Department of the Air Force, 315th Airlift Wing v. Federal Labor Relations Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 25, 2002 Decided July 12, 2002

No. 01-1275

Department of the Air Force, 315th Airlift Wing,

Petitioner

v.

Federal Labor Relations Authority,

Respondent

American Federation of Government Employees Local 1869,

Intervenor

On Petition for Review and Cross-Application

for Enforcement of an Order of the

Federal Labor Relations Authority

Robert D. Kamenshine, Attorney, U.S. Department of Jus-

tice, argued the cause for petitioner. With him on the briefs

was William Kanter, Deputy Director.

William E. Persina, Attorney, Federal Labor Relations

Authority, argued the cause for respondent. On the brief

were David M. Smith, Solicitor, William R. Tobey, Deputy

Solicitor, and Ann M. Boehm, Attorney.

Mark D. Roth and Stuart A. Kirsch were on the brief for

intervenor.

Before: Sentelle, Henderson and Randolph, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: The Department of the Air

Force petitions for a review of the Federal Labor Relations

Authority's ("FLRA" or "Authority") decision in which the

FLRA held that the Air Force committed an unfair labor

practice by suspending for three days without pay an employ-

ee/union official who, while purporting to represent a fellow

employee, among other acts, assaulted a supervisor and came

into physical contact with her. The Air Force argues that the

conduct of the union official is unprotected under the applica-

ble federal labor laws, 5 U.S.C. s 7102, and that the FLRA

has both misapplied its own precedent regarding "flagrant

misconduct" and improperly interpreted 5 U.S.C. s 7102.

Because we agree with the Air Force that the conduct of the

union official is unprotected under any reasonable standard,

we grant the petition for review and reverse the FLRA.

I. Background

Sharon Richardson, a union-represented employee at

Charleston Air Force Base, participated in a performance

feedback session with Georgia Fallaw, an air reserve techni-

cian who also serves as aircraft overhaul supervisor, on

October 1, 1998. Fallaw had informed Richardson that she

wanted to conduct a performance feedback session earlier

that day, and Richardson arrived at Fallaw's office with

Richard Egal, the local union president, purportedly to repre-

sent her. Fallaw advised that this session was not going to

be a disciplinary action and therefore Egal would not be

allowed to attend the meeting. Fallaw asked Egal to leave

because she feared that he had accompanied Richardson to

intimidate and harass her. See Dep't of the Air Force, 315

Airlift Wing, Charleston Air Force Base, 57 F.L.R.A. 80, 87

(2001) ("Charleston Air Force Base").

When, apparently properly, Fallaw told Egal to leave, he

became angry "and appeared at least somewhat out of con-

trol." Id. at 91. Egal "asked Fallaw whether she was

denying Richardson's right to union representation." Id. at

87. Egal was "in [Fallaw's] face" and was "so forceful in his

body language that [Fallaw] felt compelled to retreat from

him as much as ... possible." Id. at 90. Further, there was

physical contact between Egal and Fallaw, with his "stomach

pressed up against her." Id. Egal was "belly to belly and

toe to toe, in [Fallaw's] face," forcing her to arch backward

over a counter. Id. at 88. His "total pattern of conduct at

that moment, could reasonably have put Fallaw in fear of

some unpredictable blow." Id. at 90. This confrontation

went on somewhere between 10 and 20 seconds, id. at 91,

after which Egal left. Fallaw and Richardson proceeded with

the feedback session.

Egal received a "Notice of Proposed Suspension" on No-

vember 30, 1998, stating that a three-day suspension without

pay was proposed based on his "flagrant misconduct" toward

Fallaw on October 1. Id. at 89. Egal disputed the factual

allegations and claimed his conduct was within his rights as a

union representative. The Air Force conducted an investiga-

tion, concluded that the allegations of misconduct were sup-

ported, and issued a "Notice of Decision to Suspend" on

January 15, 1999, implementing the proposed suspension for

three calendar days without pay. Id.

