American Federation of Government Employees (Union) and Social Security Administration, Valrico, Florida (Agency)

[ v59 p767 ]

59 FLRA No. 138

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
(Union)

and

SOCIAL SECURITY ADMINISTRATION
VALRICO, FLORIDA
(Agency)

0-AR-3683

_____

DECISION

March 22, 2004

_____

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

I.      Statement of the Case

      This case is before the Authority on exceptions to the award of Arbitrator James J. Sherman filed by the Union under part 2425 of the Authority's Regulations and the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7101 et seq. The Agency filed an opposition to the Union's exceptions.

      The grievance concerns the discipline of a Union steward for use of inappropriate language toward her supervisor. For the reasons that follow, the exceptions are denied.

II.      Background and Arbitrator's Award

      The grievant was a Union steward. During a telephone conversation, another Union official told the grievant to go tell her supervisor "`Mr. [Union official] told me to tell you to kiss my ass.'" Award at 3. The Union official wanted to speak with the grievant's supervisor regarding a change in a procedure regarding official time that the grievant would have to follow the next day, but had been unable to reach the supervisor telephonically. While the grievant's supervisor was on the telephone with a third party (the supervisor's supervisor), the grievant made the statement quoted above to her supervisor. [n2]  The grievant was charged with inappropriate conduct that violated the Agency's standards of conduct and given an official reprimand. [n3] 

      The Union filed a Union-Management grievance protesting the disciplinary action. When the parties were unable to resolve their differences, the Union requested arbitration under the agreement's expedited procedure. However, the Agency refused to use the expedited procedure, and the matter was submitted to regular arbitration. The parties were unable to agree, so the Arbitrator framed the issues:

1. Whether the Agency violated ARTICLE 2, 3 or 30 of the National Agreement when it issued a Reprimand to [the grievant] as a result of an incident on March 21, 2002. If so, what is the proper remedy?
2. Whether the Agency violated ARTICLE 25 of the National Agreement when it refused the Union's request to arbitrate the instant case pursuant to ARTICLE 25, that is, as an expedited arbitration. If so, what is the proper remedy?

Award at 2.

      The Arbitrator examined whether the Agency had the right to discipline the grievant, who allegedly was acting in her capacity as a Union steward and engaged in protected activity. As an initial matter, the Arbitrator stated that if another employee in the office who was not a Union representative had "used the same offensive language[,]" a reprimand would have been warranted. Id. at 4. After implicitly concluding that the grievant was acting in her capacity as a Union steward, the Arbitrator set forth the four-part test established by the Authority for distinguishing protected activity from flagrant misconduct. [n4]  [ v59 p768 ]

      First, the Arbitrator considered the place where the discussion took place as well as the subject matter discussed. In this case, the discussion took place in the supervisor's office, with the door open. While the Arbitrator found that this was not an ideal setting for a "heated labor-management dispute", the Arbitrator found that the grievant "did not have a choice" as this is where she found the supervisor. Award at 4.

      Second, the Arbitrator examined whether the employee's outburst was designed or merely impulsive. The Arbitrator found that in this case it was neither because the grievant was relaying a message from her Union official to her supervisor. According to the Arbitrator, it was the Union official who "directed" the grievant to use the words "`Kiss my ass.'" Id. at 5. However, the Arbitrator determined that there was no justification for the use of such "obviously offensive" language. Id. The Arbitrator concluded that the grievant "used poor judgment[,]" "should have known better than to use this insulting phrase[,]" and "could have made her point in a more professional manner." Id.

      Third, the Arbitrator determined whether the employee's outburst was provoked. The Arbitrator stated that the grievant might describe the supervisor's failure to discontinue her prior telephone conversation as a provocation, but the Arbitrator found this questionable. The Arbitrator noted that the grievant did not know with whom the supervisor was speaking and whether that conversation was more important than discussing the sign-in, sign-out procedure the grievant was to use for official time.

      Finally, the Arbitrator considered the nature of the inappropriate language. The Arbitrator noted that it is also important to consider the work group and its standards. According to the Arbitrator, this was an office of educated professionals whose main activity is dealing with the public; it was not a place where one would expect to hear crude and offensive remarks and he concluded that the grievant did not need to use offensive language to make her point.

