United States Department of Energy, Oak Ridge, Tennessee (Respondent) and Office and Professional Employees International Union, Local 268 (Charging Party)
[ v57 p343 ]
57 FLRA No. 69
UNITED STATES DEPARTMENT OF ENERGY
OAK RIDGE, TENNESSEE
OFFICE AND PROFESSIONAL EMPLOYEES
DECISION AND ORDER
June 29, 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 of the Administrative Law Judge filed by the General Counsel. The Respondent filed an opposition to the General Counsel's exceptions.
The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by suspending for five days a Union official for engaging in protected representational activities. The Judge found that the Respondent violated the Statute as charged. The Judge also found that, in one respect, the suspension was based on flagrant misconduct and that the Respondent was free to institute discipline in the future for that misconduct. The Judge recommended that the Respondent be directed to rescind the suspension and to provide back pay in the event that the Respondent: (1) decided not to institute discipline for the flagrant misconduct; or (2) instituted discipline less than a five-day suspension.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusion that the Respondent violated §§ 7116(a)(1) and (2) of the Statute by suspending a Union official for engaging in protected representational activities. However, we reverse the Judge's flagrant misconduct finding and hold that the Respondent may not institute discipline in the future for that misconduct and must provide the Union official with back pay for the entire five-day suspension.
A Chief Steward and Union Steward, after receiving permission from the Chief Steward's supervisor, allowed a former employee of the Respondent to use the Chief Steward's office and computer to review a Union brief. Subsequently, the Chief Steward's supervisor revoked his permission and confiscated the computer disk that contained the Union brief, to have it scanned for security reasons. After learning of the preceding events, the Chief Steward, Union Steward, and Shop Chairman engaged in a series of heated arguments with various management officials. The last of these arguments was with the Director of the Safeguards and Security Division (SSD), who denied the Union officials' request to be present during the scanning of the disk.
Subsequently, the Union officials filed a threat of violence incident report concerning the confrontation at SSD. The incident report alleged, as relevant here, that the Director "was violently waving his arms around in a threatening manner while yelling." Judge's Decision at 32. The incident report also indicated that the Union officials "left [SSD] for fear of [their] safety and physical well being," and that they were afraid that the Director "would [have] become violent himself or have one of the persons in the area that carry a pistol shoot [them]." Id.
After completing an investigation into the incident report, the Threat Assessment Team found that the Director did not threaten the Union officials and recommended that the Union officials be disciplined for deliberate misuse of the threat assessment policy. Thereafter, the Shop Chairman was suspended for five days for five separate counts of alleged misconduct, including "deliberately misrepresenting material facts in the incident report. [n2] General Counsel Exhibit 15 at 1. [ v57 p344 ]
III. The Judge's Decision
The Judge found that the Shop Chairman was acting as a Union representative engaged in representational activity during the time period when he took the actions for which he was suspended. The Judge noted that an agency may discipline an employee for such representational activity when it constitutes flagrant misconduct and applied the factors that the Authority considers in determining whether an employee has engaged in flagrant misconduct: (1) the place and subject matter involved; (2) whether an employee outburst was impulsive; (3) whether such outburst was provoked; and (4) the nature of the intemperate language and conduct. Judge's Decision at 37 (citing Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7, 11 (1995) (Grissom)).
The Judge found that, with the exception of the filing of the incident report, the actions for which the Shop Chairman was suspended did not constitute flagrant misconduct. He concluded that, insofar as the Respondent disciplined the Shop Chairman for this protected activity, the Respondent violated §§ 7116(a)(1) and (2) of the Statute.
Applying the Grissom factors to the filing of the incident report, the Judge found, first, that the Union officials were entitled to file the report. Second, the Judge found that the preparation of the incident report was not impulsive. Third, the Judge found that the Director's conduct did not provoke the "knowingly false, wholly baseless and demeaning accusation contained in the report. Judge's Decision at 52. Fourth, the Judge determined that "deliberate, calculated and intentional injury to [the Director's] reputation was shown by the record." Id. In this connection, the Judge stated that the Director did not make any threats, and that neither the Director nor anyone else in the vicinity of the dispute that led to the filing of the incident report was armed. See id. Based on these findings, the Judge found that, in filing the incident report, the Shop Chairman, Chief Steward and Union Steward engaged in flagrant misconduct and, as a result, the Respondent did not violate § 7116(a)(1) or (2) by imposing discipline for that action.
