Protected Activity

In U.S. Department of Veterans Affairs, 56 FLRA No. 117 (2000), the Authority concluded that the Respondent violated section 7116(a)(1) of the Statute by interrogating a Union steward concerning a unit employee's confidential statements to the steward, and by presenting the steward with a settlement agreement requiring him to refrain from engaging in particular types of protected activity. The Authority held that the Respondent's duty to investigate an equal employment opportunity (EEO) complaint by a supervisor against the steward did not permit the Respondent to conduct the investigation in a manner that was inconsistent with the Statute. As remedies, the Authority directed the Respondent to: post a notice wherever employees of the local bargaining unit are employed; direct the highest management official at the location where the violations occurred to sign the notice; and distribute copies of the notice to its EEO investigators and the head of its EEO program. The Authority denied the General Counsel's request that the head of the Respondent's nationwide EEO program be directed to sign the notice.

In Dep't of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, S.C., 57 FLRA 80 (2001) (Chairman Cabaniss dissenting), the Authority adopted an Administrative Law Judge's (ALJ) decision finding that an Agency's suspension of a Union representative for union activity violated § 7116(a)(1) and (2) of the Statute. The Agency had suspended the representative because, during a dispute as to whether a bargaining unit employee was entitled to representation at a meeting, the representative had assumed an intimidating posture so close to a supervisor that there had been some touching. The Authority rejected a per se rule that any touching constitutes "flagrant misconduct," and based upon its consideration of the facts, concluded that no "flagrant misconduct" occurred. In so concluding, the Authority adopted the ALJ's findings that the incident occurred outside the presence of nonsupervisory employees, was impulsive, and was somewhat provoked by the supervisor. Chairman Cabaniss, in dissent, would have found that the representative's conduct constituted "flagrant misconduct" or, as an assault and battery, was otherwise outside the boundaries of protected activity, and was thus unprotected by the Statute. (Judicial review pending in the D.C. Circuit.)

In Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, 53 FLRA No. 137, the Authority found that the Office of Internal Affairs did not commit an unfair labor practice by its investigation of an alleged assault following a Union meeting, but that the Federal Correctional Institution did commit an unfair labor practice by suspending the Union President for walking out of a counseling meeting.

The Authority determined that the Internal Affairs investigation of the Union meeting was reasonable because viewed objectively it did not interfere with, restrain, or coerce employees in the exercise of rights protected under the Statute. In particular, the Authority found that the Internal Affairs agents conducting the investigation did not seek disclosure of confidential information, and that no unit member interviewed by Internal Affairs was representing another unit member in a disciplinary proceeding or other proceeding requiring confidentiality. Moreover, the Authority concluded that the Internal Affairs agents exercised care not to trespass on union business during the investigation, and that the agents avoided the substance of the Union meeting.
However, the Authority determined that the Federal Correctional Institution did commit an unfair labor practice by suspending the Union President for walking out of a counseling meeting with the Associate Warden. The Authority found that the counseling meeting was called solely as a result of the Union President’s actions as Union President. Because the Union President attended the counseling meeting in her capacity as Union President, the Authority concluded that her actions during the meeting were protected under the Statute unless they constituted flagrant misconduct.
The Authority decided that the Union President’s actions did not constitute flagrant misconduct for four reasons. First, the counseling meeting did not occur in a public area. Second, the Union President’s departure from the meeting was clearly impulsive, not a designed reaction to the Associate Warden’s decision to issue a counseling letter to the Union President for her activity as Union President. Third, the Union President’s action was directly provoked by the Associate Warden’s refusal to recognize the protected nature of the Union President’s activity. Fourth, although the decision to leave the meeting was imprudent, union representatives are granted leeway when they are acting in the capacity of union representatives.