Department of the Air Force, Aerospace Maintenance and Regeneration Center, Davis Monthan Air Force Base, Tucson, Arizona and John Pennington, DE-CA-01-0276, July 11, 2003, 58 FLRA No. 162.

FLRA found that the agency violated 5 USC § 7116(a)(1) and (2) when it reprimanded an employee for engaging in protected activity. In announcing a modification of the "flagrant misconduct" standard, it said that "when the alleged discrimination concerns discipline for conduct occurring during protected activity, a necessary part of the respondent's defense is that the conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity."

The employee, acting without union representation, had made several attempts to get a letter of counseling removed from his file. Meeting with no success, he then asked the union to represent him. The Chief Steward met with the employee's supervisor and got the latter to agree to remove the letter from the file since it had been issued approximately nine months earlier and the supervisor felt it had served its purpose. The Chief Steward then arranged a meeting with the employee and a supervisor at which the supervisor would answer the employee's questions. At that meeting, at a picnic bench outside the supervisor's office, the employee asserted that the letter of counseling should be removed because he never made the comment that was the basis for the counseling. However, when the Chief Steward, addressing the employee, said "You know, John, there's work that needs to be done here," the employee concluded he wasn't being properly represented and said, "Okay, that's it, I've heard enough," and left the picnic table. This resulted in the supervisor issuing a notice of reprimand for discourteous conduct. A ULP charge and complaint followed. The ALJ found that the employee was engaged in protected conduct and that his parting remarks and departure from the meeting didn't constitute flagrant misconduct. He added that even if the "flagrant misconduct" test wasn't applicable to this case, he would find that the decision to issue a notice of reprimand was pretextual and that there was no legitimate justification for the agency's action.

The Authority agreed with the ALJ, but took the opportunity to modify the flagrant misconduct standard: in the future, the agency defending itself against alleged discrimination concerning discipline for conduct occurring during protected activity would have to show that the conduct either constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity. FLRA indicated that the modification was prompted by the court's remarks in Dep't of the Air Force, 315th Airlift Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002), where the court said that "[f]lagrant misconduct is a sufficient, but not necessary, condition for a loss of privilege under § 7102[.]" In discussing earlier Authority precedent, the court had said that "flagrant misconduct [i]s only illustrative of exceeding the boundaries of protected activities."