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20:0568(69)CA - DOL, Employment and Training Administration and AFGE Local 12 -- 1985 FLRAdec CA

[ v20 p568 ]
The decision of the Authority follows:

 20 FLRA No. 69
 Charging Party 
                                           Case No. 3-CA-30603
                          DECISION AND ORDER /1/
    The Administrative Law Judge issued the attached 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 and the Charging Party filed exceptions to the Judge's
 Decision and the Respondent filed an opposition to those exceptions
 along with cross-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 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 as modified below.
    The record indicates that on March 31, 1983, Charles Carter, the
 Respondent's agent, initiated a meeting with Earl Sizemore, a Union
 Steward, to discuss Sizemore's recent work products.  Sizemore left the
 meeting soon after it began, stating that it was becoming disciplinary
 and that he wanted his Union representative to be present.  Shortly
 thereafter, Sizemore returned with Douglas Cook, the Union's Head
 Steward.  Carter refused to meet with them and started walking down a
 hallway.  He was followed by Cook and Sizemore.  All three were walking
 at a fast pace and were discussing the incident.  Cook was loudly
 insisting that Sizemore had a right to representation and that a
 grievance would be filed on Sizemore's behalf.  As testified to by
 Carter, the remarks sounded somewhat threatening and he attempted to
 assuage Cook by making statements to the effect that there was no need
 to get emotional and that the matter could be resolved.  At the same
 time, Sizemore, who was following closely on Carter's heels, was
 complaining about criticisms that had been levied against his work.  At
 a point during this loud exchange, Carter made physical contact with
 Cook so that Cook fell against a wall.  Sizemore, who had been following
 closely behind Carter, then bumped into him.  Cook made several
 intemperate remarks to Carter who then retreated to his office.
 Immediately thereafter, Cook and Sizemore followed Carter to his office
 for the purpose of requesting official time to prepare a response to
 what had occurred.  Cook and Sizemore barged past Carter's secretary and
 burst unannounced into Carter's office.  As Cook began making his
 request, Carter physically ejected him from the office.
    In agreement with the Judge's conclusion, the Authority concludes, in
 the particular circumstances of this case, that Carter's conduct did not
 rise to the level of an unfair labor practice and shall order that the
 complaint be dismissed.
    As a general proposition, physical assaults upon employees while they
 are engaged in fulfilling their union representational responsibilities
 under the Statute will not be condoned.  The Authority views resort to a
 physical response in the context of a labor-management dispute by either
 a union representative or a manager as generally beyond the limits of
 acceptable behavior at the workplace.  However, the Authority also
 recognizes that resort to such behavior in certain limited instances and
 in response to particular situations may not rise to the level of an
 unfair labor practice under the Statute.  Where, as in the instant case,
 the conduct involves innocuous physical contact occurring in the context
 of a highly charge situation, and which to an extent is provoked by the
 behavior of a union or management representative, no violation of the
 Statute will be found to have occurred.
    As the record in this case indicates, the two instances of physical
 contact with the Union's Head Steward constituted spontaneous actions
 which were neither encouraged nor condoned by the Respondent, and which
 were apparently provoked by the Head Steward's own language and conduct.
  Thus, in the first instance of contact, and as found by the Judge,
 Carter was essentially pursued down a hallway and subjected to loud,
 threatening remarks which were made in a public area and within hearing
 distance of other employees within Carter's division.  The second
 incident occurred almost immediately thereafter when Carter fled to the
 sanctity of his office, whereupon Cook and Sizemore barged unannounced
 into Carter's office, also within view of other division employees.  In
 the particular circumstances of this case, and on balancing Carter's
 somewhat impulsive behavior with Cook's provocation, the Authority
 finds, in agreement with the Judge, that Carter's conduct did not
 constitute a violation of section 7116(a)(1) of the Statute, as alleged.
    In reaching our decision herein, the Authority is not unmindful of
 the inherent delays which may result from the processing and
 determination of unfair labor practice cases, such as that herein, which
 involve minor confrontations at the workplace.  In such circumstances,
 the Authority views the collective bargaining relationship to be better
 effectuated by the timely and amicable efforts of the parties to settle
 such minor altercations or to resolve such matters through the
 expeditious use of a contractually agreed-upon grievance procedure.
