United States, Department of Defense, Defense Contract Management Agency, Orlando, Florida (Respondent) and American Federation of Government Employees, Local 3953 (Charging Party/Union)

[ v59 p223 ]

59 FLRA No. 36

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE CONTRACT MANAGEMENT AGENCY
ORLANDO, FLORIDA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3953
(Charging Party/Union)

AT-CA-00310

DECISION AND ORDER

September 25, 2003

____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC) and the Charging Party (Union) and on cross-exceptions filed by the Respondent. The Respondent filed an opposition to the GC's and the Union's exceptions, and the General Counsel filed an opposition to the Respondent's cross-exceptions.

      The complaint alleges, in relevant part, that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (Statute) by disciplining the Union's Chief Steward for conduct during a meeting called by the Respondent. [n2]  The Judge found that the Chief Steward had engaged in conduct that was unprotected by the Statute. Accordingly, he concluded that the Respondent did not violate the Statute by disciplining the Chief Steward, and he dismissed the complaint.

      Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings and conclusions only to the extent consistent with this decision. We find, contrary to the Judge, that the Respondent violated § 7116(a)(1) and (2) of the Statute by disciplining the Chief Steward, and we will issue an appropriate remedial order.

II.     Background and Judge's Decision

A.     Background

      In connection with an upcoming office reorganization, a Union representative contacted Michael Johnson, the Union's Chief Steward (Johnson). Johnson was asked to check with employees, including Tara Wagner (Wagner), about any concerns they had about their respective assignments, and that he should ask Joan White, the Deputy Commander (White), why the Union had not been notified about the assignments.

      The next day, Johnson asked Wagner why she wanted to accept the transfer. According to Wagner, Johnson stated that he was the Union "head honcho" and that White had asked him to find out why Wagner wanted to transfer. [n3]  Judge's Decision at 7; Tr. at 136, 151. See also Respondent's Exhibit No. 1. Later that day, Wagner asked White if, in fact, White had asked Johnson to find out Wagner's reasons for accepting the transfer. White told Wagner that she had not made any such request. White determined that a meeting was needed to resolve this dispute, and asked Wagner if Wagner would meet with her and Johnson for this purpose. Wagner agreed to meet.

      The following day, White scheduled a meeting with Wagner and Johnson to clarify what had happened. Although Wagner knew the purpose of the meeting, White had not advised Johnson of its purpose. As Wagner and Johnson were entering a conference room for the meeting, Wagner informed Johnson of her conversation with White. Johnson loudly denied to Wagner that he had said he was representing White, and "insisted" he had said he was representing the Union. Judge's Decision at 11.

      White began the meeting by attempting to explain its purpose. As found by the Judge:

Mr. Johnson interrupted Ms. White, embarked on two long, loud, rambling, angry monologues, [ v59 p224 ] called Ms. Wagner a liar repeatedly, "bad-mouthed" Ms. White, the agency, threatened to "get" Ms. White, threatened to sue Ms. White, Ms. Wagner, Ms. Turner, and Ms. Gilmour, refused to heed Ms. White's repeated requests that he calm down, and used profanity, although the profanity used was mild indeed. Mr. Johnson's tirades lasted about fifteen minutes and was heard by employees working outside the conference room.

      Judge's Decision at 23.

      White ended the meeting because she had another appointment. She indicated that the meeting would resume at a later time. It was never reconvened. The Respondent later suspended Johnson for 2 days for "Contemptuous Behavior Towards Constituted Authority" and "Abusive or Offensive Language" during the meeting. [n4]  Id. at 22.

      The Union filed a charge and an amended charge, and the General Counsel issued a complaint, alleging in pertinent part that the Respondent committed an unfair labor practice by suspending Johnson for his conduct at the meeting.

B.     Judge's Decision

      As relevant here, the Judge stated that the parties stipulated to the following issues:

      I.     Did the Respondent violate [§] 7116(a)(1) and/or (2) by suspending Michael Johnson due to protected activity he was engaged in [at the meeting]?

