[ v16 p703 ]
The decision of the Authority follows:
16 FLRA No. 101 DEFENSE LOGISTICS AGENCY DEFENSE DEPOT TRACY TRACY, CALIFORNIA Respondent and LABORERS' INTERNATIONAL UNION, LOCAL 1276, AFL-CIO Charging Party Case No. 9-CA-946 DECISION AND ORDER The Chief Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Chief Judge's Decision, and the Respondent filed an opposition to the exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority has reviewed the rulings of the Chief Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Chief Judge's Decision and the entire record, in the circumstances of this case the Authority hereby adopts the Chief Judge's findings and conclusion that the behavior of employee Thomas constituted flagrant misconduct which was beyond the ambit of protected activity. Therefore, the Authority adopts the Chief Judge's recommended Order. See Veterans Administration Medical Center, Bath, New York and Veterans Administration, Washington, D.C., 12 FLRA No. 107 (1983) at 17 of the Judge's decision; Department of Housing and Urban Development, San Francisco Area Office, San Francisco, California, 4 FLRA 460 (1980); Department of Treasury, Internal Revenue Service, Memphis Service Center, 16 FLRA No. 100 (1984). ORDER IT IS ORDERED that the complaint in case No. 9-CA-946 be, and it hereby is, dismissed. Issued, Washington, D.C., November 30, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- DEFENSE LOGISTICS AGENCY, DEFENSE DEPOT TRACY, TRACY, CALIFORNIA Respondent and LABORERS' INTERNATIONAL UNION, LOCAL 1276, AFL-CIO Charging Party Case No. 9-CA-946 Nancy Pritikin, Esq. Malachy T. Coghlan, Esq. For the General Counsel Marlin D. Tolbert For the Charging Party Richard H. Kaake, Esq. For the Respondent Before: JOHN H. FENTON Chief Administrative Law Judge DECISION Statement of the Case This proceeding arises under the Federal Service Labor-Management Relations Statute (5 U.S.C. Sec. 7101 et seq) and the final rules and Regulations issued thereunder (5 C.F.R. 2423.14 et seq). It is based on a Complaint issued by the Regional Director of Region IX, Federal Labor Relations Authority. The Complaint alleged that Respondent violated Section 7116(a)(1) and (5) by expelling the Union's designated representative from a meeting at which a formal discussion was taking place, and violated Section 7116(a)(1) and (2) by suspending that employee for 10 days because of his protected activity at that meeting. Respondent counters that the employee was properly expelled and disciplined for insubordination and disorderly conduct. /1/ A formal hearing was held in Tracy, California, on October 22, 1981. All parties were afforded full opportunity to examine witnesses, introduce evidence and file briefs. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law and recommended order. Findings of Fact 1. The Union has at all material times been the exclusive bargaining representative of a unit of employees at the Tracy Depot, including those in Warehouse 29, where the alleged unfair labor practice occurred. 2. The record is bereft of any evidence respecting the bargaining relationship and climate at Tracy. That is, aside from what is to be inferred from Respondent's conduct in expelling Shop Steward Ronald Thomas from a "grievance" meeting and in disciplining him for allegedly insubordinate and disorderly behavior at that meeting, there is no evidence of hostility toward the Union or of unlawful conduct toward Union adherents. On the other hand, it has been shown that Thomas was suspended for one day, a year prior to these events, for insubordination. A charge of profanity in that incident was apparently dropped. He was not a Steward at that time. 3. In December 1980, employee Robin Taberna, Shop Steward Ronald Thomas and Chief Steward Bill Arnolfo visited the Acting Commander of the Depot about Taberna's dissatisfaction with his job performance evaluation. A discussion ensued about allegedly general dissatisfaction with working conditions in Warehouse 29, and Taberna invited or suggested that the Acting Commander visit the Warehouse and listen to the complaints of employees. At that or a subsequent meeting, the Acting Commander said that he would have someone look into the matter. The assignment was given to Captain Edward Roethe, USNR, who was Director of Storage and Transportation, a position two steps down from the Commander. Captain Roethe decided to look into the situation, by meeting with the employees as Taberna had suggested, and to do so outside the presence of the two immediate supervisors of the employees in Warehouse 29. It was his purpose to elicit "grievances" or complaints and concerns of employees and to provide feedback to them. The Union's rule in this approach is not clear, although it would appear to have acquiesced in, if not more positively assented to, this procedure. Respondent acknowledges that the meetings conducted by Roethe were formal discussions, and appropriate notice was provided the Union in each instance. 