                                       William J. McGinnis, Jr., Member
    Concurring Opinion of Acting Chairman Frazier:
    I also agree, in the circumstances of this case, and for the reasons
 articulated below, that Carter's conduct did not constitute a violation
 of the Statute.
    As found by the Judge, employee Sizemore was summoned to a meeting
 with supervisor Carter and employee Hancock to discuss Sizemore's work
 performance.  At a point during the meeting, Sizemore left for the
 purpose of calling in union representative Cook.  In Sizemore's absence,
 Carter adjourned the meeting.  Shortly thereafter, Cook and Sizemore
 encountered Carter outside the latter's office and requested to meet.
 Carter declined the request.  The three men proceeded down a hallway,
 walking at a fast pace and discussing the incident with Sizemore
 following closely on Carter's heels.  Several things occurred next
 within a relatively short period of time which, in my opinion, created
 some confusion and established the framework for the type of
 confrontation which occurred in this case.  Cook began by making loud
 remarks concerning Sizemore's right to union representation and the fact
 that a grievance would be filed on his behalf.  These remarks sounded
 somewhat threatening to Carter who then attempted to calm the situation.
  During this exchange, Carter apparently acted impulsively, as found by
 the Judge, when he put his hands on Cook causing Cook to fall back
 against a wall.  Cook responded by making some intemperate remarks.
 Simultaneously, Sizemore bumped into Carter with Carter accusing
 Sizemore of kicking him.  Sizemore apologized.  Carter next attempted to
 extricate himself from the situation by retreating to his office, but
 was followed by Cook and Sizemore who barged uninvited and unannounced
 into the office.  At that point, Carter was placed in the position of
 having to physically eject Cook from his office.
    In my view, union representative Cook acted in a provocative manner
 which prompted Carter to take certain defensive retaliatory actions.  As
 to the first instance of physical contact, I find that Cook's loud
 remonstrations in a public place after Carter declined to meet with Cook
 and Sizemore necessarily had an obstructive and provoking effect on
 Carter and went far beyond the permissible bounds of protected activity
 granted an exclusive representative under the Statute.  With respect to
 the exchange which occurred in Carter's office, Cook's conduct in
 barging into a supervisor's office can be viewed as nothing other than
 belligerent, especially in view of Carter's attempt to extricate himself
 from the volatile situation by seeking refuge in his own office.
    Without the mitigating circumstances here presented, Carter's
 conduct, in my view, would have been unlawful under the Statute.
 However, where, as here, the union representative provoked the
 confrontation and acted in a loud, belligerent and obstructive fashion,
 Carter's defensive, retaliatory conduct, though not condoned, cannot be
 viewed as excessive.  /3/ Accordingly, and in agreement with Member
 McGinnis, I find that the complaint should be dismissed.
                                       Henry B. Frazier III, Acting
    IT IS ORDERED that the complaint in Case No. 3-CA-30603 be, and it
 hereby is, dismissed.
    Issued, Washington, D.C., October 30, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                                       Case No. 3-CA-30603
    Arlean Leland,
    Attorney for Respondent
    Edward Helm,
    Attorney for the Charging Party
    Donna Ditullio
    Attorney for the General Counsel
    Federal Labor Relations Authority
    Administrative Law Judge
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
 (1982), commonly known as the Federal Service Labor-Management Relations
 Statute (hereinafter referred to as the Statute) and the rules and
 regulations issued thereunder and published at 5 CFR 2411 et seq.
    Pursuant to a charge of unfair labor practices filed by the Charging
 Party on June 21, 1983, the General Counsel of the Federal Labor
 Relations Authority (hereinafter, Authority) investigated and, on
 November 28, 1983, served the complaint initiating this proceeding.