The Union filed an unfair labor practice charge alleging

that the Air Force violated 5 U.S.C. s 7116(a)(1) and (2) by

suspending Egal for participating in protected activities, and

the FLRA's Regional Director issued a complaint to that

effect. Summary judgment was denied and the case proceed-

ed before an Administrative Law Judge ("ALJ"). The ALJ

made factual findings as to Egal's actions and considered

whether Egal's activity was protected under the applicable

labor laws. He noted that 5 U.S.C. s 7102 "guarantees

employees the right to engage in activities on behalf of a

labor organization without fear of ... reprisal," but that

"involvement in such activities does not immunize an employ-

ee from discipline." Id. at 91. The ALJ first determined

that Egal's conduct occurred during the course of protected

activity, and thus was to be evaluated under the FLRA's

"flagrant misconduct" standard. Id. Second, he concluded

that "Egal did not exceed the broad scope of intemperate

behavior that remains within the ambit of protected activity."

Id.

In reaching his decision, the ALJ analyzed the "attack," as

he characterized it, id. at 92, using the four factors for

determining flagrant misconduct described in Department of

the Air Force, Grissom Air Force Base, 51 F.L.R.A. 7, 11-12

(1995) ("Grissom"). These factors are: "(1) the place and

subject matter of the discussion; (2) whether the employee's

outburst was impulsive or designed; (3) whether the outburst

was in any way provoked by the employer's conduct; and (4)

the nature of the intemperate language and conduct." Id. at

12. He found that neither the place nor the subject matter of

Egal's confrontation impinged on the Air Force's right to

maintain order and respect and that the behavior was impul-

sive, not preplanned. The ALJ suggested that although

Fallaw did nothing in the nature of a direct provocation, it

was "at least somewhat provocative for her to have told Egal

that his very presence was designed to intimidate and harass

her." Id. at 92. Finally, on the fourth factor, the nature of

the language and conduct, the ALJ compared this incident to

that considered in Air Force Flight Test Center, Edwards Air

Force Base, 53 F.L.R.A. 1455, 1464-65 (1998) ("Flight Test

Center") and found it to be comparable. The ALJ gave little

weight to the touching, which he discounted as "marginal[ ],"

because of the "evidence of provocation" and the "brevity of

the attack." Charleston Air Force Base, 57 F.L.R.A. at 90,

92. Despite the fact that he found that there was "some

'touching,' " "yelling," and "ranting and raving," and that

Egal's "total pattern of conduct at that moment, could reason-

ably have put Fallaw in fear of some unpredictable blow," id.

at 90, 92, the ALJ concluded that Egal's behavior, while

misconduct, "was not 'flagrant' by Authority standards." Id.

at 93. Thus, the ALJ determined the Air Force had commit-

ted an unfair labor practice and recommended that the FLRA

order the Air Force to cease and desist, rescind the suspen-

sion, and clear Egal's record.

The FLRA, by a 2-1 vote, agreed and adopted the ALJ's

findings, conclusions, and recommended decision and order.

Id. at 80. The Authority noted that "the disputed conduct

was 'assuming a physical position with respect to [the supervi-

sor] that was so close as to have involved some "touching"

and ... his use of certain threat-like gestures and an angry

demeanor, accompanied by a sort of ranting, all in the course

of 10 to 20 seconds' " and that the ALJ "also found, however,

that the touching was only 'marginal.' " Id. While "not

condon[ing] what the [ALJ] described as 'both verbal out-

bursts and allegedly belligerent nonverbal conduct,' " the

FLRA opined that "similar conduct has been found protect-

ed." Id. (citing Flight Test Center). Moreover, the Authori-

ty observed that the physical contact that had occurred in

United States Department of Labor Empl. and Training

Admin., 20 F.L.R.A. 568, 569 (1985) ("USDOL") did not

violate the Act. Charleston Air Force Base, 57 F.L.R.A. at

81. Although acknowledging the dissent of Chairman Caban-

iss as "correctly point[ing] out" that the FLRA "has consid-

ered physical responses by union and management represen-

tatives to be 'beyond the limits of acceptable behavior,' " the

Authority stated it had "never adopted a per se rule that any

touching violates the Statute." Id. (quoting United States

Dep't of Justice, United States Marshals Service, 26 F.L.R.A.

890, 901 (1987) ("U.S. Marshals")). The FLRA concluded

that even if this were an "assault and battery," a determina-

tion it was not willing to make, that fact would not be

dispositive of the question of flagrant misconduct. Id.

