File 2: Opinion of Member Pope
[ v61 p25 ]
Dissenting Opinion of Member Carol Waller Pope:
I do not agree that the Judge erred in finding a violation of the Statute. The record amply supports his conclusion that the Respondent terminated the affected employee because of her protected activity. The majority's decision signals that employees who vigorously pursue contract rights do so at their peril. Accordingly, I dissent.
As an initial matter, I would find that the General Counsel (GC) established a prima facie case of discrimination by demonstrating that: (1) the affected employee was engaged in protected activity, and (2) such activity motivated her termination. See Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny). With regard to the first requirement, there is no question -- and the majority agrees -- that the employee's pursuit of her contract rights regarding her work schedule constituted protected activity. See Majority Opinion at 15. With regard to the second requirement, one of the stated reasons for the employee's termination was her "unproductive working relationship" with her supervisor, which the Judge found, and the record supports, referred to the employee's pursuit of her contract rights. See Judge's Decision at 12; GC Ex. 11, Attachment 2 at 2 (supervisor e-mail citing schedule issue as source of "adversarial relationship"). In these circumstances, it is hard to imagine a clearer prima facie case.
As noted, the majority acknowledges that the employee was engaged in protected activity but finds that the protected activity did not motivate the termination. Instead, the majority finds that the termination was motivated by the employee's "performance and conduct[.]" Majority Opinion at 15. In particular, the majority finds that the employee's "conduct" at the July 9 meeting, her "pattern of behavior[,]" and "concerns over her performance and poor working relationship" led to her termination. Id. at 16, 18.
The majority is simply wrong. To begin, it ignores the Judge's finding, noted above, that one of the expressed reasons for the employee's termination -- the unproductive working relationship with her supervisor -- itself referred to protected activity. In addition, it ignores that the July 9 meeting directly related to that protected activity. Indeed, as the majority's background statement explains, the supervisor called the meeting to discuss the employee's schedule request and the employee's assertion of her contract rights led to the "heated discussion" and door-slamming. Majority Opinion at 7. In finding that the protected activity did not motivate the termination, the majority separates the conduct at the July 9 meeting from the remainder of the [ v61 p26 ] dispute between the supervisor and the employee regarding the employee's asserted contract rights. See id. at 15-16. The majority cites no authority for these distinctions. This is because there is none.
The conduct at the July 9 meeting is, obviously, part and parcel of the meeting itself. Just as obviously, the July 9 meeting was not an isolated event; it was part of the "unproductive working relationship" cited by the Respondent as a reason for the employee's termination. See GC Ex. 11, Attachment 2 at 2. In finding to the contrary, the majority ignores its own findings of fact. In this regard, the majority's detailed account of the extended dispute between the employee and the supervisor over her asserted contract rights, Majority Opinion at 2-6, shows that the employee's conduct at the July 9 meeting may have been the "last," but was certainly not the only, "straw" leading to the termination. Judge's Decision at 8.
As the majority notes, where an employee is disciplined for otherwise 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. [n1] Majority Opinion at 16. See AFGE, 59 FLRA 767, 770 (2004) (Chairman Cabaniss concurring; Member Pope dissenting on other grounds). The Judge concluded that the employee's conduct "fell far short" of conduct that would lose its protection under the Statute, and I agree. Judge's Decision at 18.
I note, in this regard, that the Authority is unanimous that the standard for assessing whether an employee's conduct has lost the protection of the Statute may be assessed under standards other than that of "flagrant misconduct," AFGE, 59 FLRA at 770, 771-2, 773 n. 3. Nevertheless, there has been no explanation to date of what those standards might be. Filling the gap, the majority applies an "opprobrious conduct" standard taken from several NLRB decisions. Majority Opinion at 16. However, the majority does not set out a test to use in applying this standard, and does not explain when this standard should be applied.
Rather than adopt a new, unexplained test, I would apply the principles set forth in existing Authority precedent to determine whether the employee's conduct lost its protection. In this regard, the Authority has explained that, in evaluating disputed conduct, it is necessary to "permit leeway for impulsive behavior" and balance it against "the employer's right to maintain order and respect for its supervisory staff on the jobsite." Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7, 11 (1995) (Grissom). Relevant factors in striking this balance are: (1) the place and subject matter of a discussion; (2) whether an outburst was impulsive or designed; (3) whether the outburst was provoked by the employer's conduct; and (4) the nature of any intemperate language and conduct. Id. at 12. In applying the factors, I would recognize that where, as here, the disputed conduct involves an employee/supervisor exchange, not an exchange between a union official and a management counterpart, less leeway for impulsive behavior is warranted. For example, the kind of language and conduct by union and management officials during contract negotiations that I would find protected would be, in my view, unprotected if it occurred as part of a discussion between an employee and supervisor.
