[ v17 p71 ]
17:0071(18)CA
The decision of the Authority follows:
17 FLRA No. 18
DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY AEROSPACE CENTER
ST. LOUIS, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1827
Charging Party
Case No. 57-CA-20231
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a
supporting brief, and the Respondent filed an opposition.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and Recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 57-CA-20231 be, and it
hereby is, dismissed.
Issued, Washington, D.C., February 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 57-CA-20231
Mr. Louis P. Eaves
For the Respondent
Mr. Louis Foster
For the Charging Party
Sandra LeBold, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued on
behalf of the General Counsel, Federal Labor Relations Authority,
against the Department of Defense, Defense Mapping Agency Aerospace
Center, St. Louis, Missouri (Respondent). The complaint alleged, in
substance, that Respondent violated section 7116(a)(1) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the
Statute), by issuing an official reprimand to employee Linda Reis
because of statements she made during the course of a grievance meeting
on January 12, 1982. Respondent's answer denied that the reprimand
violated the Statute.
A hearing was held in this matter in St. Louis, Missouri. The
parties were represented and afforded full opportunity to be heard,
adduce relevant evidence, examine and cross-examine witness, and file
post-hearing briefs. Based on the entire record herein, including my
observation of the witnesses and their demeanor, the exhibits, other
relevant evidence adduced at the hearing, and the briefs, I make the
following findings of fact, conclusions of law, and recommendations.
Findings of Fact
At all times material herein, the National Federation of Federal
Employees, Local 1827 (Charging Party or Union) has been recognized as
the exclusive representative of an appropriate unit of Respondent's
employees.
On January 11, 1982 Linda Reis, a journeyman photographer in the
Precision Photography Lab, was issued a letter of caution for use of
abusive language. The letter provided, in part, as follows:
. . . I have determined to issue you a letter of caution for
your abusive language. The reason for this letter is as follows:
As reported to me by your supervisor, George Huelsman,
specifically, on the morning of 7 January 1982, when he assigned
you to the task of cleaning the crossover racks on the Versamat
Processor, you replied, "Get Screwed" and you did not in the
ensuing conversation indicate you were not serious but in fact you
became more arrogant when he suggested that you should watch what
you say to people and you replied, "I don't need to worry, I'm
leaving anyway." In view of the attitude you displayed, he
immediately decided to assign you another task and to pursue the
issue in this manner.
This letter is issued to you in order to provide you with an
opportunity to change your behavior, and to bring to your
attention that continued behavior along these lines could result
in formal disciplinary action being taken against you.
. . . (T)his letter will not be recorded in your Official
Personnel Folder, but will be retained in my files for a period of
one year from the date of issuance. /1/
After receiving the letter, Ms. Reis immediately contacted Union
steward Vincent Love. Mr. Love requested that an informal grievance
meeting be held to discuss the letter of caution. Such a discussion
between the affected employee, the area steward, and the first level
supervisor constituted step one of the negotiated grievance procedure.
The meeting was held the next day, January 12, 1982, in a private
conference room. The meeting was attended by Ms. Reis, Union steward
Love, General Foreman Robert Willett, and George Huelsman. Mr. Huelsman
had been Ms. Reis' acting supervisor from November 27, 1981 to January
9, 1982, but was no longer a supervisor as of the time of this meeting.
However, as urged by Respondent, I find that he was a management
official, or at least a representative of management, for purposes of
this meeting. At the time of the meeting, Ms. Reis had also been
transferred to a different section and was under different supervision.
Foreman Willett asked the purpose of the meeting. Union Steward Love
brought up several alleged procedural problems with the letter of
caution and contended that the letter was too severe considering the
language used in the lab. /2/ Ms. Reis and Mr. Huelsman then gave their
versions of what had been said on the day in question. There was a
dispute between the two over the sequence of events. Ms. Reis contended
that she had not said she was leaving anyway. Ms. Reis also contended
that she had made the statement in jest and would accept the letter of
caution if it stated that she was only kidding when she made it. Ms.
Reis asked Mr. Huelsman whether he had also been kidding when he told
her to clean the processors. Mr. Huelsman hesitated answering, and Mr.
Love said that he did not have to answer the question. Mr. Willett at
some point told Ms. Reis that she disrupted production because the men
stopped to talk to her because of her popularity. Ms. Reis took the
comment as a reflection on her morals. At some point, Mr. Reis
expressed her frustration, stating, in part, "There's a lot of foul
language that goes on in that lab . . . I (have) always taken it as part
of the working environment and the subtle propositions. . . . I tried
being nice to everybody in the lab. I walk on thin ice around here and
you get screwed."