      As for the Agency's refusal to process the grievance under the expedited arbitration procedure, the Arbitrator found that normally a grievance over a reprimand would qualify for the expedited procedure. However, in this case, the Arbitrator found that while the propriety of the discipline normally would come under the expedited procedure, the Union had signaled its intent to expand the grievance beyond simple questions related to conduct and it would involve several federal laws and other areas of the contract. The Arbitrator found that rulings on these complex issues should be heard by an arbitrator from the panel of experienced arbitrators. Therefore, the Arbitrator concluded that the Agency could properly insist on processing this case through regular arbitration under the agreement, and denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

1.     Whether the Arbitrator's decision violates law, specifically 5 U.S.C. §§ 7102 and 7116

      The Union contends that the Arbitrator ignored §§ 7102 and 7116 of the Statute and imposed his "personal perspective and sensibilities" in lieu of case law regarding protected activity. Exceptions at 4. The Union asserts that the grievant was engaged in protected activity during the time this incident occurred and that the issue in this case is whether the grievant's remarks were thus subject to the standard of flagrant misconduct. The Union states that although the Arbitrator did not make a finding that the grievant was engaged in protected activity, it is obvious because the Arbitrator applied the four-part flagrant misconduct test used to evaluate actions of union representatives engaged in protected activity.

      The Union argues that under the "flagrant misconduct" test, the grievant's remarks: (1) took place within the manager's office and were not heard by any other employees or the public; (2) were impulsive as she had been awaiting the outcome of the issue to determine her reporting responsibilities; and (3) were provoked by the unfair labor practice of her supervisor in failing to give her adequate notice of this proposed change which impacted her schedule the following day. In addition, the Union contends that the grievant's anxiety was exacerbated by the long-term unavailability of her supervisor. The Union asserts that far more harsh remarks have been made and yet not found to constitute "flagrant misconduct" under Authority precedent.

2.     Whether the Award Fails to Draw its Essence from the Agreement Because the Expedited Arbitration Procedure Should have been Used

      The Union contends that the Arbitrator incorrectly interpreted the parties' expedited arbitration provision. According to the Union, there is only one panel of arbitrators to hear all cases under either the expedited or regular process. Thus, the Union asserts that the competency of the arbitrators is not contingent upon the process used. The Union points out that the parties' agreement provides for expedited arbitration for cases involving reprimands. The Union contends that the Arbitrator used "his own personal perspective to the [ v59 p769 ] contract language" to justify what he feels the parties intended. Exceptions at 6. The Union maintains that this alters or changes the meaning of the agreement and that in so doing the Arbitrator went beyond the scope of his authority.

B.     Agency's Opposition

1.     Whether the Arbitrator's decision violates law, specifically 5 U.S.C. §§ 7102 and 7116

      The Agency contends that the Union is merely trying to relitigate the merits of the grievance. The Agency asserts that the grievant was on Agency time, not on official time, and was not engaged in protected activity. The Agency argues that all Agency employees are responsible for adhering to the Agency rules of conduct and ethical behavior. The Agency also argues that it had a legitimate justification for reprimanding the grievant, and even if protected activity was involved, it would have taken the same action against another employee for the same offense.

      The Agency asserts as erroneous the Union's contention that only a short, limited time was available to speak to the supervisor about the grievant's reporting requirements for using official time. The Agency argues that the grievant received notification of the change to her official time documentation some eight days prior, and not just a few minutes before the end of her duty day on the date of the incident.

      The Agency also contends that even if the grievant was engaged in protected activity, the conduct constituted flagrant misconduct because it was intentional. The Agency notes that the grievant willfully and deliberately entered her supervisor's office uninvited and delivered the offensive message for the purpose of interrupting the call to which her supervisor was a party. The Agency argues that the Union failed to demonstrate that the Arbitrator erred in concluding that the grievant's statement was not protected by the Statute under these facts.

      The Agency asserts that the Arbitrator cited and correctly applied the flagrant misconduct factors. The Agency maintains that the grievant was not provoked by her supervisor, but was encouraged by the lengthy telephone conversation with the Union official. The Agency asserts that the language used by the grievant was not that typically used in the work place; the office protocol is professional conduct, not vulgar or crude language. In sum, the Agency asserts that the grievant was reprimanded for just cause.

