By Deborah Hopkins, May 16, 2018

Questions, we get wonderful questions from our wonderful class participants. This one combines the very contemporary issue of workplace bullying with the old-as-the-hills concept of union official robust debate:

Dear FELTG,

Where can I find information about addressing union reps’ rude, unprofessional, and hostile behavior in emails, in-person, and on the phone when performing day-to-day representation duties? I am aware of the robust debate exception to misconduct, but this behavior is not during negotiations, creates a hostile work environment and any non-union employee would be disciplined.  As an employee, I should not have to tolerate this, and it interferes with my work.  Agency LR staff says the union has the right to act the way it does.  I want the union to show me respect like I show them. I want their behavior to stop and the agency to stop allowing it. Please advise.

Thank you, Bullied by Union

Here’s the FELTG response.

Dear Bullied,

You may not like the FELTG answer, but based on the hypothetical you’ve described, your LR staff is correct. Robust debate is the term we use to describe the rough speech and raised voices that union representatives are allowed to exhibit when performing representational duties – not just during negotiations. This “uninhibited, robust, and wide-open debate,” is protected activity and may include profanity and shouting, according to the U.S. Supreme Court. National Association of Letter Carriers v. Austin, 418 U.S. 264 (1974).

Congress intended to permit union-related debate, even if it rose to the level of “unrestrained” or “uncivil.” Language used during union-related discussions may be “intemperate, abusive and insulting.” Old Dominion Branch, NALC v. Austin, 418 U.S. 264 (1974).

To help clarify this, here are a few examples of protected activity:

  • When the supervisor refused to make an overtime decision, the union president said, “Fuck you. I don’t give a fuck.” The supervisor had the employee removed from the workplace. FLRA held that the supervisor committed a ULP. FAA v. NATCC, 64 FLRA 419 (2010)
  • Calling management a “cheap son-of-a-bitch,” Groves Truck & Trailer, 281 NLRB 1194 (1986)
  • The statement, “Management is a bunch of assholes,” UPS, 241 NLRB 389 (1979)
  • Referring to an employee as an “Egotistical fucker and a fucking liar,” Union Carbide, 331 NLRB 356 (2000)

Pretty robust, wouldn’t you say?

There are some limits, though. A union rep may be disciplined for “robust debate,” but only in two circumstances:

  • If in doing so the union representative engages in flagrant misconduct, or
  • The behavior exceeds the bounds of protected activity.

5 USC 7102.

Here are a couple of examples of activity that is not protected and that is cause for discipline:

  1. A union officer interrupted an office birthday celebration and called the event a “blatant and ridiculous display of management’s power.”
    • She later complained about the dress code, called a district manager “ridiculous,” and shouted when talking about her supervisor.
    • The agency suspended her for two days for inappropriate, disrespectful, and disruptive behavior.
    • This was not robust debate because she was not acting in her union capacity.

AFGE, Local 1164 and SSA, 110 FLRR-1 128 (2010).

  1. A union steward was suspended for two incidents of improper behavior:
    • He spoke forcefully to an HR specialist with balled fists and referred to violence against her, making her feel “intimidated and threatened”
    • He called a supervisor “Uncle Tom” after the supervisor questioned his whereabouts.

He was not acting in his official capacity – and even if he were, robust debate does not include protection for racial slurs.

AFGE, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Ga., 109 FLRR-1 79 (2009).

Factors to consider in determining whether language exceeds the bounds of protected status:

  • Does the union have a legitimate concern?
  • Was the workplace disrupted?
  • Who provoked the incident, supervisor or union rep?
  • Was the outburst spontaneous?
  • How extensive (and loud) was the profanity?
  • Who else overheard the exchange?

Defense Mapping Agency, 85 FLRR 1-1018 (1985).

There’s a different standard for acceptable conduct among employees and union reps engaging in union activity. The bottom line is, if the rude and disrespectful behavior occurs during representational duties, unless it’s racist or sexist, it’s probably protected and you can’t stop it from occurring. It’s unfortunate you’re dealing with such a tumultuous situation, but legally there is no recourse.

Good luck and keep your head down. Hopkins@FELTG.com

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