4. The first meeting was held on January 29, and attended by all employees in Warehouse 29. It appears that a wide-ranging discussion took place, that it was not well structured, and that it got to the point of being almost out-of-hand with frequent interruptions and use of demeaning language. Roethe promised to check out a number of points raised by employees and get back to them. /2/ 5. Leaderman Gary Weitz (a nonsupervisor) and several other employees, including Claudia Westman, sent a letter to Captain Roethe apologizing for what had occurred at the meeting. As Westman testified, they were embarrassed by Thomas' actions toward Roethe, and wanted him to understand that not all Warehouse employees agreed with Thomas and not all of them conducted themselves as he did. I relate this matter for purposes of setting the stage for what followed at the next meeting, and not as any finding that Thomas was guilty of misconduct on that occasion. The matter was not extensively litigated, and it is not possible to decide whether Thomas was intemperate and disrespectful, or whether the authors of the letter were toadying. Suffice it to say that the meeting became so chaotic that Roethe determined that it was necessary to lay down ground rules to be observed at the next one. 6. On the afternoon of February 4, Roeth's secretary notified the Chief Steward of the meeting that day. She recalls that he merely said "Ok." He recalls that he said he might be unable to attend, but would have a steward there, conceding that he may not have mentioned a name. He then alerted Thomas. While there is no evidence that Roethe was notified that Thomas was the designated Union representative, I find his status a Shop Steward for Warehouse 29 gave him such status absent designation of somebody else. 7. There are as many versions of what transpired at the February 4 meeting as there were witnesses. The eight called by the General Counsel differ unanimously only in one respect from the six called by Respondent: they assert that Thomas told Roethe that he was at the meeting both in capacity as a Union representative and as an employee, whereas Respondent's witnesses report that he said he was speaking as an employee. In other respects their views are not sharply different as to the essential facts, which establish that there was an angry confrontation between Roethe and Thomas. My sense of what happened is based on a composite of all witnesses, but has significant support in the testimony of witnesses for the General Counsel, particularly that of Rick Juarez, who had a more complete and detailed recollection of the incident than other witnesses. 8. The meeting was understood by all to be a "bitch" session at which employees would have an opportunity to get their feelings off their chests so that the Captain could understand the attitude of employees in the Warehouse. As noted, the two immediate supervisors against whom such complaints had been and would be registered, were not in attendance. Before all participants had arrived, Roeth was in a side-conversation with several employees. In answer to their questions about the possibility of reprisals for speaking freely, he was reassuring them that they should feel free to speak out and make their complaints or concerns known to him. Roeth then began to lay down ground rules for the meeting, noting that things occurred at the first meeting which he did not want to see repeated: loud talking, talking out of turn and in a way which demeans other speakers. During this discussion, Thomas was already present and Gary Weitz came in. According to Juarez, Thomas "kind of jumped on his case" about the apology Weitz and others had offered Roethe. Thomas said that Weitz should not apologize for him, and that if there was any need for an apology he could do it for himself, and called Weitz a "suck ass and things like that." /3/ Weitz apparently had little, if anything, to say: as Juarez reported, "Garry took it, there was really no harsh exchange between them," although they were getting rather loud. Roeth, pointing to Thomas and Weitz, said that this was an example of the type of thing he did not want happening again. 9. Roethe then attempted to repeat the ground rules for an orderly and constructive session: that there was to be no loud talking, that speakers were to be allowed to finish their statements without interruption or demeaning remarks, and that he was not going to allow this meeting to get out of hand as has the last one. Again, according to Juarez, "Ron turned to him and then Ron and Captain Roethe kind of started getting into it, /4/ and Captain Roethe was telling Ron, if you are not going to conduct yourself in a manner that is going to be acceptable to this meeting, I am going to have to ask you to leave. Ron said, I am going to talk the way I want to talk. Captain Roethe goes, well, are you speaking as an employee or a union steward? Ron said, kind of threw his hands up and he was talking the whole time, and Captain Roethe had a hard time getting words