U.S. Federal Labor Relations Authority

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File 2: Opinion of Member Pope

[ v59 p773 ]

Member Carol Waller Pope, dissenting:

      In its zeal to find a way to sanction discipline of a Union official, the majority evidences disdain for the Statute and the important rights guaranteed by the Statute. Accordingly, I dissent.

      To begin, in the limited circumstances of this case, where the Union argued a statutory claim before the Arbitrator and the relevant contract provision specifically references the Statute, I agree that it is appropriate to review the award under statutory principles applicable in unfair labor practice cases. [n1]  I also agree that, at the time the grievant uttered the disputed remark, she was engaged in protected activity. [n2] 

      I do not agree, however, that the disputed remark exceeded the bounds of protected activity and constituted flagrant misconduct. [n3]  As discussed below, speech indistinguishable from (or more objectionable than) the grievant's has long been protected by the Authority, the National Labor Relations Board, and the courts.

      The grievant (the Union representative) was disciplined for one and only one reason [n4] : she uttered to her supervisor the phrase "Mr. Devlin told me to tell you to kiss my ass." [n5]  Award at 3. Consistent with the Arbitrator's uncontested findings of fact, the phrase was uttered in the supervisor's office and, with one exception, there is no indication that the phrase was heard by any other individuals. [n6]  Id. at 4-5. It is "questionable" whether the Union representative's remark was provoked by her supervisor but, in any event, the remark was neither "designed (by her) nor impulsive." Id. at 4-5. The relevant work area is "an office of educated professionals whose main activity is dealing with the public." Id. at 6.

      In determining whether an employee has engaged in flagrant misconduct, the Authority balances the employee's right to engage in protected activity, which "permits leeway for impulsive behavior," against "the employer's right to maintain order and respect for its supervisory staff on the jobsite." Dep't of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA 7, 11-12 (1995) (Grissom). Relevant factors in striking this balance are: (1) the place and subject matter of the discussion; (2) whether the outburst was impulsive or designed; (3) whether the outburst was provoked by the employer's conduct; and (4) the nature of the intemperate language and conduct. Id. at 12.

      None of the first three factors supports a conclusion that the grievant engaged in flagrant misconduct. As for the place and subject matter of the speech, it occurred in the supervisor's office, with the door open, but there is no indication that the disputed remark was heard by, or affected, any other individuals. See Grissom, 51 FLRA at 12. As for whether the grievant's remark was impulsive or designed, it was neither. See Award at 4. Finally, the Arbitrator made no finding on the issue of provocation, stating only that the grievant's claim that the supervisor's refusal to end a phone conversation was provocation was "questionable." Id. at 5. [ v59 p774 ]

      With regard to the fourth factor -- the nature of the intemperate language and conduct -- there is no question that the grievant's remark is well within the range of speech that is, and has been held, protected in the Federal and private sectors. It is important to note, in this regard, that this case involves only the grievant's speech: there is no contention, or factual findings suggesting, that the grievant accompanied her speech with any conduct (including any conduct that could be found intimidating or otherwise offensive to the supervisor). It is also important to note that the Authority is not writing on a clean slate here. Instead, there is a significant body of precedent that must be applied and, if it is to be discarded, then the decision to do so must be adequately explained. Failure to do so results in a decision that is arbitrary and capricious on its face. See Local 32, AFGE v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985) (citation omitted).

      The significant body of precedent begins with the United States Supreme Court. In this regard, the Supreme Court held, in the context of the Executive Order preceding enactment of the Statute, that "the same federal policies favoring uninhibited, robust, and wide-open debate in labor disputes" in the private sector apply in the Federal sector. Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 (1974). Applying these policies, the Court held specifically that "federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty[,] if it believes such rhetoric to be an effective means to make its point." Id. at 283.