Therefore the Authority upheld the ALJ's finding of an unfair

labor practice. In doing so, the FLRA "note[d] the dissent's

suggestion that, even if the union representative did not

engage in flagrant misconduct, the representative's activities

could be found unprotected," but dismissed it, saying: "We

are not aware of any authority supporting this suggestion."

Id. at n.3.

Chairman Dale Cabaniss filed a dissent.

II. Analysis

The statute governing review of a final order of the FLRA

incorporates section 706 of the Administrative Procedure Act

("APA"). See 5 U.S.C. s 7123(c); 5 U.S.C. s 706. "Thus,

when acting 'within its authority' and 'consistent with the

congressional mandate,' the Authority's decision may only be

set aside if it is found to be 'arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.' " Ass'n

of Civilian Technicians, Tx. Ch. 100 v. FLRA, 250 F.3d 778,

782 (D.C. Cir. 2001) (quoting 5 U.S.C. s 706(2)(A); Bureau of

Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 & n.7,

98 n.8 (1983)). "[T]he Court must consider whether the

decision was based on a consideration of the relevant factors

and whether there has been a clear error of judgment."

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 416 (1971); see Motor Vehicle Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Review of the

FLRA's interpretation of its own enabling statute is governed

by the familiar two-step test of Chevron USA, Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). When

Congress has spoken, we are bound by that pronouncement

and that ends this Court's inquiry. Id. at 842-43 (Chevron's

step one). Where "the statute is silent or ambiguous with

respect to the specific issue, the question for the court is

whether the agency's answer is based on a permissible con-

struction of the statute." Id. at 843 (Chevron's step two).

The agency's interpretation of the statute is entitled to defer-

ence only if it is reasonable and consistent with the statute's

purpose. See Independent Ins. Agents of Am., Inc. v.

Hawke, 211 F.3d 638, 643 (D.C. Cir. 2000). The FLRA's

decision that the tortious if not criminal conduct committed

by Egal in this case is protected by 5 U.S.C. s 7102 cannot

survive even the forgiving standards of arbitrary-and-

capricious and Chevron review.

A. Chevron Review

We begin with Chevron review, as the interpretation of the

statute is fundamental to the final decision and as it provides

precedent for future decisions of the Authority. Section

7102(1) establishes the right of a federal employee "to act for

a labor organization in the capacity of a representative and

the right, in that capacity, to present the views of the labor

organization...." As the ALJ recited, "Section 7102 ...

guarantees employees the right to engage in activities on

behalf of a labor organization without fear of penalty or

reprisal." Charleston Air Force Base, 57 F.L.R.A. at 91.

Certainly the language of that statute is of the ambiguous

sort to which Chevron applies, and certainly the purpose is

that declared by the ALJ. Therefore, we readily move to the

second step of Chevron to determine whether the FLRA's

interpretation and application of the statute is reasonable.

The ALJ (and the FLRA) identify " 'flagrant misconduct'

as the standard" for conduct that exceeds the boundaries of

protected activity under s 7102. See id. (emphasis in origi-

nal). Given the factual findings of the ALJ as adopted by the

FLRA, for this court to affirm the Authority's interpretation

of s 7102(1) as applied in this case, we would have to hold

that Congress, in adopting s 7102, encompassed the following

intent:

A woman in the federal workplace must be aware that if

one of her fellow male employees wishes to confront her

physically, force her to go belly-to-belly, place her in

reasonable fear of an unpredictable blow while ranting

and raving at her, and if her agency takes any action to

protect her, the male employee cannot be disciplined

provided only that he was purporting to act on behalf of

a labor organization when he committed the assault,

battery, and harassment of his female co-worker.

Is it reasonable to suppose that Congress, the same branch of

government that enacted Title VII, 42 U.S.C. s 2000e-2(a)(1),

a statute held to protect against sexual harassment, intended

to immunize this employee conduct from agency discipline by

the adoption of the language of s 7102? See, e.g., Harris v.