    The complaint alleges that an agent of Respondent, at its Washington,
 D.C., location, "physically assaulted" a representative of the Charging
 Party while the representative "was engaged in representational
 activities on behalf of a unit employee" (GC1(c), para. 5).  /4/ By such
 act and conduct it is alleged that Respondent has, and is interfering
 with, restraining and coercing employees in the exercise of their rights
 guaranteed in Section 7102 of the Statute, /5/ and thereby has, and is
 engaged in an unfair labor practice, in violation of Section 7116(a)(1)
 of the Statute.  /6/
    Respondent denies that its agent committed the unfair labor practice
 alleged, or that it has engaged or is engaging in unfair labor
    A hearing in Washington, D.C., was commenced on March 1, 1984,
 continued until March 16, and concluded on that day.  The parties
 appeared, adduced evidence, and examined witnesses.  The General Counsel
 made a closing statement, at TR 460-470.  Respondent filed a brief on
 May 16, pursuant to an order, sought by Respondent, which extended the
 briefing time to that date.  Charging Party filed its brief on May 15.
    Based upon the record made in this case, my observation of the
 demeanor of the witnesses, and the arguments of counsel, I enter the
 following findings and conclusions, and recommend entry of the following
                             Findings of Fact
    1.  It is admitted that, during all times material herein, the
 Charging Party (also referred to as the Union) is and has been a "labor
 organization," and the Respondent is and has been an "agency" within the
 meaning of Sections 7103(a)(4) and (3) of the Statute.
    2.  It is also admitted that, during all times material herein,
 Charles Carter has been, and is now an agent acting on Respondent's
 behalf at its 601 D Street, Washington, D.C., location.  For
 approximately two years, he has been Chief of Respondent's Division of
 Agricultural Certification.
    3.  Since June 1952, Douglas Cook has been a GS13 Manpower Analyst
 employed by Respondent in its Division of Testing.  Since September
 1982, he has been Head Steward of the Union.  As such he directs the
 stewardship program and provides representation on particularly
 difficult or unusual cases.  Prior to the incidents here involved, he
 represented an employee before Mr. Carter and won a promotion and large
 cash settlement for the employee.  See TR 28-30.
    4.  Since May 1982, Earl Sizemore has been a GS-12 Manpower
 Development Specialist, in Mr. Carter's division.  For roughly 10 or 12
 years, Mr. Sizemore has been a steward for the Union.
    5.  John Hancock is a GS14 Manpower Development Specialist, also in
 Mr. Carter's division.  Mr. Hancock is the "primary conduit" for
 assignments in that division (TR 345).
    6.  The following is my assessment of the credibility of the
 witnesses based upon my observation of their demeanor, as well as other
 factors, discussed as to each.
    a.  Mr. Cook's testimony was consistent, and inherently credible.
 With the exception of Mr. Carter, Mr. Cook's account of the alleged
 assaults was not contradicted by any witness who was in a position to
 observe, fully, what happened.  Indeed, his testimony was supported by
 them in some important particulars, as will be detailed.  I fully credit
 his testimony.
    b.  Mr. Carter did not hold up well on cross-examination (see TR
 242-251) and, on some important details, was contradicted not only by
 Messrs. Cook and Sizemore, but also by Mr. Hancock and Ms. Adams, both
 of whom he supervises, and both of whom exhibited reluctance in becoming
 involved in this proceeding, (see TR 233-234, 442-445 and 446-448)
 thereby rendering any testimony of theirs which is harmful to Mr.
 Carter, particularly trustworthy.  Compare TR 150-151 and 237, with TR
 400 and 422, 81, 25 and 44, as to whether Mr. Carter slammed his door
 shut on Mr. Cook.  Compare also TR 391 and 70, as to whether he realized
 Mr. Cook would be returning to the meeting momentarily.  Compare also TR
 164 with his April 13, 1983 letter to the Union's president, attached to
 GC1(a), as to whether he knew that Mr. Cook was a Union representative.
 Compare also TR 237-238 with TR 395 and 399, as to whether he raised his
 voice at the point of one alleged assault.  Compare also TR 238-239 with
 TR 421, 21-22 and 95-96, as to whether Messrs. Cook and Sizemore
 immediately followed Mr. Carter back to his office after the first
 alleged assault.  Compare also TR 175-176 with TR 382 and 431, as to
 whether the April 1, 1983 meeting between himself and Messrs. Hancock
 and Sizemore was routine in nature.  Compare also TR 182 and 186-190
 with TR 368, as to when, and at whose instigation Mr. Hancock wrote a
 memorandum concerning a flare-up of Mr. Sizemore.  Mr. Carter exhibited
 both a lack of candor and accuracy in giving his testimony.
