[ v20 p568 ]
20:0568(69)CA
The decision of the Authority follows:
20 FLRA No. 69
U.S. DEPARTMENT OF LABOR
EMPLOYMENT AND TRAINING ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO
Charging Party
Case No. 3-CA-30603
DECISION AND ORDER /1/
The Administrative Law Judge issued the attached 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 and the Charging Party filed exceptions to the Judge's
Decision and the Respondent filed an opposition to those exceptions
along with cross-exceptions.
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 as modified below.
/2/
The record indicates that on March 31, 1983, Charles Carter, the
Respondent's agent, initiated a meeting with Earl Sizemore, a Union
Steward, to discuss Sizemore's recent work products. Sizemore left the
meeting soon after it began, stating that it was becoming disciplinary
and that he wanted his Union representative to be present. Shortly
thereafter, Sizemore returned with Douglas Cook, the Union's Head
Steward. Carter refused to meet with them and started walking down a
hallway. He was followed by Cook and Sizemore. All three were walking
at a fast pace and were discussing the incident. Cook was loudly
insisting that Sizemore had a right to representation and that a
grievance would be filed on Sizemore's behalf. As testified to by
Carter, the remarks sounded somewhat threatening and he attempted to
assuage Cook by making statements to the effect that there was no need
to get emotional and that the matter could be resolved. At the same
time, Sizemore, who was following closely on Carter's heels, was
complaining about criticisms that had been levied against his work. At
a point during this loud exchange, Carter made physical contact with
Cook so that Cook fell against a wall. Sizemore, who had been following
closely behind Carter, then bumped into him. Cook made several
intemperate remarks to Carter who then retreated to his office.
Immediately thereafter, Cook and Sizemore followed Carter to his office
for the purpose of requesting official time to prepare a response to
what had occurred. Cook and Sizemore barged past Carter's secretary and
burst unannounced into Carter's office. As Cook began making his
request, Carter physically ejected him from the office.
In agreement with the Judge's conclusion, the Authority concludes, in
the particular circumstances of this case, that Carter's conduct did not
rise to the level of an unfair labor practice and shall order that the
complaint be dismissed.
As a general proposition, physical assaults upon employees while they
are engaged in fulfilling their union representational responsibilities
under the Statute will not be condoned. The Authority views resort to a
physical response in the context of a labor-management dispute by either
a union representative or a manager as generally beyond the limits of
acceptable behavior at the workplace. However, the Authority also
recognizes that resort to such behavior in certain limited instances and
in response to particular situations may not rise to the level of an
unfair labor practice under the Statute. Where, as in the instant case,
the conduct involves innocuous physical contact occurring in the context
of a highly charge situation, and which to an extent is provoked by the
behavior of a union or management representative, no violation of the
Statute will be found to have occurred.
As the record in this case indicates, the two instances of physical
contact with the Union's Head Steward constituted spontaneous actions
which were neither encouraged nor condoned by the Respondent, and which
were apparently provoked by the Head Steward's own language and conduct.
Thus, in the first instance of contact, and as found by the Judge,
Carter was essentially pursued down a hallway and subjected to loud,
threatening remarks which were made in a public area and within hearing
distance of other employees within Carter's division. The second
incident occurred almost immediately thereafter when Carter fled to the
sanctity of his office, whereupon Cook and Sizemore barged unannounced
into Carter's office, also within view of other division employees. In
the particular circumstances of this case, and on balancing Carter's
somewhat impulsive behavior with Cook's provocation, the Authority
finds, in agreement with the Judge, that Carter's conduct did not
constitute a violation of section 7116(a)(1) of the Statute, as alleged.
In reaching our decision herein, the Authority is not unmindful of
the inherent delays which may result from the processing and
determination of unfair labor practice cases, such as that herein, which
involve minor confrontations at the workplace. In such circumstances,
the Authority views the collective bargaining relationship to be better
effectuated by the timely and amicable efforts of the parties to settle
such minor altercations or to resolve such matters through the
expeditious use of a contractually agreed-upon grievance procedure.
William J. McGinnis, Jr., Member
Concurring Opinion of Acting Chairman Frazier:
I also agree, in the circumstances of this case, and for the reasons
articulated below, that Carter's conduct did not constitute a violation
of the Statute.
