CASE SCHEDULED FOR ORAL ARGUMENT ON APRIL 25, 2002
No. 01-1275
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
DEPARTMENT OF THE AIR FORCE,
315TH AIRLIFT WING,
CHARLESTON AIR FORCE BASE,
CHARLESTON, SOUTH CAROLINA,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1869,
Intervenor
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
CASE SCHEDULED FOR ORAL ARGUMENT ON APRIL 25, 2002
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici
Appearing below in the administrative proceeding before the Federal
Labor Relations Authority (Authority) were the Department of the Air
Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, South
Carolina (Respondent) and American Federation of Government Employees,
Local 1869 (Union). The Respondent is the petitioner in this court
proceeding; the Authority is the respondent; the Union is the
intervenor.
B. Ruling Under Review
The ruling under review in this case is the Authority's Decision and
Order in Department of the Air Force, 315th Airlift Wing, Charleston Air
Force Base, Charleston, South Carolina, 57 FLRA 80 (2001).
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority are unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 3
I. Background 3
II. The ALJ's Decision and Recommended Order 5
III. The Authority's Decision and Order 8
STANDARD OF REVIEW 11
SUMMARY OF ARGUMENT 11
ARGUMENT 13
I. The Administrative Exhaustion Requirement of § 7123(c)
Bars Petitioner from Raising to this Court for the First Time
the Issue of Whether the Authority's Flagrant Misconduct
Standard Is A Proper Interpretation of 5 U.S.C. § 7102 13
A. The Language of § 7123(c) 14
B. Petitioner Cannot Satisfy the "Extraordinary
Circumstances" Exception 14
II. The Authority's Long-held "Flagrant Misconduct" Standard, Applied in this
Case, Is A Reasonable Interpretation of § 7102 of the Authority's Own Organic
Statute 18
A. The Authority's Long-held Standard Is Consistent with
Related National Labor Relations Board Law 19
B. Petitioner's Arguments and the Cases Relied upon by
Petitioner to Support Its Position Are Not Persuasive 21
1. The Court decisions reviewing the NLRB's
"flagrant" or "opprobrious" conduct standard are distinguishable 21
2. Petitioner misinterprets the "efficiency of the service"
standard under 5 U.S.C. § 7503(a) 22
III. The Authority Properly Applied Its "Flagrant Misconduct" Standard to the
Facts of this Case in Finding that Mr. Egal Was Wrongly Disciplined for His
Conduct that Occurred during the Course of Protected Activity 24
CONCLUSION 28
CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT
RULE 28 29
ADDENDUM
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (2000), and other
pertinent statutory provisions A-1
TABLE OF AUTHORITIES
Adtranz Abb Daimler-Benz Transportation, Inc. v. NLRB,
253 F.3d 19 (D.C. Cir. 2001) 21
Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997) 25
American Fed'n of Gov't Employees, Local 2343 v. FLRA,
144 F.3d 85 (D.C. Cir. 1998) 11
* Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984) 11, 20
Department of Defense Dependents Schools v. FLRA, 863 F.2d 988
(D.C. Cir. 1989), vacated on other grounds, 911 F.2d 743
(D.C. Cir. 1990) 12, 14, 15, 16, 17
* EEOC v. FLRA, 476 U.S. 19 (1986) 14
Felix Industries, Inc. v. NLRB, 251 F.3d 1051 (D.C. Cir. 2001) 20, 21
Gloster v. GSA, 720 F.2d 700 (D.C. Cir. 1983) 23
* NFFE & FLRA v. Dep't of the Interior, 526 U.S. 86 (1999) 11, 20
NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965) 19
NLRB v. Weingarten, 420 U.S. 251 (1975) 4
* Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998) 11, 25, 27
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
* Air Force Flight Test Center, Edwards Air Force Base, California,
53 F.L.R.A. 1455 (1998) 7, 9, 16, 25, 26
Dep't of the Navy, Puget Sound Naval Shipyard, Bremerton, Wash.,
2 F.L.R.A. 54 (1979) 18, 19
* Department of the Air Force, Grissom Air Force Base, Indiana,
51 F.L.R.A. 7 (1995) passim
United States Dep't of Energy, Oak Ridge, Tenn.,
57 F.L.R.A. 343 (2001) 17
United States Dep't of Labor, Employment and Training Admin.,
20 F.L.R.A. 568 (1985) 9
United States Department of Justice, United States Marshals Service,
26 F.L.R.A. 890 (1987) 26
DECISIONS OF OTHER ADMINISTRATIVE AGENCIES
* Atlantic Steel Co., 245 N.L.R.B. 814 (1979) 20, 21, 22
Farris v. United States Postal Service, 14 M.S.P.R. 568 (1983) 23, 24
Health Care and Retirement Corp. of Am., 306 N.L.R.B. 63 (1992),
rev'd on other grounds, NLRB v. Health Care & Retirement
Corp. of Am., 511 U.S. 571 (1994) 19
Social Security Administration v. Burris, , 39 M.S.P.R. 51 (1988) 23, 24
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (2000) 1, 2
* 5 U.S.C. § 7102 passim
5 U.S.C. § 7105(a)(2)(G) 1
5 U.S.C. § 7114(a)(2)(B) 4
5 U.S.C. § 7116(a)(1) 2, 5, 9
5 U.S.C. § 7116(a)(2) 2, 5
5 U.S.C. § 7117(c) 17
5 U.S.C. § 7118 2
* 5 U.S.C. § 7123(c) passim
5 U.S.C. § 706(2)(A) 11, 25
5 U.S.C. § 2302(b)(9) 24
5 U.S.C. § 7503 13, 22, 23
5 U.S.C. § 7513 22
*Authorities upon which we chiefly rely are marked by asterisks.
GLOSSARY
Add. Addendum
Adtranz Adtranz Abb Daimler-Benz Transportation, Inc. v. NLRB, 253 F.3d
19 (D.C. Cir. 2001)
Air Force Department of the Air Force, 315th Airlift Wing, Charleston
Air Force Base, Charleston, South Carolina
ALJ Administrative Law Judge
App. Appendix
Atlantic Steel Atlantic Steel Co., 245 N.L.R.B. 814 (1979)
Authority Federal Labor Relations Authority
Burris Social Security Administration v. Burris, 39 M.S.P.R. 51 (1988)
Chevron Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984)
Dependents Schools Department of Defense Dependents Schools v. FLRA, 863 F.2d
988 (D.C. Cir. 1989), vacated on other grounds, 911 F.2d 743 (D.C. Cir.1989)
EEOC EEOC v. FLRA, 476 U.S. 19 (1986)
Farris Farris v. United States Postal Service, 14 M.S.P.R. 568 (1983)
Felix Felix Industries, Inc. v. NLRB, 251 F.3d 1051 (D.C. Cir.
2001)
Flight Test Center Air Force Flight Test Center, Edwards Air Force Base,
California, 53 F.L.R.A. 1455 (1998)
Gloster Gloster v. GSA, 720 F.2d 700 (D.C. Cir. 1983)
Grissom Department of the Air Force, Grissom Air Force Base, Indiana, 21
F.L.R.A. 7 (1995)
Marshals Service United States Department of Justice, United States
Marshals Service, 26 F.L.R.A. 890 (1987)
MSPB Merit Systems Protection Board
NLRB National Labor Relations Board
Pet. Br. Petitioner's Brief
Petitioner Department of the Air Force, 315th Airlift Wing, Charleston
Air Force Base, Charleston, South Carolina
Power Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998)
Puget Sound Dep't of the Navy, Puget Sound Naval Shipyard, Bremerton, Wash.,
2 F.L.R.A. 54 (1979)
Statute Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (2000)
ULP Unfair Labor Practice
Union American Federation of Government Employees, Local 1869
ORAL ARGUMENT SCHEDULED FOR APRIL 25, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 01-1275
_______________________________
DEPARTMENT OF THE AIR FORCE,
315TH AIRLIFT WING,
CHARLESTON AIR FORCE BASE,
CHARLESTON, SOUTH CAROLINA,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1869,
Intervenor
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The decision and order under review in this case was issued by the Federal
Labor Relations Authority (Authority) in 57 F.L.R.A. 80 (2001), a copy of
which is found at Appendix (App.) 5 - 9. The Authority exercised
jurisdiction over the case pursuant to § 7105(a)(2)(G) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2000)
(Statute).[1] This Court has jurisdiction to review the Authority's final
decisions and orders pursuant to § 7123(a) and (b) of the Statute.
