FEDERAL LABOR RELATIONS AUTHORITY OALJ 13-20
Office of Administrative Law Judges
WASHINGTON, D.C.
DEPARTMENT OF THE AIR FORCE ANDREWS AIR FORCE BASE, MD RESPONDENT | |
AND INTERNATIONAL ASSOCIATION OF FIREFIGHTERS (IAFF), LOCAL F-297, AFL-CIO CHARGING PARTY | Case No. WA-CA-11-0204 |
Jessica S. Bartlett
Melissa K. Owens
For the General Counsel
Michael Wells
For the Respondent
James B. Johnson
For the Charging Party
Before: RICHARD A. PEARSON
Administrative Law Judge
DECISION
Immediately after representing bargaining unit employee Harry Shughart at a meeting in which Shughart was notified that he was being terminated from employment, Donald Simms expressed his disagreement to a supervisor accompanying them about the meaning of the removal letter issued to Shughart. While Simms and the supervisor were engaged in this discussion, Shughart drove off the base without turning in his security badges. The supervisor, who was responsible for out-processing Shughart and confiscating his badges, issued an oral admonishment memo to Simms for “lying” to him. Because an honest disagreement is not a “lie,” and union representatives are protected from being punished for disagreeing with management on labor‑relations matters, issuing the oral admonishment in this case constituted an unfair labor practice.
STATEMENT OF THE CASE
This is an unfair labor practice proceeding under the Federal Service Labor‑Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. §§ 7101 et seq. (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (the Authority), 5 C.F.R. part 2423.
On February 25, 2011, the International Association of Firefighters, Local F‑297, AFL‑CIO (the Union or Charging Party) filed an unfair labor practice charge against the Department of the Air Force, Andrews Air Force Base, Maryland (the Agency or Respondent) with the Washington Regional Office of the Authority. After investigating the charges, the Washington Regional Director, on behalf of the General Counsel (GC), issued a Complaint and Notice of Hearing on May 31, 2011, alleging that the Agency orally admonished Union Vice President Donald Simms due to his protected activity, in violation of section 7116(a)(1) and (2) of the Statute. On June 8, 2011, the Respondent filed its Answer denying the allegations in the Complaint.
A hearing was held in this matter on July 26, 2011, in Washington, D.C. All parties were represented and afforded an opportunity to be heard, to introduce evidence, and to examine and cross-examine witnesses. The GC filed a post‑hearing brief, which I have fully considered.
Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
FINDINGS OF FACT
Background
The Respondent is an activity of the United States Air Force, which is an agency under 5 U.S.C. § 7103(a)(3) of the Statute. GC Exs. 1(b), 1(c). The Charging Party is a labor organization within the meaning of section 7103(a)(4) of the Statute, and is the exclusive representative of a unit of Respondent’s employees. GC Exs. 1(b), 1(c). The Respondent and the Union are parties to a collective bargaining agreement. GC Exs. 1(b), 1(c).
All of the events crucial to this case occurred in February of 2011. During that time period, Lieutenant Colonel Mark Vivians served as the commander of the 11th Civil Engineering Squadron, which includes the fire department at Andrews Air Force Base.[1]Tr. 27, 78, 95. Fire Chief Ralph Barone managed the entire fire department, including the
base’s two fire stations,[2] the department’s 72 civilian and military employees, and its fire and emergency service programs. Tr. 151‑54. Serving under Chief Barone were deputy chief Master Sergeant Eric Belland, Senior Master Sergeant David Wilson (soon to succeed Belland as deputy), assistant operations chiefs Joseph Thompson and Sergeant Dupuis, and Mr. McKleeven, a station chief. Tr. 97‑98, 106, 131, 147. Simms and Shughart, who were both firefighters, were the two bargaining unit employees primarily involved in the events of this case. Shughart, who was supervised by Mr. Thompson, was the Chief Shop Steward for the Union. Tr. 106-07, 171. Simms, who was supervised by Mr. McKleeven, was a Vice President of the Union. Tr. 23, 34.
Andrews is the home base for Air Force One and other aircraft that transport the President of the United States and other national leaders. Tr. 62-63. Consequently, while security is important and access is restricted at all military bases, security issues are of paramount importance at Andrews. Tr. 86‑87, 100, 152. Civilian firefighters employed by the Agency require access to otherwise-restricted areas of the base in order to respond to emergencies. Tr. 61‑64. For this reason, they carry access badges that allow them to enter restricted areas and to escort others into those areas. Tr. 61‑65, 101‑02. If a properly credentialed individual places his access badge alongside an electronic reader at one of the gates leading into a restricted area, the gate will open. Tr. 101‑02. But when the electronic reader or the gate itself is not operating properly, the gates remain open at all times, and guards are temporarily posted there to visually inspect badges as a means of regulating access. Tr. 123‑24. During one of these periods of visual badge inspections, even a previously deactivated access badge might appear legitimate to the guard on duty, and thus potentially allow unauthorized persons to enter a restricted area.
In October 2010, Mr. Shughart received a notice of proposed removal “from your position as Firefighter (HazMat/Basic Life Support), GS-0081-07 and the federal service . . . .” Jt. Ex. 1; Tr. 42, 170. The notice stated that a medical disqualification prevented Shughart from performing “rigorous firefighter duties” and as a result, his removal would promote the efficiency of the service. Jt. Ex. 1. The notice also restricted him, pending a final decision by Col. Vivians, to non‑rigorous, non-firefighter duties. Id.; Tr. 107-08.
Shortly after receiving the removal proposal, Mr. Shughart showed it to, and discussed it with, Union Vice President Simms. Tr. 43‑44. Shughart submitted a written response to the proposed removal on October 28, 2010. Tr. 197. On the evening of February 7, Col. Vivians contacted both Chief Barone and Sgt. Belland by phone to inform them that he had decided Shughart’s case and that he would be giving Shughart the removal decision letter the next morning, before the end of Shughart’s shift. Tr. 132, 147, 159. Although Belland had never assisted with a removal before, he was given the responsibility to complete a checklist of actions for “out‑processing” Shughart after removal, which included retrieving Shughart’s ID and access badges. Tr. 132-33, 165.