A.     Were the actions that were the basis of Johnson's suspension activity protected by the Statute?
B.     If the activity described in A[] was protected activity, did Johnson's conduct constitute flagrant misconduct so as to remove it from the protection of the Statute?

Id. at 20-21.

      The Judge found that Johnson's conduct occurred in a meeting called by the Respondent to investigate his alleged misrepresentation of authority. The Judge further found that although misrepresentation of authority is not, itself, protected activity, Johnson's alleged misrepresentation of authority

occurred in the course of his performance of protected activity; he was called to the meeting . . . to investigate his alleged misrepresentation of authority; but he was the Chief Steward and his conduct at the meeting . . . occurred as Chief Steward and, as the Authority has held, when a union official attends such a meeting as a union official, his actions during that meeting are protected unless they constitute flagrant misconduct[.]

Id. at 22-23 (citing Federal Bureau of Prisons, Office of Internal Affairs, Wash., D.C. and Fed. Bureau of Prisons, FCI Englewood, Littleton, Colo., 53 FLRA 1500, 1518 (1998) (FCI Englewood).

      The Judge then reviewed Johnson's conduct and found that, "[c]ollective[ly], his actions constituted flagrant misconduct." Id. at 24. As support for this conclusion, the Judge cited, without elaboration, Dep't of Defense, Defense Mapping Agency Aerospace Ctr., St. Louis, Mo., 17 FLRA 71 (1985) (Defense Mapping Agency). In addition, the Judge relied on Johnson's threat to sue, noting that the National Labor Relations Board had found that a threat to sue for libel is "of a harassing nature," Id. at 23 (citing Clyde Taylor Co., 127 NLRB 103, 108 (1960), as well as his findings that Johnson's outburst was impulsive and unprovoked. Having found that Johnson's actions constituted flagrant misconduct, the Judge concluded that his actions were not protected by the Statute and that the Respondent, therefore, did not violate § 7116(a)(1) and (2) by suspending him for those actions. Therefore, the Judge dismissed the complaint.

III.      Positions of the Parties

A.     GC's Exceptions

      The GC agrees with the Judge's conclusion that, because the meeting concerned Johnson's activity as a Union representative, Johnson's actions are protected unless they constitute flagrant misconduct. However, the GC excepts to the Judge's finding that Johnson's actions constituted flagrant misconduct.

      The GC states that in Dep't of the Air Force, Grissom AFB, Ind., 51 FLRA 7 (1995) (Grissom), the Authority set forth the following test for determining whether activities constitute flagrant misconduct:

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 [ v59 p225 ] 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.

Grissom, 51 FLRA at 11-12.

      Considering these factors in the context of this case, the GC contends that the Judge correctly found that Johnson's conduct was impulsive and away from the work area. However, the GC asserts that the Judge erred in failing to find that: (1) although Johnson's outburst was heard by other employees, there was no disruption in the workplace as a result of his outburst; (2) Johnson "was at least partially provoked" by White's actions since "the meeting was [called] to accuse Johnson of lying[]" and White chose not to advise Johnson of the purpose of the meeting in advance; and (3) the nature of Johnson's conduct supports a finding that he was not engaged in flagrant misconduct. Exceptions at 8. In this regard, the GC cites Authority and National Labor Relations Board (NLRB) precedent in support of its assertion that application of the Grissom factors leads to a conclusion that Johnson's conduct at the meeting was protected. The GC also asserts in this regard, that the Judge erred in relying on Johnson's threat to sue, which, according to the GC, was not unprotected.

      In sum, the GC asserts that the record demonstrates that "Johnson acted in a completely impulsive manner; that his conduct occurred away from the general work area and was not disruptive; that the Respondent helped provoke the situation; and that the overall nature of Johnson's conduct was not outrageous." Id. at 12. Accordingly, the GC contends that Johnson's conduct was protected by the Statute and that the Judge erred, as a matter of law, in finding that the Respondent did not violate § 7116(a)(1) and (2) of the Statute by disciplining him for his conduct at the meeting.