in edgewise, because Ron kind of just looked around and he said, well, I am both, he said I am a concerned employee; this is a bitch session. He said, people have a right to say what they want, and this was the purpose of the whole meeting. At that point, Captain Roethe said, I am going to ask if you are going to conduct yourself in a civil manner or I am going to have to ask you to leave. Ron said, I am going to talk the way I want to talk. He just kept saying that over and over, I am going to talk the way I want to talk." 10. Roethe then left the meeting and returned with two supervisors of the Warehouse. Again, according to Juarez, he said to supervisor Crutchfield that he had given Thomas a direct order to leave, and Thomas responded that Roethe did not give him a direct order. Crutchfield told Thomas to shut up, and Roethe told Thomas that he had asked him whether he was going to conduct himself in a civil manner. Thomas, again, replied that he was going to talk the way he wanted to talk. Roethe then gave Thomas a direct order to leave and, as Thomas departed, told Crutchfield that he wanted disciplinary action taken. 11. Thomas' account of this episode is that he was exchanging a few words with Gary Weitz when the Captain said "Ok, let's get the meeting started," and laid down some ground rules, "such as we don't respect our supervisors and that he is not going to go for any more loud talking and this meeting he is not to let it get out of hand." Roethe then asked for comments, the men were momentarily silent, and Thomas spoke up, out of his concern as Shop Steward, that the ground rules were going to clam everybody up. His contribution to the discussion was: "I am going to talks the way I want to talks. Roethe then asked if he was saying that as a union representative or an employee and told him to quit interrupting the meeting, or leave the room. Thomas replied that he was not interrupting the meeting, he was only saying he would talk as he wanted to talk and that he thought the meeting was for everybody to get gripes and complaints off their chests. Roethe then left the meeting, returned with the supervisors, and expelled him. Only one other witness, Taberna, recalled that the Captain had finished presenting the ground rules and asked for comments before getting into the altercation with Thomas, and none testified that the Captain's ground rules included a command that the employees respect their supervisors, as opposed to a rule that all show respect for whoever was speaking by not interrupting him. 12. In contrast to Thomas' testimony, and far closer to that of Juarez, was that of Randy Fowler, a former shop steward called by the General Counsel. According to Fowler the Captain entered the room during an argument between the two employees, told them that was enough and called the meeting to order. He proceeded to set down ground rules: "there won't be no loud talking or interrupting the fellow employee, whoever is talking, if they want to talk, they could wait til he gets finished." Thomas then said he would talk the way he wanted to talk and Roethe replied that "if he was going to be loud and talk out of turn he would be dismissed out of the meeting." Thomas responded that he would talk the way he wanted to talk, and Roethe told him that if he could not be orderly he could leave the room. Thomas repeated that he would talk the way he wanted to talk, and Roethe left the meeting to summon the supervisors. /5/ 13. The meeting then got underway in its substantive aspects. Thomas, in the meantime reported by telephone to Chief Steward Arnolfo that he had been thrown out of the meeting. Arnolfo immediately caught a cab to Warehouse 29, and while receiving a report from Thomas on the dock, was seen through a window by Roethe, who went out and asked him to come in. Roethe then introduced him as Chief Steward, recapped for Arnolfo the discussion which had taken place and invited his participation. 14. On February 19, Thomas received from Roethe a Notice of Proposed Suspension. It recited that Thomas had repeatedly ignored instructions to conduct himself in an orderly manner by making disruptive comments, and that, after stating he was present as an employee rather than as a Union Steward, explicitly refused to obey a direct order to stop disrupting the meeting or leave the room. Such conduct, was described as "disorderly conduct, insubordination and failure to obey a direct order" warranting suspension for 10 working days. On March 16, the Commander of the Depot issued his Notice of Decision, concluding that the reasons given by Roethe were fully supported by the evidence, that Thomas' conduct constituted insubordinate behavior and that such conduct, considered in conjunction with his earlier suspension for insubordination and use of abusive language, warranted the proposed 10-day suspension. Discussion and Conclusions Two fundamental questions are posed: (1) Whether the expulsion of Thomas from a formal discussion was an unlawful deprivation of