STATEMENT OF THE ISSUES
I. Whether the administrative exhaustion requirement set forth in 5 U.S.C. §
7123(c) prevents the petitioner from raising for the first time before this
Court the issue of whether the FLRA's standard for "flagrant misconduct" under 5
U.S.C. § 7102 is proper.
II. Whether the Authority's long-held standard for "flagrant misconduct" is a
reasonable interpretation of its own organic statute, specifically 5 U.S.C. §
7102.
III. Whether the Authority properly applied its "flagrant misconduct"
standard to the facts of this case in finding that an employee was wrongly
disciplined for conduct occurring during the course of protected
activity.
STATEMENT OF THE CASE
This case involves an unfair labor practice (ULP) proceeding brought under §
7118 of the Statute. Based upon a ULP charge filed by the American
Federation of Government Employees, Local 1869 (Union), the Authority's
General Counsel issued a complaint alleging that the Department of the Air
Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, South
Carolina ("petitioner" or "Air Force") violated § 7116(a)(1) and (2) of the
Statute. App. 5, 10. Specifically, the complaint alleged that the Air
Force violated the Statute by suspending the Union president for three days
because of his participation in activities protected by the Statute. Id.
The Administrative Law Judge (ALJ) found that the Air Force had violated the
Statute as alleged. App. 5, 18. The Air Force filed exceptions to the
ALJ's decision and recommended remedial order. App. 5. The Authority
issued a final decision concluding that the Air Force violated the Statute
and ordering an appropriate remedy.[2] App. 5.
The Air Force now seeks review, and the Authority seeks enforcement of the
Authority's decision and order pursuant to 5 U.S.C. § 7123(a) and (b). The
Union has intervened in this proceeding.
STATEMENT OF THE FACTS
I. Background
This case arose from the October 1, 1998 performance feedback session of
Sharon Richardson. App. 11. Ms. Richardson, a bargaining unit employee
represented by the Union, is an aircraft structural technician who works in
an organizational component known as Fabrication Flight at Charleston Air
Force Base. App. 10. Ms. Richardson's supervisor for performance appraisal
purposes is Georgia Fallaw. Id. Ms. Fallaw is an air reserve technician
who serves as aircraft overhaul supervisor. Id. Ms. Fallaw and Ms.
Richardson have had a strained relationship dating from Ms. Fallaw's October
1997 promotion to her current position. App. 10-11.
On the morning of October 1, 1998, Ms. Fallaw informed Ms. Richardson that
she wanted to conduct a performance feedback session later that day. App.
11. Ms. Richardson informed Ms. Fallaw that she wanted a Union
representative present. Id. Thereafter, Ms. Richardson contacted Richard
Egal, the Union president, and asked him to represent her at the performance
feedback session. Id.
Ms. Fallaw asked Senior Master Sergeant Grace Picicci to be present in the
action flight office when Ms. Fallaw was to meet with Ms. Richardson. Id.
Master Sergeant Picicci is the Fabrication Flight superintendent and shares
the action flight office with Ms. Fallaw. Id. The action flight office is
a private suite that includes a reception area and an inner office. Id.
At the scheduled time for the performance feedback session, Ms. Fallaw and
Master Sergeant Picicci, and Mr. Egal and Ms. Richardson arrived in the
suite area. App. 11, 12. These four were the only individuals present.
Ms. Fallaw asked what Mr. Egal was doing there. Id. Ms. Richardson said
that she had talked to Phillip Dalpiaz in the Air Force's Civilian Personnel
Office, but nevertheless wanted a Union representative present. Id. She
asserted a "Weingartner" right.[3] App. 11. Ms. Fallaw determined that Mr.
Egal would not be allowed to attend the session and so informed Ms.
Richardson and Mr. Egal. App. 11, 12. She then asked Ms. Richardson
whether she was ready for her feedback, and Ms. Richardson said that she
was. App. 12. Ms. Richardson walked into the action flight office, and Ms.
Fallaw followed. Id.
Mr. Egal asked Ms. Fallaw whether she was denying Ms. Richardson's right to
representation. Id. Ms. Fallaw responded that Ms. Richardson was not
entitled to representation because it was a performance feedback session.
Id. She added that she believed Mr. Egal had accompanied Ms. Richardson to
the meeting in order to intimidate and harass her. Id.
Because of Ms. Fallaw's decision to exclude Mr. Egal from the session, Mr.
Egal became angry and challenged her decision. He then moved close to Ms.
Fallaw to the point of "marginal[]" physical touching. App. 15. During a
brief exchange, Mr. Egal indicated that Ms. Fallaw was denying Ms.
Richardson's union rights, and that action would be taken. Id. at 12, 13,
16. After this exchange, Ms. Fallaw suggested to Ms. Richardson that they
postpone the feedback session, but Ms. Richardson wanted to proceed. App.
13.
On November 30, 1998, Mr. Egal received a "Notice of Proposed Suspension,"
proposing a three-day suspension for his "flagrant misconduct" toward Ms.
Fallaw on October 1, 1998. App. 14. The Air Force then issued a "Notice of
Decision to Suspend," and implemented the proposed suspension for three days
without pay. Id. Based upon a ULP charge filed by the Union, the
Authority's General Counsel issued a complaint alleging that the Agency
violated § 7116(a)(1) and (2) by suspending Mr. Egal because of his
participation in protected activities. App. 10. The Chief ALJ denied both
parties' motions for summary judgment. Id. The case proceeded before an
ALJ.
II. The ALJ's Decision and Recommended Order
After a hearing and consideration of both parties' briefs, the ALJ held
that Mr. Egal, "while engaged in protected activity, committed misconduct
that was not 'flagrant' by Authority standards." App. 18. Therefore, the
ALJ found, the Air Force violated § 7116(a)(1) and (2) by suspending Mr.
Egal for the conduct. Id.
This determination by the ALJ came after thorough consideration of all facts
and testimony. App. 14. He noted that all witnesses gave "what they
believed to be honest accounts of their recollections of the incident," and
attributed disparity in the testimony to various justifiable and
unobjectionable factors. Id. In the final analysis, he determined that
Master Sergeant Picicci was the most reliable witness because of her
position to view the incident as well as her lack of intimate involvement in
the matter. Id. Thus, he determined that her account was the closest to
describing the actual event. Id.
Based upon this careful analysis, particularly the testimony of Master
Sergeant Picicci, the ALJ determined that Mr. Egal engaged in physical
"touching" of Ms. Fallaw, but "only marginally." App. 15. He also found
that Mr. Egal's manual gestures that were within six inches of Ms. Fallaw's
face or chest put Fallaw reasonably in fear of some unpredictable blow, but
were not indicative of significant body contact. Id. Finally, he
determined that the entire confrontation lasted only 10 to 20 seconds. App.
16.
The ALJ then analyzed the § 7102 right of employees to engage in protected
activities without fear of penalty or reprisal. Id. He noted that this
right does not immunize employees from discipline, explaining that "[m]
anagement's right to take disciplinary action includes the right to
discipline a union representative for activities that are not specifically
on behalf of the union or which exceed the boundaries of protected activity,
such as flagrant misconduct." Id.
The ALJ first determined that Mr. Egal's conduct occurred during the course
of protected activity, and therefore should be evaluated under the
Authority's "flagrant misconduct" standard. He next examined the
Authority's criteria for flagrant misconduct as recently restated in
Department of the Air Force, Grissom Air Force Base, Indiana, 51 F.L.R.A. 7,
11-12 (1995) (Grissom) (citing Dep't of Def. Mapping Agency, Aerospace Ctr.,
St. Louis, Mo., 17 F.L.R.A. 71, 80-81 (1985)). The ALJ concluded that Mr.
Egal's conduct "did not exceed the broad scope of intemperate behavior that
remains within the ambit of protected activity." App. 16.