B.     Charging Party's Exceptions

      The Charging Party excepts to numerous factual findings of the Judge, including, in particular, his findings that White and Wagner were credible witnesses and Johnson was not. The Charging Party claims that the meeting concerned protected activity and that Johnson's activities at the meeting did not constitute flagrant misconduct.

C.     Respondent's Cross-Exceptions

      The Respondent excepts to the Judge's finding that Johnson's activities during the meeting constituted protected activity. According to the Respondent, the meeting concerned only Johnson's alleged misrepresentation of his authority, not his inquiry into the reassignments. Therefore, noting the Judge's finding that such a misrepresentation is not protected activity, the Respondent asserts that the meeting could not have involved protected activity. The Respondent also contends that "misconduct by a union official directed at a fellow member of the bargaining unit, [instead of] a member of management, was never protected to begin with." Respondent's Cross Exceptions at 17.

D.     GC's Opposition to the Respondent's Cross-Exceptions

      The GC contends that the Judge correctly found, relying on FCI Englewood, 53 FLRA at 1518, that "`when a union official attends . . . a meeting as a union official, his actions during that meeting are protected unless they constitute flagrant misconduct.'" Opposition at 1 (quoting Judge's Decision at 22-23).

E.     Respondent's Opposition to the Charging Party's and GC's Exceptions

      The Respondent argues that the Charging Party has failed to show that the Judge's credibility determinations are erroneous. The Respondent also asserts that the Judge properly concluded that Johnson's activities at the meeting, judged in their entirety, constituted flagrant misconduct.

IV.     Analysis and Conclusions

A.     Analytical Framework

      We recently clarified the application of the framework in Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny) to cases of alleged discrimination in violation of § 7116(a)(1) and (2). See United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan AFB, Tucson, Ariz., 58 FLRA 636 (2003) (Davis Monthan AFB). Under that framework, the GC establishes a prima facie case of discrimination by demonstrating that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was [ v59 p226 ] a motivating factor in the agency's treatment of the employee. Once the GC makes the required prima facie showing, an agency may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of the protected activity. Id.

      In light of the court's decision in Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002) (315th Airlift Wing v. FLRA), we further clarified that when the alleged discrimination concerns discipline for conduct occurring during protected activity, "a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity." Davis Monthan AFB, 58 FLRA at 636. In this regard, the court stated that "[f]lagrant misconduct is a sufficient, but not necessary, condition for a loss of privilege under § 7102 [of the Statute]." 294 F.3d at 201. As the court noted in discussing earlier Authority precedent, "`flagrant misconduct' [i]s only illustrative of exceeding the boundaries of protected activities." Id. at 202 (emphasis in original).

      If conduct that exceeds the boundaries of protected activities is established, then the conduct loses its protection under the Statute and can be the basis for discipline. If the conduct retains its protection, it cannot be the basis for discipline. "In effect, in such a case, it is not legitimate for an agency to discipline for conduct occurring during the course of protected activity that" does not exceed the boundaries of protected activities. FCI Englewood, 53 FLRA at 1516. Under the Letterkenny framework, the agency has the burden of establishing its affirmative defense by a preponderance of the evidence, and the GC has the overall burden of establishing the violation by a preponderance of the evidence on the record as a whole.

      Moreover, as noted above, in Grissom, the Authority stated that "[i]n 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. The Authority outlined several relevant factors to be considered in striking this balance: (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 anyway provoked by the employer's conduct; and (4) the nature of the intemperate language and conduct. Id. at 12. The Authority also stated that the foregoing factors did not need to be cited or applied in any particular way in determining whether an action constitutes flagrant misconduct. Id. In addition, in assessing this balancing of interests, the Authority has held that "[u]nion officials acting in their official capacity have very broad latitude in speech and action." United States Dep't of Energy, Oak Ridge, Tenn., 57 FLRA 343, 345 (2001) (Oak Ridge) (Chairman Cabaniss dissenting as to result).

