No Blood, No Foul, No Unfair Labor Practice

Political battle arises over the creation of the Department of Homeland Security but this recent decision from the FLRA may give the Administration ammunition in its argument that the current program isn’t efficient or effective.

DC Court Blasts Decision Upholding Union Representative’s Attack on Federal Supervisor

“[E]ven if a technical assault and battery occurred…there is no reason to believe that it is dispositive of the question of flagrant misconduct.”

Federal Labor Relations Authority, April 18, 2001 “Preposterous”

Court of Appeals for the District of Columbia, July 12, 2002

Timing is everything.

An event that would usually go unnoticed becomes significant just because it happened at a particular time. The Court of Appeals for the District of Columbia and the Federal Labor Relations Authority have just stepped into the political limelight for their 15 minutes of fame.

Here’s why.

As most readers know, President Bush wants to create a Department of Homeland Security. He also wants to keep the power he already has under existing law to declare some employees ineligible for representation by a labor union when it is in the interest of national security.

While that doesn’t sound like a big deal, particularly since this presidential prerogative already exists in the Civil Service Reform Act, it has created a barrage of political invective from unions representing Federal employees and several Congressional representatives, including Rep. Steny Hoyer who represents a number of Federal employees living in Maryland. (See a related article on this topic: Politics, Money, and Unions: Reality Strikes Home In the Department of Homeland Security)

The administration wants to create an organization that will respond quickly to threats and it believes having unions represent some of these employees would make it difficult to do this. The unions want to represent as many Federal employees as possible. They contend that having unions around negotiating labor agreements, attending meetings, and using official time to file grievances wouldn’t interfere with the responsiveness of the Department of Homeland Security.

In short, creating the new Department is a political battle that has delayed Congressional passage of legislation creating the new Department. Presumably, it will be resolved when Congress returns to Washington following their August recess.

With this background, enter the Court of Appeals for the District of Columbia and the Federal Labor Relations Authority (FLRA).

Here’s what happened: On October 1, 1998, a union representative showed up at a meeting with an employee and a supervisor. The purpose of the meeting was for the supervisor to review the employee’s performance.

The court described what happened next:

[T]he Union representative engaged in an “attack” verbally and physically against the supervisor by physically touching up against her while not being in complete control of himself and acting in an angry manner, effectively backing her up against a counter and forcing her to lean backward in an attempt to get away from him, and that the representative was using threat-like gestures so forcefully that she could reasonably fear being hit by some unpredictable blow from him.

Surprisingly, the union representative wasn’t fired. On January 15, 1999, he received a three-day suspension from Charleston Air Force Base.

Unsurprisingly, the union filed an unfair labor practice contending that the attack on the supervisor was protected union activity. Amazingly, the Federal Labor Relations Authority agreed with the union concluding that the attack was not “flagrant misconduct” and that the Air Force couldn’t touch the union representative by taking disciplinary action.

The Court found the FLRA decision both “surprising” and “preposterous.”

Here is how the court characterized the effect of the FLRA’s rationale:

A woman in the federal workplace must be aware that if one of her fellow male employees wishes to confront her physically, force her to go belly-to-belly, place her in reasonable fear of an unpredictable blow while ranting and raving at her, and if her agency takes any action to protect her, the male employee cannot be disciplined provided only that he was purporting to act on behalf of a labor organization when he committed the assault, battery, and harassment of his female co-worker.

To highlight its conclusion, the court quoted from an earlier decision and opined: ” ‘it is preposterous’ ” to suggest as the FLRA seems to, ” ‘that employees are incapable of organizing a union or exercising their other statutory rights … without resort to abusive or threatening language'” or without resort to a physical response.”

In short, the court roundly rebuked the FLRA and held that the three-day suspension issued more than three years ago was not an unfair labor practice. (No one said the administrative process was fast or even efficient.)

To think that politics doesn’t play a role in FLRA decisions would be naïve. Here is the underlying drama in this play.

The initial decision of the FLRA was a split decision. Dale Cabiniss was the lone dissenting vote. She is a Republican appointed by President George W. Bush. At the time the FLRA decision was issued, she was the only Republican member of the FLRA. Her background was working as a staffer on Capitol Hill including a position with Senator Stevens(R-AK).

The dissenting opinion issued by Cabiniss was essentially adopted by the Court of Appeals in its ruling.

The other two members of the FLRA at the time were Donald Wasserman and Carol Waller Pope. Both Wasserman and Pope were appointed by President Clinton. Prior to his appointment, Wasserman had spent most of his career working for a large union. Pope’s career was working for the General Counsel of the FLRA in several positions. Wasserman’s term expired subsequent to the decision and he has since been replaced by another Republican, Tony Armendariz.

Will this recent FLRA decision and the rejection by the Court of Appeals play a role in the upcoming Congressional decision regarding the Department of Homeland Security? Count on it. We anticipate this will be spread throughout Congressional staff offices as evidence as to why the President needs authority to prevent unions from representing employees in national security positions.

Will it be persuasive? No one knows. But the FLRA and the Court of Appeals have played their hand, even if unwittingly, in this political tug of war.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47