As the Authority's standard requires, the ALJ balanced the employee's right
to engage in protected activity against the "employer's 'right to maintain
order and respect for its supervisory staff on the jobsite.'" Id. (quoting
Grissom, 51 F.L.R.A. at 11). He then applied the four relevant factors to
be considered in analyzing this balance with regard to the incident at
issue.
First, the ALJ found that neither the place nor the subject of Mr. Egal's
discussion with Ms. Fallaw impinged on the Air Force's right to maintain
order and respect. Significant, in this regard, was the incident's
occurrence outside of the presence of any nonsupervisory employees other
than Ms. Richardson and Mr. Egal. Second, the ALJ found that Mr. Egal's
angry and somewhat out-of-control behavior showed no indication that the
incident was pre-planned. Id. at 16-17. Third, Ms. Fallaw's conduct was
also significant to the ALJ, as he found that she provoked Mr. Egal's
behavior somewhat by telling him "that his very presence was designed to
intimidate and harass her." App. 17. The ALJ found that her conduct could
have frustrated Mr. Egal, and although it did not justify Mr. Egal's
conduct, it "probably affected it." Id.
On the fourth factor, the nature of the language and conduct, the ALJ
compared this incident to the situation considered by the Authority in Air
Force Flight Test Center, Edwards Air Force Base, California, 53 F.L.R.A.
1455, 1455-56 (1998) (Flight Test Center). The ALJ found Mr. Egal's
behavior to be comparable to that found to be protected in Flight Test
Center. Id. The "marginal[]" touching, according to the ALJ, was balanced
by other considerations such as the evidence of some provocation, the
brevity of the incident, and the cessation of the incident without outside
interference. The ALJ also noted that Mr. Egal's status as a Union official
on 100% official time "might cause such an incident to have less effect on
employee-supervisor relationships than would comparable incidents between
employees and their own supervisors." Id.
The ALJ therefore determined that the Air Force committed a ULP. He
recommended that the Authority order the Agency to cease and desist from its
unlawful conduct, rescind the three-day suspension and remove any reference
to the suspension from the Air Force's file, and to post at all its
facilities an appropriate notice. App. 18. The Agency timely excepted to
the ALJ's decision.
III. The Authority's Decision and Order
The Authority adopted the ALJ's findings, conclusions, and recommended
decision and order,[4] and thus concluded that Mr. Egal's conduct was
protected activity that did not constitute flagrant misconduct. App. 5. As
a result, it held that the Air Force violated the Statute by suspending Mr.
Egal. Id.
Initially, the Authority noted a significant finding of fact to which the
Air Force did not except. Specifically, the finding that "the disputed
conduct was 'assuming a physical position with respect to [the supervisor]
that was so close to have involved some "touching" and . . . his use of
certain threat-like gestures and an angry demeanor, accompanied by a sort of
ranting, all in the course of 10 to 20 seconds.'" App. 5 (quoting ALJ's
Decision at 15). Also significant was the ALJ's finding that the touching
was "marginal." Id. Although not excepting to these significant factual
findings, the Air Force characterized Mr. Egal's conduct in ways that were
"at odds with the [same] factual findings." Id. In this regard, the
Authority stated that the Air Force's differing characterizations relied on
testimony discounted by the ALJ. Id.
In reviewing the ALJ's decision, the Authority found that the ALJ "correctly
applied the relevant factors for resolving the issue of alleged flagrant
misconduct" set forth in Grissom, 51 F.L.R.A. at 11-12. Id. Particularly
persuasive to the Authority were the conclusions that the incident occurred
in a private office, outside the presence of nonsupervisory employees other
than Ms. Richardson and Mr. Egal; that Mr. Egal's behavior was impulsive;
and that his behavior was "somewhat provoked by the supervisor." Id.
The Authority explained that although it does not condone "both verbal
outbursts and allegedly belligerent nonverbal conduct," similar conduct was
found protected in its Flight Test Center case. Id. (internal quotations
and citation omitted). Further, the Authority noted, it had previously held
that a management representative did not violate § 7116(a)(1) when the
management representative made physical contact with a union representative
causing the union representative to fall against a wall. App. 6 (citing
United States Dep't of Labor, Employment and Training Admin., 20 F.L.R.A.
568, 569 (1985)).
Recognizing the dissent's accuracy in stating that the Authority has
considered physical responses by both union and management representatives,
as a general rule, to be beyond the limits of acceptable behavior, the
Authority nonetheless stated that it has "never adopted a per se rule that
any touching violates the Statute." App. 6. The Authority acknowledged
that circumstances in which physical contact is considered protected would
be "rare." Id. Nevertheless, in this case the Authority was persuaded that
because of the ALJ's undisputed finding that the touching was "marginal" and
because of the ALJ's careful evaluation of the testimony, the touching in
this case was protected. Id.
In response to the dissent's characterization of the incident as an assault
and battery by Mr. Egal, the Authority observed that it has no jurisdiction
or expertise over whether the incident could be so characterized. Id. In
any event, the Authority concluded, such a characterization would not be
dispositive of the question of flagrant misconduct. Id. The Authority also
explained that by highlighting a reference by the ALJ to the incident as an
"attack," the dissent ignored the context of the ALJ's finding in which he
referred to the matter as an "attack." Id.
The Authority, in conclusion, addressed the dissent's concerns about
workplace violence by noting that the holding in this case did not condone
workplace violence. Id. Similarly, it explained that by finding Mr. Egal's
conduct protected, it was not suggesting that such behavior is an example of
effective communication between labor and management. Id. Nevertheless, the
Authority clarified, "[t]he Statute protects those who conduct labor
relations ineffectively as well as those who conduct it effectively, as long
as they do not cross the line and engage in flagrant misconduct." Id.
In dissent, Chairman Cabaniss found significant the ALJ's description of the
incident as an "attack." App. 8. Further, she stated that the conduct by
Mr. Egal amounted to an assault and battery. Id. Because of current
concerns regarding workplace violence, Chairman Cabaniss expressed concern
that anyone would condone such conduct by not finding it to be flagrant
misconduct. Id.
Discussing Authority precedent, Chairman Cabaniss stated that even if the
conduct did not satisfy the standard for flagrant misconduct, "I would hold
as our precedent has pointed out in the past, that 'flagrant misconduct' is
not the sole and exclusive example of conduct that exceeds the boundaries of
protected activity." Id. She added that if the Authority's test would
allow an "assault and battery" to be considered protected activity, "it is
time to reevaluate how we look at and define such activity." Id. She
explained that she would "conclude that a physical response, such as what
occurred here, is beyond the limits of acceptable behavior for an employee
engaged in protected activity." Id. Chairman Cabaniss concluded that
although she shares with the majority "the same principled idea that the
Statute protects intemperate behavior by either party when engaged in
protected activity so as to reasonably facilitate communication between the
parties," she would have found the conduct in this case to have been
flagrant misconduct. App. 9.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." American Fed'n
of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998).
Authority action shall be set aside only if "arbitrary, capricious, or an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §
7123(c), incorporating 5 U.S.C. § 706(2)(A); Power v. FLRA, 146 F.3d 995,
1000 (D.C. Cir. 1998). Under this standard, unless it appears from the
Statute or its legislative history that the Authority's construction of its
enabling act is not one that Congress would have sanctioned, the Authority's
construction should be upheld. See Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 844 (1984). A court should defer to the
Authority's construction as long as it is reasonable. See id. at 844.
Further, as the Supreme Court has stated, the Authority is entitled to
"considerable deference" when it exercises its "'special function of
applying the general provisions of the [Statute] to the complexities of
federal labor relations.'" NFFE & FLRA v. Dep't of the Interior, 526 U.S.
86, 99 (1999) (internal citations omitted).
SUMMARY OF ARGUMENT
In this case, the Authority correctly adhered to its long-held standard
regarding "flagrant misconduct" in holding that petitioner committed a ULP
when it wrongly disciplined Mr. Egal for conduct that occurred during the
course of protected activity. The Authority's determination on this point
is entitled to deference because it is premised upon a reasonable
interpretation of the Authority's own statute.
Petitioner attempts to challenge the Authority's "flagrant misconduct"
standard as a misinterpretation of § 7102 of the Statute. However, pursuant
to § 7123(c) of the Statute, petitioner is barred from raising this issue to
the Court because it failed to raise the issue before the Authority.