Forklift Systems, Inc., 510 U.S. 17, 21 (1993) ("The phrase

'terms, conditions, or privileges of employment' [of 42 U.S.C.

s 2000e-2(a)(1)] evinces a congressional intent 'to strike at

the entire spectrum of disparate treatment of men and wom-

en' in employment, which includes requiring people to work in

a discriminatorily hostile or abusive environment.") (quoting

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64

(1986)). To ask that question is to answer it. Women in the

workplace today do not have to tolerate offensive touching.

If they complain of such they do not have to contemplate

being accused of provoking the male co-worker by something

they might have said. No one in the workplace has to put up

with the kind of conduct found as fact by the ALJ and

adopted by the Authority.1

Granted, the language of s 7102(1) is ambiguous. Poten-

tially there could be many possible interpretations of what it

means "to act for a labor organization ... [and] to present

the views of the labor organization." But it is not reasonable

to suppose that Congress considered it permissible and im-

mune from consequence for an employee to commit an assault

and battery against a co-worker while ranting, raving and out

of control. No employee, including a union official acting in a

representational capacity, has the right to put another in fear

of being struck or to commit a battery in order to "present

the views of the labor organization" and "engage in collective

bargaining." 5 U.S.C. s 7102. If the FLRA's "flagrant

misconduct" standard permits such conduct, as the FLRA

__________

1 Nothing herein is intended to suggest that Egal's assault would

have been immunized had the victim been a male co-worker or that

the conduct would have been immunized had it been that of a

supervisor acting upon the part of management. Cf. Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 78-80 (1998).

Congress has not shown any intention to render any workers in the

federal workplace defenseless against assault, battery, or other

crimes or torts committed by their co-workers whether or not in the

course of a labor dispute. Employers may and must be allowed to

punish such behavior to maintain basic civility. See Adtranz ABB

Daimler-Benz Transp. v. NLRB, 253 F.3d 19, 27-28 (D.C. Cir.

2001).

held it did here, then that standard is an unreasonable

interpretation of the limits of s 7102.

To defend its surprising decision, the Authority can only

argue that its "flagrant misconduct" standard provides a

reasonable interpretation of s 7102. While this begs the

question as to whether the tortious and probably criminal acts

of Egal constituted "flagrant misconduct," see Part II.B,

infra, we note that the Authority has offered us little to

justify the standard itself. While reciting the formulation

that the right to engage in protected activity permits "leeway

for impulsive behavior," the Authority does nothing to tie that

vague proposition to its conclusory standard other than to

describe the standard as "long-held." We are not persuaded.

Of course flagrant misconduct is not protected by virtue of

s 7102. But the FLRA's tortured application of its standard

here cannot be a reasonable interpretation of the limit of

s 7102. Before us the Authority relies in part on parallels

from private sector labor law. We find those precedents

instructive on this point but not helpful to the Authority. As

we recently reminded the National Labor Relations Board

("NLRB"), "merely applying an unreasonable statutory inter-

pretation for several years cannot transform it into a reason-

able interpretation." Adtranz, 253 F.3d at 26 (citation and

internal brackets omitted).

The Adtranz decision is instructive on a specific issue of the

present case as well. In Adtranz, the NLRB had held that it

was an unfair labor practice for an employer to issue a

handbook barring abusive and threatening language from one

employee to another, id. at 25, as the Board deemed that

restriction to have the "potential to chill the exercise of

protected activity...." Id. In rejecting the NLRB's inter-

pretation of the National Labor Relations Act, we held that

"it is preposterous" for the Board to hold "that employees are

incapable of organizing a union or exercising their other

statutory rights under the NLRA without resort to abusive or

threatening language." Id. at 26. It is at least equally

preposterous for the FLRA to conclude that Congress could

reasonably have contemplated that federal employees are

incapable of exercising their rights under s 7102 without

ranting, raving, assaulting, battering and harassing their co-

workers.

B. APA Review

No matter what standard the Authority applies, nor what

deference we apply in reviewing it, the FLRA's decision fails

the arbitrary and capricious review applicable under the

Administrative Procedure Act. As the Authority's chairman

advised its majority, no matter how carefully the ALJ and the

majority of the Authority parsed its words:

[T]he Union representative engaged in an "attack" ver-

bally and physically against the supervisor by physically

touching up against her while not being in complete

control of himself and acting in an angry manner, effec-

tively backing her up against a counter and forcing her

to lean backward in an attempt to get away from him,

and that the representative was using threat-like ges-

tures so forcefully that she could reasonably fear being

hit by some unpredictable blow from him.