On the morning of February 8, 2011, at approximately 7:00 a.m., Sgt. Belland, Mr. Thompson, Sgt. Wilson, and Union Secretary Hofe approached Mr. Shughart at Fire Station 2.[3] Tr. 25, 106‑08, 129-30, 172. Either Belland or Thompson told Shughart that he needed to come with them to the commander’s office for a meeting with Col. Vivians. Tr. 108, 171-72, 196. When Shughart (whose shift ended at 7:30 a.m.) stated that he had a doctor’s appointment in southern Maryland that morning at 8:25, and that he could not miss the appointment,[4]he was told that he could not miss the meeting with the commander either. Tr. 171‑72, 196. While making clear that Shughart’s attendance at the meeting with the commander was mandatory, none of the managers told Shughart that he should plan to remain on base after the meeting, even though they knew that only 30 minutes remained in Shughart’s shift, and Belland knew that there was an entire out‑processing checklist to be completed once Shughart’s meeting with the commander ended. Tr. 107, 132-36, 197.
As Belland, Thompson, Wilson, Shughart, and Hofe were walking through the Fire Station 2 parking lot on their way to the commander’s office, Mr. Simms drove into the lot and parked his car. Tr. 25‑26, 109. Although Simms’s shift at Fire Station 2 did not begin until 7:30 a.m., he had arrived early, at approximately 7:05 a.m. Tr. 25, 37, 109. Shughart noticed Simms’s arrival and, once Simms exited his vehicle, Shughart asked him to serve as his representative during the meeting with the commander; Simms agreed. Tr. 25‑27, 172‑73, 196. At that point, because it was clear that Shughart would not need Mr. Hofe to serve as his representative, Hofe departed from the group. Tr. 110.
Col. Vivians’s office was located in a building across the street from Fire Station 2. Tr. 25‑26, 110. To reach it, Belland, Thompson, Wilson, Shughart, and Simms walked through the remainder of the Fire Station 2 parking lot and onto a grassy area just before the street. Tr. 69‑70, 110. Then they crossed the street and walked through another small grassy area before entering the building in which Vivians’s office was located. Tr. 25‑26, 173.[5]
The commander was notyet ready to meet, so the group waited for a few minutes in a side office,[6] where Belland advised Shughartand Simms that Col. Vivians would be providing Shughart with a decision letter. Tr. 111, 173-74.
Vivians was ready to receive Shughart and Simms within a few minutes of their arrival, and so they entered his office. Deputy Base Civil Engineer Larry Carson was present for the meeting in addition to Vivians, Simms, and Shughart, but Belland, Wilson, and Thompson did not enter the office at any point. Tr. 27, 81‑82, 111‑12, 174. Col. Vivians informed Mr. Shughart that the purpose of the meeting was to give Shughart his letter of removal, and the commander then read the removal letter from start to finish. Tr. 28, 81, 174. When Shughart attempted to ask a question, Vivians told him that this was not the time for questions. Tr. 28, 90, 96, 174. In pertinent part, the decision letter stated:
1. On 20 October 2010, you were advised in writing of a proposal to remove you from your GS-0081-07 Firefighter position for the reason . . . . that you are not medically fit and you are disqualified from performing firefighter duties . . . .
. . . .
2.b I have considered the feasibility of an alternative sanction other than removal. The civilian personnel office (CPO) . . . conducted a search of non‑firefighter, GS‑7 or lower positions, but there were no open positions that you were qualified to fill. . . .
2.c I have determined that removing you from your position for inability to perform the duties of the position promotes the efficiency of the service and the health and safety of [others] . . . .
3. The effective date of this decision letter is upon receipt of the decision on 8 Feb 2011. Your last day of work was your 24‑hour shift on 7 Feb 2011.
Jt. Ex. 2 at 1‑2. After reading the letter and asking Mr. Carson to sign it as a witness (because Shughart refused to sign for receipt), Vivians dismissed Simms and Shughart and told them to go with Sgt. Belland.[8] Tr. 84, 91.
Shughart, Simms, Belland, and Wilson waited briefly outside of Vivians’s office so that Carson could make a copy of the removal letter for Mr. Shughart. Tr. 28‑29, 112, 175. Once Shughart had his copy, Belland said, “Okay, follow me back to Fire Station 2,” and so Shughart and Simms followed Belland and Wilson out of the building. Tr. 28‑29, 112‑13, 130, 135, 140‑41. Belland stopped for a few seconds to answer a call on his Blackberry immediately upon exiting the building. Tr. 113‑14, 129‑30, 141. But as Belland, Wilson, Simms, and Shughart crossed the street and continued into the grassy area before the Fire Station 2 parking lot, the members of the group were still close enough to one another to converse. See Tr. 29‑30, 114, 115‑16, 135, 175‑76. However, Shughart was walking directly toward his car, and thus, his trajectory deviated slightly from the others, who were walking toward the entrance to Fire Station 2 itself. Tr. 70‑71, 114, 142, 175.
The three main witnesses each gave slightly different accounts of what transpired next. According to Sgt. Belland, the other three men were about ten feet in front of him as they entered the parking lot, when “I said, ‘Mr. Shughart, I’m going to give you ample time to collect your personal effects and . . . I’m going to need to take your line badge and ID card’, and at that point he turned around to me and he said, ‘Nope,’ and he started heading for his vehicle rather quickly.” Tr. 114. As this happened, “Mr. Simms interceded between us and put his hands up in the air and said, ‘No, no, no, no, Sarge, no, he’s not removed – he [had] not been removed from federal service, only his firefighting duties.’” Tr. 115. Belland asserted that Simms “came over about approximately 3 feet or so between my path of travel to Mr. Shughart” and that as Simms talked, Shughart sped off in his vehicle. Tr. 116; see also Tr. 134-36, 142. While Belland felt that Simms had “stepped in the way” of Belland’s “direct path” to Shughart (Tr. 142), Simms did not physically touch Belland (Tr. 143), nor did Simms tell Shughart not to turn in his ID card. Tr. 136.
In Simms’s account of the incident, he was walking slightly behind the others as they all left the commander’s office, and he heard Belland remark that Shughart had been “removed from civil service.” Tr. 29‑30, 54. Simms could not hear clearly everything that was said in front of him, so he could not put Belland’s remark in context or explain what prompted it (Tr. 57), but he felt that the statement misrepresented the removal letter, which (in Simms’s view) stated only that Shughart had been removed from his firefighting position.[9] Therefore, Simms interrupted the conversation to make that point to Belland.[10] Tr. 29‑30, 54. Meanwhile, Shughart walked directly to his vehicle as Simms and Belland were talking. Tr. 30, 70-71. Simms then walked over to Shughart’s vehicle to ask for the letter, in order to show it to Belland. Tr. 30, 68. Shughart refused to give Simms the letter, explained that he had to leave or else he would miss his appointment, and drove off the base. Tr. 30, 58, 73‑74.