Petitioner mistakenly claims that Chairman Cabaniss's dissent satisfies the
"extraordinary circumstances" exception of § 7123(c) and thus allows
petitioner to raise this issue for the first time before this Court. In
this connection, petitioner wrongly relies upon this Court's decision in
Department of Defense Dependents Schools v. FLRA, 863 F.2d 988, 989 n.1
(D.C. Cir. 1989), vacated on other grounds, 911 F.2d 743 (D.C. Cir. 1990)
(en banc) (Dependents Schools). Although this Court concluded in Dependents
Schools that the requirements of § 7123(c) are satisfied if a dissenting
opinion raises an issue so as to put the Authority on notice regard the
issue, that has not occurred in the instant case.
Here, Chairman Cabaniss's dissent did not assert that the Authority's use of
the "flagrant misconduct" standard is a misinterpretation of § 7102, as
petitioner seeks to do before this Court. Rather, Chairman Cabaniss
criticized the Authority's application of the standard based upon the facts
of this case. Also, unlike the circumstances involved in Dependents
Schools, Chairman Cabaniss had not similarly dissented in related cases as
had the dissenting Chairman in the Dependents Schools case. Nor was
Chairman Cabaniss's position so clearly opposed to the Authority's legal
conclusions regarding the "flagrant misconduct" standard that one would
presume that the Authority had been presented with a chance to consider a
challenge to its standard, as was the case in Dependents Schools.
Even if petitioner's argument challenging the Authority's interpretation of
§ 7102 is considered, it fails. The Authority has consistently applied its
standard regarding "flagrant misconduct," and the Authority's standard is
parallel with the standard used by the National Labor Relations Board
(NLRB). Like the NLRB, the Authority employs a four-factor test that
carefully balances the potential for impulsive behavior by an employee
engaged in protected activity against the employer's right to maintain
order.
In addition, contrary to petitioner's suggestion, the "flagrant misconduct"
standard is not inconsistent with the "efficiency of the service" analysis
that is applied in considering the propriety of discipline of federal
employees. See 5 U.S.C. § 7503. That standard does not, as petitioner
suggests, mandate that an agency take disciplinary action in order to ensure
the efficiency of the service. Instead, agencies are required to
demonstrate that because of the nature of the misconduct by an employee and
its impact on the agency, disciplining the employee will promote the
efficiency of the service. The standard in no way conflicts with the
Authority's "flagrant misconduct" standard.
Finally, the Authority's ultimate finding of a ULP in this case was based
upon its reasonable application of the facts here to the Authority's long-
held "flagrant misconduct" standard. The Authority carefully considered
each of the four factors it employs in determining whether the conduct fell
within the boundaries of protected activity as provided by the Statute.
Further, the Authority considered related cases in determining that its
decision in this case was consistent with Authority precedent. Petitioner
has not shown how the Authority misapplied the standard. Therefore, the
Authority's decision should be enforced and the petition for review denied.
ARGUMENT
I. The Administrative Exhaustion Requirement of § 7123(c) Bars Petitioner from
Raising to this Court for the First Time the Issue of Whether the Authority's
Flagrant Misconduct Standard Is A Proper Interpretation of 5 U.S.C. § 7102
Petitioner argues that the flagrant misconduct standard employed by the
Authority in deciding this case is an improper interpretation of 5 U.S.C. §
7102(1) and (2). Petitioner's Brief (Pet. Br.) at 23-29. As petitioner
acknowledges (Pet. Br. at 29-31), it did not raise this issue before the
Authority. Based upon § 7123(c) of the Statute, therefore, petitioner is
barred from raising the issue to this Court in this proceeding.
A. The Language of § 7123(c)
Section 7123(c) of the Statute provides, as here pertinent, that "[n]o
objection that has not been urged before the Authority, or its designee,
shall be considered by the court, unless the failure or neglect to urge the
objection is excused because of extraordinary circumstances." 5 U.S.C. §
7123(c). In EEOC v. FLRA, 476 U.S. 19, 23 (1986) (EEOC), the Supreme Court
explained that the purpose of this provision is to ensure "that the FLRA
shall pass upon issues arising under the [Statute], thereby bringing its
expertise to bear on the resolution of those issues."
Petitioner has sought to evade this rule in the instant case. Because of
the Air Force's failure to raise the § 7102 interpretation issue before the
Authority, the Authority has not had the opportunity to consider what would,
in essence, be a reinterpretation of its position on § 7102 that the
Authority has maintained since its origin.[5]
B. Petitioner Cannot Satisfy the "Extraordinary Circumstances" Exception
Despite acknowledging its failure to raise the issue before the Authority,
petitioner nevertheless claims that the Court may consider the issue because
the "extraordinary circumstances" exception of 5 U.S.C. § 7123(c) has been
satisfied in this case. Pet. Br. at 29-30. Specifically, petitioner claims
that the issue was raised by the dissent, and according to Department of
Defense Dependents Schools v. FLRA, 863 F.2d 988, 989 n.1 (D.C. Cir. 1989),
vacated on other grounds, 911 F.2d 743 (D.C. Cir. 1990) (en banc)
(Dependents Schools), the requirements of § 7123(c) have been satisfied.
Pet. Br. at 29-30.
Although this Court did find in Dependents Schools that the requirements of
§ 7123(c) were satisfied when an issue raised by a party for the first time
in court was originally raised by a dissenting member of the Authority, that
circumstance is not present in this case. First, the dissenting opinion of
Chairman Cabaniss does not challenge the Authority's interpretation of 5
U.S.C. § 7102(1) and (2) and its long-standing flagrant misconduct standard
under that statutory provision. Moreover, this case is distinguishable from
Dependents Schools.
Contrary to petitioner's suggestion, Chairman Cabaniss's dissent does not
challenge the Authority's long-held "flagrant misconduct" standard under §
7102, but rather challenges the application of that standard based upon the
facts of this case. In her conclusion, Chairman Cabaniss explicitly stated
that she shares with the majority "the same principled idea that the Statute
protects intemperate behavior by either party when engaged in protected
activity so as to reasonably facilitate communication between the parties."
App. 9. Her disagreement with the Authority's ultimate holding stemmed from
her belief that Mr. Egal's "actions were beyond the limits of acceptable
behavior for an employee engaged in protected activity." Id.
Petitioner, in asserting that the dissent raises the same question regarding
the flagrant misconduct standard as does petitioner, quotes a comment in the
dissent in which Chairman Cabaniss stated that she would hold that
"'flagrant misconduct' is not the sole and exclusive example of conduct that
exceeds the boundaries of protected activity." App. 8 In its brief (at
30), however, petitioner omits the Chairman's statement immediately
preceding this quotation-"I would hold, as our precedent has pointed out in
the past . . . ." App. 8 (emphasis added). As petitioner acknowledges
(Pet. Br. at 31 n.12), the Authority has continually held that "flagrant
misconduct" is the standard to apply in determining whether conduct is
protected. The quoted language from the dissent indicates the Chairman's
acknowledgment of "flagrant misconduct" as a standard, and does not indicate
that the Chairman believes the standard should be eliminated.[6]
Another statement in the dissent misconstrued by petitioner is the
Chairman's comment that "[i]f the Authority really intends to follow a test
that could condone an assault and battery situation by not declaring it to
be outside the boundaries of protected activity, it is time to reevaluate
how we look at and define such activity." App. 8. Rather than challenging
the Authority's standard for analyzing protected activity, this statement
only cautions that in the Chairman's view, if too much liberty is taken with
the Authority's standard, it could be reconsidered. Through the dissent in
this case, however, the Chairman did nothing more to suggest such
reconsideration. This is substantially different than the argument
petitioner is raising to this Court for the first time-that the flagrant
misconduct standard is a misconstruction by the Authority of 5 U.S.C. §
7102(1) and (2). As a result, the instant case is clearly distinguishable
from Dependents Schools, because the circumstances in Dependents Schools
that caused the Court to find that the "strictures of § 7123(c) were
satisfied" are not present here. 863 F.2d at 989 n.1.