As found by the Judge, employee Sizemore was summoned to a meeting
with supervisor Carter and employee Hancock to discuss Sizemore's work
performance. At a point during the meeting, Sizemore left for the
purpose of calling in union representative Cook. In Sizemore's absence,
Carter adjourned the meeting. Shortly thereafter, Cook and Sizemore
encountered Carter outside the latter's office and requested to meet.
Carter declined the request. The three men proceeded down a hallway,
walking at a fast pace and discussing the incident with Sizemore
following closely on Carter's heels. Several things occurred next
within a relatively short period of time which, in my opinion, created
some confusion and established the framework for the type of
confrontation which occurred in this case. Cook began by making loud
remarks concerning Sizemore's right to union representation and the fact
that a grievance would be filed on his behalf. These remarks sounded
somewhat threatening to Carter who then attempted to calm the situation.
During this exchange, Carter apparently acted impulsively, as found by
the Judge, when he put his hands on Cook causing Cook to fall back
against a wall. Cook responded by making some intemperate remarks.
Simultaneously, Sizemore bumped into Carter with Carter accusing
Sizemore of kicking him. Sizemore apologized. Carter next attempted to
extricate himself from the situation by retreating to his office, but
was followed by Cook and Sizemore who barged uninvited and unannounced
into the office. At that point, Carter was placed in the position of
having to physically eject Cook from his office.
In my view, union representative Cook acted in a provocative manner
which prompted Carter to take certain defensive retaliatory actions. As
to the first instance of physical contact, I find that Cook's loud
remonstrations in a public place after Carter declined to meet with Cook
and Sizemore necessarily had an obstructive and provoking effect on
Carter and went far beyond the permissible bounds of protected activity
granted an exclusive representative under the Statute. With respect to
the exchange which occurred in Carter's office, Cook's conduct in
barging into a supervisor's office can be viewed as nothing other than
belligerent, especially in view of Carter's attempt to extricate himself
from the volatile situation by seeking refuge in his own office.
Without the mitigating circumstances here presented, Carter's
conduct, in my view, would have been unlawful under the Statute.
However, where, as here, the union representative provoked the
confrontation and acted in a loud, belligerent and obstructive fashion,
Carter's defensive, retaliatory conduct, though not condoned, cannot be
viewed as excessive. /3/ Accordingly, and in agreement with Member
McGinnis, I find that the complaint should be dismissed.
Henry B. Frazier III, Acting
Chairman
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-30603 be, and it
hereby is, dismissed.
Issued, Washington, D.C., October 30, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-30603
Arlean Leland,
Attorney for Respondent
Edward Helm,
Attorney for the Charging Party
Donna Ditullio
Attorney for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute (hereinafter referred to as the Statute) and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to a charge of unfair labor practices filed by the Charging
Party on June 21, 1983, the General Counsel of the Federal Labor
Relations Authority (hereinafter, Authority) investigated and, on
November 28, 1983, served the complaint initiating this proceeding.
The complaint alleges that an agent of Respondent, at its Washington,
D.C., location, "physically assaulted" a representative of the Charging
Party while the representative "was engaged in representational
activities on behalf of a unit employee" (GC1(c), para. 5). /4/ By such
act and conduct it is alleged that Respondent has, and is interfering
with, restraining and coercing employees in the exercise of their rights
guaranteed in Section 7102 of the Statute, /5/ and thereby has, and is
engaged in an unfair labor practice, in violation of Section 7116(a)(1)
of the Statute. /6/
Respondent denies that its agent committed the unfair labor practice
alleged, or that it has engaged or is engaging in unfair labor
practices.
A hearing in Washington, D.C., was commenced on March 1, 1984,
continued until March 16, and concluded on that day. The parties
appeared, adduced evidence, and examined witnesses. The General Counsel
made a closing statement, at TR 460-470. Respondent filed a brief on
May 16, pursuant to an order, sought by Respondent, which extended the
briefing time to that date. Charging Party filed its brief on May 15.
/7/
Based upon the record made in this case, my observation of the
demeanor of the witnesses, and the arguments of counsel, I enter the
following findings and conclusions, and recommend entry of the following
order.
Findings of Fact
1. It is admitted that, during all times material herein, the
Charging Party (also referred to as the Union) is and has been a "labor
organization," and the Respondent is and has been an "agency" within the
meaning of Sections 7103(a)(4) and (3) of the Statute.