 Accordingly, I do not credit it wherein it conflicts with that of other
    c.  Mr. Hancock was a reluctant, somewhat irritable witness who had
 to be subpoenaed to testify.  His account of the events which he was in
 a position to witness seemed honest, although his memory of some details
 was poor.  Insofar as his memory served him, I credit his testimony.
    d.  Mr. Sizemore's testimony was basically consistent and
 corroborated by that of Mr. Cook, insofar as Mr. Cook had knowledge of
 the events in issue.  However, he may have been somewhat biased because
 he was disciplined, on the recommendation of Mr. Carter, over events
 here in issue.  I therefore give less credence to his testimony wherein
 it directly conflicts with that of Mr. Hancock.  But I find that Mr.
 Sizemore was a more credible witness than Mr. Carter.
    e.  The other two witnesses were Carol Adams, Mr. Cook's secretary,
 and Avis Smith, another Manpower Development Specialist in Mr. Carter's
 division.  Both appeared anxious to vindicate their supervisor and
 somewhat antagonistic towards the attorney for the Charging Party.  Ms.
 Smith seemed somewhat confused.  However, she and Ms. Adams appeared to
 give an honest account of as much of the events at issue as they were in
 a position to overhear and observe;  and I fully credit their testimony.
    7.  On March 31, 1983 Mr. Carter discussed with his superior some
 problems with Mr. Sizemore's work, and the need to talk with Mr.
 Sizemore about these problems.  Mr. Carter and his superior both "knew,"
 from prior encounters with Mr. Sizemore, that he "could possibly
 overreact" to criticisms and "become hostile and combative" (TR 141).
    8.  Also on March 31, Mr. Hancock gave an assignment to Mr. Sizemore
 on which Mr. Sizemore had already done some work.  Mr. Sizemore
 completed the assignment within a few hours, and placed a memorandum
 concerning it on Mr. Hancock's desk.  Early the next morning, Mr.
 Sizemore went into Mr. Hancock's office to inquire about the memorandum.
  Mr. Hancock advised Mr. Sizemore that he was rewriting it, because Mr.
 Sizemore had "ma(de) a federal case out of it" (TR 60).  Mr. Sizemore
 expressed his disagreement, and told Mr. Hancock that he "didn't like
 his manner of criticizing (his) work" (TR 62).  Mr. Sizemore spoke in an
 angry tone of voice, and used words regarded by Mr. Hancock as profane.
 See TR 305 and R4, page 3.  Mr. Hancock ordered Mr. Sizemore out of his
 office. Mr. Sizemore then approached him with a clenched fist, and said
 "are you going to make me" (TR 305).  Mr. Hancock replied that he was
 not, and resumed his work.  Within a few seconds, Mr. Sizemore left Mr.
 Hancock's office.
    9.  Shortly after the Hancock-Sizemore incident, Mr. Hancock advised
 Mr. Carter of "the flare up" of Mr. Sizemore in his office, and also of
 several of his work products which needed considerable revision (TR
 308).  Mr. Sizemore noticed Mr. Hancock going into Mr. Carter's office.
 Shortly thereafter, Ms. Adams advised Mr. Sizemore that Mr. Carter
 wanted to meet with him later on in the morning, and that Mr. Hancock
 would be at the meeting.  Mr. Sizemore became suspicious and sought out
 Douglas Cook, to advise him to stand by to represent him at the meeting.
  Mr. Cook agreed to do so.
    10.  The Carter-Hancock-Sizemore meeting took place, as planned.
 Although Mr. Carter testified that such meetings of the three occurred
 routinely, "maybe once a week" (TR 175-176), Mr. Hancock could not
 recall another such meeting, and Ms. Adams testified that they did not
 occur often.  TR 382 and 431.  Accordingly, I find that this was not a
 routine meeting of the three.  All three agree that Mr. Carter stated
 the purpose of the meeting as being to discuss some of Mr. Sizemore's
 recent work products.  See TR 66-67, 130, 136, and 309.  They also agree
 that, shortly after it began, Mr. Sizemore declared that it had become
 disciplinary in nature and that he wanted to have a union
 representation.  See TR 69-70, 137, 206, and 309.  Mr. Sizemore
 testified that Mr. Carter first brought up the subject of "discipline,"
 in regard to one of the work products discussed (TR 69).  Mr. Hancock
 testified that Mr. Sizemore brought up the subject, and that Mr. Carter
 then told Mr. Sizemore that the meeting was not to discipline him.  See
 TR 309 and 387-391.  Mr. Carter corroborated the testimony of Mr.