According to Shughart, he walked directly from the commander’s office to his truck, in order make his medical appointment. Tr. 175-76. He did not hear Belland say anything about turning in his ID badge, but Belland did ask him what the removal letter said, and he told Belland “it was none of his business, that he needed to contact Col[.] Vivians[.]” Tr. 176, 189-90. After he got into his truck, Simms approached and asked Shugart to show the removal letter to Belland, but he refused to do so, and he drove away. Tr. 176, 190-91.[11]
Shughart testified that as he buckled up and started his truck to drive out of the parking lot, he could see Simms and Belland “still standing there in the front parking lot talking.” Tr. 191. They continued debating the meaning of the removal letter as Shughart drove out of the lot. Tr. 67‑68, 116, 176.
Unable to resolve their disagreement, the three remaining men parted company, with Simms continuing to Fire Station 2 to begin his shift, and Belland and Wilson walking back to Vivians’s office to examine a copy of the removal letter for themselves. Tr. 31, 118. Belland told Col. Vivians what had transpired in the parking lot and asked the commander whether Shughart had been removed from the federal service, or only from his firefighting duties. Tr. 85‑86, 118. Vivians said the letter was clear about removing Shughart from the federal service, and Vivians provided Belland with a copy of the letter, at which point Belland headed back to Fire Station 2 to speak with Simms again. Tr. 86, 118‑19, 137. Belland showed Simms the letter and stressed the multiple appearances of the word “removal,” whereas Simms pointed out that the removals mentioned only Shughart’s firefighter position, but not the federal service. Tr. 32‑33, 119. Again, neither individual could sway the other regarding the merit of his position, so Belland and Wilson left the station, and Simms continued with his workday. Tr. 32‑33.
Belland went to speak with Chief Barone and reported that he had been unable to out‑process Shughart because Simms had physically blocked his path to Shughart, thereby giving Shughart enough time to reach his vehicle and drive away before Belland could retrieve his access badge or ID card. Tr. 160, 165‑66. Barone told Belland to contact Simms and request that Simms reach out to Shughart to alert him that he needed to return his badge and ID immediately. Tr. 160. Later that day, Belland made the request as directed, and Simms responded that although such a task did not fall within his job duties, he would contact Shughart in order to assist Belland. Tr. 36, 73. Simms testified that he did reach Shughart, but Shughart’s only response was that he would turn in his badges to the appropriate authorities at the proper time. Tr. 36, 176‑77. Shughart insisted that no one had asked for his badges, and that he did not want to return them until someone provided him with an out‑processing form to document their return. Tr. 180, 183, 184. Belland reported to Barone that Simms had been unable to persuade Shughart to return the badges. Tr. 160. Agency security officials electronically deactivated Shughart’s access and ID badges on, or soon after, February 8, and Shughart eventually returned the badges on February 22. Tr. 123, 164, 184.
Around 4:00 p.m. on February 8, the assistant chief of Fire Station 1, Sergeant Dupuis, telephoned Simms and asked him to report to Dupuis’s office for a meeting. Tr. 34. Also present for the meeting were Belland, Wilson, and Simms’s immediate supervisor, Mr. McKleeven. Tr. 34‑35. At that time Belland stated that Simms had interfered with him performing his duties by preventing him from retrieving Shughart’s badges. Tr. 35, 124‑25. Belland read an oral admonishment that accused Simms of “lying . . . concerning what was said during an official action with Mr. Shughart” in a “deliberate attempt to conceal the facts[ ]” about Shughart’s removal from the civil service.[12] GC Ex. 2. Simms protested immediately that he had done nothing to impede the collection of badges or an ID card, nor did he have any intent to do so. Tr. 35. But Belland would not relent, because he said that Simms had not been truthful with him. Tr. 124‑25.
Oral admonishments of the type Belland gave Simms remain in an employee’s personnel folder for six months, at which time the CBA allows the employee to request that the oral admonishment record be removed. Supervisors retain the discretion whether to grant such a request, however. Tr. 126, 138‑39.
DISCUSSION AND CONCLUSIONS
Positions of the Parties
General Counsel
The GC argues that orally admonishing Simms for his actions during the course of protected activity violated section 7116(a)(1) and (2) of the Statute. Applying the analytical framework adopted by the Authority in Letterkenny Army Depot, 35 FLRA 113, 117-18 (1990) (Letterkenny), the GC asserts first that it has established a prima facie case of discrimination, and second that the Respondent has failed to rebut that prima facie case.
According to the GC, Mr. Simms’s discussions with Sergeant Belland were part and parcel of Simms’s protected activity in representing Shughart during removal proceedings. Simms’s expressions of disagreement about the meaning of the removal letter occurred in the context of performing his duties as a Union representative. In fact, the oral admonishment record itself (GC Ex. 2) identifies the reason for the admonishment as Simms’s statements while acting as Shughart’s representative. Contrary to the admonishment, neither Simms’s expression of his understanding of Shughart’s removal letter nor his disagreement with Sgt. Belland constitute lying. The record does not support the assertion in the admonishment letter that Simms in any way interfered with Sgt. Belland’s attempt to retrieve a badge or ID from Mr. Shughart. Since Simms was engaged in protected activity, and since that protected activity was clearly the motivating factor in the Agency’s decision to admonish him, the GC submits that it has proven a prima facie violation of section 7116(a)(1) and (2).
When (as in this case) alleged discrimination involves discipline for conduct occurring during protected activity, a necessary part of the Respondent’s defense is that the conduct constituted flagrant misconduct “or otherwise exceeded the boundaries of protected activity.” U.S. Dep’t of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan AFB, Tucson, Ariz., 58 FLRA 636, 636 (2003) (Davis Monthan). To determine whether an employee’s conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity, the Authority applies the factors set forth in Dep’t of Def., Def. Mapping Agency Aerospace Ctr., St. Louis., Mo., 17 FLRA 71 (1985) (Defense Mapping). Those factors 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 provoked by the employer’s conduct; and (4) the nature of the intemperate language or conduct. Id. at 81.
The General Counsel insists that neither the place of the discussion (first, on a walk back from a meeting at which Simms was acting as Union representative, and then at the fire station in a follow-up discussion) nor its subject matter (the language and meaning of the removal letter) is indicative of flagrant misconduct or otherwise exceeding the boundaries of protected activity. Under the second and third factors cited in Defense Mapping, Simms did not engage in an outburst; he simply disagreed with a supervisor, which is not misconduct of any kind. As for the fourth factor, none of Simms’s speech or actions can fairly be characterized as intemperate, especially considering that Simms had no obligation to assist the Respondent in retrieving Shughart’s badge or ID. Thus, the Respondent failed to rebut the prima facie case of discrimination, and it must be found to have acted unlawfully in admonishing Simms for engaging in protected activity. See U.S. Dep’t of Transp., FAA, Wash., D.C., 64 FLRA 410, 417 (2010) (FAA).