There was further conversation back and forth concerning what had
been said on January 7. Ms. Reis tone of voice became louder and
louder. Finally, Ms. Reis, pointing her finger at Mr. Huelsman, stated
in a loud voice, "I said it before and I'll say it again, George. Get
Screwed." This occurred toward the end of the meeting, and the meeting
ended shortly thereafter. /3/
On January 20, 1982, Mr. Willett issued his decision on the first
step grievance. He denied the grievance, stating in part:
You admitted to having made the abusive statement to Mr.
Huelsman, however, you contended that it was made in jest. I
advised you that your attitude at the time of the incident
indicated that you were serious when you made the statement. In
fact, the attitude you displayed at the grievance discussion
further confirmed my conclusion.
On January 21, 1982, Mr. Willett issued Ms. Reis a written letter of
reprimand. The letter stated, in part:
2. This is an official reprimand for disrespectful conduct
toward and use of abusive language to a management official.
Specifically:
a. On 12 January 1982, I met with you, Mr. Vincent Love, your
Union representative and Mr. George Huelsman, the former acting
foreman of SDRCA, to discuss your complaint regarding the Letter
of Caution issued to you 11 January 1982. During this meeting,
you stated you were "kidding" when you made the statement "Get
screwed" to Mr. Huelsman on 7 January 1982. However, before the
meeting ended, you pointed your finger directly at Mr. Huelsman,
who at that time was acting in a management capacity, and said, "I
did. I admit I said it before and I'll say it to you again
George. Get screwed." Your conduct at this point left no doubt in
my mind as to the disrespectful and abusive intent of your
statement toward Mr. Huelsman. In fact, I personally found your
conduct to be disruptive, insulting and unwarranted.
b. Further, it is your responsibility as an employee to
discharge your assigned duties conscientiously and to respect the
administrative authority of those directing your work. In my
judgement, you have not met those responsibilities and, in order
to correct your behavior and maintain discipline and morale among
other employees, this action is taken.
3. In deciding to issue this letter of reprimand, I have
considered that on 11 January 1982, you were given a letter of
caution for use of abusive language to your supervisor.
4. Based on the above stated reasons and in accordance with
the provisions of (Defense Mapping Agency Instruction 1429.2,
Civilian Employee Discipline) you are hereby issued a letter of
reprimand for disrespectful conduct toward and use of abusive
language to a management official. An official reckoning period
of two (2) years from the date of this letter is established.
This letter will remain in your Official Personnel Folder for two
(2) years, and should you commit another offense during this
period, a more severe penalty may be imposed. (Jt. Exh. 5).
On January 27, 1982, Ms. Reis contacted an EEO Counselor to initiate
an informal complaint of discrimination. She alleged that both the
letter of caution and the letter of reprimand were issued to her because
she is a female. (Tr. 111; General Counsel's Exh. 1w, attachment 2).
On January 29, 1982, Ms. Reis referred her grievance to the second
step pursuant to the negotiated agreement. She stated, "I am grieving
the letter of caution dated 7 January (sic) and letter of reprimand for
disrespectful conduct dated 21 January 1982 from Mr. Robert W. Willett.
The letters presented to me are untrue and were in violation of Article
26, Section 1 and Section 2 of the Negotiated Agreement." By letter
dated February 5, 1982, Respondent informed Ms. Reis that her attempt to
raise the letter of reprimand at the second step was denied as untimely.
Respondent stated that this grievance had not been raised at the first
step within five days as required by the negotiated grievance procedure.
Respondent also noted that, had the grievance as to the letter of
reprimand been timely, it would be denied on the ground that she had
raised the same issue in an EEO complaint.
By letter dated February 8, 1982, Respondent denied the second step
grievance concerning the letter of caution. On March 8, 1982, the EEO
Counselor submitted his final report concerning the informal EEO
complaint. The Counselor's investigation and recommendation encompassed
both the letter of caution and the letter of reprimand. On March 18,
1982, Ms. Reis filed a formal complaint of discrimination. She alleged
that Mr. Willett "discriminated against me by requiring a
higher/different standard of conduct/behavior than those required of
males." She listed the date of the letter of caution, January 11, 1982,
under "the most recent date on which discrimination has taken place."