2.     Whether the Award Fails to Draw its Essence from the Agreement Because the Expedited Arbitration Procedure Should have been Used

      According to the Agency, cases involving employee reprimands can be and usually are adjudicated through the expedited process. However, when the case involves a Union-Management grievance, additional time is needed to hear both the reprimand portion of the case that affects the individual employee and the institutional portion of the grievance that affects the Union and the Agency. The Agency asserts that the regular arbitration process enables the parties to argue the complex issues at length in an unabbreviated hearing and contends that the expedited procedure was not the correct procedure for this case given its facts and issues.

IV.      Analysis and Conclusions

A.     The Arbitrator's Decision Does Not Violate 5 U.S.C. §§ 7102 and 7116

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.  [n5] 

      We note that the exception here is based on an alleged violation of the Statute, and the issue before the Arbitrator was framed in contractual terms. The Authority previously has applied statutory standards in assessing the application of contract provisions that mirror, or are intended to be interpreted in the same manner as, the Statute. See United States Dep't of the Treasury, United States Customs Serv., Port of New York and Newark, 57 FLRA 718, 721 (2002). Here, the agreement provision at issue, Article 2, specifically references the Statute. [n6]  Given this specific reference, we find even greater reason to interpret this as a statutory [ v59 p770 ] provision. Accordingly, we find that the issue before us is statutory in intent and nature.

      When the alleged violation of § 7116(a)(2) of the Statute concerns discipline for conduct occurring during protected activity, a part of a respondent's defense is that the conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity. [n7]  For example, in Veterans Admin. Med. Ctr., Birmingham, Ala., 35 FLRA 553, 560-61 (1990), the Authority found that a union representative was properly subject to discipline for remaining on a telephone call to discuss union business after having been ordered to work on a "life threatening" emergency situation. In United States Dep't of Justice, United States Marshals Service and United States Marshals Serv., Dist. of New Jersey, 26 FLRA 890, 901 (1987), the Authority upheld an administrative law judge's decision holding that a physical response by either a union or management representative in the context of labor-management relations would be "beyond the limits of acceptable behavior." In that case, the Authority found that physical violence by a supervisor constituted an unfair labor practice. Additionally, in Veterans Admin., Washington, D.C., and Veterans Admin. Med. Ctr., Cincinnati, Ohio, 26 FLRA 114 (1987), aff'd sub nom. AFGE, AFL-CIO, Local 2031 v. FLRA, 878 F.2d 460 (D.C. Cir. 1989), the Authority upheld the discipline of a union president for his racially inflammatory comments in a union newspaper article discussing a management official's activities in the workplace.

      In sum, discipline of union representatives in such situations is permitted if their conduct exceeds the boundaries of protected activity. United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003) citing Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002) (315th Airlift Wing). In this regard, the court stated that "flagrant misconduct is a sufficient, but not necessary, condition for a loss of privilege under § 7102 [of the Statute]" and "is only illustrative of exceeding the boundaries of protected activities." 315th Airlift Wing, 294 F.3d at 201, 202 (emphasis omitted).

      In determining whether an employee has exceeded the bounds of protected activity in the context of flagrant misconduct allegations, 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." Def. Mapping Agency, 17 FLRA at 80. 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. Def. Mapping Agency, 17 FLRA at 80-81. [n8] 

      In this case, the Union alleged that the grievant was engaged in representational activity that was protected. The Agency maintained that the grievant was on duty and not using official time and that she was not engaged in representational activity. Further, the Agency contended that even if she was representing the Union rather than her individual interest, her actions exceeded the bounds of protected activity. The Arbitrator noted the contentions but applied a flagrant misconduct analysis without expressly resolving the issue of whether the grievant was engaged in Union representation that constituted protected activity. Upon de novo review of the record as a whole, as the Arbitrator implicitly found, we conclude that the grievant was engaged in representational activity at the time in question and resolve the case under that finding.

