[ v26 p114 ]
26:0114(14)CA
The decision of the Authority follows:
26 FLRA No. 14
VETERANS ADMINISTRATION
WASHINGTON, D.C. AND
VETERANS ADMINISTRATION
MEDICAL CENTER, CINCINNATI, OHIO
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 2301, AFL-CIO
Charging Party
Case No. 5-CA-50346
DECISION AND ORDER
I. Statement of the Case (Footnotes appear in Appendix A
to this decision)
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached decision of the Administrative
Law Judge. The issues are whether the issuance of the Union newsletter
of June 15, 1985 /1/ is protected activity under the Statute, and if so,
whether certain references to management official Raymond Cole in the
newsletter were beyond the protection of the Statute so as to render
permissible management's reprimand of the Union president responsible
for the newsletter.
II. Background
Prior to the publication at issue, employees had complained to the
Union about Cole who is the Chief of Building Management Services for
the Respondent, as well as Chairman of the EEO Committee. The
complaints, as detailed by the Judge at p. 3 of his Decision, included:
(a) changing a shift in building management which cleaned an
ambulatory and emergency area, thus imposing a hardship on unit
members who would be assigned on an ad hoc basis rather than a
continuous schedule; (b) AWOLing employees unnecessarily when
other action, such as leave without pay, could have been taken;
(c) differences of opinion as to protective clothing for employees
who had to go outside and empty trash; (d) discontinuance by Cole
of staff meetings and substitution of subsection meetings, which
discouraged employees from asking questions; (e) giving employees
very little leeway in doing their jobs and scrutinizing their
actions; (f) volunteering employees for such missions as moving
furniture or assisting in disaster drills, but no training was
provided them; (g) ineffectiveness of Cole as chairperson of EEO
Committee since he had no authority to make decisions, and he
assigned his duties to a subcommittee.
The article at issue addressed these complaints, and appeared over
the signature of Union president Lonnie Carter. The following is the
Judge's summary of the article:
It criticized Cole as one who 'has an autocratic style of
management and consequently believes employees must be closely
scrutinized and cannot be entrusted to carry out their respective
tasks autonomously.' It was also stated that expertise in
labor/management, collective bargaining, management or EEO were
not prerequisites for his position, because Cole did not possess
any of these things. In addition to criticizing Cole for not
supporting his subordinates and actions taken by him with
attendant penalties if employees fail to abide by them, the
Article stated, inter alia, as follows:
Raymond Cole is an exact replica of the house negroes whom in
exchange for a lesser burden, kept order among the defiant masses
to the extent of initiating penalties if the 'massuh' felt it was
warranted . . .
It appears that Raymond Cole is an updated rendition of the
infamous era of the past that black artists captioned as 'the
spook who sat by the door and the Uncle Tom' era which plagued and
demoralized blacks in the past. AFGE Local 2031 is demending the
removal of Raymond Cole (underscoring supplied). ALJ Decision at
3-4.
Carter was given a written reprimand for the contents of the article
because it contained statements which are derogatory, insulting and
disrespectful of Cole in his capacity of Chief, Building Management
Service, as well as because Carter violated certain VA regulations.
(The regulations are set out by the Judge at pp. 5-8). At the hearing
the Respondent stated that the reprimand was not based on the whole
article, but was based on referring to Cole as "Uncle Tom" and "the
spook who sat by the door."
III. Administrative Law Judge's Decision
The Judge found that because the article represents Union
dissatisfaction with the policies and actions of Cole, the issuance of
the newsletter is protected activity within the rights of employees
under section 7102 of the Statute. /2/ In addition, he concluded that
the phrases "Uncle Tom" and "spook who sat by the door," were not to
offensive "as referable to Chief Cole, as to warrant a reprimand by the
Agency." He therefore found that by disciplining the Union president for
engaging in protected activity, the Respondent violated section
7116(a)(1) and (2) of the Statute, as alleged.
IV. Analysis
The Judge relied on numerous cases in the private and Federal sectors
which at bottom sanction uninhibited and robust debate in
labor-management disputes. /3/ See, for example, the U.S. Supreme
Court's discussion of the use of the term "scab" in Old Dominion Branch
No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418
U.S. 264 (1974). /4/
However, none of the cases cited by the Judge refer to racial
epithets or the disparagement of a manager based upon racial
stereotyping. Although the Judge took pains to show how the racial
references related to the concerns of the Union with Cole's management
style, in our view he missed a crucial point. There is a clearly
expressed public policy against racial discrimination in the workplace.