2. It is also admitted that, during all times material herein,
Charles Carter has been, and is now an agent acting on Respondent's
behalf at its 601 D Street, Washington, D.C., location. For
approximately two years, he has been Chief of Respondent's Division of
Agricultural Certification.
3. Since June 1952, Douglas Cook has been a GS13 Manpower Analyst
employed by Respondent in its Division of Testing. Since September
1982, he has been Head Steward of the Union. As such he directs the
stewardship program and provides representation on particularly
difficult or unusual cases. Prior to the incidents here involved, he
represented an employee before Mr. Carter and won a promotion and large
cash settlement for the employee. See TR 28-30.
4. Since May 1982, Earl Sizemore has been a GS-12 Manpower
Development Specialist, in Mr. Carter's division. For roughly 10 or 12
years, Mr. Sizemore has been a steward for the Union.
5. John Hancock is a GS14 Manpower Development Specialist, also in
Mr. Carter's division. Mr. Hancock is the "primary conduit" for
assignments in that division (TR 345).
6. The following is my assessment of the credibility of the
witnesses based upon my observation of their demeanor, as well as other
factors, discussed as to each.
a. Mr. Cook's testimony was consistent, and inherently credible.
With the exception of Mr. Carter, Mr. Cook's account of the alleged
assaults was not contradicted by any witness who was in a position to
observe, fully, what happened. Indeed, his testimony was supported by
them in some important particulars, as will be detailed. I fully credit
his testimony.
b. Mr. Carter did not hold up well on cross-examination (see TR
242-251) and, on some important details, was contradicted not only by
Messrs. Cook and Sizemore, but also by Mr. Hancock and Ms. Adams, both
of whom he supervises, and both of whom exhibited reluctance in becoming
involved in this proceeding, (see TR 233-234, 442-445 and 446-448)
thereby rendering any testimony of theirs which is harmful to Mr.
Carter, particularly trustworthy. Compare TR 150-151 and 237, with TR
400 and 422, 81, 25 and 44, as to whether Mr. Carter slammed his door
shut on Mr. Cook. Compare also TR 391 and 70, as to whether he realized
Mr. Cook would be returning to the meeting momentarily. Compare also TR
164 with his April 13, 1983 letter to the Union's president, attached to
GC1(a), as to whether he knew that Mr. Cook was a Union representative.
Compare also TR 237-238 with TR 395 and 399, as to whether he raised his
voice at the point of one alleged assault. Compare also TR 238-239 with
TR 421, 21-22 and 95-96, as to whether Messrs. Cook and Sizemore
immediately followed Mr. Carter back to his office after the first
alleged assault. Compare also TR 175-176 with TR 382 and 431, as to
whether the April 1, 1983 meeting between himself and Messrs. Hancock
and Sizemore was routine in nature. Compare also TR 182 and 186-190
with TR 368, as to when, and at whose instigation Mr. Hancock wrote a
memorandum concerning a flare-up of Mr. Sizemore. Mr. Carter exhibited
both a lack of candor and accuracy in giving his testimony.
Accordingly, I do not credit it wherein it conflicts with that of other
witnesses.
c. Mr. Hancock was a reluctant, somewhat irritable witness who had
to be subpoenaed to testify. His account of the events which he was in
a position to witness seemed honest, although his memory of some details
was poor. Insofar as his memory served him, I credit his testimony.
d. Mr. Sizemore's testimony was basically consistent and
corroborated by that of Mr. Cook, insofar as Mr. Cook had knowledge of
the events in issue. However, he may have been somewhat biased because
he was disciplined, on the recommendation of Mr. Carter, over events
here in issue. I therefore give less credence to his testimony wherein
it directly conflicts with that of Mr. Hancock. But I find that Mr.
Sizemore was a more credible witness than Mr. Carter.
e. The other two witnesses were Carol Adams, Mr. Cook's secretary,
and Avis Smith, another Manpower Development Specialist in Mr. Carter's
division. Both appeared anxious to vindicate their supervisor and
somewhat antagonistic towards the attorney for the Charging Party. Ms.
Smith seemed somewhat confused. However, she and Ms. Adams appeared to
give an honest account of as much of the events at issue as they were in
a position to overhear and observe; and I fully credit their testimony.
7. On March 31, 1983 Mr. Carter discussed with his superior some
problems with Mr. Sizemore's work, and the need to talk with Mr.
