The Good News: 100% Official Time Does Not Excuse Misconduct!
By Ann Boehm, August 16, 2022
This administration is decidedly pro-union. The FLRA has two Democrats and one Republican on the Authority. There may be a perception that unions are untouchable in this environment, but that is just plain wrong. A recent decision from the newly constituted FLRA is illustrative. Bremerton Metal Trades Council, 73 FLRA 90 (2022).
The agency investigated a union representative, who was on 100% official time, for bullying and verbal abuse. The investigation showed she engaged in the misconduct over several years. The agency suspended her for ten days. The union grieved the suspension, leading to an arbitration hearing to determine whether the agency had jurisdiction to discipline the grievant.
The union “claimed that because the grievant’s schedule consisted of 100% official time, any Agency-imposed discipline would constitute an unfair labor practice” (emphasis added).
That is a bold argument. Even on 100% official time, the union representative is receiving a salary from the Federal government. Insulating individuals on 100% official time from any agency-imposed discipline would seemingly allow those officials to operate without accountability.
According to the arbitrator, the union rep “’engaged in “confrontational and bullying” behavior on a “regular basis’” which degraded “’the morale of those working around her’” and created an “uncomfortable working environment.’” Her behavior caused a chief steward to experience three panic attacks in one month, the last one sending him to an emergency room.
According to signed statements obtained by the agency, the grievant described her colleagues with words like “’r**ard,’ ‘stupid,’ ‘slow,’ ‘f**king p**sy,’ ‘f**king idiot,’ and ‘god d**n r**ard.’” As Dana Carvey’s Church Lady might say, “Well isn’t that special?”
Holy cow! A ten-day suspension seems light given her misconduct, but as aforementioned the union argued the agency could not discipline her at all because such discipline would interfere with internal union affairs.
The agency argued that the parties’ collective bargaining agreement enabled the agency to ensure the union office remained safe and usable, which justified the discipline of this union representative. Id. The arbitrator agreed with the agency, concluding the agreement “allowed the agency to discipline any employees who used the Union ‘office in a way not intended’ or who made the office’s ‘occupancy untenable.’”
The arbitrator noted an agency may discipline employees for conduct that is “’flagrant or otherwise outside the bounds of protected activity.’” Unsurprisingly, the arbitrator concluded the repeated and intentional bullying, with the goal of inflicting emotional distress, was for the grievant’s own benefit and not provoked. Therefore, it was flagrant and outside the bounds of protected activity.
The union filed exceptions with the FLRA, arguing the flagrant misconduct finding exceeded the arbitrator’s authority. The FLRA disagreed and denied the union’s exception. The union also argued the Arbitrator’s award was contrary to the Federal Service Labor-Management Relations Statute. Again, the FLRA disagreed and denied the union’s exception.
The agency won. Justice prevailed! Even in a pro-union administration, unions and their reps can and should be held accountable. That’s Good News! Boehm@FELTG.com