As a remedy, the GC requests an order to remove the admonishment from Mr. Simms’s personnel file, and a notice to be posted on bulletin boards and distributed by email to bargaining unit employees.
Respondent
The Respondent did not file a post-hearing brief, but in its opening statement, it contended that Mr. Simms, an experienced firefighter and union official, engaged in flagrant misconduct or behavior that otherwise exceeded the boundaries of any protected activity that he may have been engaging in on February 8. When Sergeant Belland attempted to retrieve Shughart’s access badge and ID, Simms physically blocked his way by stepping in front of him, and then insisted that Shughart had not been removed from federal service. However, Simms was, in fact, fully aware that Shughart had been removed from the federal service, and Simms’s interference and misrepresentations allowed Shughart to race off with documents that needed to be collected from him immediately. Because Simms aided and abetted Shughart, thereby causing substantial disruption to base operations and security, his actions clearly exceeded the boundaries of any protected activity that he may have been engaged in while representing Shughart regarding his removal. Tr. 15‑21.
Analysis
The GC correctly observes that the Letterkenny framework applies to this dispute. In Letterkenny, the Authority explained first that the General Counsel always bears the burden of establishing, by a preponderance of the evidence, that an unfair labor practice has been committed. In cases brought under 7116(a)(2), the GC must demonstrate: (1) that the employee against whom allegedly discriminatory action was taken was engaged in protected activity; and (2) that such activity was a motivating factor in the agency’s treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. If the GC does so, it has established a prima facie case of unlawful discrimination. The Respondent, in turn, can rebut the prima facie case by establishing, by a preponderance of the evidence, the affirmative defense that: (1) there was a legitimate justification for its actions; and (2) the same action would have been taken in the absence of protected activity. 35 FLRA at 117-18.
In this case, it is clear that Mr. Simms was engaged in protected activity when he acted as Shughart’s Union representative in the meeting with Col. Vivians, at which Shugart was given his notice of removal. Simms got into trouble, however, not for what happened in the commander’s office, but for what happened as he spoke to Sgt. Belland in the parking lot outside the commander’s office. As the men left Vivians’s office and discussed what would happen next, Simms continued to serve in the same representative capacity on behalf of Shughart. Belland was intent on out-processing Shughart, but Simms felt it was relevant to Shughart’s case that the removal letter didn’t specify that Shughart had been removed from the federal service. Both the parking lot discussion and the subsequent discussion inside of Fire Station 2 concerned the language and meaning of a removal letter just received by a bargaining unit employee whom Simms was officially representing. They were discussions between labor and management concerning a matter of great importance to both – the employment status of a bargaining unit member. Thus, I find that these discussions constituted protected activity.[13] See, e.g., Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 53 FLRA 1500, 1516-17 (1998).
Next, the GC must show that Simms’s protected activity was a motivating factor in the Agency’s decision to admonish him. The notice of admonishment itself states that Simms’s discussion and disagreement with Sergeant Belland served as the basis for the admonishment. GC Ex. 2. In admonishing Simms “for lying to me concerning what was said during an official action with Mr. Shughart[,]” Belland made it clear that he was motivated to rebuke Simms for the words he used to represent and defend Shughart. (“[Y]ou lied to me and told me that he had in fact not been removed, rather had only been disqualified from firefighting duties.”) Id. Accordingly, the General Counsel has established a prima facie violation of section 7116(a)(1) and (2).
The real issue in this case is not whether Simms’s protected activity motivated the admonishment, but whether Simms’s actions toward Belland in some way exceeded the boundaries of protected activity, so that his conduct lost the protection of section 7102 of the Statute. Davis Monthan, 58 FLRA at 636.[14] If a union official engages in such misconduct, an agency is entitled to punish it, and it may constitute a legitimate basis for discipline within the Letterkenny framework. As part of the Respondent’s defense to the prima facie case, the Respondent has the burden of proving that Simms’s conduct exceeded the boundaries of protected activity. Davis Monthan, 58 FLRAat 636-37.
One difficulty that arises in evaluating the Respondent’s case is that its rationale for the admonishment shifted between the time of the incident and the date of the hearing. As noted earlier, Belland explained in his memo to Simms that Simms had lied in saying that Shughart had not been removed. Belland reasserted this allegation in his testimony at the hearing (Tr. 125), but he also testified that Simms had prevented him from taking Shughart’s ID and badge when he “interceded” between Belland and Shughart as Shughart was heading to his truck and leaving the base. Tr. 114-16. Counsel for the Respondent clearly emphasized the latter allegation in his opening statement at the hearing: “Mr. Simms physically blocked his [Belland’s] way and stepped in front of him and made some comments[.]” Tr. 18. “Mr. Simms physically blocked Sgt. Belland from attempting to speak to him [Shughart] again[.]” Tr. 19.
It is always problematic when an agency adds new reasons for disciplinary actions, but I am primarily concerned about why Belland did not mention anything in his admonishment memo about Simms interceding or blocking him. He wrote that memo on the same day as the incident, when the events were fresh in his mind, and he said nothing then about Simms “wav[ing] his hands in the air” or moving between Belland and Shughart.
Compare GC Ex. 2 with Tr. 115-16. I cannot, therefore, fully accept or credit Belland’s description of the events of February 8, to the extent that he adds justifications for his action that he did not describe in the admonishment memo.
The distinction between a union official “lying” to a manager during a protected discussion and physically preventing that manager from confiscating a removed employee’s security badges is an important one: indeed, it represents the difference between the Respondent winning and losing this case. If I were to accept the contention that Simms had interfered with Belland’s performance of his job of out-processing Shughart and taking Shughart’s badges, I would certainly agree with the Respondent that this was misconduct exceeding the boundaries of protected activity. The testimony of Col. Vivians and other witnesses was undisputed that security at Andrews is a maximum priority, and that the safety of this nation’s top officials is at stake in ensuring that access to the base and to the flight line is restricted. Belland and the other managers were justifiably alarmed when Shughart drove off the base with his access badge and ID, since Shughart had just lost his job and was obviously distraught. If Simms indeed intentionally blocked Belland from reaching Shughart, thereby enabling his “getaway,” I would consider it a serious offense, and one that has no part in a union official’s representational responsibilities. Such a physical act of interference would be comparable to the conduct found unprotected in 315 Airlift Wing, 294 F.2d at 197. Simms had every right to try to protect Shughart’s job, or his legal rights to reclaim that job, but he had no right to enable Shughart to leave the base without turning in his badges.