      Applying the four factors, the Arbitrator found that the conversation in question occurred in the supervisor's private office, with the door open, and that the grievant used poor judgment in making the remark and could have made her point in a more professional manner. The Arbitrator further noted that while the grievant described the supervisor's failure to discontinue a telephone conversation as provocation, he found such provocation questionable. Finally, the Arbitrator considered the nature of the inappropriate language and found that the workplace was a professional setting--"an office of educated professionals whose main activity is dealing with the public." Award at 6. The Arbitrator determined that the grievant did not have to use language so [ v59 p771 ] offensive to make her point. Given these factual findings, which were not challenged, we hold that the Union failed to establish that the Arbitrator improperly found that the Agency had the right to discipline the grievant for use of inappropriate language that exceeded the bounds of protected activity. See Def. Mapping Agency, 17 FLRA at 73 (employee told supervisor to "Get Screwed" and was reprimanded, judge found employee's remark was indefensible under the circumstances and constituted flagrant misconduct, thus justifying discipline as outside the protection of the Statute).

      As these cases reflect, the Authority makes a determination as to whether alleged flagrant misconduct exceeds the bounds of protected activity on a case-by-case basis and upon the totality of the circumstances. See Air Force Flight Test Ctr., Edwards Air Force Base, Cal., 53 FLRA 1455 (1998). Here, based on the Arbitrator's findings of fact and the totality of the circumstances, we determine, upon de novo review, that the conversation between the grievant and the supervisor took place in a semi-private setting, but that the grievant's use of intemperate language was not provoked, or consistent with the professional nature of the workplace, or defensible under the circumstances. Although the Union official told the grievant to use the offensive phrase, the grievant should have known that the phrase was not appropriate. Further, while we find that the grievant was frustrated by not being able to speak with the supervisor immediately, such frustration does not equate to provocation by the Agency. In fact, any provocation in this case was presented by the Union official who told the grievant to utter the words to her supervisor in anticipation of their ultimate effect. In agreement with the Arbitrator, we find that the grievant could have made her point without resorting to such coarse, offensive language. Accordingly, we conclude, as the Arbitrator effectively did, that the grievant's conduct constituted flagrant misconduct and therefore exceeded the bounds of protected activity.

      Accordingly, we deny the exception.

B.      The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

      We construe the Union's exception that the expedited arbitration procedure should have been used as a contention that the award fails to draw its essence from the parties' agreement.

      To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (OSHA).

      In this case, the Arbitrator considered the parties' contentions and found that while a case involving only an employee's reprimand would be appropriate for the expedited procedure, this case was not an appropriate subject for the expedited arbitration procedure because it involved both the grievant's reprimand and a Union-Management grievance.

      The Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreement and does not establish that the Arbitrator's interpretation of the parties' agreement is unfounded in reason, does not represent a plausible interpretation of the agreement, cannot be derived from the agreement, or evidences a manifest disregard of the agreement. As such, the exception provides no basis for finding the award deficient. See AFGE, Local 2369, 41 FLRA 1435, 1440 (1991) (award finding case not appropriate for expedited arbitration did not fail to draw essence from agreement). Accordingly, we deny the exception.

V.     Decision

      The Union's exceptions are denied.


Concurring opinion of Chairman Cabaniss:

      I write separately to discuss the interplay between the overemphasis of "flagrant misconduct" in Authority precedent and analysis and the judicial admonishment to the Authority to examine the full range of actions exceeding the boundaries of protected activity, of which "flagrant misconduct" is but one -- and certainly not the only --example.

      The National Labor Relations Board has long noted that an employee engaged in protected activity can, "by opprobrious conduct," lose the protections of the National Labor Relations Act (NLRA). See, e.g., Atlantic Steel Co., 245 NLRB 814, 816 (1979), citing to Hawaiian Hauling Serv., Ltd., 219 NLRB 765, 766 (1975) (Atlantic Steel). Also in the context of the inherent tension between an employee's right to engage in protected activity and an employer's rights to regulate the workplace, the Supreme Court noted that section 10(c) of the NLRA protects employers from having to rehire an individual "`whether or not the acts constituting the cause for discharge were committed in connection with a concerted activity.'" NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464, 473-74 (1953) (quoting H.R. Rep. No. 510, 80th Cong., Ist Sess., 38-39 (1947)), quoted in Aroostook County Reg'l Ophthalmology Ctr. v. NLRB, 81 F.3d 209, 215 n.5 (D.C. Cir. 1996) (Aroostook). The court in Aroostook went on to quote another Supreme Court decision on the same subject, i.e., "`The [ v59 p772 ] Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time.'" Id. (quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945)), which in turn was quoting Peyton Packing Co., 49 NLRB 828, 843-44 (1943). The Aroostook court also noted that, even in the context of protected activity "employers have lawfully disciplined employees for misconduct short of that which is flagrant, violent, or extreme." Id. All these various holdings continue to be cited to with approval. See, e.g., Felix Industries, Inc. v. NLRB, 251 F.3d 1051, 1054-55 (D.C. Cir. 2001).