In this case, there is no question that the employee vigorously pursued her asserted contract rights. For example, the employee sent her supervisor several e-mails, many after consulting the Charging Party and on its advice, asserting that the supervisor's actions regarding her schedule were improper under the contract. [n2] See Judge's Decision at 4-5; Majority Opinion at 3-8. With one exception, however, the employee's pursuit of her contract rights was entirely civil and respectful. I would find that the one exception -- the July 9 meeting -- was not sufficiently egregious to lose the protection of the Statute. The employee's display of temper, while not appropriate, was brief, occurred primarily in private, and there is no contention that the employee used abusive or threatening language or gestures. In addition, the Judge found that, approximately two weeks before the heated exchange on July 9, the supervisor told the employee that "it would not be necessary" to change her work schedule. Judge's Decision at 5. This fact, which is missing entirely from the majority's analysis, explains why the employee was upset when the supervisor stated on July 9 that her current schedule had expired on June 28. On balance, applying the Grissom factors -- even taking into account that this case involves an [ v61 p27 ] employee/supervisor, not a union/management exchange -- the employee did not lose the protection of the Statute. [n3]
Even applying the "opprobrious" standard from NLRB decisions, the majority errs in finding the employee's actions unprotected. In this regard, the majority likens the employee's actions to those in Carolina Freight Carriers Corp., 295 NLRB 1080 (1989) (Carolina Freight Carriers). However, the behavior in Carolina Freight Carriers was so much more egregious as to be different in kind from the employee's conduct here. In this regard, the employee in Carolina Freight Carriers was a "chronic complainer," was "explosive," received customer complaints for rudeness, and refused a supervisor's direct order to leave work, among other things. Id. at 1081-82. The employee's conduct in the case now before the Authority comes nowhere close.
Moreover, the employee's actions in this case are less egregious than actions found protected -- albeit "rude and disrespectful" -- by the NLRB in Union Carbide Corp., 331 NLRB 356, 356 n.1 (2000). In Union Carbide Corp., the employee "was constantly and consistently pursuing what he perceived to be a right under the collective bargaining agreement[,]" which "became annoying" to the employer but was, nevertheless, protected. Id. at 360, 361. The majority attempts to distinguish Union Carbide Corp. on the ground that, there was "no question" in that case regarding the employee's job performance, no evidence of an adversarial or poor working relationship with the supervisor, and no evidence of inappropriate conduct similar to the July 9th incident here. Majority Opinion at 19 n.12. This attempt fails. The employee in Union Carbide Corp. stated to his supervisor that "God damn it I'm not even back on the payroll and you're screwing me[,]" and alleged to another individual that his supervisor was a "fucking liar." Union Carbide Corp., 331 NLRB at 358, 359. The employee in Union Carbide Corp. also was seen on at least three occasions not wearing required safety glasses and on at least three occasions not wearing a hard hat in a mandatory hard hat area. See id. Surely, these statements and actions are more inappropriate than any of the employee's statements or actions here, including the conduct at the July 9 meeting. Moreover, the Judge found, and the record supports, that even though the employee had some performance problems, the employee was not terminated for poor performance. See Judge's Decision at 13. There can be no reasonable question that, applying Union Carbide Corp. here, the employee's actions were protected.
Finally, for the reasons set forth by the Judge, I would reject the Respondent's contention that it would have fired the employee for her performance even in the absence of protected activity. See Letterkenny, 35 FLRA at 118. In this regard, the record supports the Judge's finding that the employee "would not have been terminated if she had not consulted the Union[.]" Judge's Decision at 12. In particular, the Judge found that the employee "would not have been terminated on July 14" if she had not engaged in protected activity. This is evident. The employee was fired five days after the July 9 meeting, which the supervisor termed "the last straw," and four months before the end of her probationary period. Judge's Decision at 8. Moreover, the record contains no documentary evidence that the employee was ever formally counseled for a performance problem. Indeed, the employee testified without contradiction that a month before her termination, her supervisor told her she no longer needed to submit daily reports. See Tr. at 90-91. Further, other probationary employees -- who were not terminated -- testified without contradiction that they failed to submit work reports despite the supervisor's direction that they do so. See Tr. at 173, 183. The Respondent has not established that the Judge erred in concluding that it would not have taken the action it took -- at the time it took the action -- in the absence of protected activity
Accordingly, I would affirm the Judge's decision and order and deny the Respondent's exceptions. Consistent with the GC's request, I would find that the GC's cross-exceptions are withdrawn. See Cross-Exceptions at 4 n.2.
Footnote # 1 for 61 FLRA No. 4 - Opinion of Member Pope
Thus, the nature of the employee's conduct at the July 9 meeting is relevant to determining whether the Respondent established its defense, and the majority errs in considering it in determining whether a prima facie case was established. It is the GC's burden to establish that protected activity was a motivation for a disputed action; it is not the GC's burden to establish the negative: that the protected activity was not flagrant misconduct.
Footnote # 2 for 61 FLRA No. 4 - Opinion of Member Pope