17:0071(18)CA - DOD, Mapping Agency Aerospace Center, St. Louis, MO and NFFE Local 1827 -- 1985 FLRAdec CA

[ v17 p71 ]
The decision of the Authority follows:

 17 FLRA No. 18
 Charging Party
                                            Case No. 57-CA-20231
                            DECISION AND ORDER
    The 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 Judge's Decision and a
 supporting brief, and the Respondent filed an opposition.
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and Recommended Order.
    IT IS ORDERED that the complaint in Case No. 57-CA-20231 be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., February 28, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                                       Case No. 57-CA-20231
    Mr. Louis P. Eaves
                 For the Respondent
    Mr. Louis Foster
                 For the Charging Party
    Sandra LeBold, Esquire
                 For the General Counsel, FLRA
                Administrative Law Judge
                           Statement of the Case
    This decision concerns an unfair labor practice complaint issued on
 behalf of the General Counsel, Federal Labor Relations Authority,
 against the Department of Defense, Defense Mapping Agency Aerospace
 Center, St. Louis, Missouri (Respondent).  The complaint alleged, in
 substance, that Respondent violated section 7116(a)(1) of the Federal
 Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the
 Statute), by issuing an official reprimand to employee Linda Reis
 because of statements she made during the course of a grievance meeting
 on January 12, 1982.  Respondent's answer denied that the reprimand
 violated the Statute.
    A hearing was held in this matter in St. Louis, Missouri.  The
 parties were represented and afforded full opportunity to be heard,
 adduce relevant evidence, examine and cross-examine witness, and file
 post-hearing briefs.  Based on the entire record herein, including my
 observation of the witnesses and their demeanor, the exhibits, other
 relevant evidence adduced at the hearing, and the briefs, I make the
 following findings of fact, conclusions of law, and recommendations.
                             Findings of Fact
    At all times material herein, the National Federation of Federal
 Employees, Local 1827 (Charging Party or Union) has been recognized as
 the exclusive representative of an appropriate unit of Respondent's
    On January 11, 1982 Linda Reis, a journeyman photographer in the
 Precision Photography Lab, was issued a letter of caution for use of
 abusive language.  The letter provided, in part, as follows:
          . . . I have determined to issue you a letter of caution for
       your abusive language.  The reason for this letter is as follows:
          As reported to me by your supervisor, George Huelsman,
       specifically, on the morning of 7 January 1982, when he assigned
       you to the task of cleaning the crossover racks on the Versamat
       Processor, you replied, "Get Screwed" and you did not in the
       ensuing conversation indicate you were not serious but in fact you
       became more arrogant when he suggested that you should watch what
       you say to people and you replied, "I don't need to worry, I'm
       leaving anyway." In view of the attitude you displayed, he
       immediately decided to assign you another task and to pursue the
       issue in this manner.
          This letter is issued to you in order to provide you with an
       opportunity to change your behavior, and to bring to your
       attention that continued behavior along these lines could result
       in formal disciplinary action being taken against you.
          . . . (T)his letter will not be recorded in your Official
       Personnel Folder, but will be retained in my files for a period of
       one year from the date of issuance.  /1/
    After receiving the letter, Ms. Reis immediately contacted Union
 steward Vincent Love.  Mr. Love requested that an informal grievance
 meeting be held to discuss the letter of caution.  Such a discussion
 between the affected employee, the area steward, and the first level
 supervisor constituted step one of the negotiated grievance procedure.
    The meeting was held the next day, January 12, 1982, in a private
 conference room.  The meeting was attended by Ms. Reis, Union steward
 Love, General Foreman Robert Willett, and George Huelsman.  Mr. Huelsman
 had been Ms. Reis' acting supervisor from November 27, 1981 to January
 9, 1982, but was no longer a supervisor as of the time of this meeting.
 However, as urged by Respondent, I find that he was a management
 official, or at least a representative of management, for purposes of
 this meeting.  At the time of the meeting, Ms. Reis had also been
 transferred to a different section and was under different supervision.
    Foreman Willett asked the purpose of the meeting.  Union Steward Love
 brought up several alleged procedural problems with the letter of
 caution and contended that the letter was too severe considering the
 language used in the lab.  /2/ Ms. Reis and Mr. Huelsman then gave their
 versions of what had been said on the day in question.  There was a
 dispute between the two over the sequence of events.  Ms. Reis contended
 that she had not said she was leaving anyway.  Ms. Reis also contended
 that she had made the statement in jest and would accept the letter of
 caution if it stated that she was only kidding when she made it.  Ms.
 Reis asked Mr. Huelsman whether he had also been kidding when he told
 her to clean the processors.  Mr. Huelsman hesitated answering, and Mr.
