U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Department of the Air Force, 315th Airlift Wing v. Federal Labor Relations Authority, No. 01-1275 (D.C. Cir. July 12, 2002).

The D.C. Circuit reversed the Authority's split decision (Member Cabaniss dissenting) in 57 FLRA No. 25, where the majority had found that the local union president did not engage in flagrant misconduct when he made threatening gestures and angry remarks while standing "belly to belly" with a supervisor.

When an employee (who was the executive vice president of the union) brought along the union's president to a scheduled performance feedback session, the supervisor told the union president that he could not be present and asked him to leave. The union president got angry, asked the supervisor whether she was denying the employee's right to union representation, and was "so forceful in his body language that the supervisor felt compelled to retreat from him." There was "marginal" physical contact between the two and, according to the factual findings of the ALJ, the "total pattern of conduct at that moment could reasonably have put [the supervisor] in fear of some unpredictable blow." This incident lasted between 10 and 20 seconds, after which the union president left and the supervisor and the employee proceeded with the performance feedback session. The union president was subsequently suspended for three days for his misconduct. A ULP complaint followed, claiming that the suspension was for engaging in protected conduct.

The majority, while not condoning what the ALJ described as "both verbal outbursts and allegedly belligerent nonverbal conduct," noted that similar conduct has been found protected under its "flagrant misconduct" standard. It accordingly ordered the agency to, among other things, rescind the 3-day suspension and make the union president whole. The agency appealed.

The court subjected the majority's decision to both a Chevron review (under which it must defer to an agency's interpretation of its enabling statute "only if it is reasonable and consistent with the statute's purpose") and an APA (Administrative Procedure Act) review (under which an agency's decision can only be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").

The court began with a Chevron review, "as the interpretation of the statute is fundamental to the final decision and as it provides precedent for future decisions of the Authority[,]" and found FLRA's interpretation unreasonable.

Granted, the language of § 7102(1) is ambiguous. Potentially there could be many possible interpretations of what it means "to act for a labor organization . . . [and] to present the views of the labor organization." But it is not reasonable to suppose that Congress considered it permissible and immune from consequence for an employee to commit an assault and battery against a co-worker while ranting, raving and out of control. No employee, including a union official acting in a representational capacity, has the right to put another in fear of being struck or to commit a battery in order to 'present the views of the labor organization' and 'engage in collective bargaining.' 5 U.S.C. § 7102. If the FLRA's 'flagrant misconduct' standard permits such conduct, as the FLRA held it did here, then that standard is an unreasonable interpretation of the limits of § 7102.

The court also found that FLRA's decision failed the "arbitrary and capricious" review applicable under the Administrative Procedures Act. Noting that FLRA justified its application of the "flagrant misconduct" standard by stating that the incident (1) occurred in a private office, outside the presence of any nonsupervisory employees other than those involved; (2) was impulsive; and (3) was somewhat provoked by the supervisor, the court said the following:

The Authority does not explain how any of those factors prevent an assault and battery accompanied by ranting and raving in the workplace from being flagrant misconduct. In short, just as the Authority's legal interpretation fail Chevron review, its decisionmaking process fails even the forgiving arbitrary-and-capricious standard of the Administrative Procedure Act.

The court concluded by stating that "regardless of the scope of the Authority's 'flagrant misconduct' standard, or any other standard it might adopt to determine the outer limits of protected union activity under § 7102, one thing is clear: [the union president's] assaultive behavior is unprotected by federal labor laws."