It is rare to see a dismissal of an unfair labor practice allegation by the Federal Labor Relations Authority (FLRA).
There are a couple of reasons for this. First, the FLRA doesn’t publish or make these decisions available electronically. Second, and more likely, unions are offered the opportunity to withdraw charges by FLRA Regional Offices before dismissing them.
In other words, the regional director says, “Your case has no merits and we’re not interested in pursuing it so unless you withdraw, we’ll dismiss it and send the Agency a copy.” Unions generally don’t want Agencies to have a piece of paper saying their claims were groundless.
What is Protected Union Conduct?
The law protects union representatives and employees when engaged in legitimate labor relations activity. Many of those on the management side of the table have found themselves subjected to abusive diatribes, foul language, or downright threatening conduct and, if they object, are often told by FLRA field agents or attorneys to suck it up as protected union activity based on the policies of the Authority. The FLRA’s standard requires “flagrant misconduct” or remarks or conduct of such “an outrageous and insubordinate nature” to remove behavior or remarks from protection.
The following are not my words but come from the FLRA’s website under “Federal Labor Relations Authority, Office Of The General Counsel, Unfair Labor Practice Case Law Outline, Julia Akins Clark, General Counsel:”
Union Activity May Lose Protections In Certain Circumstances
In certain unique cases, an employee who is otherwise engaged in what would be protected union activity may lose that protection if his or her conduct exceeds the boundaries of protected activity, such as by “flagrant misconduct.” U.S. Dep’t of the Air Force, Aerospace Maint & Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636, 636 (2003).
Remarks or conduct that are of such “an outrageous and insubordinate nature” as to remove them from the protection of the Statute constitute flagrant misconduct. Naval Facilities Eng’r Command, W. Div, San Bruno, Cal., 45 FLRA 138, 156 (1992).
In deciding whether behavior constitutes flagrant misconduct, the Authority balances the employee’s right to engage in protected activity, which permits leeway for impulsive behavior, against management’s right to maintain order and respect for supervision on
the job site. Dep’t of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7, 10-11
The Authority considers four factors in this analysis:
(1) the place and subject matter of the discussion;
(2) whether the outburst or conduct was impulsive or designed;
(3) whether the employee was provoked by the employer’s conduct; and
(4) the nature of the intemperate language or conduct. Def. Mapping Agency Aerospace Ctr., St. Louis, Mo., 17 FLRA 71, 81 (1985).
Criminal conduct will not be protected. Long Beach Naval Shipyard, Long Beach, Cal., 25 FLRA 1002, 1006 (1987).
In this context, the D.C. Circuit determined that a physical confrontation which met the legal definition of “assault and battery,” will not be protected regardless of provocation and other circumstances. Dep’t of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192, 201-02 (D.C. Cir. 2002).
Unfortunately, FLRA’s determinations are subjective. FLRA has relied on the expression “full, free and robust debate among equals” to forgive a multitude of rude, crude and demeaning comments by union officials. If you notice the opening words of Ms. Clark’s Outline, “In certain unique cases…,” you’ll catch that FLRA thinks Agencies may rarely object to union incivility or worse.
A Case of Base Road Rage
You must read this case for yourself but basically the union president loses his base driving privileges and complains to the commanding officer. The command’s master chief hears and denies the appeal to reconsider that decision so the union president writes a letter to the Agency claiming the decision is idiotic and going further states:
I may provide you additional official response from AFGE separately, if I feel like amusing myself further at the local level. I actually thought you might shed some light of intelligence on NSASP management in regard to labor relations. Apparently I was mistaken. I presume you are also caused to be a puppet of the ignorance at the top that is too blind to see the forest for the tree. I feel sorry for you having to deal with such an egotistical idiot being in charge of their own little world and their own ultimate demise. Given time, I will do what I am able to relieve you of the burden of such ignorant, irresponsible directive conduct along with the many others who concur with my assessment while behind the back of the offender.
The commanding officer, not surprisingly, sees a threat in this and turns it over to NCIS for investigation. NCIS determines the matter is not a felony and closes the case. The union president then decides that the commander’s decision to involve NCIS must be a conspiracy to violate his union rights and files an unfair labor practice.
FLRA’s Regional Director determined that the union president’s comments were not protected under the statute and dismisses the ULP.
I don’t know whether the union will appeal the decision to dismiss to Ms. Clark, FLRA’s General Counsel, but if it does, I guess we will find out whether she agrees with the Regional Director or not.
The Lesson in All of This
Federal unions, despite well intentioned politicians, won’t achieve the equality they claim to want as long as their leaders at all levels continue to believe that intimidation and bully tactics are the way to succeed. It’s no longer 1880 and they aren’t representing the oppressed masses toiling day in and day out in the sweat shops or packing plants under the evil eye of the cruel overseers.
This union president used his position to try and get out of a problem he created for himself unrelated to union activity. If his union whether at the local, district or national level wants some respect, the behavior outlined in this case needs to be addressed and at the very least condemned.
As always, any opinion expressed is my responsibility alone.