Sizemore about these problems. Mr. Carter and his superior both "knew,"
from prior encounters with Mr. Sizemore, that he "could possibly
overreact" to criticisms and "become hostile and combative" (TR 141).
8. Also on March 31, Mr. Hancock gave an assignment to Mr. Sizemore
on which Mr. Sizemore had already done some work. Mr. Sizemore
completed the assignment within a few hours, and placed a memorandum
concerning it on Mr. Hancock's desk. Early the next morning, Mr.
Sizemore went into Mr. Hancock's office to inquire about the memorandum.
Mr. Hancock advised Mr. Sizemore that he was rewriting it, because Mr.
Sizemore had "ma(de) a federal case out of it" (TR 60). Mr. Sizemore
expressed his disagreement, and told Mr. Hancock that he "didn't like
his manner of criticizing (his) work" (TR 62). Mr. Sizemore spoke in an
angry tone of voice, and used words regarded by Mr. Hancock as profane.
See TR 305 and R4, page 3. Mr. Hancock ordered Mr. Sizemore out of his
office. Mr. Sizemore then approached him with a clenched fist, and said
"are you going to make me" (TR 305). Mr. Hancock replied that he was
not, and resumed his work. Within a few seconds, Mr. Sizemore left Mr.
Hancock's office.
9. Shortly after the Hancock-Sizemore incident, Mr. Hancock advised
Mr. Carter of "the flare up" of Mr. Sizemore in his office, and also of
several of his work products which needed considerable revision (TR
308). Mr. Sizemore noticed Mr. Hancock going into Mr. Carter's office.
Shortly thereafter, Ms. Adams advised Mr. Sizemore that Mr. Carter
wanted to meet with him later on in the morning, and that Mr. Hancock
would be at the meeting. Mr. Sizemore became suspicious and sought out
Douglas Cook, to advise him to stand by to represent him at the meeting.
Mr. Cook agreed to do so.
10. The Carter-Hancock-Sizemore meeting took place, as planned.
Although Mr. Carter testified that such meetings of the three occurred
routinely, "maybe once a week" (TR 175-176), Mr. Hancock could not
recall another such meeting, and Ms. Adams testified that they did not
occur often. TR 382 and 431. Accordingly, I find that this was not a
routine meeting of the three. All three agree that Mr. Carter stated
the purpose of the meeting as being to discuss some of Mr. Sizemore's
recent work products. See TR 66-67, 130, 136, and 309. They also agree
that, shortly after it began, Mr. Sizemore declared that it had become
disciplinary in nature and that he wanted to have a union
representation. See TR 69-70, 137, 206, and 309. Mr. Sizemore
testified that Mr. Carter first brought up the subject of "discipline,"
in regard to one of the work products discussed (TR 69). Mr. Hancock
testified that Mr. Sizemore brought up the subject, and that Mr. Carter
then told Mr. Sizemore that the meeting was not to discipline him. See
TR 309 and 387-391. Mr. Carter corroborated the testimony of Mr.
Hancock. See TR 129 and 136-139. I credit the testimony of Mr. Hancock
on this point. Mr. Sizemore began "screaming about (union)
representation and discipline" (TR 387), and left the meeting, in a
rush, "looking very angry" and with "his hair kind of blowing" (TR 418).
11. Mr. Sizemore left the meeting with the statement that he was
going to get his union representative (see TR 70 and 309). /8/ Mr.
Sizemore testified that he said that he "would be back in a minute"
(TR70). Although Mr. Hancock could not recall that Mr. Sizemore made a
statement about being right back with his union representation, it was
Mr. Hancock's "perception" that he was going to do just that (TR 391).
I credit Mr. Sizemore's statement that he told Messrs. Carter and
Hancock that he would be back in a minute. Mr. Carter, nevertheless,
adjourned the meeting and left his office.
12. A few minutes later, Mr. Sizemore returned with his union
representative, Mr. Cook. They encountered Mr. Carter in the hallway
outside Mr. Carter's office suite. Mr. Sizemore told Mr. Carter that
the meeting could resume "now that he had his union representative" (TR
16 and see also TR 71). Mr. Carter refused to meet with them. Messrs.