Her narrative concerning the alleged discrimination dealt primarily with
the circumstances surrounding the letter of caution; however, she did
note, "At a meeting regarding the letter of caution I was given a
reprimand for saying I felt I was getting screwed."
On March 15, 1982, the Charging Party filed its charge with the
Authority. It alleged that Respondent had issued the January 21, 1982
letter of reprimand to Ms. Reis for conduct while engaged in protected
activity and to discourage Ms. Reis from filing grievances and
exercising her rights under the Statute.
Discussions and Conclusions
Motion to Dismiss Under Section 7116(d)
Respondent has moved to dismiss the complaint under section 7116(d)
/4/ of the Statute on the grounds that the same issue, the letter of
reprimand, has been raised under a negotiated grievance procedure and as
an EEO complaint under an appeals procedure. Respondent asserts that,
in such circumstances, further proceedings under the Statute are barred.
This burden is on Respondent to establish the applicability of section
7116(d). Social Security Administration, Office of Program Operations
and Field Operations, Sutter District Office, San Francisco, California,
5 FLRA No. 63 (1981).
With respect to whether the same issue has been raised in a
grievance, the record reflects that Ms. Reis did attempt to raise the
merits of the January 21, 1982 letter of reprimand when she submitted
her grievance concerning the January 11, 1982 letter of caution to the
second step. At this time, she contended that both letters were untrue
and violated the negotiated agreement. Respondent rejected Ms. Reis'
attempt to grieve the letter of reprimand as untimely. It has not been
timely raised at a first step as required by the negotiated grievance
procedure. The original grievance filed on January 12, 1982 clearly
predated the January 21, 1982 letter of reprimand. Thus, it could not
be considered part of the original grievance. See Federal Election
Commission, 6 FLRA No. 59 (1981). Even if the letter of reprimand were
deemed to have been raised in the grievance proceeding, it is noted that
the employee's grievance as to the letter of caution and her attempt to
raise the letter of reprimand therein attacked the merits of the
letters, i.e., that the allegations therein were untrue. There was no
allegation that the letters interfered with her rights under the
Statute, as was alleged by the Union in its unfair labor practice charge
with respect to the letter of reprimand. Therefore, the issues being
raised by the aggrieved parties in the separate forums are different and
the instant complaint is not barred by section 7116(d) of the Statute
because of the employee's grievance. Department of the Air Force, Air
Force Logistics Command, Ogden Air Logistics Center, Hill Air Force
Base, Utah, 10 FLRA 88 (1982).
With respect to the EEO complaint, Respondent has not proved that the
issue raised as the unfair labor practice "can properly be raised" under
that appeals procedure. It appears that the issues in the EEO
proceeding will necessarily be limited to the sex discrimination issue
raised by Ms. Reis. Cf. Department of Agriculture, U.S. Forest Service,
Siuslaw National Forest, Corvallis, Oregon, 3 FLRA 272 (1980);
Department of Health, Education and Welfare, Social Security
Administration, Great Lakes Program Service Center, Chicago, Illinois, 2
FLRA 115 (1979); Veterans Administration, Veterans Benefits Office, 3
A/SLMR 444 (1973). Moreover, Ms. Reis' formal EEO complaint deals
primarily with the letter of caution and only tangentially refers to the
letter of reprimand flowing from the grievance meeting. Cf. Federal
Election Commission, supra.
In my view, Respondent has failed to establish section 7116(d) as an
affirmative defense, and the motion to dismiss is denied. The Letter of
Reprimand Did Not Violate Section 7116(a)(1)
The issue for determination is whether Respondent, by reprimanding
Ms. Reis for disrespectful conduct toward and use of abusive language to
a management official (that is, pointing her finger and stating, "I said
it before and I'll say it again, George. Get Screwed.") during the
course of a grievance meeting violated section 7116(a)(1) of the
Statute, /5/ by interfering with, restraining, or coercing the employee
in the exercise of any right under the Statute.
Ms. Reis' participation in the presentation of her grievance was a
right protected by the Statute. Her right to participate in the
discussion of the grievance was also incorporated into the parties'
negotiated grievance procedure. The Authority, in Department of the
Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54
(1979), has adopted the following standard for determining whether an
employee may be disciplined for intemperate language and conduct
occurring during the course of protected activity:
In the Authority's view flagrant misconduct by an employee,
even though occurring during the course of protected activity, may
justify disciplinary action by the employer. On the other hand,
not every impropriety committed during such activity is beyond the
ambit of protected activity. The 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 for its supervisory staff on the jobsite.
