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Protected Speech as a Union Representative

As a union representative you are afforded the right to represent employees and fervently carry out your duties. Moreover, an employee may be considered engaging in protected activity if it involves a filing a grievance or attending/participating in a grievance meeting. As such, certain conduct by a union representative or an employee may be protected as long as it does not rise beyond a certain level.

It is unlawful for an agency to impose discipline for conduct that occurs when an employee is engaged in protected activity, unless the activity constitutes flagrant misconduct or otherwise exceeds the bounds of protected activity. Internal Revenue Service, 60 FLRA 230 (2004); Monthan Air Force Base, 58 FLRA 636 (2003). The FLRA balances an employee’s right to engage in protected activity, which permits leeway for impulsive behavior, with the agency’s right to maintain an orderly workplace. Social Security Administration, 59 FLRA 767 (2004); Defense Mapping Agency, 17 FLRA 71 (1985). In order to determine whether there was flagrant misconduct, the following things are considered: the place and subject matter of the discussion; whether the speech or conduct was impulsive or designed; whether the outburst was in any way provoked by the employer’s conduct; and the nature of the intemperate language or conduct. DVA Medical Center, Richmond, 63 FLRA 553 (2009); Grissom Air Force Base, 51 FLRA 7 (1995); Defense Mapping Agency, 17 FLRA 71 (1985). If an agency disciplines an employee for conduct while engaging in protected activity, the agency has unlawfully interfered with the employee exercising a right and discouraged membership in a labor organization by discriminating against the employee in connection with the discipline. Those actions constitute an unfair labor practice under 7116(a)(1) and (2).

The following are some examples where the FLRA found protected activity. A statement “take the job and shove it” was not flagrant misconduct. Internal Revenue Service, 6 FLRA 96 (1981). Conduct that is merely rude (finger pointing) does not exceed the bounds of protected activity. Internal Revenue Service, 60 FLRA 230 (2004). An employee’s use of discourteous and profane language during a negotiations session was protected activity. Grissom Air Force Base, 51 FLRA 7 (1995).

The following are some examples where the FLRA did not find protected activity. An employee who relayed a message containing an expletive to her manager as directed by her union representative was not protected. Social Security Administration, 59 FLRA 767 (2004). Ranting accompanied by physical contact constituted unacceptable flagrant misconduct and is not protected activity. 315th Air Force Base Wing v. FLRA, 294 F.3d 192 (D.C. Cir. 2002).