Cook and Sizemore understood Mr. Carter to say "Come with me" (TR 17 and
54) or words to that effect. See TR 72-73. /9/ In any event, the trio
proceeded down the hallway, past Mr. Carter's office, around several
corners, and into the 8200 hallway, going at a fast pace. Messrs. Cook
and Carter were walking side by side. Mr. Sizemore followed, coming
closer and closer, as Mr. Carter's voice dropped to a whisper, and
leaning over so that he could hear what was being said. During this
walk through the hallways, all three were talking. Mr Cook was loudly
insisting that Mr. Sizemore had a right of representation, and that he
would file a grievance on his behalf (see TR 19, 72 and 231). The
remark about the grievance sounded "threatening" to Mr. Carter (TR 144).
Mr. Carter was saying such things as: "Doug, just let me talk to you;"
"(t)here's no need to file a grievance;" "(t)he matter can be resolved;"
"it's not necessary to get so emotional," and "(w)e'll deal with the
issue when you file your grievance." See TR 20, 72, 146, 159, 223, 226,
231-232, 452 and 454. Mr. Sizemore was interjecting complaints about
Mr. Hancock's criticism of his work as the trio walked through the
hallway. See TR 451-452.
13. At a midpoint in the 8200 corridor, Mr. Carter suddenly slowed
down and shoved Mr. Cook with the heel of his hand, hard enough so that
Mr. Cook fell against the wall. See TR 18-21 and 75. /10/ Mr. Cook
said: "You hit me. Now you've got your ass in a jam." TR 20, 76-77 and
452. Simultaneously, Mr. Sizemore, who, unbeknownst to Mr. Carter, had
been following very closely on his heels, bumped into Mr. Carter. Mr.
Carter accused Mr. Sizemore of kicking him. See TR 146. Mr. Cook then
said: "He didn't kick you. You're crazy" (TR. 76). Mr. Sizemore
apologized, saying he did not mean to kick Mr. Carter. Mr. Carter then
asked Mr. Cook to repeat what he had said a second or so ago; and Mr.
Cook did, repeating: "You've got your ass in a jam" (TR 76). Mr. Cook
acknowledged that this use of language was uncharacteristic for a church
leader. See TR 20 and 27.
14. Avis Smith encountered the trio twice in the 8200 hallway, about
less than a minute apart-- once on her way to Mr. Carter's office, when
they were just rounding a corner into the 8200 hallway (TR 452), and
once on her way back to her own office, when she saw them standing in a
"cluster" (TR455). She overheard the "ass-in-a-jam" remark. See TR
452. However, she did not observe Mr. Sizemore run into Mr. Carter, or
Mr. Cook "up against the wall," or any "physical contact between Mr.
Carter, Mr. Cook and Mr. Sizemore" (TR 453). Thus, she would have
missed seeing both physical encounters-- the Sizemore-Carter one and the
Cook-Carter one-- as they occurred simultaneously.
15. After the 8200 hallway incident, Mr. Carter returned to his
office. Messrs. Cook and Sizemore quickly decided that they should
request official time for Mr. Sizemore from Mr. Carter, in order to
prepare "some further response" (TR 21). Accordingly, they followed Mr.
Carter back to his office suite.
16. Both Messrs. Cook and Sizemore walked into Mr. Carter's office
suite and past his secretary. Without asking Mr. Carter's secretary to
announce him, Mr. Cook proceeded into Mr. Carter's office in the suite.
Mr. Cook managed to say "On behalf of-- " (TR 24 and see also TR 22),
before Mr. Carter jumped from his chair, behind his desk, and said:
"I'm not going to meet with you. Get out of here" (TR 22 and see also
TR 81). As Mr. Cook backed toward the door, again uttering "On behalf
of-- " (TR 25 and see also TR 22), Mr. Carter came around his desk to
Mr. Cook, put his hands on Mr. Cook's arms, swung him around, pushed him
out the door, and slammed the door so hard that it slammed into Mr. Cook
before slamming shut. /11/ Mr. Hancock and Ms. Adams were sitting at
their desks, outside Mr. Carter's office, at the time of this event.
Neither could view, fully, what occurred; and neither saw Mr. Cook
shoved by Mr. Carter. See TR 380, 424-425, and 439. Mr. Hancock heard
the "milling around," looked up from his desk, in an office facing Mr.
Carter's office, observed Mr. Cook three feet outside Mr. Carter's
office and leaning forward and away from Mr. Carter's doorway, and then
heard the door to Mr. Carter's office slam shut. See TR 314, 315, 375,
401-402, 421 and 422. This observation is consistent with Mr. Cook's
testimony that he received a hard shove from Mr. Carter, ejecting him
forcefully from his office.