Charleston Air Force Base, 57 F.L.R.A. at 83 (dissent of

Chairman Cabaniss). We further agree with the Chairman

that one really does not need "to review a legal dictionary to

conclude that the conduct above amounts to an assault as well

as a battery, but the seventh edition of Black's Legal Dictio-

nary confirms the impact of improper touching and reason-

able apprehension of harm." Id.

With that in mind, we cannot understand what definition of

"flagrant misconduct" would exclude the conduct set forth

here. Despite the attempts of the majority of the Authority

to somehow erase the assault by calling it "marginal," any

application of the "flagrant misconduct" standard which fails

to encompass the facts of this case requires some explanation.

Indeed, it is difficult to conceive what explanation could

prevent the Authority's decision from being arbitrary and

capricious and in default of its duty under the Administrative

Procedure Act. In its opinion the Authority hardly attempts

any such analysis, limiting its justification to the descriptive

facts

that the incident: (1) occurred in a private office, outside

the presence of any nonsupervisory employees other than

those involved; (2) was impulsive; (3) was somewhat

provoked by the supervisor.

Charleston Air Force Base, 57 F.L.R.A. at 80. The Authority

does not explain how any of those factors prevent an assault

and battery accompanied by ranting and raving in the work-

place from being flagrant misconduct. In short, just as the

Authority's legal interpretations fail Chevron review, its deci-

sionmaking process fails even the forgiving arbitrary-and-

capricious standard of the Administrative Procedure Act.

Even if we accept the Authority's "flagrant misconduct"

standard as articulated in Grissom, 51 F.L.R.A. at 11-12, as

the only limitation on s 7102, the Authority's decision here

makes no sense. At least two components of the FLRA's

"flagrant misconduct" standard have been misapplied: wheth-

er there was provocation; and the nature of the conduct.

Under applicable Authority precedent, it was arbitrary and

capricious for the FLRA not to deem the nature of the Egal's

conduct flagrant.

The FLRA's own precedent holds that "[a] physical re-

sponse, in the context of a labor-management dispute, by

either the union representative or a manager is deemed

beyond the limits of acceptable behavior." U.S. Marshals, 26

F.L.R.A. at 901. Resort to such behavior has only been

excused "in certain limited instances and in response to

particular situations" such as "a highly charged situation"

which is "provoked by the behavior of a union or management

representative." USDOL, 20 F.L.R.A. at 569. Specifically,

USDOL involved what could appropriately be characterized

as an act of self-defense. See Charleston Air Force Base, 57

F.L.R.A. at 83 n.4 (dissent of Chairman Cabaniss).

In the case at bar, though the ALJ and the FLRA both

attempted to downplay it, Egal's behavior did not consist

merely of inappropriate words, but also actual physical con-

tact and physical intimidation, so that his co-worker had a

reasonable apprehension of "some unpredictable blow." Al-

though the ALJ and the FLRA shy away from characterizing

this as an "assault and battery" by definition, that is what it

was. See, e.g., Black's Law Dictionary 109 (7th ed. 1999). As

observed by Chairman Cabaniss, the physical contact and the

apprehension of "some unpredictable blow" clearly distinguish

this case from Flight Test Center, 53 F.L.R.A. 1455. There

the most the ALJ could conclude was that the employee's

conduct "evidenced lack of respect." Flight Test Center, 53

F.L.R.A. at 1465. The employee in Flight Test Center

"lean[ed] over the supervisor's desk and point[ed] his finger

at the supervisor," but there was no assault, much less

physical contact. Id. at 1456. Moreover, applying the Gris-

som standard relied on by the FLRA itself, Grissom only

held that protection extends to union representatives engaged

in protected activity even when they use "intemperate, abu-

sive, or insulting language." Grissom, 51 F.L.R.A. at 11. In

no way does Grissom suggest that physical intimidation or

assaultive behavior is protected activity. The assaultive be-

havior here also distinguishes this case from virtually all of

the cases relied on by the intervenor Union. For example,

the intervenor Union cites Old Dominion Branch No. 496,

Nat. Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 283

(1974), a libel case, for the proposition that "federal law gives

a union license to use intemperate, abusive or insulting lan-

guage without fear of restraint or penalty if it believes such

rhetoric to be an effective means to make its point." But that

says nothing about physical contact and assault--it only

addresses language. The only cases involving physical alter-

cations relied on by the FLRA or the Union are those where

there was adequate provocation: more than Fallaw's legiti-

mate inquiry as to Egal's presence at Richardson's feedback

session.