the Union's right to be represented at such meeting by a representative of its own choosing, in violation of Section 7116(a)(1) and (5); (2) Whether the discipline imposed on Thomas constituted interference with, as well as discrimination based upon, his exercise of the protected right to participate in a formal discussion, in violation of Section 7116(a)(1) and (2). Essential to an affirmative answer to either question is a finding that Thomas did not engage in misconduct so flagrant as to constitute a forfeiture of the rights which would otherwise attend his participation in such a meeting. The February 4 meeting was one of several designed to elicit grievances or gripes about employment conditions with a view toward their resolution. It is clear that Respondent complied with its obligation under Section 7114(a)(2)(A) to provide the Union with an opportunity to be represented at such formal discussion by giving appropriate notice to the Chief Steward. Respondent's argument that the session was not a grievance meeting in the technical sense of that term (Section 7103(a)(9)) is beside the mark. Counsel for the General Counsel attempts to place this case within the mold or rubric of those requiring that a balance be struck between an employer's right to maintain order and respect for supervisors and managers, and the employee's right to engage in protected activity in an aggressive manner which permits leeway for impulsive behavior, including conduct which is intemperate, insulting, and even insubordinate. Such cases recognize that the desired free and frank exchange of views often comes into play in controversies which are highly charged and emotional, and that the purpose of promoting industrial peace through the resolution of such conflicts would be subverted or nullified were employees placed at risk for conduct which would, in other circumstances, constitute insubordinate or unacceptable conduct. /6/ While private sector cases are to be considered for purposes of guidance only, it is useful to observe, as did the Assistant Secretary, /7/ that the Supreme Court of the United States held in Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 86 LRRM 2740, 2743 that: . . . the same tolerance for union speech which has long characterized our labor relations in the private sector ("favoring uninhibited, robust and wide-open debate") has been carried over under the Executive Order. There is no indication that the Statute was meant to narrow the latitude the Order accorded employees and Union representatives in volatile collective bargaining and grievance situations. One trusts, or at least hopes, that federal managers are by now acquainted with the fact that the Statute shields employees from discipline for conduct connected with labor relations controversies which need not be tolerated if divorced from that context. The United States Court of Appeals for the Fifth Circuit stated the doctrine well in a case where a Union representative was reprimanded and suspended for one day, because of "abusive and insubordinate language directed at supervisors," based upon his calling his supervisor a liar in a grievance meeting. /8/ The Court there said: . . . whether the remarks were by some standard "justified" is not here controlling. (They) were pertinent to a discussion of the grievance under consideration . . . . (As) long as the activities engaged in are lawful and the character of the conflict is not indefensible in the context of the grievance involved, the employees are protected under . . . the Act. Neither do we think the language /9/ used by (the employee) was so opprobrious as to carry them "beyond the pale" of the Act's protection. It has been repeatedly observed that passions run high in labor disputes, and that epithets and accusations are commonplace. Grievance meetings arising out of disputes . . . are not calculated to create an aura of total peace and tranquillity where compliments are lavishly exchanged . . . . (We) do not condone the conduct . . . but we do not feel that the interests of collective bargaining will be served by the external imposition of a rigid standard of proper and civilized behavior. Of central importance to our view of the case, is the nature of the protected activity involved. (The employees) were participating in a grievance meeting, which by its very nature requires a free and frank exchange of views, and where bruised sensibilities may be the price exacted for industrial peace. As the Board noted, a grievance proceeding is not an audience, conditionally granted by a master to his servants, but a meeting of equals-- advocates of their respective positions. (The supervisor) was not assailed with abuse on the floor of the plant where he stood as a symbol of the Company's authority; the characterization of the untruth came while he was appearing as a Company advocate during a closed meeting with Union representatives. So much for general principles. Here, no discussion or encounter took place which would call for their