 Hancock. See TR 129 and 136-139.  I credit the testimony of Mr. Hancock
 on this point.  Mr. Sizemore began "screaming about (union)
 representation and discipline" (TR 387), and left the meeting, in a
 rush, "looking very angry" and with "his hair kind of blowing" (TR 418).
    11.  Mr. Sizemore left the meeting with the statement that he was
 going to get his union representative (see TR 70 and 309).  /8/ Mr.
 Sizemore testified that he said that he "would be back in a minute"
 (TR70).  Although Mr. Hancock could not recall that Mr. Sizemore made a
 statement about being right back with his union representation, it was
 Mr. Hancock's "perception" that he was going to do just that (TR 391).
 I credit Mr. Sizemore's statement that he told Messrs. Carter and
 Hancock that he would be back in a minute.  Mr. Carter, nevertheless,
 adjourned the meeting and left his office.
    12.  A few minutes later, Mr. Sizemore returned with his union
 representative, Mr. Cook.  They encountered Mr. Carter in the hallway
 outside Mr. Carter's office suite.  Mr. Sizemore told Mr. Carter that
 the meeting could resume "now that he had his union representative" (TR
 16 and see also TR 71).  Mr. Carter refused to meet with them.  Messrs.
 Cook and Sizemore understood Mr. Carter to say "Come with me" (TR 17 and
 54) or words to that effect.  See TR 72-73.  /9/ In any event, the trio
 proceeded down the hallway, past Mr. Carter's office, around several
 corners, and into the 8200 hallway, going at a fast pace.  Messrs. Cook
 and Carter were walking side by side.  Mr. Sizemore followed, coming
 closer and closer, as Mr. Carter's voice dropped to a whisper, and
 leaning over so that he could hear what was being said.  During this
 walk through the hallways, all three were talking.  Mr Cook was loudly
 insisting that Mr. Sizemore had a right of representation, and that he
 would file a grievance on his behalf (see TR 19, 72 and 231).  The
 remark about the grievance sounded "threatening" to Mr. Carter (TR 144).
  Mr. Carter was saying such things as:  "Doug, just let me talk to you;"
 "(t)here's no need to file a grievance;" "(t)he matter can be resolved;"
 "it's not necessary to get so emotional," and "(w)e'll deal with the
 issue when you file your grievance." See TR 20, 72, 146, 159, 223, 226,
 231-232, 452 and 454.  Mr. Sizemore was interjecting complaints about
 Mr. Hancock's criticism of his work as the trio walked through the
 hallway.  See TR 451-452.
    13.  At a midpoint in the 8200 corridor, Mr. Carter suddenly slowed
 down and shoved Mr. Cook with the heel of his hand, hard enough so that
 Mr. Cook fell against the wall.  See TR 18-21 and 75.  /10/ Mr. Cook
 said:  "You hit me.  Now you've got your ass in a jam." TR 20, 76-77 and
 452.  Simultaneously, Mr. Sizemore, who, unbeknownst to Mr. Carter, had
 been following very closely on his heels, bumped into Mr. Carter.  Mr.
 Carter accused Mr. Sizemore of kicking him.  See TR 146.  Mr. Cook then
 said:  "He didn't kick you.  You're crazy" (TR. 76).  Mr. Sizemore
 apologized, saying he did not mean to kick Mr. Carter.  Mr. Carter then
 asked Mr. Cook to repeat what he had said a second or so ago;  and Mr.
 Cook did, repeating:  "You've got your ass in a jam" (TR 76).  Mr. Cook
 acknowledged that this use of language was uncharacteristic for a church
 leader.  See TR 20 and 27.