      Against this backdrop, it has been long and consistently held by the Authority that union officials acting in their official capacity -- whether in white-collar or blue-collar environments -- have broad latitude in speech. And, as noted above, the Authority has specifically found speech as offensive, if not more offensive, than the "kiss my ass" remark involved here protected. See, e.g., United States Dep't of Agric., Food Safety and Inspection Service, Wash., D.C., 55 FLRA 875 (1999) (statement by union official that supervisor was "a little shithead" not flagrant misconduct); Grissom, 51 FLRA at 20-21 (union representative's remarks to management representative that she was "fucking stupid" and "goddamn stupid" not flagrant misconduct); AFGE, Nat'l Border Patrol Council, 44 FLRA 1395, 1402-03 (1992) (Nat'l Border Patrol Council) (grievant calling a supervisor an "asshole" not flagrant misconduct); Dep't of the Navy, Puget Sound Naval Shipyard, Bremerton, Wash., 2 FLRA 54, 75 (1979) (chief steward's statement to foreman that the steward would "get [his] ass" not flagrant misconduct).

      Similar speech is protected in the private sector. See, e.g., NLRB v. Vought Corp, MLRS Sys. Div., 788 F.2d 1378, 1383-84 (8th Cir., 1986) (union organizing committee chairman's statement to supervisor -- "I'll have your ass" -- held protected); NLRB v. Max Factor & Co., 640 F.2d 197, 200 (9th Cir. 1980) (union steward's accusation that company director was "kissing the ass" of company president held protected); Tillford Contractors, 317 NLRB 68, 69 (1995) (union steward's statement to foreman that he had "no goddamn business on the job" and should "get the hell away" held protected); Severance Tool Indus., 301 NLRB 1166, 1170 (1991), aff'd 953 F.2d 1384 (6th Cir. 1992) (active union supporter's calling company president a "son of a bitch" in a loud voice held protected); Consumers Power Co., 245 NLRB 183-84 (1979) (union steward's statement to supervisor -- "I don't give a fuck who you call" held protected). [n7] 

      The majority attempts to hide the fact that it is effectively reversing this longstanding precedent by stating that determining whether flagrant conduct has occurred must be made "on a case-by-case basis and upon the totality of the circumstances." [n8]  Majority Opinion at 12 (citation omitted). What this formulation ignores is that the circumstances of this case are totally similar to cases, described above, where the Authority has found speech to be protected, and totally dissimilar to the three cases cited by the majority where discipline of employees engaged in protected activity was permitted. [ v59 p775 ] Each of those three cases involved an additional factor which rendered the employee's conduct unprotected. [n9]  See Veterans Admin. Med. Ctr., Birmingham, Ala., 35 FLRA 553, 560-61 (1990) (employee ignored "life threatening" emergency); Veterans Admin. Washington, D.C. and Veterans Admin. Med. Ctr., Cincinnati, Ohio, 26 FLRA 114 (1987); aff'd sub nom. AFGE, AFL-CIO, Local 2031 v. FLRA, 878 F.2d 460 (D.C. Cir. 1989) (employee made racially inflammatory comments about supervisor); Dep't of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Mo., 17 FLRA 71, 83 (1985) (employee engaged in "deliberate, excessive abuse of supervisory staff based on personal antagonism"). In this case, by contrast, the grievant simply "used poor judgment" and was "a victim, of sorts, caught between two organizations." Award at 4, 5.

      One point remains. Although there is no question that the Union representative's speech is not beyond the bounds of protection, it is equally clear that it is beyond the bounds of civility. It is far preferable for all individuals involved in labor-management relations -- no matter what their positions or work situations -- to address each other with courtesy and respect. But this is not a situation where the Authority Members are free to impose their private views about office behavior. There are far bigger principles at stake here -- employees' rights guaranteed by § 7102 -- that should not be subject to the unprincipled application of the law undertaken by the majority in this case.

      Consistent with the foregoing, I dissent. I would find the award deficient and order remedies appropriate for the violation of the Statute committed by the Agency.

File 1: Authority's Decision in 59 FLRA No. 138 and Opinion of Chairman Cabaniss
File 2: Opinion of Member Pope

Footnote # 1 for 59 FLRA No. 138 - Opinion of Member Pope

   If the award involved only contractual, not statutory, matters, then it would appropriately be reviewed under the deferential essence standard. See United States Dep't of Defense, National Guard Bureau, Adjutant General, Kansas National Guard, 57 FLRA 934, 936 (2002) (Chairman Cabaniss, dissenting); NTEU, Chapter 68, 57 FLRA 256, 257 (2001).

