnote # 3 for 57 FLRA No. 25 - Opinion of Chairman Cabaniss
Footnote # 4 for 57 FLRA No. 25 - Opinion of Chairman Cabaniss
While stated in absolute terms in Marshals Service, I would support finding that a party who makes a physical response while engaged in protected activity may offer mitigating evidence that would show that such physical contact should be protected, i.e., self defense. This approach appears to have some support, especially in light of the majority's cited case of USDOL, 20 FLRA 568 (1985). In that matter the Authority found, under the same standard used in Marshals Service, that the physical contact that took place there was so provoked that it wa