application. This is not a case in which an employee, in the heat of a discussion about a grievance, lost his cool and uttered words which sounded in insubordination or disrespect for authority and which would be wholly inappropriate at the work place if management is to maintain order and discipline on the job. Although the words here were used in what was, in effect, a general grievance session at which employees must be regarded as equal partners rather than subordinates, Thomas never addressed a single gripe or grievance. Perhaps he was, as claims, motivated by a desire, as Steward, to provide an example of outspokeness to employees he feared would clam up under Roethe's ground rules. But whatever his purpose, he chose to challenge ground rules which, according to all witnesses except himself (and possible Taberna), were simply designed to assure that all who wished to speak had opportunity to do so, and to finish what they had to say without interruption. In essence, Roethe said that the meeting was to be conducted with dignity and with respect for one another, presumably including himself. Such would seem to be minimal rules for a productive and coherent discussion in which everyone could participate, and the need for them had been disclosed by events at the January 29 meeting. Certainly, no gag rule was imposed, but rather one designed to facilitate orderly and constructive discussion. Nevertheless, whether he was still smarting from his side discussion with Weitz and the whole subject of the annoying letter of apology related to his conduct at the last meeting, or from Roethe's use of his loud and profane words as an example of the kind of unacceptable behavior which was to be avoided with ground rules, Thomas loudly made it clear that he would speak as he wished to speak. When assured that he could say what he wanted to say, but that he should "keep it down," he repeated that he would "talks the way I want to talks." He repeatedly and defiantly-- without adding anything of substance to the discussion stated that he would ignore the ground rules. It is not clear to me whether such defiance was aimed at the kind of language he would employ, how loudly he would talk or at the request that he show respect for others. Even his own testimony indicates that he had nothing to say which was pertinent to any grievance, only that he would talk as he wished to talk and that he thought the purpose of the meeting was to enable everybody to get gripes and complaints off their chests. No other witness indicates that Roethe was not anxious to conduct just such a meeting, in which everyone would feel free to speak up without interruption or insult. Indeed, he had excluded the immediate supervisors to foster a free and open exchange. If anything, this record suggests that Thomas did no more than voice an unfocused rebelliousness, an unwillingness to be subject to any rules of disciplined discourse. The General Counsel contends that Thomas "legitimately responded to Captain Roethe's ground rules in order to encourage employee discussion, . . . that Respondent's own purpose in conducting . . . the meeting was so that those very matters which employees would be fearful or reluctant to express at the work place could be discussed with Captain Roethe . . . (and that) it should not now be heard to complain that Thomas attempted to do just that." I would find that argument altogether persuasive were there any suggestion in this record that Thomas was speaking to ground rules which would squelch a free and frank discussion of grievances. There is none, but to the contrary, convincing evidence that Roethe desired an open and orderly discussion, and one which would avoid the disorder of the last one. In no way does Thomas explain how these ground rules would restrain discussion. The evidence overwhelmingly shows they were meant to encourage respect for whoever had the floor to the end that the discussions would embrace everyone and be orderly and constructive. Thomas did no more than loudly, defiantly and repeatedly state, without provocation, that his participation would not be so circumscribed. Nothing pertinent, appropriate or useful was said respecting grievances or the method for their presentation. I do not think it necessary to decide whether Thomas flatly and insubordinately refused a direct order that he leave the meeting as the reprimand letter recites. It is clear that he refused, at least, requests that he either agree to be bound by the rules of the discussion or leave. It is also clear that Roethe was by now angry, and it is understandable that he considered Thomas to be insubordinate. Whether or not Thomas was in attendance as a Union agent as well as an employee, I conclude that is behavior amply meets the standard of flagrant misconduct. Particularly in the light of there being no rational discussion of either a grievance or its manner of presentation underway, and no semblance of provocation, or other mitigating factors, his conduct was in the