However, I am not in the slightest convinced that this is what Simms did. Even if I were to fully accept Belland’s description of the events of February 8, I do not believe that Simms ever crossed the line from verbal disagreement to physical obstruction. Belland himself conceded that Simms never touched him during the discussion of Shughart’s status. Even if Simms moved into the space between Belland and Shughart, there was nothing to prevent Belland from walking around him to accost Shughart. Such a “detour” would have delayed Belland by no more than a few seconds. The only way in which such a brief delay could have proved significant is if Shughart had already been at the door of, or inside, his truck; and in such a case it can hardly be concluded that Simms was to blame for Shughart’s escape.
What I find to have occurred is that Belland and Shughart had two contradictory agendas that morning, and neither one gave the other much, if any, advance warning of that agenda. Belland testified that he had not advised Shughart about the out-processing procedure, or the need to confiscate Shughart’s badges, prior to walking into the parking lot between the commander’s office and Fire Station 2: “I wanted to take him back to his duty station so that he would have ample opportunity to grab his personal effects and we could sit down in a setting that was more comfortable.” Tr. 134. Similarly, “I didn’t communicate that [the out-processing checklist] to him at that time in front of everyone in the commander’s office.” Tr. 135. Belland expected Shughart to come with him back to Fire Station 2, and at that point Belland planned to explain to him exactly what they needed to do, but Shughart had a different priority. Most important to him was getting to his 8:25 a.m. medical appointment, and it must have been clear to him that he would not be able to do so if he waited much longer.[15] In comparing the descriptions given by Shughart, Belland, and Simms of what happened after the meeting with the commander ended, it appears that Shughart walked directly out of the commander’s building toward his truck, which was parked nearby in the parking lot. At some point as the men were walking toward the parking lot, Belland announced that he would need to take Shughart’s ID card and line badge as part of the out-processing, but Shughart was already headed toward his truck. Belland’s mention of taking Shughart’s badges, in turn, triggered Simms’s comment that Shughart had not been removed from the federal service. By the time Belland and Simms had discussed this issue, even momentarily, Shughart was able to drive away.[16]
Either Col. Vivians or Sgt. Belland could have asked for Shughart’s badges before everyone left the building in which Vivians’s office is located. Obviously, they did not expect Shughart to leave the base without permission, but there is also no credible evidence that Simms knew Shughart would do that either. Belland testified that Shughart and Simms were “sort of talking . . . discussing something” as they walked out of the building, but that does not amount to proof of any improper collusion by Simms. Tr. 125. Numerous officials of the Respondent had their opportunities to confiscate Shughart’s badges, but they allowed Shughart to walk on his own into the parking lot, where Shughart’s truck was parked within a matter of feet. Simms’s actions (even assuming he moved between Shughart and Belland and waved his arms), could not have hindered Belland for more than a few seconds, if Belland was intent on taking away Shughart’s badges. The Respondent’s attempt to blame Shugart’s escape on Simms is akin to a parent blaming a crying child for the parent driving into a parked car; it is comparable to arriving late for a meeting and blaming it on a traffic light. I cannot accept the Respondent’s argument that Simms physically blocked Belland in any way or otherwise prevented him from accosting Shughart and stopping him from driving away. What remains, then, is Belland’s insistence that Simms lied, and committed flagrant misconduct, when he said, “no, Sarge, no . . . he’s not been removed from federal service, only his firefighting duties.” Tr. 115.
When the Respondent’s case is reduced to these terms, it is understandable that Respondent’s Counsel lacked the confidence to put all his eggs in this basket and sought to stretch Simms’s conduct into physical obstruction. Belland’s admonishment memo explicitly states that Simms was being rebuked for asserting that Shughart “had in fact not been removed” when he just been “removed [Shughart] as a civil service employee” by Col. Vivians. GC Ex. 2. There can be no escaping the fact that Belland (and the base management who supported Belland) punished Shughart for taking a position in defense of a bargaining unit employee he represented. See U.S. Dep’t of Def., Def. Contract Mgmt. Agency, Orlando, Fla., 59 FLRA 223, 226 (2003) (DCMA) (meeting with union official called to discuss official’s alleged misrepresentation of authority was nonetheless protected activity). Moreover, the merits (or lack thereof) of the issue Simms raised is beside the point. A union official is entitled to raise any arguments that he thinks may support the employee, even if those arguments are wrong, or baseless. See, e.g., Crown Central Petroleum Corp., 177 NLRB 322, 322 (1969), enf’d 430 F.2d 724, 730-31 (5th Cir. 1970), which was cited with approval by the Authority in DCMA, 59 FLRA at 228; see also EEOC, 24 FLRA 851, 855 (1986).
It is impossible (and indeed unnecessary) to put ourselves into Simms’s mind to understand why he thought it made a difference (with regard to Shughart’s legal status or rights or the need to surrender his ID card and badge) whether Shughart had been removed from his firefighter position or from the federal civil service. Simms tried to explain himself during his testimony, when he said, “Sgt. Belland and Sgt. Wilson both entered into the control room pointing at the letter, stating it says removal, removal, and I told them then, I’m not disputing it says removal. I said it does not say from civil service; it says he was removed from his GS-0081-07 firefighting position.” Tr. 32. It appears, therefore, that Simms believed that if Shughart had not been removed from the civil service, he might still retain the right to hold onto his ID and badge until any appeals were completed. Regardless of whether Simms was right or wrong on this point, he was not lying. Moreover, the factual distinction he made was at least partially correct: Simms insisted that the removal letter did not state that Shughart had been removed from the civil service, and indeed the letter does not use the phrase “removal from the civil service.” Col. Vivians’s removal letter refers to “removing you from your position for inability to perform the duties of the position” and to the lack of other positions Shughart was qualified to perform, but it does not (despite Belland’s insistence that it did) refer to removal from the civil service. Since the letter discussed the lack of another job for Shughart, it may have been logical to infer that he was being removed entirely from the civil service, but Simms’s failure to grasp that point cannot be construed as lying. It is clear that Simms was simply -- and legitimately -- trying to represent Shughart, and his assertion of a position cannot lawfully be treated by an agency as flagrant misconduct or other conduct exceeding the boundaries of protected activity.
