Flagrant Misconduct

The term “flagrant misconduct” is used to describe behavior that is extremely, obviously, and/or purposefully improper. Examples of flagrant misconduct include a store employee taking photos of customers as they change in the dressing room, or an employee who is under the influence of alcohol or drugs while operating a company vehicle. Both of these acts are illegal, and outrageous. To explore this concept, consider the following flagrant misconduct definition.

Definition of Flagrant Misconduct

Noun

  1. Behavior that is extremely, purposefully improper, to the point of being flaunted.
  2. Wrongful actions that are shockingly noticeable.

Origin

1400-1450        Late Middle English

Factors Determining Flagrant Misconduct

Flagrant misconduct is behavior that is unabashedly improper in nature. The term typically refers to the way someone behaves while on the job, or while acting in an official capacity. There are four factors in particular that are to be considered when determining whether or not someone has exhibited flagrant misconduct. In an employment capacity, the four factors determining flagrant misconduct are:

  • Appropriate Place – The place where the discussion took place, and the subject matter contained within that discussion
  • Spontaneous Acts – Whether the behavior was impulsive or pre-planned
  • Provocation – Whether the employee’s outburst was in any way provoked by his employer
  • Nature of the Acts – The nature of the language used and the employee’s conduct

Flagrant misconduct may also occur between players who are playing sports. Hitting, pushing, shoving, and elbowing are all additional examples of flagrant misconduct on a field of play.

Prosecutorial Misconduct

Prosecutorial misconduct is a situation wherein a prosecutor either acts illegally, or fails to act as he is bound to by the rules. This is especially true if a prosecutor tries to sway a jury into wrongly convicting a defendant, or to impose a much harsher penalty than is fair.

Examples of prosecutorial misconduct can include:

  • Racial profiling
  • False confessions
  • Suborning perjury
  • Failure to disclose exculpatory evidence (evidence that proves the defendant’s innocence)

The 2011 case of Connick v. John Thompson, required the U.S. Supreme Court to decide whether the State had, by withholding important evidence, committed prosecutorial misconduct.

John Thompson, at the age of 22, had been convicted of attempted armed robbery, based solely on his identification by the victims – after his photo had been published in the local newspaper. The prosecution had planned to use that conviction to gain a conviction for the murder of a prominent businessman. This way, the prosecution could discredit any testimony or statements he might give regarding the murder he was charged with, referring to his armed robbery conviction.

A co-defendant charged with the murder testified, in order to benefit himself, that he saw Thompson commit the murder, and Thompson was prevented from effectively testifying on his own behalf because of the robbery conviction. Thompson was convicted of the murder, and sentenced to death. As it turned out, there had been a spatter of blood on the attempted robbery victim that had come from the perpetrator – and it was a different blood type from Thompson’s. The prosecutor had intentionally withheld this critical piece of information in order to gain the conviction.

Thompson had been on death row for 14 years, and was just weeks away from being executed, when his case made it before the U.S. Supreme Court. The Court overturned the robbery conviction, as well as the murder conviction, which was to be retried. After having spent more than two decades in prison, Thompson was acquitted for the murder as well, his defense attorneys having provided proof at trial that someone else had committed the murder.

Thompson filed a civil lawsuit against the prosecutor in his case, complaining of prosecutorial misconduct in suppression of vital evidence in his case. He won that case, and was awarded $14 million in damages. However, the Supreme Court overturned that award, having seen the prosecutor’s actions as a result of the prosecutor’s office failing to adequately train its prosecutors, rather than an intentional act of flagrant misconduct.

The Supreme Court’s decision in this case worked to protect the district attorney’s office from being held responsible for its prosecutors’ mistakes. Justice Clarence Thomas stated that the evidence presented of the prosecutors’ misconduct did not prove “deliberate indifference” on the District Attorney’s part.

Justice Ruth Bader Ginsburg disagreed with the ruling, saying the court was protecting a city and its prosecutors from flagrant misconduct, which almost resulted in the execution of an innocent man. Ginsburg stated that Thompson was “innocent of the crimes that sent him to prison,” and that the prosecutors had “dishonored” their obligation to present the truth to the jury.

What is Protected Union Activity

The National Labor Relations Act was enacted by Congress in 1935 as a way to protect the rights of employers and their employees. The Act was also meant to limit management practices that could potentially harm workers, businesses, and the economy at large. Employees are permitted to form unions within their companies in order to further look out for each other and protect each other’s rights.

Employees who are not part of a union are still protected, however, under the Act. Specifically, employees are protected should they choose to engage in what is known as “concerted activity,” or protected union activity. Concerted activity is two or more employees taking action to protect the group insofar as the terms and conditions related to their employment with the company.

An individual employee can also participate in protected concerted activity if he is acting on behalf of his fellow employees, with their consent. As such, he can bring the group’s complaints to his employer, or try to engage the group he is representing to prepare and/or unite for group action against management when necessary.