    14.  Avis Smith encountered the trio twice in the 8200 hallway, about
 less than a minute apart-- once on her way to Mr. Carter's office, when
 they were just rounding a corner into the 8200 hallway (TR 452), and
 once on her way back to her own office, when she saw them standing in a
 "cluster" (TR455).  She overheard the "ass-in-a-jam" remark.  See TR
 452.  However, she did not observe Mr. Sizemore run into Mr. Carter, or
 Mr. Cook "up against the wall," or any "physical contact between Mr.
 Carter, Mr. Cook and Mr. Sizemore" (TR 453).  Thus, she would have
 missed seeing both physical encounters-- the Sizemore-Carter one and the
 Cook-Carter one-- as they occurred simultaneously.
    15.  After the 8200 hallway incident, Mr. Carter returned to his
 office.  Messrs. Cook and Sizemore quickly decided that they should
 request official time for Mr. Sizemore from Mr. Carter, in order to
 prepare "some further response" (TR 21).  Accordingly, they followed Mr.
 Carter back to his office suite.
    16.  Both Messrs. Cook and Sizemore walked into Mr. Carter's office
 suite and past his secretary.  Without asking Mr. Carter's secretary to
 announce him, Mr. Cook proceeded into Mr. Carter's office in the suite.
 Mr. Cook managed to say "On behalf of-- " (TR 24 and see also TR 22),
 before Mr. Carter jumped from his chair, behind his desk, and said:
 "I'm not going to meet with you.  Get out of here" (TR 22 and see also
 TR 81).  As Mr. Cook backed toward the door, again uttering "On behalf
 of-- " (TR 25 and see also TR 22), Mr. Carter came around his desk to
 Mr. Cook, put his hands on Mr. Cook's arms, swung him around, pushed him
 out the door, and slammed the door so hard that it slammed into Mr. Cook
 before slamming shut.  /11/ Mr. Hancock and Ms. Adams were sitting at
 their desks, outside Mr. Carter's office, at the time of this event.
 Neither could view, fully, what occurred;  and neither saw Mr. Cook
 shoved by Mr. Carter.  See TR 380, 424-425, and 439.  Mr. Hancock heard
 the "milling around," looked up from his desk, in an office facing Mr.
 Carter's office, observed Mr. Cook three feet outside Mr. Carter's
 office and leaning forward and away from Mr. Carter's doorway, and then
 heard the door to Mr. Carter's office slam shut.  See TR 314, 315, 375,
 401-402, 421 and 422.  This observation is consistent with Mr. Cook's
 testimony that he received a hard shove from Mr. Carter, ejecting him
 forcefully from his office.
    17.  Mr. Cook is 50 years old, weighs about 200 pounds, and is about
 5 feet, 10 inches tall.  Mr. Sizemore is 50 years old, weights about 195
 pounds, and is roughly 6 feet tall.  Mr. Carter appears to be
 considerably younger than 50 years, engages in a variety of sports and
 regular exercise, weighs 150 pounds is and 5 feet, five and one-half
 inches tall.  Mr. Cook does not claim that he was "physically harmed" by
 Mr. Carter (TR 54).
    18.  On April 13, 1984, Mr. Carter sent the following letter to Jay
 Edelson, the President of the Union:
          This is a letter of complaint with regard to the conduct of a
       Union representative, Mr. Doug Cook on April 1, 1983.  In my view,
       Mr. Cook's conduct was not conducive to a constructive
       labor-management relationship.
          Mr. Cook was loud and boisterous in confronting me in a
       hallway;  he used abusive and profane language;  and he attempted
       to force his way into my office, after leaving the hallway.
          I feel that such actions by Mr. Cook were not in the best
       interest of the union nor the employee.  Those actions also
       disrupted the work of other employees and therefore impaired the
       efficiency of the office.  Finally, he has impaired his
       effectiveness in communicating with me on labor-management
 Based on this letter, identifying Mr. Cook as a "Union representative,"
 and the admission of Mr. Carter that he heard Mr. Sizemore say that he
 was going to get a union representative, as he left the
 Carter-Hancock-Sizemore meeting, I find that Mr. Carter knew that Mr.