A similar standard governs the private sector. See NLRB v. Thor
Power Company, 148 NLRB 1379, enf. granted 351 F.2d 584 (7th Cir.,
1965). As the Court stated in United States Postal Service v. NLRB, 652
F.2d 409 (5th Cir., 1981), at p. 411:
This conflict typically arises in cases where an employee has
been disciplined for conduct that occurred during the course of
the grievance meeting. See, e.g., NLRB v. Florida Medical Center,
Inc., 576 F.2d 666, 671-73 (5th Cir. 1978) (employee called
administrator "a Mafia director"); Crown Central Petroleum Corp.
v. NLRB, (430 F.2d 724 (5th Cir. 1970)) (employee accused a
superintendent of lying). The Act has ordinarily been interpreted
to protect the employee against discipline for impulsive and
perhaps insubordinate behavior that occurs during grievance
meetings, for such meetings require a free and frank exchange of
views and often arise from highly emotional and personal
conflicts. Both the Board and the courts have recognized that
some tolerance is necessary if grievance meetings are to succeed
at all; as we have noted before, "bruised sensibilities may be
the price exacted for industrial peace." Crown Central Petroleum
Corp v. NLRB, supra, at 731. See Bettcher Manufacturing Corp., 76
N.R.B. 526 (1948). In some cases, however, the employee's conduct
during the meeting has been found to be so opprobrious or
disruptive that the Act's protection must give way to the
employer's right to maintain discipline in its establishment.
When the employee's conduct during a grievance meeting is
"indefensible under the circumstances," the employer may indeed
discipline the employee without violating the Act. NLRB v.
Florida Medical Center, Inc. supra, at 673.
The question is whether Ms. Reis' remarks were within the ambit of
protected activity, allowing leeway for impulsive behavior, or were so
opprobrious and insubordinate as to be indefensible under the
circumstances, thus constituting flagrant misconduct, appreciably
impinging upon the employer's right to maintain order and respect for
its supervisory staff and justifying discipline as outside the
protection of the Statute.
The various factors to be considered in striking the balance should
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 in anyway provoked by the employer's conduct, and (4) the
nature of the intemperate language and conduct. Cf. Atlanta Steel Co.,
102 LRRM 1247 (NLRB, 1979). The balance must be struck in each case
with an eye to the special facts presented by it.
The place of the discussion weighs heavily in Ms. Reis' favor. The
remarks were made during the course of a closed grievance meeting and
not as a calculated flagrant act of insubordination in front of other
employees. See Boaz Spinning Co., v. NLRB, 395 F.2d 512, 68 LRRM 2393
(5th Cir. 1968) (employee firing upheld for interrupting a manager's
anti-union presentation in front of all employees and calling him, in
part, "no different than Castro"). The location and circumstances of
the meeting made it a sanctuary where it could reasonably be expected
that a full, free and frank exchange of views would be fully aired among
equals - advocates of their respective positions. See Crown Central
Petroleum Corp., v. NLRB, 430 F.2d 724 (5th Cir. 1970). A grievance
procedure is a conflict resolution mechanism. Passions run high and
conflicts are highly emotional and personal. The Authority has
recognized that there must be leeway for impulsive behavior in such
circumstances.
Ms. Reis' conduct was impulsive rather than designed. Her remarks
came during the end of a grievance meeting. It is reasonable to
conclude that Ms. Reis, realizing that her version of the first "get
screwed" remark was not being accepted, simply decided to abandon all
efforts at rational persuasion and reiterate to her former supervisor
that he could "get screwed."
While Ms. Reis' remarks may have been actuated or swayed by emotional
impulses, the impulses were deliberate and not involuntary. Ms. Reis
was not impelled or incited to make the statement by provocative conduct
on the part of Respondent's representatives. /6/ Her remarks were not
pertinent to a discussion of the grievance under consideration. /7/ The
remarks consisted of a repetition of the very behavior she had been
cautioned against, although this time it was not made on the shop floor.
In striking a fair balance between the statutory right of the
employee to engage in protected activity with leeway for impulsive
behavior, on the one hand, and the employer's right to maintain order
and respect for its supervisory staff on the other, the scale here tips
rather heavily in favor of the employer. In my view, Ms. Reis' remarks
were indefensible under the circumstances and constituted flagrant
misconduct, thus justifying discipline as outside the protection of the
Statute. Just as employees and their representatives may not have their
rights undermined by being unduly constrained by fear of personal
repercussions if they fail to remain within the strict bounds of
propriety in the presentation of grievances, neither may they act with
impunity while engaged in such protected activity. There is a
difference between "letting off steam" spontaneously because of
frustration, zealousness, or provocation and deliberate, excessive abuse
of supervisory staff based on personal antagonism. In my view, this
case falls within the latter category. The reprimand for such unusual
conduct would not tend to interfere with, restrain, or coerce any
employee in the filing or presentation of a grievance.