Some examples of protected union activities, or protected concerted activities, include:

  • Salary Issues – A group of employees confronting their manager about a potential increase in their salaries
  • Safety Issues – A group of employees discussing work-related issues, such as safety concerns, with each other
  • Working Conditions – An employee approaching his manager on behalf of a group of his peers to discuss a need to improve conditions in the workplace

Robust Debate as a Protected Activity

While discussing employment issues, between employees, or with management, is a protected activity, there are limits to the behaviors it shelters. The term robust debate refers to strong language that union officials are permitted to use when addressing management. It may refer to any discussion that is robust (strong), uncontrolled, and sometimes even uncivil. The discussion can even include insulting or abusive language in some contexts.

Employees are allowed to present the views of the union to management on behalf of the entire union. Should a union official use profanity in his speech, this does not necessarily mean that his speech is unprotected. However, just because an employee is in a union does not mean that he is granted immunity for activities that could be considered misconduct. Every situation should be reviewed individually for potentially flagrant misconduct, and employees disciplined appropriately if they participate in activities that are not related to the representation of the union, or of the employees as a whole.

Example of behavior not considered a protected activity:

Max, who happens to be the employee’s union representative, interrupts the office Christmas party to harangue the company executives, saying the extravagant occasion is “nothing more than a way for the executives to show off how much money they make.” When everyone returns to work on Monday, Max complains about the new time sheets being instituted, loudly calling his manager “a stupid moron.”

This is not an example of robust debate at all, but rather an example of flagrant misconduct. The employee is not acting on behalf of the union, but for his own personal interests. He is also not engaging in a discussion between the company and its union with regard to the company’s working conditions. Instead, he is doing nothing more than being blatantly abusive toward his superiors, and creating a hostile work environment.

Examples of improper behavior that can be considered flagrant misconduct, and which would not be protected behaviors include:

  • Attempted or actual physical attacks
  • Threats of physical attacks
  • Refusal to obey reasonable orders
  • Refusal to obey laws/regulations

Flagrant Misconduct Example in the Air Force

On October 1, 1998, Sharon Richardson, an employee represented by the union at Charleston Air Force Base, arrived at the office of her supervisor, Georgia Fallaw, for a performance feedback session, with her union representative, Richard Egal. Fallaw told the two that the meeting was not a disciplinary action, merely an evaluation, and that the union representative would not be allowed to remain in attendance.

When he was asked to leave, Egal became angry, acting “out of control,” according to Fallaw. Egal accused Fallaw of denying Richardson her right to union representation, and got “in Fallaw’s face” about it, physically intimidating her. Fallaw later testified that Egal was so forceful that he actually pressed his stomach up against hers, forcing her to arch backward over a counter.

The bullying confrontation went on for 10-20 seconds, after which Egal left, and Fallaw proceeded with the feedback session. Fallaw lodged a complaint against Egal, who was suspended without pay for three days due to his “flagrant misconduct” toward Fallaw. Egal disputed the allegations, claiming that his actions were within his rights as a representative of the union. The Air Force conducted a full investigation of the incident, concluding that the misconduct allegations were, in fact, supported.

The Union filed an unfair labor practice charge against the Air Force, alleging that the latter had violated the Unfair Labor Practices code in suspending Egal. The Regional Director of the FLRA lodged a similar complaint. The case made its way to an Administrative Law Judge (“ALJ”), who made use of the four factors that determine whether or not a person’s behavior is, in fact, protected activity, or flagrant misconduct. The Judge ruled that neither the place nor the subject matter of the confrontation obstructed the Air Force’s ability to maintain a sense of order, and the Egal’s behavior was impulsive, not pre-planned.

The Judge noted that, although Fallaw did not directly provoke Egal’s behavior, she was at least partially provocative in telling Egal that his presence alone was meant to intimidate and harass her. As for the final prong of the four-factor test – the nature of Egal’s language and conduct – the Judge found that the physical conduct was only “marginal” due to the evidence that was present showing that Fallaw “provoked” Egal, as well as the fact that the attack was so brief.

When taking everything into account, Egal’s behavior was ruled to be misconduct, but not flagrant misconduct as defined by the four factors determining flagrant misconduct. Therefore, the Judge ruled that the Air Force had committed an unfair labor practice. He also recommended for the FLRA to order the Air Force to stop all proceedings, withdraw Egal’s suspension, and clear his record. It should be noted that the ALJ’s findings considered only the standards of unfair labor practices, stating specifically that it made no judgment as to whether Egal’s actions could be considered “assault and battery” under criminal law.

Related Legal Terms and Issues

  • Administrative Law Judge – A judge who rules on disputes involving administrative law.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Immunity – Protection from something, especially an obligation or punishment.

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