17. Mr. Cook is 50 years old, weighs about 200 pounds, and is about
5 feet, 10 inches tall. Mr. Sizemore is 50 years old, weights about 195
pounds, and is roughly 6 feet tall. Mr. Carter appears to be
considerably younger than 50 years, engages in a variety of sports and
regular exercise, weighs 150 pounds is and 5 feet, five and one-half
inches tall. Mr. Cook does not claim that he was "physically harmed" by
Mr. Carter (TR 54).
18. On April 13, 1984, Mr. Carter sent the following letter to Jay
Edelson, the President of the Union:
This is a letter of complaint with regard to the conduct of a
Union representative, Mr. Doug Cook on April 1, 1983. In my view,
Mr. Cook's conduct was not conducive to a constructive
labor-management relationship.
Mr. Cook was loud and boisterous in confronting me in a
hallway; he used abusive and profane language; and he attempted
to force his way into my office, after leaving the hallway.
I feel that such actions by Mr. Cook were not in the best
interest of the union nor the employee. Those actions also
disrupted the work of other employees and therefore impaired the
efficiency of the office. Finally, he has impaired his
effectiveness in communicating with me on labor-management
matters.
Based on this letter, identifying Mr. Cook as a "Union representative,"
and the admission of Mr. Carter that he heard Mr. Sizemore say that he
was going to get a union representative, as he left the
Carter-Hancock-Sizemore meeting, I find that Mr. Carter knew that Mr.
Cook was acting as a union representative during the April 1 incident at
issue.
19. On April 21, 1983, Mr. Carter proposed suspension of Mr.
Sizemore for five days. See CP1. Reason #1 was "Improper Office
Conduct on April 1, 1983," including his having "responded to Mr.
Hancock's remarks (at a meeting with him on April 1) with profanity."
See finding 8, above. Reason #2 was "Striking a Supervisor," namely Mr.
Carter in the hallway collision between the two. See finding 13, above.
Mr. Sizemore was, in fact, suspended without pay for five days, for the
above reasons. See TR 112.
Discussion and Conclusions
The General Counsel has established that Respondent's agent gave a
Union representative two shoves while he was attempting to represent an
employee. See findings 3, 12, 13, 15, and 18, above. However, it was
also shown that the shoves were provoked by actions of the Union
representative and did not, under the totality of the circumstances
established, rise to the level of an unfair labor practice.
In the field of labor relations, a certain amount of "robust debate"
and "impulsive behavior" is tolerated, when engaged in by union
representatives. See, e.g., Department of the Navy, Puget Sound Naval
Shipyard, Bremerton, Washington, 2 FLRA 54, 55(1979), hereinafter
referred to as Navy. Such tolerance should also be extended to words
and actions of managers acting impulsively in response to a provocation
by union representatives.
The manager here was subjected to loud threats of filing a grievance
against him, in public hallways of the agency and within hearing
distance of other employees in his division. This was demeaning to him,
as a manager, and left doubt as to his ability "to maintain order and
respect . . . on the job site." See Navy, FLRA at 55, He was further
subjected to the indignity of being told by the union representative, in
the hallway, that he was "crazy" and that he had "his ass in a jam"-- a
remark that was overheard by a passing employee in the manager's
division. After the manager, in effect, fled from this encounter to the
sanctity of his office, he was followed by the union representative, who
barged past the manager's secretary and into his office, without
announcement or appointment.
Shoving a union representative while he is performing his statutory
duties, can be neither defended nor endorsed as a proper response by a
manager to a labor relations dispute. But neither can it be held to be
so excessive a response to the situation in which the union
representative had placed the manager, that it can be denominated as an
unfair labor practice.
Cases cited by the General Counsel, at TR 467-469, in support of the
complaint, involve much more egregious behavior by managers than is here
involved-- twice spraying liquid mace in the face of an employee (Empire
Corporation, 212 NLRB No. 81, at page 623); grabbing an employee by the
shirt and forcing other employees to separate them (Shultz, Snyder and
Steele Lumber Co., 198 NLRB No. 72, at page 424); putting an employee's
neck in an arm lock, grabbing him by the arm, and kicking his foot out
from under him (Greyhound Taxi Co., 234 NLRB No. 134, at page 785); and
punching an employee in the face and neck (Hot Bagels and Donuts, 227
NLRB No. 234, at page 1608). Another case cited by the Charging Party
at page 6 of its brief, involved such egregious conduct by an owner as
driving his car at excessive speed to disperse pickets and actually
sideswiping one (Green Briar Nursing Home, Inc., 201 NLRB No. 73, at
page 505 (1973)).