In Dependents Schools, the challenges raised by the agency for the first
time before the Court in Dependents Schools were "originally made by [then-]
Chairman Calhoun in his dissent from the majority's determination." Id.
Dependents Schools was a negotiability case under 5 U.S.C. § 7117(c). Then-
Chairman Calhoun's dissent asserted that the Authority's majority opinion
had wrongly concluded that certain proposals with respect to the
compensation of teachers were negotiable. Id. at 989. In making this
assertion, then-Chairman Calhoun maintained that the compensation of
teachers fell outside the duty to bargain under the Statute and that the
proposals were therefore nonnegotiable. Id. In fact, in a series of
related cases, then-Chairman Calhoun established a pattern of finding
nonnegotiable matters related to teacher compensation. The Authority had
therefore been on notice and had opportunities to pass upon the issue raised
by the dissent in Dependents Schools.
The instant case is distinguishable from Dependents Schools because nothing
in Chairman Cabaniss's one-time dissent provided the Authority with an
opportunity to pass upon the § 7102 interpretation issue being raised by
petitioner for the first time before this Court. As noted above, Chairman
Cabaniss's dissent does not raise any issues that parallel the argument
petitioner attempts to raise before this Court for the first time.
Therefore, the Authority has not been put on sufficient notice as it had
been in Dependents Schools.[7] The extraordinary circumstances exception of
§ 7123(c) has not been satisfied, and petitioner's arguments regarding the
Authority's interpretation of § 7102 of the Statute should not be considered
by this Court.
II. The Authority's Long-held "Flagrant Misconduct" Standard, Applied in this
Case, Is A Reasonable Interpretation of § 7102 of the Authority's Own Organic
Statute
Even if petitioner's first-time challenge to the Authority's standard is
considered by the Court, the Court should defer to the Authority's
reasonable interpretation of § 7102 and uphold the Authority. In this case,
the Authority reaffirmed its long-standing interpretation of § 7102 of the
Statute by holding that the Agency committed a ULP because it disciplined
Mr. Egal for engaging in protected activity that did not constitute
"flagrant misconduct." Section 7102 provides that employees "have the right
to form, join, or assist any labor organization, or to refrain from such
activity, freely and without fear of penalty or reprisal." 5 U.S.C. § 7102.
This protection extends to union representatives engaged in protected
activity even when they use "intemperate, abusive, or insulting language."
Grissom, 51 F.L.R.A. at 11 (internal citations omitted). However, the
protection of § 7102 does not extend to an employee engaged in protected
activity when the employee's remarks or actions constitute "flagrant
misconduct." Id. That is, "[r]emarks or conduct that are of such 'an
outrageous and insubordinate nature'" that they are removed from the
protections of § 7102. Id. (quoting Dep't of the Navy, Naval Facilities
Eng'g Command, Western Div. San Bruno, Cal., 45 F.L.R.A. 138, 156 (1992)).
The Authority interpreted § 7102 in this manner in the first case it ever
decided regarding the boundaries of protected activity under § 7102. Dep't
of the Navy, Puget Sound Naval Shipyard, Bremerton, Wash., 2 F.L.R.A. 54
(1979) (Puget Sound). In that case, the Authority held that "flagrant
misconduct by an employee, even though occurring during the course of
protected activity, may justify disciplinary action by the employer." Id.
at 55. The Authority added that "[t]he employee's right to engage in
protected activity permits leeway for impulsive behavior, which is balanced
against the employer's right to maintain order and respect of its
supervisory staff on the job site." Id.
A. The Authority's Long-held Standard Is Consistent with Related National Labor
Relations Board Law
The Authority has consistently applied this standard first stated in Puget
Sound throughout its history, and its standard has remained consistent with
National Labor Relations Board (NLRB) law regarding the boundaries of
protected activity. In the 1979 Puget Sound decision, the Authority upheld
the ALJ's decision in which the ALJ had looked to the NLRB for guidance
regarding acceptable behavior during the course of protected activity.[8]
Like the Authority and as the NLRB recently recognized, the NLRB has "long
held that in the context of protected concerted activity by employees, a
certain degree of leeway is allowed in terms of the manner in which they
conduct themselves." Health Care and Retirement Corp. of Am., 306 N.L.R.B.
63, 65 (1992), rev'd on other grounds, NLRB v. Health Care & Retirement
Corp. of Am., 511 U.S. 571 (1994). However, "an employee's flagrant,
opprobrious conduct, even though occurring during the course of [protected]
activity, may sometimes lose the protection of the Act and justify
disciplinary action on the part of an employer." Id.
Both the Authority and the NLRB have developed factors to be considered for
determining whether an employee engaged in protected activity loses
protection from disciplinary action by flagrant conduct. The Authority's
factors, which it employed in the instant case, are consistent with the
NLRB's factors. In balancing 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, the Authority considers the
following factors: "(1) the place and subject matter of the discussion; (2)
whether the employee's outburst was impulsive or designed; (3) whether the
outburst was in any way provoked by the employer's conduct; and (4) the
nature of the intemperate language and conduct." Grissom, 51 F.L.R.A. at 12
(internal citations omitted). The NLRB's very similar factors for
consideration are: "(1) the place of the discussion; (2) the subject matter
of the discussion; (3) the nature of the employee's outburst; and (4)
whether the outburst was, in any way, provoked by an employer's unfair labor
practice." Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979) (Atlantic
Steel); see also Felix Industries, Inc. v. NLRB, 251 F.3d 1051, 1053 (D.C.
Cir. 2001) (Felix) (recognizing these factors as the NLRB's standard).
Based upon the Authority's long-held use of the "flagrant misconduct"
standard and the consistency of that standard with comparable NLRB law, the
Authority properly interpreted § 7102 of the Statute. Moreover, the
Authority is entitled to deference on its interpretation of § 7102.
Petitioner has presented nothing to show that the Authority's construction
of its enabling act is not one that Congress would have sanctioned, and thus
the Authority's construction should be upheld. Chevron, 467 U.S. at 844.
Interpretation of a statutory provision in this manner is precisely what the
Supreme Court referred to regarding the "considerable deference" to which
the Authority is entitled when it exercises its "'special function of
applying the general provisions of the [Statute] to the complexities of
federal labor relations.'" NFFE & FLRA v. Dep't of the Interior, 526 U.S.
86, 99 (1999) (internal citations omitted).
B. Petitioner's Arguments and the Cases Relied upon by Petitioner to Support
Its Position Are Not Persuasive
1. The Court decisions reviewing the NLRB's "flagrant" or "opprobrious" conduct
standard are distinguishable
Petitioner wrongly contends (Pet. Br. at 23) that this Court rejected the
NLRB's standard regarding protected activity in Adtranz Abb Daimler-Benz
Transportation, Inc. v. NLRB, 253 F.3d 19, 25-27 (D.C. Cir. 2001) (Adtranz).
Adtranz, however, did not involve NLRB review of employer discipline after
misconduct by an employee engaged in protected activity, but rather involved
NLRB review of an employer policy prohibiting "abusive and threatening
language." Id. at 25. The NLRB had held that the employer's policy was a
ULP because it interfered with protected activity. Id. The Court did not
criticize the NLRB's "long held" position that "'an employee who is engaged
in concerted protected activity, can, by opprobrious conduct, lose the
protection of the Act.'" Id. at 26 (quoting Atlantic Steel, 245 N.L.R.B. at
816). Instead, the Court found that the NLRB's finding a ULP based solely
on the employer's policy on abusive or threatening language was an overbroad
interpretation of protected activity. Id. at 26, 28. Thus, this Court did
not disapprove the NLRB's policy protecting certain types of misconduct
occurring during protected activity, and the Adtranz case is not relevant to
consideration of the Authority's interpretation of protected activity in the
instant case.
Petitioner also erroneously relies upon this Court's decision in Felix, to
support its claim that this Court has rejected NLRB holdings similar to the
Authority's decision in this case. In Felix, this Court reversed the NLRB
only because it concluded that the NLRB had not appropriately applied its
Atlantic Steel factors in determining whether an employee had been wrongly
discharged for offensive speech while engaged in protected activities.