B.      Application of the analytical framework to this case

      The Judge found that Johnson's conduct at the meeting occurred in his capacity as the Union's Chief Steward, and that his conduct was protected unless it constituted flagrant misconduct. The Judge also concluded that Johnson was disciplined based on his conduct at the meeting. Thus, the Judge effectively concluded that the GC had established a prima facie case of a violation of § 7116(a)(2).

      The Respondent excepts to the Judge's conclusion that Johnson's conduct at the meeting occurred in his capacity as the Union's Chief Steward. According to the Respondent, the meeting could not have involved protected activity because it concerned only Johnson's alleged misrepresentation of his authority.

      We disagree. Contrary to the Respondent's claim, the fact that the meeting was called to inquire about Johnson's alleged misrepresentation of his authority does not mandate a conclusion that the meeting did not involve protected activity. As the Judge properly found, Johnson's alleged misrepresentation occurred in the course of his earlier performance of protected activity; that is, when Johnson, as Chief Steward, contacted unit employee Wagner at the request of another Union representative, told Wagner that he was the Union "head honcho," and asked her about the reassignments resulting from the upcoming reorganization. Since the Respondent called Johnson to the meeting to ask what he said as the Chief Steward in his conversation with Wagner, his conduct at the meeting occurred as Chief Steward. In this regard, the Judge correctly concluded that when a union official attends such a meeting as a union official, his actions during that meeting are protected unless they lose the protection of the Statute. See FCI Englewood, 53 FLRA at 1518-20 (union official's presence at counseling meeting was protected activity because it was based on his conduct as a union representative during a previous incident).

      Having determined that Johnson's conduct at the meeting constituted protected activity, we must next determine whether Johnson's actions at the meeting [ v59 p227 ] constituted flagrant misconduct or otherwise lost the protection of the Statute. The Judge found that the Respondent had established, as an affirmative defense, that Johnson's actions constituted flagrant misconduct and, therefore, lost the protection of the Statute. For the following reasons, we disagree.

      As an initial matter, we reject the Charging Party's exceptions challenging the Judge's credibility determinations. The Authority has consistently stated that it will "review credibility determinations based on considerations other than witness demeanor...based on the record as a whole." Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, S.C., 57 FLRA 495, 499 (2001). The Judge relied on the consistency of the various witnesses' testimony and not on their demeanor. See Judge's Decision at 17-20. The Charging Party has failed to demonstrate that the Judge's credibility determinations are erroneous based on the record as a whole. The Charging Party's exceptions also challenge the Judge's factual findings. Given the Judge's credibility determinations, however, those factual findings are supported by substantial evidence in the record as a whole. See, e.g., United States Dep't of Transportation and FAA, 48 FLRA 1211, 1215 (1993). Accordingly, we deny the Charging Party's exceptions as to the Judge's credibility determinations and factual findings. We determine, therefore, whether the Judge properly applied the relevant legal standards to the facts he found.

      We note that no party challenges the relevance of the Grissom factors to this case. Applying these factors to the facts found by the Judge, we conclude that Johnson's actions at the meeting, viewed in their entirety and in the context in which the meeting was called, did not lose the protection of the Statute. In so concluding, we note the following.

      The meeting was held in an office with the door closed. The Judge found that Johnson's voice could be heard in the hall outside the outer office, but he did not find, and the record provides no evidence, that this had any effect on the work of the unit or interfered in any manner with the conduct of the Respondent's business. Thus, these considerations do not support a finding of flagrant misconduct. See Grissom, 51 FLRA at 12 (the fact that employee's actions were not in front of other employees and did not disrupt the work of the unit was a consideration in finding that those actions did not constitute flagrant misconduct). See also FCI Englewood, 53 FLRA at 1518 (the fact that an employee's conduct did not occur in a public area was a factor in finding that the conduct did not constitute flagrant misconduct).

