Legal Briefs: !@X#% you, boss!

Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

How much verbal abuse do managers have to take from union officials?

A review of Federal Labor Relations Authority cases shows that it's tough to tell when supervisors can discipline foul-mouthed union representatives and when bosses should just grin and bear it.

In a 1995 wash-your-mouth-out-with-soap case (Grissom Air Force Base v. AFGE, 51 FLRA No. 2), the FLRA found that one union representative who cursed at a management official was out of line, while another who used vulgar language wasn't.

During a negotiating session at Grissom Air Force Base in Indiana, a management official handed union representatives a letter canceling previously agreed-upon bargaining plans. The union reps got angry and launched into a verbal tirade against the manager.

One union rep's comments included, "We're going to shove this up your a--," ". . . the FLRA will shove this up your a--" and "I don't give a f--- what you think."

The second rep chimed in, "You can't be that f---ing stupid, lady . . . I always knew you was stupid, I knew you was goddamn stupid[.]"

The union reps then left the negotiating room. When the managers ran into the union folks in the hall, the manager who had been verbally abused told the union reps to go back to work. The first rep responded, "You can suck my d---."

Both reps were later disciplined; both filed appeals. While the first rep's appeal failed, the FLRA found that the second rep's remarks were within the bounds of free speech and therefore he couldn't be disciplined.

"While the remarks . . . were offensive and should not be condoned, when examined as a whole and in context, they were not of such an outrageous and insubordinate nature as to remove them from the protection" of federal labor rules, the FLRA said.

The FLRA ruled that "a union representative has the right to use intemperate, abusive, or insulting language without fear of restraint or penalty if he or she believes such rhetoric to be an effective means to make the union's point."

"However, remarks or conduct that are of such an outrageous and insubordinate nature as to remove them from the protection of the [Federal Labor Relations] Statute constitute flagrant misconduct," FLRA said.

So what's protected behavior and what's flagrant misconduct?

In another case (44 FLRA No. 115), the FLRA ruled that calling a supervisor an "a--hole" and a "space cadet" was not flagrant misconduct. In an earlier case (2 FLRA No. 7), the authority also found that a union official was improperly suspended when he told a supervisor, "I am going to get your a--."

On the other hand, the FLRA found flagrant misconduct when a union representative told a supervisor to "get screwed" at a grievance meeting. (17 FLRA No. 18).

Sometimes actions speak louder than words. A prison manager suspended the prison's union president after the president stood up and walked out of a disciplinary meeting. That action was a protected expression of the union president's feelings, the FLRA decided (53 FLRA No. 137). The disciplinary meeting had been called because of an incident in which, the FLRA acknowledged, "voices were raised and hostile gestures were exchanged" and the union president told the manager to, "Blow it out your a--."

So how can a supervisor tell when he or she has to put up with potty-mouthed behavior?

The four relevant factors FLRA considers are:

• The place and subject matter of the discussion.
• Whether the employee's outburst was impulsive or designed.
• Whether the outburst was in any way provoked by the employer's conduct.
• The nature of the intemperate language and conduct.

In other words, context matters. The managers whom a union official called "bastards, rattlesnakes and sons of bitches" in one case (45 FLRA No. 115), according to the FLRA, must not have done their best to keep negotiations out of the gutter.