In contrast, the physical intimidation here, comprising the

elements of an assault and battery, is the kind of behavior

that the FLRA had said in U.S. Marshals and USDOJ was

"beyond the limits of acceptable behavior." 26 F.L.R.A. at

901; 20 F.L.R.A. at 569. To the extent that there was any

provocation, a dubious proposition, the record certainly does

not reflect that Fallaw "conducted [her]self in any manner

which warranted physical assault." U.S. Marshals, 26

F.L.R.A. at 901.

Moreover, we observe that not only is the FLRA's balanc-

ing test for "flagrant misconduct" the same standard applied

by the NLRB in interpreting 29 U.S.C. s 158(a)(1), but that

test originates from NLRB precedent. See Department of

the Navy, Puget Sound Naval Shipyard, 2 F.L.R.A. 53, 76

(1979) (referencing NLRB v. Thor Power Tool Co., 351 F.2d

584, 587 (7th Cir. 1965)). Indeed, the FLRA contends that its

"flagrant misconduct" standard "has remained consistent with

National Labor Relations Board (NLRB) law regarding the

boundaries of protected activity." The Authority, far from

striking out on its own with a unique standard, claims to be

tracking with the NLRB. Thus in determining whether the

FLRA has arbitrarily and capriciously applied this "consis-

tent" standard, we may also examine our precedent reviewing

NLRB application of the same standard. This Court's deci-

sion in Felix Industries, Inc. v. NLRB, 251 F.3d 1051 (D.C.

Cir. 2001), is persuasive. There we found that the NLRB's

"offhand treatment of the nature of [a union employee's]

outburst depart[ed] from precedent," and was "arbitrary and

capricious." Felix, 251 F.3d at 1056. The outburst there was

"brief" and "verbal," consisting of calling his supervisor a "f-

king kid" three times. Id. at 1054. We remanded because

the Board, in holding that conduct protected, failed to proper-

ly balance these statements against the other factors. That

mere words could (though we did not hold that it must) result

in a loss of privilege under the "flagrant misconduct" stan-

dard, also suggests that the physical intimidation here was

improperly weighed by the FLRA.

If, as read by the Authority, the FLRA's "flagrant miscon-

duct" standard prohibits the Air Force from taking disciplin-

ary action under the facts of this case, then the Authority has

altered, indeed, gutted, its "flagrant misconduct" standard

without explanation. The FLRA's suggestion that if an "as-

sault and battery occurred ... there is no reason to believe

that it is dispositive of the question of flagrant misconduct,"

Charleston Air Force Base, 57 F.L.R.A. at 81, is an unrea-

soned departure from U.S. Marshals and USDOL, which held

such conduct "beyond the limits of acceptable behavior" ex-

cept when made from a defensive posture. By any measure,

the FLRA's decision was arbitrary and capricious.