/5/ Racial stereotyping tends to undermine that policy and is not
protected. Name-calling by racial stereotyping is neither a statement
regarding a party's position on racial matters, which could in some
situations be a legitimate insinuation of race into a labor dispute, /6/
nor is it part of the mere rough and tumble of "robust debate." Rather,
terms such as "Uncle Tom" and "spook who sat by the door" are different
from "scab," or other insulting but descriptive epithets. Such terms,
while derogatory, do not carry the same vilification of an individual by
reference to an entire group by race, rather than by a particular course
of action.
The entire thrust of the newsletter was to criticize Cole and it
would be fair to characterize that criticism as harsh, although
permissible, absent the items referenced specifically here. As noted by
the Judge, an employer is entitled to maintain discipline and not have
management subjected to defamatory or libelous statements. In our view,
the use of the terms "Uncle Tom" and "spook . . . ," in the guise of
literary or historical allusions, was not protected and, contrary to the
interpretation of the Judge, their use was inexcusable. Quite simply,
the use of these terms has no place in the Federal labor-management
relations program.
V. Conclusion
In view of the foregoing, the Respondent's reprimand of Union
president Carter as being responsible for the newsletter item did not
interfere with protected activity or violate section 7116(a)(1) and (2)
of the Statute. Therefore the complaint shall be dismissed.
ORDER
The complaint in case No. 5-CA-50346 is dismissed.
Issued, Washington, D.C., March 10, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX B
FROM THE PRESIDENT'S DESK . . . .
"Raynold Cole -- The Polarity Paradox"
When the Chief of Personnel Service and myself are homogenous on
anything, it is indeed an event which is extraordinary but, his
captioning of Raynold Cole as a "bozo" is one of the most accurate
character assessments I have ever encountered. Raynold Cole is the
variable which was most significant in the decadence of Building
Management Service. Under the auspices of Raynold Cole Building
Management Service employees' motivational levels have plunged to record
lows and the entire service has been engulfed in a state of
dysfunctionalism. Raynold Cole has an autocratic style of management
and consequently believes employees must be closely scrutinized and
cannot be entrusted to carry out their respective tasks autonomously.
He has abandoned his obligation to communicate with his employees and
treat them as if they were on a subliminal level in comparison with
himself. He has departed from the historical past practice of having
one homogenous staff meeting for all Building Management Service
employees and adapted a new practice of having one homogenous staff
meeting for all Building Management Service employees and adapted a new
practice of having several isolated section meetings and prohibiting
employees from asking questions of any kind. It is often times said
that an effective leader is supportive of his subordinates. If support
is a prerequisite for the composite parts of an effective leader,
Raynold Cole could not be categorized as an effective leader. Under no
circumstances does he support his subordinates but rather succumbs in a
submissive mannerism to whatever variable is operant, in the absence of
sound logic or existent policy or statute Raynold Cole is an exact
replica of the house negroes whom in exchange for a lesser burden, kept
order among the defiant masses to the extent of initiating penalties if
the "massuh" felt it was warranted. Expertise in labor/management,
collective bargaining, management or EEO were not prerequisites for his
position, because he does not possess any of these things. It is the
ardent and vehement manner which he initiates actions and penalties upon
instruction in addition to his concurrence with their theories of
inferiority. The fact that he came from among rank and file employees
has long alluded him. Raynold Cole's appointment as Chairperson of the
EEO Committee is a stereotypical response to EEO: Appoint a Black to
serve as a figurehead while his anglo saxon counterpart, the Director
makes all the decisions and has absolute authority over the committee.
Token appointments such as Raynold Cole's appointment to Chief of
Building Management Service are representative of the purported
incremental progress the oppressor has attempted to use in the past to
mentally enslave blacks and consequently persuade them to deny their
heritage in an asinine attempt to substantiate that they are homogenous
with their anglo saxon counterparts. It appears that Raynold Cole is an
updated rendition of the infamous era of the past that black artists
captioned as "the spook who sat by the door" and the "Uncle Tom" era
which plagued and demoralized blacks in the past. AFGE Local 2031 is
demanding the removal of Raynold Cole.
Lonnie Carter
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-50346
VETERANS ADMINISTRATION, WASHINGTON, D.C. AND
VETERANS ADMINISTRATION MEDICAL CENTER,
CINCINNATI, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2301, AFL-CIO
Charging Party
Russell C. Henry, Esq.
