U.S. Federal Labor Relations Authority

Search form

16:0703(101)CA - Defense Logistics Agency, Defense Depot Tracy, Tracy, CA and Laborers' International Union Local 1276 -- 1984 FLRAdec CA

[ v16 p703 ]
The decision of the Authority follows:

 16 FLRA No. 101
 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
    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
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    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
                           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
    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
    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
    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
                                       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
    /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.