With respect to the remedy, the Judge found that there was no question that the Respondent would have disciplined the Shop Chairman for the incident report alone. Id. at 53. However, the Judge concluded that he could not determine what discipline the Respondent would have imposed for the incident report alone. He therefore ordered that the five-day suspension be withdrawn and that any future discipline be based only on the incident report -- not other conduct for which the suspension was originally imposed. He also found that the Respondent should make the Shop Chairman whole for any loss he may have suffered[,] if it elects not to impose discipline on [him], or if it imposes less discipline than it originally imposed. Id. at 54.
IV. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel contends that the Judge erred by failing to order the Authority's normal and customary make-whole remedy. General Counsel's Exceptions at 8. In particular, the General Counsel contends that the Judge erred by not ordering a total elimination of [the] 5-day suspension and total and unconditional back pay. Id. at 11. In addition, relying on SSA, Balt., Md., 53 FLRA 1751, 1754-56 (1998) (SSA), the General Counsel contends that the Judge erred by permitting the Respondent to take future discipline based on the incident report because the Respondent did not establish that the Shop Chairman would have received a five-day suspension for the incident report alone.
The General Counsel also contends that the Judge erred in concluding that the filing of the incident report constituted flagrant misconduct. In this connection, the General Counsel claims that the incident report was not a public document and did not affect the Respondent's ability to maintain order in the worksite. The General Counsel also claims that the Shop Chairman's action in filing the incident report was impulsive, and was provoked by the Respondent's seizure of the disk. According to the General Counsel, although the incident report may appear to be hyperbole, it was in essence a recount from the field in the midst of the fray. General Counsel's Exceptions at 19. In addition, the General Counsel contends that the Judge inappropriately included the conduct of the Chief Steward and Union Steward in his analysis of the Shop Chairman's conduct.
Finally, the General Counsel argues that the Judge erred by failing to address its argument that, even if the filing of the incident report constituted flagrant misconduct and was unprotected, the Respondent's decision to suspend the Shop Chairman for this conduct constituted disparate treatment. The General Counsel asserts that it presented evidence that the Respondent's treatment of the Shop Chairman in this regard was different from its treatment of two other employees who made claims deemed unwarranted by the Threat Assessment Team. [ v57 p345 ]
B. Respondent's Opposition
The Respondent contends that it notified the Regional Director, as required by the Order, that it was withdrawing the suspension and had begun the process necessary to provide the Shop Chairman with full back pay. [n3] Relying on Nat'l Park Serv., 54 FLRA 940, 945-46 (1998), the Respondent also claims that the Judge did not err in permitting future discipline based on the incident report.
The Respondent argues that the Judge properly concluded that the Shop Chairman's filing of the incident report constituted flagrant misconduct. In this connection, the Respondent contends that although the report was not "'public' in the sense that it was published or generally distributed to other employees," the Shop Chairman knew that filing the report would lead to numerous employee interviews conducted by the Threat Assessment Team. Respondent's Opposition at 22. The Respondent also argues that "order in the worksite" could be disrupted if employees "could knowingly contrive false [i]ncident [r]eports without fear of discipline." Id. at 23. Finally, according to the Respondent, the General Counsel failed to substantiate its disparate treatment claim.
V. Analysis and Conclusions
For the reasons that follow, we conclude that the Judge erred in finding that filing the incident report constituted flagrant misconduct.
It is undisputed that the Shop Chairman was acting in his capacity as a Union representative when he filed the incident report. When alleged discrimination concerns discipline for conduct occurring when the employee was acting in his/her capacity as a union representative . . . a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct." Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 53 FLRA 1500, 1514 (1998) (Prisons); see also Letterkenny Army Depot, 35 FLRA 113, 118 (1990). 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." Grissom, 51 FLRA at 11-12. If flagrant misconduct is established, then the conduct loses its protection under the Statute and can be the basis for discipline. See Prisons, 53 FLRA at 1515.
Union officials acting in their official capacity have very broad latitude in speech and action. U.S. Dep't. of the Air Force, Randolph Air Force Base, San Antonio, Tex., 46 FLRA 978, 992 (1992) (Air Force) (decision of Judge Devaney) (quoting Internal Revenue Service, 7 FLRA 596, 603-604 (1982) (IRS)). In this regard, union officials who have knowingly made false statements that managers lied and who engaged in name-calling by calling a manager this season's holiday turkey have been found to have been engaged in protected activity. See Air Force, 46 FLRA at 993-94; [n4] IRS, 7 FLRA at 603-604 (1982); see also United States Dep't of Def., Def. Logistics Agency, 50 FLRA 212, 216 (1995) (DLA) (letter from union official to employees accusing supervisors of lying and overbearing and abusive treatment of subordinates protected); United States Dep't of Veterans Affairs, Med. Ctr., Jamaica Plain, Mass., 50 FLRA 583, 586-87 (1995) (letter from union official to agency official and bargaining unit employees, threatening to publicize allegations of mismanagement and cronyism, protected).