circumstances indefensible. The reasons for the doctrine which affords employees broad latitude in grievance discussions are absent here, and the facts are in essence closer to garden-variety insubordination on the plant floor. The Union's right to be represented at such formal discussions was therefore forfeited, if he was in fact its designated representative. /10/ For the same reasons, I would find that his right, as an employee, not to be subjected to discipline for outspoken and even disrespectful conduct which occurs in connection with the presentation of a grievance, but which falls short of inexcusable, did not even attach here. If it did, it was forfeited by a plane and obstinate refusal to accept reasonable rules for the conduct of the meeting. This was no example of uninhibited, robust and wide open debate. Nor is it an example of a discussion getting out of hand in the heat of the moment. It is, instead, a very deliberate flouting of the employer's initial effort to impose rudimentary standards of appropriate conduct for the meeting so as to maintain a modicum of order and respect. I have discussed the absence of union animus, as well as the presence of evidence of an opposite disposition-- i.e. inviting the Chief Steward to what was left of the meeting at the time he was observed. Such matter is, of course, not relevant to the question whether a Section 7116(a)(1) violation occurred, as discipline imposed for the exercise of a protected right would be unlawful in the presence of innocent motivation. Such evidence would however be necessary to a Section 7116(a)(2) violation, which would here require proof of a purpose to discriminate in connection with conditions of employment in order to discourage membership in the Union, absent a conclusion that the action taken against Thomas was so inherently destructive of Section 7102 rights as to render evidence of intent unnecessary. /11/ Thus, even were I persuaded that the discipline was unlawful, I would not find the requisite motivation for a Section 7116(a)(2) violation. Accordingly, I recommend that the Complaint be dismissed in its entirety. JOHN H. FENTON Chief Administrative Law Judge Dated: November 3, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Complaint also alleged the expulsion was violative of Section 7116(a)(2), and the suspension was violative of (a)(5). No such contention was advanced at hearing or on brief. I take it such views were abandoned, if they were, not, in fact, inadvertently made. /2/ It is likely that Thomas was the Union representative at that meeting. He did not address the point. Chief Steward Arnolfo did not remember whether he designated Thomas. Roethe expressed his belief that Thomas was there as the Union representative. /3/ In fact, I find, on the basis of Roethe's testimony, that Thomas called Weitz a "motherf-- " several times. I credit neither Thomas nor Weitz about this exchange. According to Thomas, whose account was very sketchey, they merely exchanged a few words. Unaccountably, Weitz appeared to have no recollection of any discussion of the apology and no recall of vulgarities. No witness gave a truly opposing version to that of Roethe, except, perhaps for Ms. Westman who, with evident embarrassment said that a familiar four-letter word encompassed in the above was used. /4/ I conclude, from a composite of the testimony, that it was at this point that Thomas told him that he would talk the way he wanted to talk. /5/ I have recounted these varying versions at perhaps too much length, in part because my credibility determinations are based on the inherent probabilities, as well as the source of the competing versions, rather than demeanor observation which virtually insulates findings from reversal on review. As already noted, my findings come largely out of the mouth of the General Counsel's witnesses, and given the heat and anger which attended the episode, as well as the completeness and detail of his recall, I think Rick Juarez's version is the most accurate one. /6/ The Federal Labor Relations Authority set forth its standards for such cases in Department of the Navy, Pudget Sound Naval Shipyard, 2 FLRA 54. Judge Garvin Lee Oliver sets forth a very useful collection of such cases, from both the private and public sectors, in Department of the Air Force, Scott AFB, 5-CA-1129 and 1131, OALJ-82-84. /7/ Small Business Administration, Central Office, 6 A/SLMR 158. /8/ Crown Central Petroleum Corp. v. NLRB, 74 LRRM 2855, 2860. /9/ Employee, angry and shouting to supervisor, about what supervisor had said on another occasion, said-- There will be a reckoning place for you and all the lies you people tell, and I am not going to put up with those . . . damn lies. /10/ Should this matter be deemed relevant for purposes of review, I would find, as noted, that he was present as the Union representative. He was so designated, and was as Shop Steward the only agent present. /11/ See Crown Central Petroleum Corporation v. NLRB, 576 F.2d 724; 74 LRRM 2855, 2857.