File 2: Opinion of Chairman Cabaniss

[ v59 p231 ]


Dissenting Opinion of Chairman Cabaniss:

      In this case, just as the Authority did in Dep't of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, S.C., 57 FLRA 80, 83 (2001) (Charleston Air Force Base), rev'd, Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002), [*] the majority rejects the factual findings and legal conclusions of the Administrative Law Judge (ALJ) who, after conducting a hearing where he had the benefit of hearing the testimony and assessing the credibility of each witness, concluded that the nature of the Union Steward's language and conduct exceeded the bounds of protected activity. Further, the majority does this despite acknowledging the substantial evidence in the record supporting the factual findings and credibility determinations made by the ALJ. Majority Opinion at 10-11. Although seeing no fault in those findings, the majority explains it's rejection of the ALJ's ultimate conclusion by reaching contradictory findings with respect to two of the four elements set forth in Dep't of the Air Force, Grissom AFB, Ind., 51 FLRA 7 (1995) (Grissom).

      While the ALJ specifically found that investigating the allegation of misrepresentation by the Union steward did not constitute provocation that excused the steward's foray beyond the bounds of protected activity, the majority draws the very opposite conclusion. Majority Opinion at 12. Likewise, although the ALJ concluded that collectively the nature of the intemperate language and conduct of the Union steward was such that the boundaries of protected activity were exceeded, the majority reaches the opposite conclusion despite the fact that the ALJ was at the hearing where assessment of the nature of the entire exchange was most revealing. Having found the ALJ's findings of fact and credibility determinations supported by substantial evidence in the record, the majority's reassessment of the facts renders those findings hollow.

      More importantly, the manner in which the majority cobbles their contrary conclusion regarding the nature of the incident not only ignores the Judge's faultless findings, it fails to acknowledge the totality of the circumstances surrounding the nature of the Union steward's intemperate language and conduct by assessing each act in a piecemeal fashion. This isolated review of the various acts not only ignores the fact that flagrant misconduct is not the sole and exclusive example of conduct that exceeds the boundaries of protected activity, it is contrary to Authority precedent holding that the totality of the circumstances should be used when assessing the nature of the act in flagrant misconduct cases. Air Force Flight Test Center Edwards Air Force Base, Cal., 53 FLRA 1455 (1998); Charleston Air Force Base, 57 FLRA 80; Grissom Air Force Base, Ind., 51 FLRA 7.

      The most revealing aspect of the majority's analysis is the number of cases it must cite to discuss the nature of the intemperate language and conduct present in this case. No less than four separate examples of misconduct had to be discussed by the majority since the verbal barrage leveled by this Union steward included profanity, allegations of untruthfulness, allegations of vendetta, and threats to sue. While the nature of each of these acts has, under different facts, been found to not constitute flagrant misconduct, that provides little guidance when all are collectively presented in a single incident. The ALJ found that based upon the totality of the facts and circumstances the nature of the Union steward's language and conduct in this incident exceed the bounds of protected activity and given the substantial evidence in the record, I would agree.

      In reaching the conclusion that the Union steward's behavior during the meeting with a supervisor and a co-worker constituted flagrant misconduct, the judge relied upon Dep't of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Mo., 17 FLRA 71 (1985). In that case, the Authority affirmed an ALJ decision finding that the agency had not violated § 7116 (a)(1) of the Statute by issuing a letter of reprimand to an employee who told a member of management to "get screwed" during a meeting on her grievance related to a warning letter previously issued for similar misconduct. While the majority attempts to distinguish the precedent of Defense Mapping by pointing to the fact that the ALJ in that case found the remark was unprovoked and that personal antagonism was present, the same can be said of this case. It is the majority and not the judge who finds provocation in this case, and just as in Defense Mapping, the record demonstrates that personal antagonism was present. In fact, the Union steward specifically stated he was going to "get" his co-worker and that she was not liked by her peers who wanted her out [ v59 p232 ] of their work group. Judge's Decision at 23. Thus, the precedent of Defense Mapping cannot be distinguished on such grounds. Furthermore, Defense Mapping presented a much clearer example of representational activity since the meeting in that case was related to a formal grievance and not a general inquiry into earlier conduct. Therefore, even if the existence of flagrant misconduct was the only issue present in this case, I would hold that the record provides sufficient support for the Judge's finding that the nature of the intemperate language and conduct exceeded the bounds of protected activity, especially when the nature of the conduct included a verbal assault upon a co-worker who is also entitled to protection under the Statute.

      The Authority has recognized that potential harassment or intimidation of witnesses is a matter of sufficient seriousness as to warrant protection for those witnesses. See, e.g., Dep't of the Air Force, Sacramento Air Logistics Center, McClellan AFB, Cal., 35 FLRA 594, 605 (1990) (quoting NTEU v. FLRA, 774 F.2d 1181, 1192 (D.C. Cir. 1985)) to the effect that "[w]hen an employer interviews an adverse witness rather than his own or even a neutral witness, common sense suggests that the situation carries a greater potential for intimidation or coercion." Recognizing the potential for intimidation in those circumstances, the Authority has held that unions have an interest, protected by § 7114(a)(2)(A), in protecting witnesses who will testify on behalf of the union against intimidation or harassment by the agency. Correlatively, witnesses who testify concerning union misconduct are protected, under § 7102, against intimidation or harassment by the union.

      Under the National Labor Relations Act (Act), a union violates § 8(b)(1)(A) by disciplining a unit employee for testifying on behalf of the employer in a grievance arbitration proceeding. See United Mine Workers of America, Local 1058 (Beth Energy Corporation) and Dowl Johnston, 299 NLRB 389, 390 (1990); Local Lodge D-357, Cement, Lime, Gypsum & Allied Workers, 288 NLRB 1156, 1158 (1988). By such conduct, the union coerces the employee in the exercise of protected rights under § 7 of the Act. Id. Moreover, the Act protects witness statements from the employer's obligation to disclose information under § 8(a)(5). The rationale for the privilege afforded such statements is that it is designed to protect witnesses from intimidation and coercion. See Anheuser-Busch, Inc., 237 NLRB 982 (1978).

      Based on the principles set forth above, as a matter of employment policy under existing law, employers and unions are precluded from intimidating or coercing employees who are potential witnesses, or who testify