      Moreover, the Judge expressly found that Johnson's actions were impulsive. Nothing in the Respondent's exceptions establishes that Johnson's actions at the meeting were planned and deliberate so as to warrant overturning this finding. The Judge found, in this regard, that Johnson's outburst immediately followed Wagner's informing him, on the way into the meeting, that she had told White about his misrepresentation of his authority to her. Thus, his anger erupted spontaneously. The fact that Johnson's actions were impulsive rather than planned also supports a finding that his actions did not constitute flagrant misconduct. See FCI Englewood, 53 FLRA at 1519; Grissom, 51 FLRA at 12 (cases in which impulsive nature of actions was a factor in finding those actions did not constitute flagrant misconduct).

      The Judge also found that Johnson's "outburst . . . was not provoked . . . unless raising the allegation that Mr. Johnson had misrepresented his authority can be considered `provocation', which I do not." Judge's Decision at 23. We find the facts found by the Judge indicate that Johnson's conduct was provoked, at least in part, by the Respondent's conduct. In particular, the Judge found that White, the Respondent's representative, did not tell Johnson the purpose of the meeting when she set up the meeting, even though she had told Wagner the purpose. Judge's Decision at 11. Moreover, when White started the meeting, it became immediately apparent to Johnson that he was being accused of lying, and he responded by promptly and repeatedly denying this allegation. Id. In our view, these circumstances support a conclusion that Johnson's behavior was provoked by the Respondent. See, e.g., Oak Ridge, 57 FLRA at 346 (conduct of union representative was provoked, at least in part, by respondent's actions).

      Further, we find that the nature of the intemperate language and conduct does not support a conclusion that Johnson's action was unprotected. Union representatives are permitted broad leeway in discussions with management. The fact that Johnson engaged in a "long, rambling, angry monologue," that he "bad-mouthed" a manager, and threatened to sue her, and that he used one profane word are not, taken collectively, sufficient to eliminate the protection of the Statute, especially since the comments were in a private office, were impulsive, and were, at least in part, provoked. Judge's Decision at 23. Nothing in Johnson's action affected the employer's right to maintain order and respect for its supervisory staff so as to shift the balance of competing interests toward a finding of flagrant misconduct. See United States Dep't of Agriculture, Food Safety and Inspection Service, Washington, D.C., 55 FLRA 875 (1999); Grissom, [ v59 p228 ] 51 FLRA at 12-13 (citing AFGE, National Border Patrol Council, 44 FLRA 1395, 1402 (1992)). See also Acme-Arsena Co., 276 NLRB 1291, 1295 (1985) ("[T]he Board has repeatedly held that profane and foul language, or what is normally considered discourteous conduct while engaged in protected activity, does not justify disciplining an employee acting in a representative capacity."); Crown Central Petroleum Corp., 177 NLRB 322 (1969), enforced Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724 (5th Cir. 1970) (employee acting as union representative who called employer a liar held protected by National Labor Relations Act (the Act)). [n5] 

      Additionally, a central point in the Judge's reasoning is incorrect. Statements by union representatives signifying an intent to sue management officials are not beyond the protection of the Statute. See, e.g., Mullican Lumber Co., 310 NLRB 836, 842 (1993) (employer's termination of employee for statement, in context of protected activity, that he would sue supervisors and hold them personally liable found to violate the Act); Wayne W. Sell Corp., 281 NLRB 529, 533 (1986) (NLRB "precedent shows that warnings by employees to resort to legal procedures are protected activity"). [n6]  In this regard, the Authority has held that management officials do not commit an unfair labor practice by threatening private civil suits against employees or union representatives for, e.g., libel. See Dep't of Treasury, Internal Revenue Serv., Louisville Dist., 20 FLRA 660, 661 (1985) (threat to file suit). See also Consumer Product Safety Comm'n, 4 FLRA 803 (1980) (actual filing of suit). It would be anomalous, in light of this precedent, to conclude that threats by union representatives to engage in similar litigation, related to and based in their representational activities, against their supervisors or other management officials, are not protected by the Statute.