C. Application of Standards

In sum, we agree with Chairman Cabaniss that if the

"Authority really intends to follow a test that could condone

an assault and battery situation by not declaring it to be

outside the boundaries of protected activity," then it is time

for the FLRA to find a new test. Charleston Air Force Base,

57 F.L.R.A. at 83 (dissent of Chairman Cabaniss). Physical

intimidation and touching amounting to assault and battery,

during the course of otherwise protected activity, is not

condoned nor immunized by the federal labor laws, and any

interpretation permitting such activity is inherently unreason-

able and due no deference. As we stated in a related context,

we "understand that labor negotiations produce occasional

intemperate outbursts and, in a specific context, such lan-

guage may be protected," however, it "defies explanation that

a law enacted to facilitate collective bargaining and protect

employees' right to organize prohibits employers from seek-

ing to maintain civility in the workplace." Adtranz, 253 F.3d

at 27-28 (emphasis added). Here, we face not just intemper-

ate language, but assaultive, tortious, possibly criminal behav-

ior. As Chairman Cabaniss concluded, "improper physical

contact, with or without threatening gestures or conduct

constituting an assault" does nothing to further the goal of

"facilitat[ing] communication between the parties." Charles-

ton Air Force Base, 57 F.L.R.A. at 84 (dissent of Chairman

Cabaniss). Indeed, "it is preposterous" to suggest as the

FLRA seems to, "that employees are incapable of organizing

a union or exercising their other statutory rights ... without

resort to abusive or threatening language" or without resort

to a physical response. Adtranz, 253 F.3d at 26. To hold

otherwise is not only error, but is "remarkably indifferent,"

id. at 27, to the basic need of employers to maintain decorum,

not to mention the very safety of other employees. See, e.g.,

Jerry Goldstein, Workplace Violence v. Employee Rights, Md.

B.J. Jan.-Feb. 2002, at 46, 46 ("Nearly 1,000 workers are

murdered and 1.5 million are assaulted in the workplace each

year.").

The Authority concludes that 5 U.S.C. s 7102 "protects

those who conduct labor relations ineffectively as well as

those who conduct it effectively, as long as they do not cross

the line and engage in flagrant misconduct." Charleston Air

Force Base, 57 F.L.R.A. at 81. This boilerplate language

establishes nothing. While it is not at all clear to us what

definition of flagrant misconduct could exclude Egal's acts,

even applying the Authority's standard by its most restricted

terms, the Authority's conclusion cannot be upheld. See Part

II.A, supra. This Court has "previously rejected a sugges-

tion from the [NLRB] that employees engaging in protected

activity 'could not be dismissed unless they were involved in

flagrant, violent, or extreme behavior.' " Felix, 251 F.3d at

1055 (quoting Aroostook Co. v. NLRB, 81 F.3d 209, 215 n.5

(1996)). The same is true here. Flagrant misconduct is a

sufficient, but not necessary, condition for a loss of privilege

under s 7102. Even without reference to the "efficiency of

the service" standard of 5 U.S.C. ss 7503(a), 7513(a), relied

upon by the Air Force, it is not a reasonable interpretation of

s 7102 to hold that it protects all union activity except

"flagrant misconduct," particularly if flagrant misconduct

does not include assault and battery in the workplace. How-

ever, we do not read the Authority's earlier cases as holding

that only "flagrant misconduct" crosses the line into unpro-

tected activity. The FLRA has held, as noted in Chairman

Cabaniss's dissent, that "[c]onsistent with section 7102 ... an

agency has the right to discipline an employee who is en-

gaged in otherwise protected activity for remarks or actions

that 'exceed the boundaries of protected activity such as

flagrant misconduct.' " Grissom, 51 F.L.R.A. at 11 (quoting

U.S. Air Force Logistics Command, Tinker Air Force Base,

34 F.L.R.A. 385, 389 (1990)) (emphasis added). It is Grissom

that the FLRA relied on here for its "flagrant misconduct"

standard and Grissom identifies "flagrant misconduct" as

only illustrative of exceeding the boundaries of protected

activities.

We have no occasion to determine what actions, other than

"flagrant misconduct," result in a loss of privilege under the

federal labor laws. Indeed, as we held in Part II.B, supra,

Egal's conduct falls within the scope of what, heretofore, the

FLRA has characterized as flagrant misconduct. We also

note that it might be an unfair labor practice if an employer

unevenly or selectively directs disciplinary action only against

offending employees seeking to exercise their statutory

rights, but there is no suggestion that this has happened

here. See Adtranz, 253 F.3d at 27-28; cf. R.A.V. v. City of

St. Paul, 505 U.S. 377, 383-84 (1992). However, we hold that

regardless of the scope of the Authority's "flagrant miscon-

duct" standard, or any other standard it might adopt to

determine the outer limits of protected union activity under

s 7102, one thing is clear: Egal's assaultive behavior is

unprotected by the federal labor laws.

III. Conclusion

We grant the petition for review and reverse the FLRA.

On remand the Authority is ordered to dismiss the unfair

labor practice complaint against the Air Force and to rein-

state the disciplinary actions taken against Egal.