The General Counsel has performed a detailed analysis of the so-called “Defense Mapping factors” relevant to a determination of whether Simms’s actions lost the protection of the Statute. See FAA, 64 FLRA at 411. In this case, however, those factors are not particularly useful or relevant, because Simms’s actions cannot accurately be described as an “outburst” or any other type of “intemperate” or abusive behavior. Id.; Defense Mapping at 79-81. Expressing his opinion in defense of Shughart should not be measured on a “flagrancy scale,” as it is substantively protected conduct. However, none of the factors cited in those cases support the Respondent here. While Belland did nothing to “provoke” Simms, there was nothing in Simms’s behavior that violated “the employer’s right to maintain order and respect for its supervisory staff on the jobsite.” Puget Sound, 2 FLRA at 55. The incident occurred outdoors, away from the general workplace; it took place within a matter of seconds; and Simms did nothing disruptive or intemperate. As I explained earlier, my analysis would be quite different if I believed that Simms consciously assisted Shughart in leaving the base without turning in his badges; but since I find that Simms simply raised a point verbally to Belland in defense of Shughart, his actions were at all times protected by section 7102 of the Statute. The Respondent had a right to confiscate Shughart’s badges, and it had a corollary right to insist that Simms not interfere with that activity; but Simms’s attempt to discuss the matter with Belland did not interfere with Belland’s performance of his duties.
For the foregoing reasons, I find that the Respondent orally admonished Simms for his protected activity without any legitimate justification, in violation of section 7116(a)(1) and (2).
Remedy
In most respects, the remedy for the Respondent’s unfair labor practice is clear and uncontroversial: an order to cease and desist the unlawful activity, to remove the oral admonishment from Mr. Simms’s personnel file, and to post a notice to employees of the violation. But in addition to the traditional posting of such a notice on bulletin boards at the base, the GC argues that the Respondent should also be ordered to electronically distribute a copy of the notice to all bargaining unit employees. Citing the testimony of Mr. Simms (Tr. 31-32), who is both a bargaining unit employee and a Union Vice President, regarding the Agency’s use of email, the GC asserts that email should similarly be used to disseminate this notice to employees.
The short answer to the GC’s request is that it has not met its burden of demonstrating that posting a notice in the traditional manner will not be adequate to accomplish the purposes of a notice posting, or that email dissemination will better serve those purposes. The long answer is that while the time and conditions may be ripe for reviewing the “tradition” of using bulletin boards as the primary means of disseminating a ULP notice, that is a policy decision for the Authority to make; and while the Authority has at least suggested that it might reconsider its notice-posting policy, it has not yet done so.
In U.S. Dep’t of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Florence, Colo., 59 FLRA 165, 173 (2003) (FCI Florence), the Authority stated that disseminating a notice through the agency’s email system was a nontraditional remedy and found that such an action was “not necessary to serve the goals of the notice remedy.” It reaffirmed the standard for fashioning nontraditional remedies:
[A]ssuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to recreate the conditions and relationships with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future conduct. These questions are essentially factual. As such, they should be argued and resolved in essentially the same fashion as other factual questions brought before us. As with other factual questions, the General Counsel bears the burden of persuasion, and the Judge is responsible for initially determining whether the remedy is warranted.
F.E. Warren AFB, Cheyenne, Wyo., 52 FLRA 149, 161 (1996) (Warren AFB) (citation and internal quotations omitted). The Authority has also explained that the posting of a notice after a ULP violation serves the dual purposes of demonstrating to bargaining unit employees that the respondent recognizes and intends to fulfill its statutory obligations, and that the Authority will vigorously enforce those statutory rights. National Guard Bureau, 57 FLRA 240, 245 (2001). The burden, therefore, is on the GC here to show, on the record, that posting the notice only on bulletin boards will not adequately communicate those dual messages to employees, and that combining bulletin board posting with email dissemination will better accomplish those purposes.
It might be reasonable to stop here momentarily and ask why the GC should even need to bother proving that disseminating the notice in two ways is likely to be more effective than disseminating it in only one way. That is essentially what the GC seeks: not to displace the “traditional” bulletin board posting, but to supplement it with an email sent by the Respondent (who has been found to have violated the Statute) to all employees in the bargaining unit. Is it, after all, a question open to reasonable dispute that using two means of communicating a message will be more effective than using one means? Or is the use of email to express this message such a significant break with the past, or so unduly burdensome, that it requires extraordinary justification? I am tempted to answer both of these questions in the negative, but the case law seems to suggest the opposite.
In FCI Florence, the GC sought an order directing the agency to post notices on its bulletin boards, as well as “on the television monitors and electronic mail system normally used to disseminate information to employees[.]” 59 FLRA at 169. Without distinguishing one of these supplemental forms of posting from the other, the Authority held that they “constitute a non-traditional remedy.” Id. at 174. It found that they were “not necessary to serve the goals of the notice remedy” and that the “traditional posting” (i.e. on bulletin boards) “will serve the stated goals.” Id. at 173. While the Judge described in some detail the evidence regarding the agency’s methods of communicating with employees (id. at 182), neither the Judge nor the Authority engaged in any lengthy analysis explaining why they believed the additional posting methods were necessary or not. It might be expedient to distinguish our case from FCI Florence by noting that in the latter case the GC sought to disseminate the notice both by email and on the television monitors, but I cannot see how the use of the monitors is significantly different from email. Rather, the distinguishing factor seems to be that the Authority identified its “traditional” method of posting as the use of bulletin boards, and any other form of posting was “nontraditional,” and accordingly required special factual justification.
It is worth noting here that the General Counsel has been seeking to establish email notice posting as part of the arsenal of “traditional” ULP remedies now for close to four years. I held a hearing in late 2009 in which this identical issue was litigated, and at that hearing, the GC offered extensive evidentiary proof as to how that respondent communicated with its employees, and how the employees received work-related news and other information. The GC demonstrated, to my satisfaction, that employees rarely used, or even saw, the information posted on bulletin boards, and that both the agency and employees used email as their main source of important information. As a result, I found in that case that the GC had met its burden of persuasion on the points set forth in Warren AFB and FCI Florence: that a bulletin board posting alone would not accomplish the purposes of a notice posting and that email dissemination was necessary to effectuate those purposes. DHS, U.S. Customs & Border Prot., El Paso, Tex., DA-CA-08-0179 & DA-CA-08-0180 (OALJ 10-03, January 27, 2010) (no exceptions filed).