 Love said that he did not have to answer the question.  Mr. Willett at
 some point told Ms. Reis that she disrupted production because the men
 stopped to talk to her because of her popularity.  Ms. Reis took the
 comment as a reflection on her morals.  At some point, Mr. Reis
 expressed her frustration, stating, in part, "There's a lot of foul
 language that goes on in that lab . . . I (have) always taken it as part
 of the working environment and the subtle propositions.  . . . I tried
 being nice to everybody in the lab.  I walk on thin ice around here and
 you get screwed."
    There was further conversation back and forth concerning what had
 been said on January 7.  Ms. Reis tone of voice became louder and
 louder.  Finally, Ms. Reis, pointing her finger at Mr. Huelsman, stated
 in a loud voice, "I said it before and I'll say it again, George.  Get
 Screwed." This occurred toward the end of the meeting, and the meeting
 ended shortly thereafter.  /3/
    On January 20, 1982, Mr. Willett issued his decision on the first
 step grievance.  He denied the grievance, stating in part:
          You admitted to having made the abusive statement to Mr.
       Huelsman, however, you contended that it was made in jest.  I
       advised you that your attitude at the time of the incident
       indicated that you were serious when you made the statement.  In
       fact, the attitude you displayed at the grievance discussion
       further confirmed my conclusion.
    On January 21, 1982, Mr. Willett issued Ms. Reis a written letter of
 reprimand.  The letter stated, in part:
          2.  This is an official reprimand for disrespectful conduct
       toward and use of abusive language to a management official.
          a.  On 12 January 1982, I met with you, Mr. Vincent Love, your
       Union representative and Mr. George Huelsman, the former acting
       foreman of SDRCA, to discuss your complaint regarding the Letter
       of Caution issued to you 11 January 1982.  During this meeting,
       you stated you were "kidding" when you made the statement "Get
       screwed" to Mr. Huelsman on 7 January 1982.  However, before the
       meeting ended, you pointed your finger directly at Mr. Huelsman,
       who at that time was acting in a management capacity, and said, "I
       did.  I admit I said it before and I'll say it to you again
       George.  Get screwed." Your conduct at this point left no doubt in
       my mind as to the disrespectful and abusive intent of your
       statement toward Mr. Huelsman.  In fact, I personally found your
       conduct to be disruptive, insulting and unwarranted.
          b.  Further, it is your responsibility as an employee to
       discharge your assigned duties conscientiously and to respect the
       administrative authority of those directing your work.  In my
       judgement, you have not met those responsibilities and, in order
       to correct your behavior and maintain discipline and morale among
       other employees, this action is taken.
          3.  In deciding to issue this letter of reprimand, I have
       considered that on 11 January 1982, you were given a letter of
       caution for use of abusive language to your supervisor.
          4.  Based on the above stated reasons and in accordance with
       the provisions of (Defense Mapping Agency Instruction 1429.2,
       Civilian Employee Discipline) you are hereby issued a letter of
       reprimand for disrespectful conduct toward and use of abusive
       language to a management official.  An official reckoning period
       of two (2) years from the date of this letter is established.
       This letter will remain in your Official Personnel Folder for two
       (2) years, and should you commit another offense during this
       period, a more severe penalty may be imposed.  (Jt. Exh. 5).
    On January 27, 1982, Ms. Reis contacted an EEO Counselor to initiate
 an informal complaint of discrimination.  She alleged that both the
 letter of caution and the letter of reprimand were issued to her because
 she is a female.  (Tr. 111;  General Counsel's Exh. 1w, attachment 2).
    On January 29, 1982, Ms. Reis referred her grievance to the second
 step pursuant to the negotiated agreement.  She stated, "I am grieving
 the letter of caution dated 7 January (sic) and letter of reprimand for
 disrespectful conduct dated 21 January 1982 from Mr. Robert W. Willett.
 The letters presented to me are untrue and were in violation of Article
 26, Section 1 and Section 2 of the Negotiated Agreement." By letter
 dated February 5, 1982, Respondent informed Ms. Reis that her attempt to
 raise the letter of reprimand at the second step was denied as untimely.
  Respondent stated that this grievance had not been raised at the first
 step within five days as required by the negotiated grievance procedure.
  Respondent also noted that, had the grievance as to the letter of
 reprimand been timely, it would be denied on the ground that she had
 raised the same issue in an EEO complaint.
    By letter dated February 8, 1982, Respondent denied the second step
 grievance concerning the letter of caution.  On March 8, 1982, the EEO
 Counselor submitted his final report concerning the informal EEO
 complaint.  The Counselor's investigation and recommendation encompassed
 both the letter of caution and the letter of reprimand.  On March 18,
 1982, Ms. Reis filed a formal complaint of discrimination.  She alleged
 that Mr. Willett "discriminated against me by requiring a
 higher/different standard of conduct/behavior than those required of
 males." She listed the date of the letter of caution, January 11, 1982,
 under "the most recent date on which discrimination has taken place."