Felix, 251 F.3d at 1056. The Court found that the NLRB did not properly
consider the nature of the employee's offensive outburst. In that
connection, the Court explained that the NLRB had to properly consider and
balance the four factors set forth in the NLRB's own Atlantic Steel decision
in considering whether the conduct was "flagrant, violent, or extreme
behavior.'" Id. at 1055 (quoting Aroostook County v. NLRB, 81 F.3d 209, 215
n.5 (D.C. Cir. 1996)). In the instant case, the Authority properly
considered its four factors for determining whether conduct is protected,
and petitioner has not challenged the Authority's application of those
factors.
Petitioner does accurately acknowledge that "[t]he union-related provisions
invoked by the [Authority] do confer significant additional rights on
federal employees comparable to those long enjoyed by employees in the
private sector." Pet. Br. at 26. Nevertheless, petitioner then asserts
that giving federal employees rights comparable to private sector employees
conflicts with management's obligation to discipline employees under the
"efficiency of the service" standard. As discussed below, petitioner
misunderstands the "efficiency of the service" standard as it applies to
disciplining federal employees.
2. Petitioner misinterprets the "efficiency of the service" standard
under 5 U.S.C. § 7503(a)
Petitioner claims that the Authority's "flagrant misconduct" standard
interferes with management's responsibility to maintain a proper work
environment under the "efficiency of the service" standard set forth in 5
U.S.C. § 7503(a).[9] Pet. Br. at 26. Contrary to petitioner's suggestions,
the "efficiency of the service" standard does not confer on the agency an
obligation to discipline employees, but rather protects employees from
discipline by an agency unless such discipline "will promote the efficiency
of the service." 5 U.S.C. § 7503(a).
This Court explained the "efficiency of the service" standard in the case
mistakenly relied upon by petitioner, Gloster v. GSA, 720 F.2d 700, 703
(D.C. Cir. 1983) (Gloster). According to Gloster, the "efficiency of the
service" standard has been interpreted "to require an agency that proposes
to remove an employee for misconduct to demonstrate a sufficient nexus
between the misconduct and the job performance of the employee or others to
warrant removal." Id. The Authority's "flagrant misconduct" standard does
not in any way conflict with the "efficiency of the service" standard, but
serves only as a separate consideration of whether discipline is appropriate
in the very specific situation where protected activity is involved.
Despite petitioner's suggestions to the contrary, the Merit Systems
Protection Board (MSPB) has interposed no objection to applying the
Authority's and NLRB's standards regarding the parameters of protected
activity in cases arising before the MSPB. Thus, the cases cited by
petitioner support continued application of the Authority's "flagrant
misconduct" standard and not petitioner's arguments misinterpreting the
"efficiency of the service" standard.
In Farris v. United States Postal Service, 14 M.S.P.R. 568, 574 (1983)
(Farris), the MSPB applied NLRB case law in concluding "that while employees
may generally not be discharged for rude or impertinent conduct in the
course of presenting grievances, these protections do not extent to gross
insubordination or threats of physical harm." Id. Similarly, in Social
Security Administration v. Burris, 39 M.S.P.R. 51, 58 (1988) (Burris), the
MSPB noted that, in a related context,[10] the case law "is clear that, in
[the] absence of gross insubordination or threats of physical harm, an
employee may generally not be discharged for rude or impertinent conduct" in
the course of protected activity. Id. (internal quotations and citation
omitted). In both Farris and Burris, the employee discipline was upheld by
the MSPB because the misconduct during the protected activity exceeded the
protections afforded for employees engaged in protected activity. Farris,
14 M.S.P.R. at 574; Burris, 39 M.S.P.R. at 58-59. The "efficiency of the
service" standard was satisfied in both cases because there was sufficient
nexus between the employees' misconduct and the employees' job performance.
In sum, petitioner has not demonstrated that the Authority's "flagrant
misconduct" standard is a misinterpretation of § 7102. Its arguments in
this regard should be rejected by this Court.
III. The Authority Properly Applied Its "Flagrant Misconduct" Standard to the
Facts of this Case in Finding that Mr. Egal Was Wrongly Disciplined for His
Conduct that Occurred during the Course of Protected Activity
The Authority properly applied its "flagrant misconduct" standard, as set
forth in Grissom, to the facts of this case in concluding that Mr. Egal's
conduct was not flagrant misconduct. Because the Authority's determination
in this regard was not "arbitrary, capricious, or an abuse of discretion, or
otherwise not in accordance with law," this Court should uphold the
Authority's finding that petitioner committed a ULP when it disciplined Mr.
Egal.[11] 5 U.S.C. § 7123(c), incorporating 5 U.S.C. § 706(2)(A); Power v.
FLRA, 146 F.3d 995, 1000 (D.C. Cir. 1998) (Power).
The Authority considered the ALJ's application of the four Grissom factors
and determined that he had done so correctly. With regard to the first
three Grissom factors, significant to the Authority were the findings that
the incident, "(1) occurred in a private office, outside the presence of any
nonsupervisory employees other than those involved; (2) was impulsive; (3)
was somewhat provoked by the supervisor." App. 5. The factual findings by
the ALJ, which petitioner does not challenge, support the Authority's
conclusion on these three factors.
First, only four individuals were involved in the entire incident-Ms.
Fallaw, Master Sergeant Picicci, Mr. Egal, and Ms. Richardson. App. 5,
11-13. Also, the incident occurred within one office suite where only those
named were present. Second, Mr. Egal's outburst was an immediate reaction
to Ms. Fallaw's decision to disallow Union representation during her
performance feedback session. App. 12. As the ALJ observed, nothing about
the incident indicated "it was pre-planned or otherwise designed." App. 17.
Third, because Ms. Fallaw told Mr. Egal she believed he was present "to
intimidate and harass her," her comment frustrated and somewhat provoked Mr.
Egal's actions. App. 12.
In its consideration of the fourth factor-the nature of the intemperate
language and conduct-the Authority considered the incident in light of
related Authority precedent. The Authority found the instant case to be
comparable to Flight Test Center, 53 F.L.R.A. at 1455, in which very similar
conduct was found to be protected. App. 5-6.
The incident at issue in Flight Test Center lasted fifteen minutes-
considerably longer than the ten to twenty second exchange in this case.
Flight Test Center, 53 F.L.R.A. at 1456. As in the instant case, a union
representative confronted a supervisor with offensive language and
threatening behavior. Id. Like Mr. Egal, the union representative
physically approached the supervisor and pointed his finger at her. Id.
When pointing his finger, the union representative in Flight Test Center was
"'less than 18 inches . . ., no farther than 10 inches'" from the
supervisor's face. Id. at 1461 (internal citations omitted). In the
instant case, Mr. Egal's finger was pointed "within six inches or less" of
Ms. Fallaw's body. App. 15.
The Authority also referenced its decision in United States Department of
Justice, United States Marshals Service, 26 F.L.R.A. 890 (1987) (Marshals
Service), in which it found physical contact to be inappropriate. That case
involved pushing and shoving between a union representative and management
representative. In that case, the Authority affirmed the ALJ's decision
that such a physical assault was "beyond the limits of acceptable behavior."
Id. at 901. Mr. Egal's physical contact in this case was far less than that
involved in Marshals Service, and as both the Authority and ALJ found, was
only "marginal[]." App. 5-6, 15.
Petitioner does not attempt to challenge the Authority's application of its
Grissom test to the facts of this case. Instead, petitioner relies upon a
dictionary definition of "flagrant" to support its position that Mr. Egal's
conduct was flagrant misconduct. Pet. Br. at 31-32. The Authority's
standard for determining whether behavior was protected does not require an
analysis of the dictionary definition of "flagrant," and thus petitioner's
arguments in this regard are unpersuasive.
Moreover, petitioner characterizes Mr. Egal's conduct as an "assault" (Pet.
Br. at 32), a determination not made by the Authority or ALJ. As the
Authority noted, even had the Authority characterized the conduct as an
assault, such a characterization would not necessarily be determinative of
whether Mr. Egal's conduct equated to flagrant misconduct. App. 6.