I also noted in my DHS El Paso decision that while the Authority still considered email notice posting to be a nontraditional remedy, the NLRB was in the process of rethinking its stance on the same issue. Incorporating email posting as part of the standard process of posting notices was first advocated in a dissenting opinion in Int’l Business Machines Corp., 339 NLRB 966, 967 (2003) (dissenting opinion of Member Walsh). The position drew additional (but still not definitive) support in Nordstrom, Inc., 347 NLRB 294, 294-95 n.5 (2006); and Valley Hospital Medical Center, Inc., 351 NLRB 1250, 1250 n.1 (2007).
Subsequently, the Board’s evolution on the issue of electronic notice posting culminated in its adoption of a new policy in J. Picini Flooring, 356 NLRB No. 9 (2010). After issuing a notice inviting interested parties to submit briefs on the issue, the Board modified its policy and held that respondents who have been found to have committed a ULP “should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members.” Id. at 1. Such electronic distribution should be effectuated on the respondent’s intranet or internet site and by email, depending on what electronic means of communication are customarily used by the respondent; the Board further ruled that these latter questions should be resolved at the compliance stage of the case, not by the ALJ or the Board. Id. at 3-4.
Since its FCI Florence decision, the Authority has ordered email dissemination of a ULP notice in one case, but it limited its holding to the “facts and circumstances” of that case. U.S. DHS, U.S. Customs & Border Prot., El Paso, Tex.,67 FLRA 46, 50 n.4 (2012) (DHS El Paso).[18] After noting the parties’ positions regarding traditional and nontraditional remedies, the Authority stated, “[a]ssuming without deciding that e-mail dissemination of the notice is a non-traditional remedy, we find that the present facts and circumstances demonstrate that it is appropriate here.” Id. The Authority found not only that the respondent agency used its computer system as the primary means of communicating with employees, but also that the statutory violation being remedied was the agency’s refusal to bargain over computer and email access for employees. Id. Accordingly, email dissemination of the notice was “reasonably necessary and would be effective to recreate the conditions and relationships with which the [ULP] interfered,” and would “effectuate the policies of the Statute, including the deterrence of future violative conduct.” Id., quoting Warren AFB, 52 FLRA at 161.
It appears, therefore, that while the Authority may be open to a re-thinking of its policy regarding the posting of notices, it has not gone so far as the NLRB yet. And while there is much to be said for deferring resolution of the mechanics of notice-posting to the compliance process, the current case law requires the GC to demonstrate at the hearing that posting on bulletin boards alone is inadequate to accomplish the purposes of a ULP notice and that electronic dissemination of the notice is also necessary to accomplish those purposes. In my view, the key factor in determining whether a notice serves the dual purposes identified in National Guard Bureau is whether the message is effectively communicated to the maximum possible number of bargaining unit employees.[19] Thus, if the GC is to demonstrate that a “traditional” bulletin-board posting is less effective than dissemination of the notice by email, it should offer evidence, for example, that a significant number of employees do not see or read information placed on the bulletin board, and/or that significantly more employees will read the notice if it is sent by email.
The GC has not met its burden on this issue. On the contrary, I have spent far more time and effort in my decision, weighing the issues involved in fashioning an appropriate remedy, than the GC did during or after the hearing. The hearing transcript is almost totally devoid of any testimony regarding how the Respondent’s bulletin boards are used by employees, or how the Respondent’s email system is used by the employees. The only reference to this point in the record is a statement by Simms that he checks his email when he begins his shift, so that he can “make sure that any information that needs to be transferred from management to us, vehicles out of service, any information, really, that gets transferred to us via e-mail.” Tr. 31-32. All this shows is that employees have access to email at work and that the Agency communicates information to them by email. It does not show the extent to which email is used, nor does it show the relative effectiveness of email and bulletin board notices in communicating with the entire bargaining unit. If the GC seeks to convince a Judge or the Authority that ULP notices should be disseminated electronically – either in one case or in all future cases – it must actually offer persuasive evidence, not simply ask for the remedy as an afterthought.
I am sympathetic to the notion that requiring electronic dissemination of these notices should not be considered a major leap in federal administrative jurisprudence. Indeed, the NLRB’s language in J. Picini Flooring seems equally applicable to FLRA cases:
the Board’s current notice posting language, which requires posting in “conspicuous” places, including all places where notices to employees or members are customarily posted, is sufficiently broad to encompass new communication formats, including electronic distribution of remedial notices by email and/or posting on an intranet or the internet if a respondent customarily communicates with its employees or members by any of those means.
356 NLRB No. 9 at 3. The Authority’s “traditional” remedial notices have the identical language as NLRB notices, and the Authority has explicitly stated that the legal standard for evaluating ULP remedies under the Statute is the same as that for NRLB remedies. See Warren AFB, 52 FLRA at 161; U.S. Dep’t of Justice, Bureau of Prisons, Safford, Ariz., 35 FLRA 431, 444-45 (1990). Again citing from J. Picini Flooring, the Authority, like the Board, “has a duty to adapt its rules and policies to the demands of changing circumstances.” 356 NLRB No. 9 at 1. Communications technology is changing at a far faster pace than federal labor policy, and at the rate we are moving in regard to ULP notices, a change in FLRA policy may not occur until email has (like paper notices and wall-mounted bulletin boards) “gone the way of the telephone message pad and the interoffice envelope.” Id. at 2. Notwithstanding my personal sympathies, this is a policy decision that must be made by the Authority, not by me. My duty is to evaluate whether the GC has met its burden of persuasion that: (1) a bulletin board posting alone is inadequate to accomplish the purposes of a remedial notice; and (2) email dissemination of the notice is also necessary to accomplish those purposes. Since the GC has offered next to nothing in this regard, I cannot recommend such a remedy.
Accordingly, I recommend that the Authority issue the following Order:
ORDER
Pursuant to section 2423.41(c) of the Authority’s Rules and Regulations and section 7118 of the Federal Service Labor‑Management Relations Statute (the Statute), the Department of the Air Force, Joint Base Andrews, Maryland, shall:
1. Cease and desist from:
(a) Discriminating against bargaining unit employees because they engage in activity protected by the Statute.
(b) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Remove from the personnel and other official records of Donald Simms the oral reprimand or admonishment relating to his actions on February 8, 2011.
(b) Post at its facilities where bargaining unit employees represented by the International Association of Firefighters (IAFF) Local F-297, AFL-CIO are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander, 11th Wing/Joint Base Andrews, Maryland, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.41(e) of the Authority’s Rules and Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued Washington, D.C., July 10, 2013
_________________________________
RICHARD A. PEARSON
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of the Air Force, Joint Base Andrews, Maryland, violated the Federal Service Labor‑Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY EMPLOYEES THAT:
WE WILL NOT discriminate against bargaining unit employees for engaging in activity protected protected by the Statute.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Statute.
