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.