Here, the Judge applied the Grissom factors to conclude that the Shop Chairman's filing of the incident report was flagrant misconduct. For the reasons that follow, we conclude that, based on the record as a whole, the filing of the incident report did not constitute flagrant misconduct.
With regard to the first factor -- place and subject matter of the discussion -- the Judge determined that the Shop Chairman was entitled to file an incident report concerning a threat or act of violence that appears to involve an imminent risk to physical safety. This finding [ v57 p346 ] supports a conclusion that the filing of the incident report was not flagrant misconduct. In addition, the facts that the allegations related to a labor relations matter rather than a personal matter, were not publicly made, and were confined to appropriate officials and witnesses, weighs against finding flagrant misconduct. See DLA, 50 FLRA at 216 (complaint not publicly announced); Air Force, 46 FLRA at 996-997 (letter not published); IRS, 7 FLRA at 603-604 (name calling as part of labor dispute).
With regard to the second factor -- whether the employee's outburst was impulsive or designed -- the General Counsel disputes the Judge's determination that the preparation of the incident report was not impulsive. It is clear, in this regard, that the filing of the report was not a spontaneous occurrence; the incident report was not filed for nearly an hour after the incident and it is a written document that, by its nature, required consideration and preparation. However, it is also clear that the filing of the report was the culmination of an emotional, 4-hour dispute over the confiscation of the Union's computer disk containing a brief to be filed in a pending grievance. While an hour is not an insignificant period of time, the particular hour preceding the filing in this case was spent by the Shop Chairman discussing and recounting the confrontation with both Agency and Union officials. See Judge's Decision at 51. As such, it is reasonable to conclude that, even though an hour had elapsed, the Shop Chairman was not acting dispassionately in filing the report. That is, while the filing of the incident report was not purely impulsive, neither was its preparation so removed from the context of a heated labor-management dispute as to be intentionally designed. Thus, we find that this factor neither supports nor undermines a finding of flagrant misconduct. We note that, even if the filing of the report was not impulsive, that fact alone does not remove the filing of the report from protection under the Statute. See DLA, 50 FLRA at 216.
With regard to the third factor -- whether the outburst was in any way provoked by the employer's conduct -- the Judge acknowledged that the Director's refusal to permit a Union representative to be present at the scanning of the disk resulted in the conduct which brought about the filing of the incident report. However, the Judge determined that the false and inflammatory statements made in the incident report were not a response to the provocation in this instance. While the Judge's finding that the particular disputed statements in the incident report were not provoked by the Respondent is supported by the record, the fact remains that the Respondent's actions in revoking access to the facility for the former employee to prepare the brief, confiscating the computer disk, and refusing to permit the Union officials to observe the scanning of the disk, provoked the overall dispute resulting in the filing of the incident report. Insofar as the Shop Chairman's filing of the incident report was the culmination of this heated dispute, it was provoked, at least in part, by the Respondent.
With regard to the fourth factor -- the nature of the intemperate language and conduct -- the Judge found that the assertions in the incident report were false and made with the intent to cause injury to the Director's reputation. These findings, which focus on the Shop Chairman's motivation for filing the incident report and the accuracy of the statements therein, are supported by the record. However, with one exception, the Judge did not apply the fourth factor with respect to the actual wording used in the incident report. In this regard, the incident report is comprised in the main of allegations regarding the Director's actions during the incident, specifically allegations that the Director: (1) was violently waving his arms around in a threatening manner while yelling, and (2) rushed towards [the Union Chief Steward] yelling and waving his hands in an irrational and violent manner. General Counsel Exhibit 3. The incident report characterizes the Director's behavior as violent and intimidating. Id. These statements, while intemperate, are not unlike other statements that have been found protected and, standing alone, would not support a finding that the filing of the incident report constituted flagrant misconduct. See DLA, 50 FLRA at 216.
The statements regarding the Director's alleged actions do not stand alone, however. In addition to those statements, the Shop Chairman included in the incident report the following statement, on which the Judge relied in finding that the filing of the incident report constituted flagrant misconduct:
We did not stay in the area because we were afraid [the Director] would become violent himself or have one of the persons in the area that carry a pistol shoot us.
General Counsel Exhibit 3. The Judge's findings that neither the Director nor anyone else in the vicinity of the incident was armed, and that the Shop Chairman was aware of that fact, are uncontested. As such, the Judge's conclusion that the statement was an affront to [the Director's] character and to his professional reputation and standing appears clearly correct. Judge's Decision at 52.
