PIZZELLA ON THE CONDUCT OF UNION REPS
Over time the Authority has offered practitioners a reasonably workable, four-factor criteria for finding the balance between a union rep’s behavior that the Statute protects, and misconduct that impinges upon the agency’s right to maintain order. We’re talking about when the union rep calls a supervisor names and management tries to discipline the rep. FLRA has instructed parties to examine (1) the place and subject matter of the conduct; (2) whether the conduct was impulsive or designed; (3) whether the conduct was in any way provoked by the employer; and (4) the nature of the intemperate conduct. The decision turns solely on the facts of the specific incident, and the rep’s misconduct must be flagrant if it occurs while s/he is engaging in protected activity.
Republican appointees have more than once tried to replace the tight focus of that criteria. Cabaniss argued that practitioners should decide whether the union rep engaged in “opprobrious conduct.” If you think that would be of little help to a supervisor looking for a bright line, practitioners should feel free to use any of its synonyms, namely, excoriating, reproachful, censorious, scornful, etc. Is it clear yet? Of course not, and Member Pope opposed it for that very reason.
Member Beck tried to avoid the trap of classifying types of conduct by simply giving managers the near unobstructed right to decide when to discipline the union rep. He argued, “When an employee — even one who happens to be a union representative — engages in misconduct of any kind, his conduct, by definition, exceed[s] the boundaries of protected activity.” Who decides what is misconduct in the average workplace? Management. In fact, they have a non-negotiable 7106 right to decide what is misconduct. That would certainly be easy to apply and promote Beck’s goal of stamping out profanity in the workplace. Fortunately, this one-sided approach to assessing union rep conduct has not caught on either with the Authority.
Now Pizzella has decided to take his turn at fashioning a replacement criteria practitioners can follow with reasonable ease and predictability so that every incident does not have to be litigated. He started off on the right foot by ignoring Cabaniss’ and Beck’s approaches. Their approaches are either useless to practitioners or paths to a decade of circuit court litigation. But then he decided that rather than stay focused on the facts of the specific incident of alleged misconduct, practitioners should consider virtually everything under the sun in searching for answer.
In AFGE, Border Patrol Council and DHS, Customs and Border Protection, 69 FLRA 525 (2016) a union rep refused to give his supervisor an estimate of how long a pending need for his representational assistance would take. When the supervisor demanded one, the union rep responded saying he “wasn’t Miss Cleo,” “couldn’t see the future,” and attached a picture of Miss Cleo to the official time request form that called for an estimate. (Miss Cleo is apparently a TV character that predicted the future. Pizzella explains it all.) This so offended America’s harden Border Patrol management that it charged him with disrespectful conduct and failing to follow orders. The arbitrator replaced the proposed three-day suspension with a reprimand upholding only the failure to follow instructions charge, not the disrespectful one. When the union appealed to FLRA, it overturned even the reprimand on the grounds that requesting official time is protected activity and as such the union rep’s behavior did not merit any discipline under its four-part criteria. But that wasn’t good enough for Pizzella, who made clear in his dissent that is not where he wants to lead the Authority and thousands of people who must apply its case law.
To begin he proclaimed that while he sees the need for union reps to have “some latitude” to “speak bluntly” in collective bargaining and grievance meetings, he would not protect them outside those situations when engaging in “ministerial acts.” Of course, he did not bother to define what those would be nor to explain why he decided that a work floor disagreement over an official time request is not as protected as a work floor grievance scheduling discussion, as the Authority has ruled often. Would he have had the union rep go back to his desk and draft a paper grievance before being sarcastic in order to be protected?
Pizzella then took the reader on a journey through the union rep’s work history, the value of the official time form request, the integrity of the lawyer advising the union rep, the disciplinary history of AFGE officers everywhere over the decades, MSPB case law, and even an image of a sweaty Megan Fox to show how these things should be decided. In other words, anything and everything could be relevant under Pizzella’s approach. Of course, this is of no help to practitioners on either side of the table trying to advise new union reps or supervisors.
To top it all off, Pizzella brought in some of his old reliable decision-drafting tactics.
- He decided the union rep had been disrespectful even though the arbitrator concluded he had not and the agency had not even bothered to allege that in the exception process;
- He pronounced the union rep had violated the labor agreement when the arbitrator never discussed that and the agency never alleged that; and
- He claimed the D.C Circuit had said something when it never did.
If you are thinking that this guy should be working in the White House where factual creativity is a highly valued skill, we do not disagree.
Acting Chairman Pizzella is entitled to try to change or refine the 32 year old, four-part criteria generally used for judging the behavior of union reps. (See DOD, Defense Mapping, St. Louis, 17 FLRA 51 (1985)) Nor is it unexpected that he wants to restrict the latitude union reps have to speak and behave as coarsely as President Trump (and his sons), Pizzella’s sponsor. We hope he will favor an approach that is relatively easy for practitioners to apply, and not need to bounce around a half-dozen circuit courts before it has any staying power. Workable criteria enables agencies to avoid costly attorney fees tabs, mistakes that undermine management credibility, and unwanted work floor incidents. In more lofty terms, tangible criteria promote a government of laws while a vague, intangible criteria defaults to the judgment of political individuals who rotate through federal appointments like carousel characters.