 Cook was acting as a union representative during the April 1 incident at
    19.  On April 21, 1983, Mr. Carter proposed suspension of Mr.
 Sizemore for five days.  See CP1.  Reason #1 was "Improper Office
 Conduct on April 1, 1983," including his having "responded to Mr.
 Hancock's remarks (at a meeting with him on April 1) with profanity."
 See finding 8, above.  Reason #2 was "Striking a Supervisor," namely Mr.
 Carter in the hallway collision between the two.  See finding 13, above.
  Mr. Sizemore was, in fact, suspended without pay for five days, for the
 above reasons.  See TR 112.
                        Discussion and Conclusions
    The General Counsel has established that Respondent's agent gave a
 Union representative two shoves while he was attempting to represent an
 employee.  See findings 3, 12, 13, 15, and 18, above.  However, it was
 also shown that the shoves were provoked by actions of the Union
 representative and did not, under the totality of the circumstances
 established, rise to the level of an unfair labor practice.
    In the field of labor relations, a certain amount of "robust debate"
 and "impulsive behavior" is tolerated, when engaged in by union
 representatives.  See, e.g., Department of the Navy, Puget Sound Naval
 Shipyard, Bremerton, Washington, 2 FLRA 54, 55(1979), hereinafter
 referred to as Navy.  Such tolerance should also be extended to words
 and actions of managers acting impulsively in response to a provocation
 by union representatives.
    The manager here was subjected to loud threats of filing a grievance
 against him, in public hallways of the agency and within hearing
 distance of other employees in his division.  This was demeaning to him,
 as a manager, and left doubt as to his ability "to maintain order and
 respect . . . on the job site." See Navy, FLRA at 55, He was further
 subjected to the indignity of being told by the union representative, in
 the hallway, that he was "crazy" and that he had "his ass in a jam"-- a
 remark that was overheard by a passing employee in the manager's
 division.  After the manager, in effect, fled from this encounter to the
 sanctity of his office, he was followed by the union representative, who
 barged past the manager's secretary and into his office, without
 announcement or appointment.
    Shoving a union representative while he is performing his statutory
 duties, can be neither defended nor endorsed as a proper response by a
 manager to a labor relations dispute.  But neither can it be held to be
 so excessive a response to the situation in which the union
 representative had placed the manager, that it can be denominated as an
 unfair labor practice.
    Cases cited by the General Counsel, at TR 467-469, in support of the
 complaint, involve much more egregious behavior by managers than is here
 involved-- twice spraying liquid mace in the face of an employee (Empire
 Corporation, 212 NLRB No. 81, at page 623);  grabbing an employee by the
 shirt and forcing other employees to separate them (Shultz, Snyder and
 Steele Lumber Co., 198 NLRB No. 72, at page 424);  putting an employee's
 neck in an arm lock, grabbing him by the arm, and kicking his foot out
 from under him (Greyhound Taxi Co., 234 NLRB No. 134, at page 785);  and
 punching an employee in the face and neck (Hot Bagels and Donuts, 227
 NLRB No. 234, at page 1608).  Another case cited by the Charging Party
 at page 6 of its brief, involved such egregious conduct by an owner as
 driving his car at excessive speed to disperse pickets and actually
 sideswiping one (Green Briar Nursing Home, Inc., 201 NLRB No. 73, at
 page 505 (1973)).
    Balancing here the union representative's provocation and the
 manager's impulsive behavior in response, all in the light of the
 recognized need of management to maintain order at the job site, I
 cannot conclude that the General Counsel proved, by a preponderance of
 the evidence, /12/ that an unfair labor practice occurred.
    In view of the above conclusions, it is unnecessary to reach other
 questions raised by the parties.
                  Ultimate Findings and Recommended Order
    The General Counsel having failed to prove, by a preponderance of the
 evidence, that an unfair labor practice occurred or is occurring, it is
 hereby ORDERED that this complaint should be, and hereby is dismissed.
                                       Isabelle R. Cappello
                                       Administrative Law Judge
    Dated:  July 25, 1984
    Washington, D.C.
 --------------- FOOTNOTES$ ---------------
    /1/ Acting Chairman Frazier's opinion is set forth, infra.