Balancing here the union representative's provocation and the
manager's impulsive behavior in response, all in the light of the
recognized need of management to maintain order at the job site, I
cannot conclude that the General Counsel proved, by a preponderance of
the evidence, /12/ that an unfair labor practice occurred.
In view of the above conclusions, it is unnecessary to reach other
questions raised by the parties.
Ultimate Findings and Recommended Order
The General Counsel having failed to prove, by a preponderance of the
evidence, that an unfair labor practice occurred or is occurring, it is
hereby ORDERED that this complaint should be, and hereby is dismissed.
Isabelle R. Cappello
Administrative Law Judge
Dated: July 25, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Acting Chairman Frazier's opinion is set forth, infra.
/2/ In its cross-exceptions, the Respondent excepted to certain
credibility findings made by the Judge. The demeanor of witnesses is a
factor of consequence in resolving issues of credibility, and the Judge
has had the advantage of observing the witnesses while they testified.
The Authority will not overrule a Judge's resolution with respect to
credibility unless a clear preponderance of all the relevant evidence
demonstrates that such resolution was incorrect. The Authority has
examined the record carefully, and finds no basis for reversing the
Judge's credibility findings.
/3/ For a discussion of similar situations arising under the National
Labor Relations Act, as amended, see, e.g., H.O. Kline Transportation,
Inc., 259 NLRB 299(1981) wherein a manager's conduct in scuffling with a
union steward was found not to be violative of the Act inasmuch as the
steward had badgered the manager and provoked the confrontation;
Michael M. Schaefer, 246 NLRB 181(1979), enforced sub nom. Michael M.
Schaefer v. NLRB, 697 F.2d 558 (3rd Cir. 1983), wherein a manager's
retaliatory conduct towards employees was deemed not excessive in view
of the degree of provocation caused by such employees; Evacuation
Construction, Inc., 248 NLRB 649(1980), enforcement denied on other
grounds, 660 F.2d 1015 (4th Cir. 1981), where an altercation caused by
belligerent employees did not interfere with the exercise of their
rights under the Act; Cabot Corporation and Payne and Keller of
Louisiana, Inc., 223 NLRB 1388(1976), aff'd sub nom. International
Chemical Workers Union Local 483 v. NLRB, 561 F.2d 253 (D.C. Cir. 1977),
where defensive conduct on the part of the employer did not violate the
Act; and Cosmo Graphics, Inc., 217 NLRB 1061(1975), in which the
circumstances surrounding conduct toward picketing employees, including
shoving one such employee, absolved such conduct of its possible illegal
character.
/4/ "GC" refers to the exhibits of the General Counsel. Other
abbrevations to be used are as follows. "R" refers to the exhibits of
the Respondent, and "CP" to those of the Charging Party. "RBr" refers
to the brief of the Respondent, and "CPBr" refers to the brief of the
Charging Party. "TR" refers to the transcript. Transcript corrections
are made pursuant to 5 CFR 2423.19(r) and are attached hereto as
Appendix A.
/5/ Section 7102 provides, in pertinent part:
Sec. 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 . . .
/6/ Section 7116(a)(1) provides:
Sec. 7116. Unfair labor practices
(a) For the purposes 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; . . .
/7/ Attached to the Charging Party's brief are some materials
relating to a grievance filed on behalf of William A. Burrell. These
materials do not constitute a published EEO decision as stated at page 4
of the brief. And see TR 471. Nor do they appear to constitute any
other type of document of which judicial notice may properly be taken.
Accordingly, no consideration has been given these materials in reaching
the conclusions in this decision.
/8/ I do not credit Mr. Carter's denials to the contrary, at TR 139
and 229. See finding 6, above.
/9/ Mr. Cook admitted being puzzled by Mr. Carter's remark. See TR
55. I find that Messrs. Cook and Sizemore probably misunderstood him.
/10/ I do not credit Mr. Carter's denial, at TR 147, that he put his
hands on Mr. Cook.
/11/ I do not credit Mr. Carter's denials that this took place. See,
e.g., TR 151-152, 238, 242-251, and 272-273. See finding 6, above.
/12/ This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7).