WE WILL remove from the personnel and other official records of Donald Simms the oral reprimand or admonishment relating to his actions on February 8, 2011.
____________________________________
(Agency/Activity)
Dated: ___________________ By: ____________________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1400 K Street, N.W., 2nd Floor, Washington, D.C. 20424, and whose telephone number is: (202) 357‑6029.
CERTIFICATE OF SERVICE
I hereby certify that copies of this DECISION, issued by RICHARD A. PEARSON, Administrative Law Judge, in Case No. WA-CA-11-0204, were sent to the following partie
[1] At some point, the name of Andrews Air Force Base was changed to Joint Base Andrews, but in this decision (except for the Order) I retain the name that was used in the Complaint, or I refer to it as Andrews. See, e.g., Tr. 23, 78, 149.
[2] The fire station to the west of the airfield is called “Fire Station 1,” and the station to the east is called “Fire Station 2.” Tr. 153‑54. Most of the events relevant to this dispute occurred in the vicinity of Fire Station 2.
[3] Thompson told Hofe to come with him to Fire Station 2, so that if Shughart requested a Union representative to accompany him to his meeting with the commander, Hofe would be there. Tr. 108‑09, 172, 196.
[4] Among the witnesses at the hearing, only Shughart and Belland were present at this initial conversation. Shughart testified that he not only mentioned his appointment, but that he mentioned it to Belland in particular. Tr. 172, 196. Belland neither explicitly confirmed nor denied that Shughart mentioned his medical appointment. See Tr. 106‑10. When asked whether Shughart said anything after being told of the meeting with Col. Vivians, Belland responded that Shughart “didn’t say anything initially.” Tr. 109 (emphasis added). This implies that Shughart did eventually say something, but Belland did not specify what, if anything, he recalled Shughart saying after his initial silence. Belland was not asked specifically whether Shughart told him about his 8:25 a.m. medical appointment.
[5] The distance between Fire Station 2 and the commander’s office was variously estimated as “75 yards” and a walk of “maybe a minute.” Tr. 29, 110.
[6] Mr. Thompson was carrying a radio that day because he was on call to provide immediate assistance for any emergency. Tr. 129. Although he walked with the group to the office building, he stood outside in order to monitor his radio. Id.
[7] Belland, Simms, and Shughart provided divergent accounts of what was said in the side office, but I do not consider these discrepancies to be material to the resolution of this case.
[8]According to Vivians’s own testimony, he did not specify that anything in particular needed to occur before Shughart could leave the base:
What I said was that Sgt. Belland was going to meet him in the hallway, that I was going to get him a copy of this document and he would be – you know, we would go through exactly what would need to happen at that point. I don’t know if I used checkpoint procedures, but I said, you know, Sgt. Belland’s going to meet you outside, I’m going to get you a copy of this document and then he’ll take you from there.
Tr. 91. Simms corroborated that Vivians did not tell Shughart that he needed to turn in his ID or badges or that he must do anything else before leaving the base. Tr. 28.
[9] It is not clear what Simms thought was the functional difference between Shughart being removed from his “firefighter position” or being removed from the “civil service,” because Simms recognized that, as stated in the removal letter, there were “no other position[s] on base for [Shughart]” at that time. Tr. 51. See also my discussion of this at page 14, infra.
[10] In Belland’s testimony, he said Simms moved to place himself between Belland and Shughart, in a manner that prevented Belland from pursuing Shughart and collecting his access badge and ID card. Tr. 115‑16. In addition, Belland testified that Simms was waving his arms and hands at about shoulder height to get Belland’s attention. Tr. 135‑36, 142. I consider it significant that these assertions do not appear anywhere in the actual admonishment Belland later gave Simms regarding this event. See GC Ex. 2. I discuss this more fully at pages 11-12, infra.
[11] Although Belland indicated that Shughart began walking more quickly toward his vehicle after he refused Belland’s request (Tr. 114), I find it more likely that Shughart had been walking briskly from the time he exited Vivians’s building because Shughart was concerned about making it to his appointment on time.
[12] No action was taken against Belland for the failure to retrieve Shughart’s badges. Chief Barone stated, “I didn’t discipline him because he was lied to by Mr. Simms and he basically – I looked at the situation and I didn’t feel that he did anything wrong.” Tr. 166.
[13] My conclusion on this point is reinforced by the fact that when Belland returned to the fire station a few minutes later to resume his discussion with Simms about Shughart’s status, Belland first asked Simms whether he was acting as Shughart’s representative. Tr. 119.
[14] Some decisions couch the legal standard in terms of “flagrant misconduct.” U.S. Dep’t of Energy, Oak Ridge, Tenn., 57 FLRA 343, 345 (2001); Dep’t of the Navy, Puget Sound Naval Shipyard, Bremerton, Wash., 2 FLRA 54, 55 (1979)(Puget Sound). Since the Court of Appeals decision in Dep’t of the Air Force, 315th Airlift Wing v. FLRA,294 F.3d 192 (2002) (315 Airlift Wing), however, the Authority has emphasized that flagrant misconduct is simply “illustrative of” the type of action that may “otherwise exceed[ ] the boundaries of protected activity.” FAA, 64 FLRA at 411; Davis Monthan, 58 FLRA at 636.
[15] As I explained in footnote 4, Shughart insisted that he told Belland at the outset that he needed to make his medical appointment, while Belland’s testimony is not conclusive whether he was told about the appointment. Even if Belland was unaware of the appointment, it clearly was the motivation behind Shughart’s hasty departure.
[16]Shughart and Simms both testified that when Shughart was getting into his truck, Simms asked him for the copy of the removal letter, so that he could show it to Belland, and both men testified that Shughart refused to show the letter and instead drove away. Tr. 30-31, 176. Belland was not asked about such a conversation. If this conversation occurred (as I believe is most likely), it would further support Simms’s insistence that, rather than assisting Shughart in escaping, he was trying to resolve a disagreement regarding Shughart’s job status, and it would have given Belland even more time to approach the truck and stop Shughart.
[17] In light of this finding, it is not necessary for me to decide the more general question of whether Simms could have been punished if he had actually lied to Belland in the course of representing Shughart.
[18] This is not the same case that I decided in 2010 and discussed above, although the parties are the same.
[19]Unlike the situation in DHS El Paso, 67 FLRA at 50 n.4, the Respondent’s unfair labor practice in our case (admonishing a union official for speaking in defense of an employee) is not directly related to the Respondent’s methods of communicating with employees. Thus there is no special reason here to relate the remedy for the ULP to the Respondent’s email system.