    /2/ In its cross-exceptions, the Respondent excepted to certain
 credibility findings made by the Judge.  The demeanor of witnesses is a
 factor of consequence in resolving issues of credibility, and the Judge
 has had the advantage of observing the witnesses while they testified.
 The Authority will not overrule a Judge's resolution with respect to
 credibility unless a clear preponderance of all the relevant evidence
 demonstrates that such resolution was incorrect.  The Authority has
 examined the record carefully, and finds no basis for reversing the
 Judge's credibility findings.
    /3/ For a discussion of similar situations arising under the National
 Labor Relations Act, as amended, see, e.g., H.O. Kline Transportation,
 Inc., 259 NLRB 299(1981) wherein a manager's conduct in scuffling with a
 union steward was found not to be violative of the Act inasmuch as the
 steward had badgered the manager and provoked the confrontation;
 Michael M. Schaefer, 246 NLRB 181(1979), enforced sub nom. Michael M.
 Schaefer v. NLRB, 697 F.2d 558 (3rd Cir. 1983), wherein a manager's
 retaliatory conduct towards employees was deemed not excessive in view
 of the degree of provocation caused by such employees;  Evacuation
 Construction, Inc., 248 NLRB 649(1980), enforcement denied on other
 grounds, 660 F.2d 1015 (4th Cir. 1981), where an altercation caused by
 belligerent employees did not interfere with the exercise of their
 rights under the Act;  Cabot Corporation and Payne and Keller of
 Louisiana, Inc., 223 NLRB 1388(1976), aff'd sub nom. International
 Chemical Workers Union Local 483 v. NLRB, 561 F.2d 253 (D.C. Cir. 1977),
 where defensive conduct on the part of the employer did not violate the
 Act;  and Cosmo Graphics, Inc., 217 NLRB 1061(1975), in which the
 circumstances surrounding conduct toward picketing employees, including
 shoving one such employee, absolved such conduct of its possible illegal
    /4/ "GC" refers to the exhibits of the General Counsel.  Other
 abbrevations to be used are as follows.  "R" refers to the exhibits of
 the Respondent, and "CP" to those of the Charging Party.  "RBr" refers
 to the brief of the Respondent, and "CPBr" refers to the brief of the
 Charging Party.  "TR" refers to the transcript.  Transcript corrections
 are made pursuant to 5 CFR 2423.19(r) and are attached hereto as
 Appendix A.
    /5/ Section 7102 provides, in pertinent part:
          Sec. 7102.  Employees' Rights
          Each employee shall have the right to form, join or assist any
       labor organization, or to refrain from any such activity, freely
       and without fear of penalty or reprisal, and each employee shall
       be protected in the exercise of such right.  Except as otherwise
       provided under this chapter, such right includes the right--
          (1) to act for a labor organization in the capacity of a
       representative and the right, in that capacity, to present the
       views of the labor organization to heads of agencies and other
       officials of the executive branch of the Government, the Congress,
       or other appropriate authorities . . .
    /6/ Section 7116(a)(1) provides:
          Sec. 7116.  Unfair labor practices
          (a) For the purposes of this chapter, it shall be an unfair
       labor practice for an agency--
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;  . . .
    /7/ Attached to the Charging Party's brief are some materials
 relating to a grievance filed on behalf of William A. Burrell.  These
 materials do not constitute a published EEO decision as stated at page 4
 of the brief.  And see TR 471.  Nor do they appear to constitute any
 other type of document of which judicial notice may properly be taken.
 Accordingly, no consideration has been given these materials in reaching
 the conclusions in this decision.
    /8/ I do not credit Mr. Carter's denials to the contrary, at TR 139
 and 229.  See finding 6, above.
    /9/ Mr. Cook admitted being puzzled by Mr. Carter's remark.  See TR
 55.  I find that Messrs. Cook and Sizemore probably misunderstood him.
    /10/ I do not credit Mr. Carter's denial, at TR 147, that he put his
 hands on Mr. Cook.
    /11/ I do not credit Mr. Carter's denials that this took place.  See,
 e.g., TR 151-152, 238, 242-251, and 272-273.  See finding 6, above.
    /12/ This is the statutory burden of proof.  See 5 U.S.C. 7118(a)(7).