The Authority properly analyzed the incident in light of its long-held
standard for flagrant misconduct. The Authority is therefore entitled to
deference and its decision should be upheld. This is true because the
Authority's "findings, supported by substantial evidence, 'may not be
displaced on review even if the court might have reached a different result
had the matter been before it de novo.'" Power, 146 F.3d at 1001 (quoting
LCF, Inc. v. NLRB, 129 F.3d 1276, 1281 (D.C. Cir. 1997)). Because the facts
are not disputed by petitioner, substantial evidence is not even an issue.
Therefore, this Court should affirm the Authority's ULP determination in
this case.
CONCLUSION
The Authority's decision and order should be enforced and the petition for
review denied.
Respectfully submitted,
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
ANN M. BOEHM
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
January 2002
CERTIFICATION PURSUANT TO FRAP 32
Pursuant to Federal Rule of Appellate Procedure 32, I certify that the
attached brief is written in a proportionally-spaced 14-point font and
contains 7774 words.
January 31, 2002
Ann M. Boehm
Attorney
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
DEPARTMENT OF THE AIR FORCE,
315TH AIRLIFT WING,
CHARLESTON AIR FORCE BASE,
CHARLESTON, SOUTH CAROLINA,
Petitioner
v. No. 01-1275
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1869,
Invervenor
_______________________________
SERVICE LIST
I certify that copies of the Brief for the Federal Labor Relations Authority
have been served this day, by hand delivery, upon the following:
Robert D. McCallum, Jr.
Assistant Attorney General
William Kanter
Attorney
Robert D. Kamenshine
Attorney
Attorneys, Appellate Staff
Civil Division, Room 9012
601 D Street, N.W.
Washington, D.C. 20530-0001
Ad by overnight mail, upon the following:
Stuart A. Kirsch
Assistant General Counsel
American Federation of Government Employees,
AFL-CIO
6724 Church Street, Suite 2
Riverdale, GA 30274-4711
Jennifer Baker
Paralegal Specialist
January 31, 2002
RELEVANT PORTIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5
U.S.C. §§ 7101-7135 (2000), AND OTHER PERTINENT STATUTORY PROVISIONS
TABLE OF CONTENTS
1. 5 U.S.C. § 7102 A-1
2. 5 U.S.C. § 7105(a)(2)(G) A-2
3. 5 U.S.C. § 7114(a)(2)(B) A-3
4. 5 U.S.C. § 7116(a)(1), (2) A-4
5. 5 U.S.C. § 7117(c) A-5
6. 5 U.S.C. § 7118 A-7
7. 5 U.S.C. § 7123(c) A-11
8. 5 U.S.C. § 706(2)(A) A-13
9. 5 U.S.C. § 2302(b)(9) A-14
10. 5 U.S.C. § 7503 A-15
11. 5 U.S.C. § 7513 A-17
§ 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, and
(2) to engage in collective bargaining with respect to conditions of
employment through representatives chosen by employees under this chapter.
§ 7105. Powers and duties of the Authority
* * * * * * *
(a)(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * *
(G) conduct hearings and resolve complaints of unfair labor practices under
section 7118 of this title;
§ 7114. Representation rights and duties
* * * * * * *
(a)(2) An exclusive representative of an appropriate unit in an agency shall
be given the opportunity to be represented at-
* * * * * * *
(B) any examination of an employee in the unit by a representative of the
agency in connection with an investigation if-
(i) the employee reasonably believes that the examination may result in
disciplinary action against the employee; and
(ii) the employee requests representation.
* * * * * * *
§ 7116. Unfair labor practices
(a) For the purpose 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;
(2) to encourage or discourage membership in any labor organization by
discrimination in connection with hiring, tenure, promotion, or other
conditions of employment;
* * * * * * *
§ 7117. Duty to bargain in good faith; compelling need; duty to consult
* * * * * * *
(c)(1) Except in any case to which subsection (b) of this section applies, if an
agency involved in collective bargaining with an exclusive representative
alleges that the duty to bargain in good faith does not extend to any matter,
the exclusive representative may appeal the allegation to the Authority in
accordance with the provisions of this subsection.
(2) The exclusive representative may, on or before the 15th day after the
date on which the agency first makes the allegation referred to in paragraph
(1) of this subsection, institute an appeal under this subsection by-
(A) filing a petition with the Authority; and
(B) furnishing a copy of the petition to the head of the agency.
(3) On or before the 30th day after the date of the receipt by the head of
the agency of the copy of the petition under paragraph (2)(B) of this
subsection, the agency shall-
(A) file with the Authority a statement-
(i) withdrawing the allegation; or
(ii) setting forth in full its reasons supporting the allegation; and
(B) furnish a copy of such statement to the exclusive representative.
(4) On or before the 15th day after the date of the receipt by the exclusive
representative of a copy of a statement under paragraph (3)(B) of this
subsection, the exclusive representative shall file with the Authority its
response to the statement.
(5) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it shall
not include the General Counsel as a party.
(6) The Authority shall expedite proceedings under this subsection to the
extent practicable and shall issue to the exclusive representative and to
the agency a written decision on the allegation and specific reasons
therefor at the earliest practicable date.
* * * * * * *
§ 7118. Prevention of unfair labor practices
(a)(1) If any agency or labor organization is charged by any person with
having engaged in or engaging in an unfair labor practice, the General
Counsel shall investigate the charge and may issue and cause to be served
upon the agency or labor organization a complaint. In any case in which the
General Counsel does not issue a complaint because the charge fails to state
an unfair labor practice, the General Counsel shall provide the person
making the charge a written statement of the reasons for not issuing a
complaint.
(2) Any complaint under paragraph (1) of this subsection shall contain a
notice-
(A) of the charge;
(B) that a hearing will be held before the Authority (or any member thereof
or before an individual employed by the authority and designated for such
purpose); and
(C) of the time and place fixed for the hearing.
(3) The labor organization or agency involved shall have the right to file
an answer to the original and any amended complaint and to appear in person
or otherwise and give testimony at the time and place fixed in the complaint
for the hearing.
(4)(A) Except as provided in subparagraph (B) of this paragraph, no
complaint shall be issued on any alleged unfair labor practice which
occurred more than 6 months before the filing of the charge with the
Authority.
(B) If the General Counsel determines that the person filing any charge was
prevented from filing the charge during the 6-month period referred to in
subparagraph (A) of this paragraph by reason of-
(i) any failure of the agency or labor organization against which the charge
is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged unfair labor
practice during the 6-month period,
the General Counsel may issue a complaint based on the charge if the charge was
filed during the 6-month period beginning on the day of the discovery by the
person of the alleged unfair labor practice.
(5) The General Counsel may prescribe regulations providing for informal
methods by which the alleged unfair labor practice may be resolved prior to
the issuance of a complaint.
(6) The Authority (or any member thereof or any individual employed by the
Authority and designated for such purpose) shall conduct a hearing on the
complaint not earlier than 5 days after the date on which the complaint is
served. In the discretion of the individual or individuals conducting the
hearing, any person involved may be allowed to intervene in the hearing and
to present testimony. Any such hearing shall, to the extent practicable, be
conducted in accordance with the provisions of subchapter II of chapter 5 of
this title, except that the parties shall not be bound by rules of evidence,
whether statutory, common law, or adopted by a court. A transcript shall be
kept of the hearing. After such a hearing the Authority, in its discretion,
may upon notice receive further evidence or hear argument.
(7) If the Authority (or any member thereof or any individual employed by
the Authority and designated for such purpose) determines after any hearing
on a complaint under paragraph (5) of this subsection that the preponderance
of the evidence received demonstrates that the agency or labor organization
named in the complaint has engaged in or is engaging in an unfair labor
practice, then the individual or individuals conducting the hearing shall
state in writing their findings of fact and shall issue and cause to be
served on the agency or labor organization an order-
(A) to cease and desist from any such unfair labor practice in which the
agency or labor organization is engaged;
(B) requiring the parties to renegotiate a collective bargaining agreement
in accordance with the order of the Authority and requiring that the
agreement, as amended, be given retroactive effect;
(C) requiring reinstatement of an employee with backpay in accordance with
section 5596 of this title; or
(D) including any combination of the actions described in subparagraphs (A)
through (C) of this paragraph or such other action as will carry out the
purpose of this chapter.
If any such order requires reinstatement of any employee with backpay, backpay
may be required of the agency (as provided in section 5596 of this title) or of
the labor organization, as the case may be, which is found to have engaged in
the unfair labor practice involved.