 Her narrative concerning the alleged discrimination dealt primarily with
 the circumstances surrounding the letter of caution;  however, she did
 note, "At a meeting regarding the letter of caution I was given a
 reprimand for saying I felt I was getting screwed."
    On March 15, 1982, the Charging Party filed its charge with the
 Authority.  It alleged that Respondent had issued the January 21, 1982
 letter of reprimand to Ms. Reis for conduct while engaged in protected
 activity and to discourage Ms. Reis from filing grievances and
 exercising her rights under the Statute.
                        Discussions and Conclusions
 Motion to Dismiss Under Section 7116(d)
    Respondent has moved to dismiss the complaint under section 7116(d)
 /4/ of the Statute on the grounds that the same issue, the letter of
 reprimand, has been raised under a negotiated grievance procedure and as
 an EEO complaint under an appeals procedure.  Respondent asserts that,
 in such circumstances, further proceedings under the Statute are barred.
  This burden is on Respondent to establish the applicability of section
 7116(d).  Social Security Administration, Office of Program Operations
 and Field Operations, Sutter District Office, San Francisco, California,
 5 FLRA No. 63 (1981).
    With respect to whether the same issue has been raised in a
 grievance, the record reflects that Ms. Reis did attempt to raise the
 merits of the January 21, 1982 letter of reprimand when she submitted
 her grievance concerning the January 11, 1982 letter of caution to the
 second step.  At this time, she contended that both letters were untrue
 and violated the negotiated agreement.  Respondent rejected Ms. Reis'
 attempt to grieve the letter of reprimand as untimely.  It has not been
 timely raised at a first step as required by the negotiated grievance
 procedure.  The original grievance filed on January 12, 1982 clearly
 predated the January 21, 1982 letter of reprimand.  Thus, it could not
 be considered part of the original grievance.  See Federal Election
 Commission, 6 FLRA No. 59 (1981).  Even if the letter of reprimand were
 deemed to have been raised in the grievance proceeding, it is noted that
 the employee's grievance as to the letter of caution and her attempt to
 raise the letter of reprimand therein attacked the merits of the
 letters, i.e., that the allegations therein were untrue.  There was no
 allegation that the letters interfered with her rights under the
 Statute, as was alleged by the Union in its unfair labor practice charge
 with respect to the letter of reprimand.  Therefore, the issues being
 raised by the aggrieved parties in the separate forums are different and
 the instant complaint is not barred by section 7116(d) of the Statute
 because of the employee's grievance.  Department of the Air Force, Air
 Force Logistics Command, Ogden Air Logistics Center, Hill Air Force
 Base, Utah, 10 FLRA 88 (1982).
    With respect to the EEO complaint, Respondent has not proved that the
 issue raised as the unfair labor practice "can properly be raised" under
 that appeals procedure.  It appears that the issues in the EEO
 proceeding will necessarily be limited to the sex discrimination issue
 raised by Ms. Reis.  Cf. Department of Agriculture, U.S. Forest Service,
 Siuslaw National Forest, Corvallis, Oregon, 3 FLRA 272 (1980);
 Department of Health, Education and Welfare, Social Security
 Administration, Great Lakes Program Service Center, Chicago, Illinois, 2
 FLRA 115 (1979);  Veterans Administration, Veterans Benefits Office, 3
 A/SLMR 444 (1973).  Moreover, Ms. Reis' formal EEO complaint deals
 primarily with the letter of caution and only tangentially refers to the
 letter of reprimand flowing from the grievance meeting.  Cf. Federal
 Election Commission, supra.
    In my view, Respondent has failed to establish section 7116(d) as an
 affirmative defense, and the motion to dismiss is denied.  The Letter of
 Reprimand Did Not Violate Section 7116(a)(1)
    The issue for determination is whether Respondent, by reprimanding
 Ms. Reis for disrespectful conduct toward and use of abusive language to
 a management official (that is, pointing her finger and stating, "I said
 it before and I'll say it again, George.  Get Screwed.") during the
 course of a grievance meeting violated section 7116(a)(1) of the
 Statute, /5/ by interfering with, restraining, or coercing the employee
 in the exercise of any right under the Statute.
    Ms. Reis' participation in the presentation of her grievance was a
 right protected by the Statute.  Her right to participate in the
 discussion of the grievance was also incorporated into the parties'
 negotiated grievance procedure.  The Authority, in Department of the
 Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54
 (1979), has adopted the following standard for determining whether an
 employee may be disciplined for intemperate language and conduct
 occurring during the course of protected activity:
          In the Authority's view flagrant misconduct by an employee,
       even though occurring during the course of protected activity, may
       justify disciplinary action by the employer.  On the other hand,
       not every impropriety committed during such activity is beyond the
       ambit of protected activity.  The employee's right to engage in
       protected activity permits leeway for impulsive behavior, which is
       balanced against the employer's right to maintain order and
       respect for its supervisory staff on the jobsite.