Inclusion in the incident report of the statement that the Shop Chairman was fearful about possible violence [ v57 p347 ] by the Director clouds an otherwise clear determination that flagrant misconduct did not occur. However, there is no contention that the incident report was publicly distributed or that the statement regarding the Shop Chairman's fear was widely known. Further, there is no contention that the statement affected the Respondent's ability to maintain discipline. The expression of fear also was merely a small part -- one clause in one sentence -- of a document that otherwise would be protected, and the statement was made in the context of an ongoing, heated series of confrontations. While the incident report may not have been filed impulsively, the fact that it was the product of an emotional and heated dispute supports a finding that it was also not filed in a deliberate or thoughtful manner. The dissent's reliance solely on the fact that the shop chairman's expression of fear was knowingly false and intended to harm the supervisor's reputation erroneously fails to focus on the totality of circumstances as set out above.
In striking a balance between the statutory right of the Shop Chairman to engage in protected activity, on the one hand, and the Respondent's right to maintain order and respect for its supervisory staff on the other, we conclude that the scale here tips -- however slightly -- against a finding of flagrant misconduct. As such, we find that the Judge erred in concluding that the conduct constituted flagrant misconduct and modify the Order to provide the Shop Chairman back pay for the entire five-day suspension. [n5] In so doing, we also find, in agreement with the General Counsel, that the Judge improperly concluded that the Chief Steward and Union Steward engaged in flagrant misconduct. See Judge's Decision at 51. In this regard, the conduct of the Chief Steward and Union Steward were not at issue in this case, and the Judge thus had no basis for making any determinations regarding their conduct.
Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Energy, Oak Ridge, Tennessee, shall:
1. Cease and desist from:
(a) Suspending Dalton Monroe Cooper, or any other bargaining unit employee, for engaging in activity protected under the Statute.
(b) In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Withdraw the 5-day suspension of Dalton Monroe Cooper, issued January 28, 1999, together with the Notice of Proposed Suspension, issued December 18, 1998, and the Notice of Decision to Suspend, issued January 28, 1999.
(b) Expunge any reference to such disciplinary suspension from his personnel records, reimburse him for the loss of pay he suffered by reason of the suspension, and restore to him any right or privilege he may have lost by such disciplinary action.
(c) Post at its facilities in Oak Ridge, Tennessee, 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 Manager, Oak Ridge Operations Office, 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 § 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Chicago Regional Office, Federal Labor Relations Authority, 55 West Monroe, Suite 1150, Chicago, Illinois 60603-9729, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v57 p348 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the United States Department of Energy, Oak Ridge, Tennessee, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.
We hereby notify employees that:
WE WILL NOT suspend Dalton Monroe Cooper, or any other bargaining unit employee, for engaging in activity protected under the Statute.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL withdraw the 5-day suspension of Dalton Monroe Cooper, issued January 28, 1999, together with the Notice of Proposed Suspension, issued December 18, 1998, and the Notice of Decision To Suspend, issued January 28, 1999.
WE SHALL EXPUNGE any reference to such disciplinary suspension from his personnel records and reimburse him for the loss of pay he suffered by reason of the suspension and restore to him any right or privilege he may have lost by such disciplinary action.
Dated:_________ By: __________________________
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, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603-9729, and whose telephone number is: (312) 886-3465.
Dissenting opinion of Chairman Cabaniss:
In this case, three Union officials filed an official Incident Report implicitly accusing a manager, who had been peripherally involved in a labor relations dispute that had ended an hour earlier, of threatening to have them shot. This accusation was both knowingly false and wholly baseless. Judge's Decision at 52. In agreement with the Judge, I believe this behavior clearly amounted to flagrant misconduct, as we have defined that term in Grissom and other cases. Therefore, I would find that the Respondent did not violate § 7116(a)(1) and (2) of the Statute when it imposed discipline for this conduct.
With respect to the second Grissom factor, the record fully supports the Judge's finding that the preparation of the Incident Report was not impulsive. Judge's Decision at 52. Moreover, the record does not support the majority's conclusion, Majority Decision, slip op. at 9, that the report was not filed in a deliberate or thoughtful manner. On the contrary, the Union officials' own testimony, reviewed in detail by the Judge, Judge's Decision at 29-32, shows just such deliberation and thought. Specifically, they testified that they consulted a handbook and a nurse employed by the Respondent on how to complete the report; made up an appropriate form on a computer; and all talked about it and filled it out together and helped word it. Id. at 31. All of these were careful, deliberate and designed actions. Moreover, as the majority acknowledges, slip op. at 7-8, the incident report was filed nearly an hour after the incident. This factor therefore weighs very heavily in favor of a finding of flagrant misconduct.