      The cases cited by the Judge in this connection are inapposite. The cases cited by the Judge at page 23 of his decision do not concern flagrant misconduct as a defense to allegations of discriminatory discipline based on protected activity. Rather, they concern alleged unfair labor practices for management interference with employee rights under § 7102 of the Statute, or § 7 of the Act. Since White was a management official, there is no basis in the record for claiming that Johnson's threat to sue her interfered with her rights, under § 7102, to assist, or decline to assist, a labor organization.

      Moreover, the Judge's unexplained citation to Defense Mapping Agency at page 24 of his decision also does not support a conclusion that Johnson's conduct constituted flagrant misconduct. In that case, the Authority adopted a judge's finding, based on the same factors enunciated in Grissom, that the agency's conduct in reprimanding an employee did not violate § 7116(a)(1) of the Statute. In weighing the various factors, the judge found that an employee's remarks were made during a closed grievance meeting and were impulsive. On the other hand, the judge found that the remarks were not provoked and, in fact, were not pertinent to a discussion of the grievance. The judge found that "[t]here is a difference between `letting off steam' spontaneously because of frustration, zealousness, or provocation and deliberate, excessive abuse of supervisory staff based on personal antagonism." Defense Mapping Agency, 17 FLRA at 83. [n7]  In the judge's view, the case before him "[fell] within the latter category." Id. Accordingly, the judge determined that the balance between the employee's statutory right to engage in protected activity and the employer's right to maintain order and respect for its supervisory staff "tip[ped]" in favor of the employer. Id. at 82.

      In contrast, in this case, in balancing the Chief Steward'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[,]" we find for the reasons stated above that, applying the Grissom factors, the record supports the conclusion that Johnson's conduct did not lose its protection under the Statute. Grissom, 51 FLRA at 11-12 (citations omitted). Unlike Defense Mapping Agency, the Chief Steward's conduct in the meeting in this case reflects "`letting off steam' spontaneously because of frustration, zealousness, or provocation" rather than "deliberate, excessive abuse of supervisory staff based on personal antagonism." [ v59 p229 ] Defense Mapping Agency, 17 FLRA at 83. In so finding, we emphasize, as the Authority has in previous cases, that our conclusion should not be construed as condoning the conduct here at issue. See, e.g., Air Force Flight Test Center, Edwards Air Force Base, Cal., 53 FLRA 1455, 1456 (1998). Rather, our conclusion is simply that the conduct did not lose its protection under the Statute. Accordingly, we reverse the Judge's finding of flagrant misconduct with respect to Johnson's conduct toward White during the meeting. [n8] 

V.     The Disciplinary Action Must be Rescinded

      Consistent with the analysis above, the discipline of Johnson for conduct directed toward White is unlawful. However, Johnson was not disciplined solely for his conduct with respect to White. Instead, Johnson was disciplined both for his conduct towards White and for his conduct towards Wagner, a bargaining unit employee.

      The Respondent contends that "misconduct by a union official directed at a fellow member of the bargaining unit, [instead of] a member of management, was never protected to begin with." Respondent's Opposition at 17. However, the Respondent did not argue, and the Judge did not find, that the Respondent would have disciplined Johnson based on his conduct toward Wagner alone or, if it would have disciplined Johnson on this basis alone, what that discipline would have been. Consequently, we will order that the disciplinary action against Johnson be rescinded, that he be made whole, and that his records be expunged of any mention of the suspension, to the extent consistent with law and regulation. See, e.g., United States Geological Survey and Caribbean Dist. Office, San Juan, P.R., 50 FLRA 548 (1995).