(8) If the individual or individuals conducting the hearing determine that
the preponderance of the evidence received fails to demonstrate that the
agency or labor organization named in the complaint has engaged in or is
engaging in an unfair labor practice, the individual or individuals shall
state in writing their findings of fact and shall issue an order dismissing
the complaint.
(b) In connection with any matter before the Authority in any proceeding
under this section, the Authority may request, in accordance with the
provisions of section 7105(i) of this title, from the Director of the Office
of Personnel Management an advisory opinion concerning the proper
interpretation of rules, regulations, or other policy directives issued by
the Office of Personnel Management.
§ 7123. Judicial review; enforcement
* * * * * * *
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided in
section 2112 of title 28. Upon the filing of the petition, the court shall cause
notice thereof to be served to the parties involved, and thereupon shall have
jurisdiction of the proceeding and of the question determined therein and may
grant any temporary relief (including a temporary restraining order) it
considers just and proper, and may make and enter a decree affirming and
enforcing, modifying and enforcing as so modified, or setting aside in whole or
in part the order of the Authority. The filing of a petition under subsection
(a) or (b) of this section shall not operate as a stay of the Authority's order
unless the court specifically orders the stay. Review of the Authority's order
shall be on the record in accordance with section 706 of this title. No
objection that has not been urged before the Authority, or its designee, shall
be considered by the court, unless the failure or neglect to urge the objection
is excused because of extraordinary circumstances. The findings of the Authority
with respect to questions of fact, if supported by substantial evidence on the
record considered as a whole, shall be conclusive. If any person applies to the
court for leave to adduce additional evidence and shows to the satisfaction of
the court that the additional evidence is material and that there were
reasonable grounds for the failure to adduce the evidence in the hearing before
the Authority, or its designee, the court may order the additional evidence to
be taken before the Authority, or its designee, and to be made a part of the
record. The Authority may modify its findings as to the facts, or make new
findings by reason of additional evidence so taken and filed. The Authority
shall file its modified or new findings, which, with respect to questions of
fact, if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any, for
the modification or setting aside of its original order. Upon the filing of the
record with the court, the jurisdiction of the court shall be exclusive and its
judgment and decree shall be final, except that the judgment and decree shall be
subject to review by the Supreme Court of the United States upon writ of
certiorari or certification as provided in section 1254 of title 28.
* * * * * * *
§706. Scope of review
To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms of
an agency action. The reviewing court shall--
* * * * * * *
(2) hold unlawful and set aside agency action, findings, and conclusions
found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
* * * * * * *
§ 2302. Prohibited personnel practices
* * * * * * *
b) Any employee who has authority to take, direct others to take, recommend, or
approve any personnel action, shall not, with respect to such authority -
* * * * * * *
(9) take or fail to take, or threaten to take or fail to take, any personnel
action against any employee or applicant for employment because of -
(A) the exercise of any appeal, complaint, or grievance right granted by any
law, rule, or regulation;
(B) testifying for or otherwise lawfully assisting any individual in the
exercise of any right referred to in subparagraph (A);
(C) cooperating with or disclosing information to the Inspector General of an
agency, or the Special Counsel, in accordance with applicable provisions of law;
or
(D) for refusing to obey an order that would require the individual to violate a
law;
* * * * * * *
§ 7503. - Cause and procedure
(a) Under regulations prescribed by the Office of Personnel Management, an
employee may be suspended for 14 days or less for such cause as will promote the
efficiency of the service (including discourteous conduct to the public
confirmed by an immediate supervisor's report of four such instances within any
one-year period or any other pattern of discourteous conduct).
(b) An employee against whom a suspension for 14 days or less is proposed is
entitled to -
(1) an advance written notice stating the specific reasons for the proposed
action;
(2) a reasonable time to answer orally and in writing and to furnish affidavits
and other documentary evidence in support of the answer;
(3) be represented by an attorney or other representative; and
(4) a written decision and the specific reasons therefor at the earliest
practicable date.
(c) Copies of the notice of proposed action, the answer of the employee if
written, a summary thereof if made orally, the notice of decision and reasons
therefor, and any order effecting[12] the suspension, together with any
supporting material, shall be maintained by the agency and shall be furnished to
the Merit Systems Protection Board upon its request and to the employee affected
upon the employee's request.
§ 7513. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel Management, an
agency may take an action covered by this subchapter against an employee only
for such cause as will promote the efficiency of the service.
(b) An employee against whom an action is proposed is entitled to -
(1) at least 30 days' advance written notice, unless there is reasonable cause
to believe the employee has committed a crime for which a sentence of
imprisonment may be imposed, stating the specific reasons for the proposed
action;
(2) a reasonable time, but not less than 7 days, to answer orally and in writing
and to furnish affidavits and other documentary evidence in support of the
answer;
(3) be represented by an attorney or other representative; and
(4) a written decision and the specific reasons therefor at the earliest
practicable date.
(c) An agency may provide, by regulation, for a hearing which may be in lieu of
or in addition to the opportunity to answer provided under subsection (b)(2) of
this section.
(d) An employee against whom an action is taken under this section is entitled
to appeal to the Merit Systems Protection Board under section 7701 of this
title.
(e) Copies of the notice of proposed action, the answer of the employee when
written, a summary thereof when made orally, the notice of decision and reasons
therefor, and any order effecting an action covered by this subchapter, together
with any supporting material, shall be maintained by the agency and shall be
furnished to the Board upon its request and to the employee affected upon the
employee's request.
[1] Pertinent statutory provisions are set forth in Addendum (Add.) A to
this brief.
[2] Chairman Cabaniss dissented from the Authority's opinion. App. 8.
[3] Ms. Richardson was referring to NLRB v. Weingarten, 420 U.S. 251 (1975),
the private sector case upon which the right to Union representation in certain
investigatory circumstances under § 7114(a)(2)(B) of the Statute is based. See
App. 12 n.7.
[4] The Authority modified the Order to include interest on backpay for Mr.
Egal. App. 5. This modification is not an issue before the Court.
[5] Petitioner also argues that it would have been futile for it to have
raised this issue before the Authority. Pet. Br. at 31. Petitioner has not
indicated, however, that the Authority has ever considered and rejected the
argument petitioner seeks to make before this Court. Therefore, petitioner
cannot demonstrate how or why it would have been futile to raise the issue
before the Authority.
[6] Rather than challenging Authority precedent in the dissent, Chairman
Cabaniss relied upon it. App. 8. She did not agree with the Authority's
conclusion that Flight Test Center was a comparable case justifying the
Authority's holding that Mr. Egal's conduct was protected. Id. Instead, she
relied upon Flight Test Center as support for her objection with the Authority's
holding. Id.
[7] In a recent case involving a "flagrant misconduct" issue, Chairman
Cabaniss again dissented from the Authority's decision because of the
Authority's application of the facts to the "flagrant misconduct" standard.
United States Dep't of Energy, Oak Ridge, Tenn., 57 F.L.R.A. 343, 348-49 (2001).
Notably, Chairman Cabaniss clearly applied the four Grissom factors to her
consideration of the case. Id.
[8] Referencing NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir.
1965), the ALJ had concluded that "[f]lagrant conduct of an employee in the
course of protected activity justifies disciplinary action by an employer, but
there must be leeway for impulsive behavior." Puget Sound, 2 F.L.R.A. at 76.
[9] Petitioner also references the same standard under 5 U.S.C. § 7513.
Because this case involves a three-day suspension for fourteen days or less, 5
U.S.C. § 7503, which governs suspensions for fourteen days or less, is the
applicable reference.
[10] Burris involved protections afforded to filing of grievances pursuant to
5 U.S.C. § 2302(b)(9). 39 M.S.P.R. at 58.
[11] As this Court has held in NLRB cases, the Court will "set aside the
[NLRB's] decision only when the [NLRB] has acted arbitrarily or otherwise erred
in applying established law to the facts." Allegheny Ludlum Corp. v. NLRB, 104
F.3d 1354, 1358 (D.C. Cir. 1997) (internal quotations and citations omitted).
[12] So in original. Probably should be ''affecting.''