Footnote # 2 for 59 FLRA No. 138 - Opinion of Member Pope

   In agreement with the majority, I would also deny the Union's exception to the arbitrator's finding that expedited arbitration was not appropriate under the parties' agreement.

Footnote # 3 for 59 FLRA No. 138 - Opinion of Member Pope

   I previously agreed with the majority, and continue to believe, that "flagrant misconduct" is not the only standard by which to judge whether a union official's speech and/or conduct has exceeded the bounds of protected activity. See United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003). However, neither party argues that any other standard should apply in this case. Moreover, while the concurrence goes to great lengths to assert that a "different analysis" should be used in future cases, no attempt is made to suggest what such an analysis should be; the concurrence asserts only that it should "ask[] whether the conduct exceeds the boundaries of protected activity[.]" Concurrence at 3.

Footnote # 4 for 59 FLRA No. 138 - Opinion of Member Pope

   The majority's finding that this matter was not "confined to a single, isolated incident" is a complete fabrication. Majority Decision at 2 n.3. There is no mention in the reprimand, the award, or the Agency's arguments, of any of the additional matters relied on by the majority.

Footnote # 5 for 59 FLRA No. 138 - Opinion of Member Pope

   "Mr. Devlin" is an official of the Union who was representing the grievant.

Footnote # 6 for 59 FLRA No. 138 - Opinion of Member Pope

   The exception is that the phrase was heard also by the supervisor's superior, with whom the supervisor was speaking on the telephone at the time. Award at 5. The majority repeats the supervisor's description of the event in an apparent attempt to create the false impression that the supervisor's version of the facts -- which includes an assertion that the grievant's remarks could be heard by claimants and other employees -- constitutes the facts. See Majority Opinion at 2 n.2. It is the Arbitrator's findings of fact -- not the Agency's assertions of facts -- that control, and the Arbitrator made no finding that the grievant's remark was overheard by anyone other than the supervisor's superior. See Award at 3-5. The majority's disregard of this basic principle governing review of arbitration awards (see also n.4 supra) is both unfair and inconsistent with the Authority's role in reviewing awards. See United States Dep't of Defense, Defense Commissary Agency, Fort Lee, Va., 59 FLRA 554, 559 (2004) (principles governing review of arbitration awards "appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them." (Citation omitted).

Footnote # 7 for 59 FLRA No. 138 - Opinion of Member Pope

   The concurrence relies heavily on the principle that employers in the private sector may enforce reasonable rules that punish misconduct that is less than flagrant. However, with one exception, the decisions relied on in the concurrence do not concern discussions in a labor-relations context. As a result, they are inapposite. In the decision that is the one exception -- involving speech in a labor-relations context -- the National Labor Relations Board actually found that the employer violated the law by disciplining an employee for calling a member of management a "liar" during a grievance meeting. Hawaiian Hauling Serv., Ltd., 219 NLRB 765, 766 (1975). As such, it supports a contrary outcome.

Footnote # 8 for 59 FLRA No. 138 - Opinion of Member Pope

   The majority sought refuge in the concept of case-by-case adjudication in a previous decision, also. See United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA 248, 252 (2003) (Member Pope dissenting in part). What the majority fails to grasp, however, is that case-by-case adjudication does not permit arbitrary adjudication. Instead, parties in similar cases are entitled as a matter of law to fair application of similar standards. See Pearson v. Shalala, 164 F.3d 650, 661 (D.C. Cir. 1999) ("it must be possible for the regulated class to perceive the principles which are guiding agency action"). The majority's continuing refusal to embrace this basic principle of administrative adjudication is disturbing.

Footnote # 9 for 59 FLRA No. 138 - Opinion of Member Pope

   The majority relies on one additional decision, United States Dep't of Justice, United States Marshals Service, and United States Marshals Service, District of New Jersey, 26 FLRA 890, 901-02 (1987) (Justice). See Majority Opinion at 9-10. As the majority itself acknowledges, that decision involved the issue of whether physical violence by a supervisor -- not discipline of an employee -- was an unfair labor practice. The decision did not involve or address in any way whether an employee engaged in flagrant misconduct. The majority's reliance on Justice reflects its complete and utter confusion about, and disregard for, the law that actually applies in this case.