      Based upon the analysis set forth above, we find that the Respondent violated § 7116(a)(1) and (2) of the Statute by disciplining Johnson for the conduct directed at White during the meeting called by management. In circumstances where determining whether a respondent has committed an additional violation of the Statute--here, whether the Respondent violated the Statute by disciplining Johnson for conduct directed toward Wagner--would not change the remedy, it is unnecessary to do so. See United States Dep't of Veterans Affairs, 55 FLRA 1213, 1216 n.4 (2000); Dep't of the Treasury and Internal Revenue Service, 22 FLRA 821, 829 n.8 (1986). Therefore, we take no position on whether the Respondent may appropriately impose discipline on Johnson for his conduct toward Wagner alone.

VI.     Order

      Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Defense, Defense Contract Management Agency, Orlando, Florida, shall:

      1. Cease and desist from:

           (a) Suspending Michael Johnson, 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 them by the Statute.

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

           (a) Rescind the two-day suspension of Michael Johnson, issued April 26-27, 2000, together with the Notice of Proposed Suspension, issued March 2, 2000, and the Notice of Decision to Suspend, issued April 25, 2000.

           (b) Make Michael Johnson whole for any losses he incurred as a result of his suspension by providing him with backpay, with interest and appropriate differentials, for the two days served on that suspension, April 26-27, 2000, and provide him with all lost benefits and privileges for those days, consistent with applicable law and regulation.

           (c) Expunge from all Defense Contract Management Agency records mention of the suspension of Michael Johnson, or the incidents that gave rise to his suspension.

           (d) Post at its facilities where bargaining unit employees 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 Defense Contract Management Agency, Orlando, Florida, and 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.

           (e) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Atlanta Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v59 p230 ]


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 Defense, Defense Contract Management Agency, Orlando, Florida, has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by the Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT suspend Michael Johnson, 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 them by the Statute.

WE WILL rescind the two-day suspension of Michael Johnson, issued April 26-27, 2000, together with the Notice of Proposed Suspension, issued March 2, 2000, and the Notice of Decision to Suspend, issued April 25, 2000.

WE WILL make Michael Johnson whole for any losses he incurred as a result of his suspension by providing him with backpay, with interest and appropriate differentials, for the two days served on that suspension, April 26-27, 2000, and provide him will all lost benefits and privileges for those days, consistent with applicable law and regulation.

WE WILL expunge from all Defense Contract Management Agency records mention of the suspension of Michael Johnson, or the incidents that gave rise to his 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 any of its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Marquis Two Tower, 285 Peachtree Center Avenue, Suite 701, Atlanta, GA 30303-1270, and whose telephone number is: (404) 331-5212.


APPENDIX

The Notice of Proposed Suspension, dated March 2, 2000, provided, in relevant part, as follows:

      Charge I: Contemptuous Behavior Towards
          Constituted Authority

Specifications:
a. On December 2, 1999, during a meeting with [the Deputy Chief] and [a fellow] team member of yours . . . , held in [the Deputy Chief's office], you repeatedly interrupted [the Deputy Chief], continued to speak while she was addressing you, ignored her repeated requests for you to lower your voice and compose yourself, and threatened to sue her personally.
b. On December 2, 1999, during the same meeting, after [the Deputy Chief] told you you were out of line for directing abusive language to [a fellow team member], you turned, seething, to confront [the Deputy Chief] face to face and slowly and emphatically declared that you were turning this meeting into a union grievance meeting and that you could use any language that you wanted, or words to that effect.

      Charge II: Abusive or Offensive Language

Specification:
On December 2, 1999, during a meeting in the office of [the Deputy Chief] . . . you verbally attacked [a fellow] team member of yours, personally, repeatedly calling her a liar, in a loud and angry tone of voice, shouting that she could not get along with her teammates, who wanted her off the team, and threatening to sue her personally.

Joint Exhibit No. 2 at 1.


File 1: Authority's Decision in 59 FLRA No. 36
File 2: Opinion of Chairman Cabaniss
File 3: ALJ's Decision


Footnote # 1 for 59 FLR