      In terms of having a standard by which to assess this conflict, between an employer's right to regulate the conduct of employees in the workplace and an employee's right to engage in protected activity, the courts (at least in the NLRB context and I would so find for the FLRA as well) examine "`whether the rules would reasonably tend to chill employees in the exercise' of their statutory rights." Adtranz ABB Daimler-Benz Transp., N.A. v. NLRB, 253 F.3d 19, 25 (D.C. Cir. 2001) (Adtranz) (quoting Lafayette Park Hotel, 326 NLRB 824, 825 (1998)). That is consistent with Authority precedent as well, and I find this to be a more than adequate test by which to judge an employer's conduct. See, e.g., United States Dep't of Justice, Fed. Bur. of Prisons, Fed. Corr. Inst., Florence, Colo., 59 FLRA 165 (2003).

      In examining employee conduct while engaged in protected activity, NLRB and judicial precedent acknowledges an exception for certain speech that would otherwise constitute punishable or "flagrant" misconduct. The contexts in which these comments arise usually are related to grievance proceedings or labor negotiations. This precedent acknowledges that an "employee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer's right to maintain order and respect." NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965) (Thor). There a union representative was improperly terminated for calling a company superintendent a "horse's ass" as the representative left a grievance meeting. The Authority has acknowledged these same considerations as well when it adopted this same line of reasoning. Dep't of Defense, Defense Mapping Agency Aerospace Ctr., St. Louis, Mo., 17 FLRA 71, 80-81 (1985) (DMA).

      The basic tenet of the Thor holding was further refined when the NLRB set out a four part test in a case regarding whether an employee's use of obscenity, in that case to a supervisor on the production floor, should be "protected as would be a spontaneous outburst during the heat of a formal grievance proceeding or in contract negotiations." Atlantic Steel, 245 NLRB at 816. The NLRB set out the following factors:

(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst: and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice.

Id. The Authority in DMA set out essentially the same basic standard relied on by the NLRB in its decision:

(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.

DMA, 17 FLRA at 81.

      In reviewing how Authority precedent has attempted to evaluate the entire spectrum of conflict between an employee's right to engage in protected activity and an employer's right to regulate employee conduct, I conclude that our precedent has stretched the "flagrant misconduct" analysis beyond its intended use. I believe that, under our current precedent, the Arbitrator correctly found that the grievant had engaged in flagrant misconduct. However, I also believe that future cases, addressing similar employee conduct, would be better served where the parties and the Authority use a different analysis. That analysis asks whether the conduct exceeds the boundaries of protected activity, of which flagrant misconduct is just one, and not the only, example. Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002). The flagrant misconduct test is best suited for those circumstances where the question is whether "a spontaneous outburst during the heat of a formal grievance proceeding or in contract negotiations" is protected. Atlantic Steel, 245 NLRB at 816. And, the obvious implication from that standard is that not all such outbursts should be protected.

      This whole episode is just one more instance of the type of gamesmanship or "recreational labor relations" that seems all too frequent on the part of both agencies and unions. I would hope that the parties and the Authority would be more mindful, as others have been, of the need to limit the potential for workplace discord or violent confrontations. For example, in one case the NLRB upheld an employer ban on employees wearing offensive shirts making derogatory reference to the employer during contract negotiations as a "`reasonable precaution against discord and bitterness between employees and management, as well as to assure decorum and discipline in the plant.'" Adtranz at 27 (quoting Southwestern Bell Tel. Co., 200 NLRB 667, 670 (1972)).


File 1: Authority's Decision in 59 FLRA No. 138 and Opinion of Chairman Cabaniss
File 2: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 138 - Authority's Decision

   Chairman Cabaniss' concurring opinion and Member Pope's dissenting opinion are set forth after this decision.


Footnote # 2 for 59 FLRA No. 138 - Authority's Decision

   The record discloses the following s