As to the third Grissom factor, I agree with the majority, as well as the Judge, that the particular disputed statements in the incident report were not provoked by the Respondent. Slip op. at 8. I view it as wholly irrelevant that some provocation, primarily involving people other than the person to whom the disputed statements pertained, may have occurred at an earlier point in the dispute.
With respect to the fourth Grissom factor, again the majority acknowledges, id. at 9, and I agree, that the Judge's findings that the assertions in the incident report were false and were made with the intent to cause injury to the manager's reputation are fully supported by the record. In particular, as noted by the majority, it is uncontested that neither the manager nor anyone else in the vicinity of the incident was armed, and that the Union officials were aware of that fact. Nonetheless, the Union officials falsely stated, we were afraid [the manager] would become violent himself or have one of the [ v57 p349 ] persons in the area that carry a pistol shoot us. General Counsel Exhibit 3. Moreover, as discussed previously, the wording of the incident report was discussed and carefully considered by the Union officials.
I do not view the fact that this deliberately false and malicious statement was made in an official report rather than distributed publicly as mitigating the egregious nature of the misconduct in any way. We have acknowledged that use of official complaint procedures can lose the protection of the Statute when such processes are used in such an outrageous manner or for the purpose of simply harassing an employer. Bureau of the Census, 41 FLRA 436, 450 (1991), vacated and remanded on other grounds, United States Dep't of Commerce, Bureau of the Census v. FLRA, 976 F.2d 882 (4th Cir. 1992). Moreover, the majority's suggestion, slip op. at 9, that being investigated for threatening to have other employees shot in the workplace did not affect the manager's reputation is wholly unrealistic. I note that the Union officials' own testimony indicates they were fully aware that the incident report would trigger an investigation by the Respondent's Threat Assessment Team, as they discussed some of the conditions of the investigation with the nurse. See Judge's Decision at 31.
Although the majority asserts that we have previously held knowingly making false statements about managers in connection with labor relations disputes to be protected activity, none of the cases cited by the majority in fact so held. In Air Force, although the agency had alleged otherwise, the judge specifically found that, with the exception of one statement (discussed further in the next paragraph), the record does not show that any of the statements were knowingly false. 46 FLRA at 995. In DLA, the arbitrator found only that the grievant's statements contained excessively abusive language, and did not make any finding that the statement was intentionally false. 50 FLRA at 214. Similarly, IRS; United States Dep't of Veterans Affairs, Medical Ctr., Jamaica Plain, Mass.; and the remaining statement in Air Force involved name calling, rather than knowingly false factual allegations.
In this regard, we have followed private sector precedent holding that epithets such as . . . `liar' are commonplace in these struggles and do not remove statements from the protection of the Statute. Air Force, 46 FLRA at 994 (citing Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 60-61 (1966)). The single statement that the Judge in Air Force characterized as knowingly false was a statement of this nature, one which translate[d] to calling [a manager] a liar. 46 FLRA at 994. The Union officials in the instant case, in contrast, went beyond mere invective by deliberately making false accusations of specific criminal behavior. We have held that statements lose the protection of the Statute when they are knowingly false and uttered with reckless abandon. United States Forces Korea, Eighth United States Army, 17 FLRA 718, 728 (1985). Based on the Judge's factual findings, which the majority does not question, I have no trouble concluding that the incident report was just that.
Finally, I cannot see how condoning the conduct of the Union representatives in this case in any way furthers the goals of the Statute. On the contrary, such behavior can only poison the well and lead to less productive relationships. Therefore, I respectfully dissent.
File 1: Authority's Decision in 57 FLRA No.
69 and Opinion of Chairman Cabaniss
File 2: ALJ's Decision
Footnote # 1 for 57 FLRA No. 69 - Authority's Opinion
Footnote # 2 for 57 FLRA No. 69 - Authority's Opinion
Footnote # 3 for 57 FLRA No. 69 - Authority's Opinion
Based on this statement, an attempt was made to determine whether this issue is moot. In particular, the Regional Office was requested to provide the Authority with a copy of the Respondent's compliance letter. Subsequently, the Regional Office's response was placed on the record and the parties were afforded an opportunity to respond. The Respondent's letter is ambiguous on the issue, and the only timely response was submitted by the General Counsel, arguing that the issue is not moot. In these circumstances, where the record (that is properly before the Authority pursuant to timely filed submissions) does not demonstrate that the issue is moot, we find that it is not moot. See AFGE, AFL-CIO, Dep't of Educ. Coun