It is concluded that Respondent did not violate section 7116(a)(1) of
the Statute, as alleged. Accordingly, it is recommended that the
Authority adopt the following Order:
ORDER
It is hereby Ordered that the Complaint in Case No. 57-CA-20231 be,
and it hereby is, DISMISSED.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: January 13, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ There was considerable testimony concerning the circumstances
leading up to the letter of caution. It is unnecessary for purposes of
this case to make additional detailed findings in this regard, and it is
noted that the letter of caution is the subject of an equal employment
opportunity (EEO) complaint. However, the testimony concerning the
letter of caution was considered in evaluating the overall credibility
of the witnesses. Based on the entire record, I credit the background
testimony of Respondent's witnesses, Messrs. Huelsman and Willett,
concerning this event. Their testimony supports the statements in the
letter.
I also reject Ms. Reis' testimony that when Mr. Willett gave her the
letter of caution he tried to coerce her into not pressing the issue
further.
/2/ Abusive, vulgar, and profane language is commonplace in the lab.
It is used by both employees and supervisors in both friendly and
unfriendly contexts, such as a disagreement over how a job should be
performed. However, it is neither usual or acceptable for an employee
to tell a supervisor to "get screwed," particularly in the context of
refusing an assignment.
/3/ Ms. Reis emphatically denied telling Mr. Huelsman to "get
screwed" this second time. She testified that her only comment had
been, as reflected above, to the effect that she was doing the best she
could and was "getting screwed." Steward Love supported Ms. Reis'
testimony to a degree, despite his vague recollection, but acknowledged
that Ms. Reis was pointing at Huelsman at the time of her statement. In
making the findings as to what occurred at the meeting, I have credited
the contrary testimony of Messrs. Willett and Huelsman in this respect.
/4/ Section 7116(d) of the Statute provides:
(d) Issues which can properly be raised under an appeals
procedure may not be raised as unfair labor practices prohibited
under this section. Except for matters wherein, under section
7121(e) and (f) of this title, an employee has an option of using
the negotiated grievance procedure or an appeals procedure, issues
which can be raised under a grievance procedure may, in the
discretion of the aggrieved party, be raised under the grievance
procedure or as an unfair labor practice under this section, but
not under both procedures.
/5/ Section 7116(a)(1) provides:
(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(.)
/6/ The record supports Ms. Reis' testimony that she was provoked to
state earlier during the meeting that she was "getting screwed."
However, she was not reprimanded for this statement, and I find no
provocation or mitigating circumstances for her second statement.
/7/ Compare Department of Housing and Urban Development, San
Francisco Area Office, San Francisco, California, 4 FLRA No. 64 (1980)
(steward's referring to supervisor as "racist, sexist, and ageist" were
related to grievant's discrimination allegations, and statement, "I'm
not going to give you shit," related to supervisor's unreasonable demand
for a letter acknowledging responsibility); Veterans Administration
Regional Office, Denver, Colorado, 2 FLRA 667 (1980) (union president's
description of personnel officer's actions in a grievance as
"malevolent" and the officer as "incompetent" held to be traditional
collective bargaining language); Department of the Navy, Puget Sound
Naval Shipyard, Bremerton, Washington, 2 FLRA 53 (1979) (steward shook
his fist in supervisor's face and said, in part, "I am going to get your
ass. I filed an unfair labor practice and if the Council doesn't get
your job, then something is wrong." Remarks held to be related to
foreman's pervasive course of conduct in interfering with protected
rights); Department of the Army, Headquarters, Military Traffic
Command, 2 FLRA 539 (1980) (statements by Union members of rating panel
that loudly accused management members of being "indoctrinated by
management," "rating unfairly," and being "told how to rate" held to
represent legitimate concern of the Union representative); Department
of the Air Force, Scott Air Force Base, Illinois, Case No. 5-CA-1129, 13
ALJDR (1982) (Employee at grievance meeting made impulsive comments by
repeatedly called third-level supervisor "a Hitler" because of her
frustration over the procedures being used by the supervisor to run the
meeting which prevented her from telling her story.)