    A similar standard governs the private sector.  See NLRB v. Thor
 Power Company, 148 NLRB 1379, enf. granted 351 F.2d 584 (7th Cir.,
 1965).  As the Court stated in United States Postal Service v. NLRB, 652
 F.2d 409 (5th Cir., 1981), at p. 411:
          This conflict typically arises in cases where an employee has
       been disciplined for conduct that occurred during the course of
       the grievance meeting.  See, e.g., NLRB v. Florida Medical Center,
       Inc., 576 F.2d 666, 671-73 (5th Cir. 1978) (employee called
       administrator "a Mafia director");  Crown Central Petroleum Corp.
       v. NLRB, (430 F.2d 724 (5th Cir. 1970)) (employee accused a
       superintendent of lying).  The Act has ordinarily been interpreted
       to protect the employee against discipline for impulsive and
       perhaps insubordinate behavior that occurs during grievance
       meetings, for such meetings require a free and frank exchange of
       views and often arise from highly emotional and personal
       conflicts.  Both the Board and the courts have recognized that
       some tolerance is necessary if grievance meetings are to succeed
       at all;  as we have noted before, "bruised sensibilities may be
       the price exacted for industrial peace." Crown Central Petroleum
       Corp v. NLRB, supra, at 731.  See Bettcher Manufacturing Corp., 76
       N.R.B. 526 (1948).  In some cases, however, the employee's conduct
       during the meeting has been found to be so opprobrious or
       disruptive that the Act's protection must give way to the
       employer's right to maintain discipline in its establishment.
       When the employee's conduct during a grievance meeting is
       "indefensible under the circumstances," the employer may indeed
       discipline the employee without violating the Act.  NLRB v.
       Florida Medical Center, Inc. supra, at 673.
    The question is whether Ms. Reis' remarks were within the ambit of
 protected activity, allowing leeway for impulsive behavior, or were so
 opprobrious and insubordinate as to be indefensible under the
 circumstances, thus constituting flagrant misconduct, appreciably
 impinging upon the employer's right to maintain order and respect for
 its supervisory staff and justifying discipline as outside the
 protection of the Statute.
    The various factors to be considered in striking the balance should
 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 anyway provoked by the employer's conduct, and (4) the
 nature of the intemperate language and conduct.  Cf. Atlanta Steel Co.,
 102 LRRM 1247 (NLRB, 1979).  The balance must be struck in each case
 with an eye to the special facts presented by it.
    The place of the discussion weighs heavily in Ms. Reis' favor.  The
 remarks were made during the course of a closed grievance meeting and
 not as a calculated flagrant act of insubordination in front of other
 employees.  See Boaz Spinning Co., v. NLRB, 395 F.2d 512, 68 LRRM 2393
 (5th Cir. 1968) (employee firing upheld for interrupting a manager's
 anti-union presentation in front of all employees and calling him, in
 part, "no different than Castro").  The location and circumstances of
 the meeting made it a sanctuary where it could reasonably be expected
 that a full, free and frank exchange of views would be fully aired among
 equals - advocates of their respective positions.  See Crown Central
 Petroleum Corp., v. NLRB, 430 F.2d 724 (5th Cir. 1970).  A grievance
 procedure is a conflict resolution mechanism.  Passions run high and
 conflicts are highly emotional and personal.  The Authority has
 recognized that there must be leeway for impulsive behavior in such
    Ms. Reis' conduct was impulsive rather than designed.  Her remarks
 came during the end of a grievance meeting.  It is reasonable to
 conclude that Ms. Reis, realizing that her version of the first "get
 screwed" remark was not being accepted, simply decided to abandon all
 efforts at rational persuasion and reiterate to her former supervisor
 that he could "get screwed."
    While Ms. Reis' remarks may have been actuated or swayed by emotional
 impulses, the impulses were deliberate and not involuntary.  Ms. Reis
 was not impelled or incited to make the statement by provocative conduct
 on the part of Respondent's representatives.  /6/ Her remarks were not
 pertinent to a discussion of the grievance under consideration.  /7/ The
 remarks consisted of a repetition of the very behavior she had been
 cautioned against, although this time it was not made on the shop floor.
    In striking a fair balance between the statutory right of the
 employee to engage in protected activity with leeway for impulsive
 behavior, on the one hand, and the employer's right to maintain order
 and respect for its supervisory staff on the other, the scale here tips
 rather heavily in favor of the employer.  In my view, Ms. Reis' remarks
 were indefensible under the circumstances and constituted flagrant
 misconduct, thus justifying discipline as outside the protection of the
 Statute.  Just as employees and their representatives may not have their
 rights undermined by being