William F. Lamm
For the Respondent
Arlander Keys, Esq.
For the General Counsel
Lonnie Carter
For the Charging Party
Before: William Naimark
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on October 30,
1985 by the Regional Director for the Federal Labor Relations Authority,
Chicago, Illinois, a hearing was held before the undersigned on December
17, 1983 at Cincinnati, Ohio.
The case herein arose under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).
It is based on a First Amended Charge filed on August 16, 1985 by
American Federation of Government Employees, Local 2031, AFL-CIO (herein
called the Union) against Veterans Administration, Washington, D.C. and
Veterans Administration Medical Center, Cincinnati, Ohio (herein called
the Respondent).
The Complaint alleged, in substance, that on or about July 9, 1985
Respondent issued to employee Lonnie Carter, an official reprimand
because of an article he wrote in the Union's June, 1985 Newsletter,
which was entitled "Raynold Cole -- The Polarity Paradox." It was
further alleged that such reprimand was issued because Lonnie Carter
engaged in activities on behalf of the Union -- all in violation of
Section 7116(a)(1) and (2) of the Statute.
Respondent's Answer admitted the issuance of a reprimand to Lonnie
Carter based on the aforementioned article which appeared in the Union's
Newsletter of June, 1985. It denied that the reprimand was due to
Carter's union activities, as well as the commission of any unfair labor
practices.
All parties were represented at the hearing. /7/ Each was afforded
full opportunity to be heard, to adduce evidence, and to examine as well
as cross-examine witnesses. Thereafter briefs were filed which have
been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the American Federation of
Government Employees, AFL-CIO has been, and still is, certified as the
exclusive representative of Respondent's employees at the Medical Center
in Cincinnati, Ohio.
2. At all times material herein the Union has been, and still is,
the designated agent of American Federation of Government Employees,
AFL-CIO, to represent Respondent's employees at its Medical Center in
Cincinnati, Ohio.
3. Approximately 900 employees comprise the bargaining unit herein,
and these employees are located at Cincinnati, Ohio, Ft. Thomas,
Kentucky (about 20 miles from Cincinnati) and Columbus, Ohio.
4. A monthly Newsletter is published by the Union and distributed to
unit employees at the three locations of the Medical Center. The intent
of the Newsletter is to disseminate information to employees, as well as
air employee's grievances and their dissatisfactions.
5. The editor of the Newsletter is Brenda McCullom,
Secretary-treasurer of the Union. Material printed therein is
determined by the complaints received from Union members. The executive
body of the Union meets and decides which material should be published
in a particular issue of the Newsletter. It is then mailed to all
bargaining unit members, as well as people who have previously requested
copies of newsletters.
6. Prior to June, 1985 employees had complained to the Union about
Raynold Cole, Chief of Building Management Services. Cole also occupied
the position of chairperson of the EEO Committee. These complaints
concerned conduct by Cold involving matters as the following: (a)
changing a shift in building management which cleaned an ambulatory and
emergency area, thus imposing a hardship on unit members who would be
assigned on an ad hoc basis rather than a continuous schedule; (b)
AWOLing employees unnecessarily when other action, such as leave without
pay, could have been taken; (c) differences of opinion as to protective
clothing for employees who had to go outside and empty trash; (d)
discontinuance by Cole of staff meetings and substitution of subsection
meetings, which discouraged employees from asking questions; (e) giving
employees very little leeway in doing their jobs and scrutinizing their
actions; (f) volunteering employees for such missions as moving
furniture or assisting in disaster drills, but no training was provided
them; (g) ineffectiveness of Cole as chairperson of EEO Committee since
he had no authority to make decisions, and he assigned his duties to a
subcommittee.
7. Brenda McCullom wrote an article in the Union's June, 1985
Newsletter prompted by the numerous complaints about Cole from
employees. The article was entitled "Raynold Cole -- The Polarity
Paradox." /8/ It criticized Cole as one who "has an autocratic style of
management and consequently believes employees must be closely
scrutinized and cannot be trusted to carry out their respective tasks
autonomously." It was also stated that expertise in labor/management,
collective bargaining, management or EEO were not prerequisites for his
position, because Cole did not possess any of these things. In addition
to criticizing Cole for not supporting his subordinates and actions
taken by him with attendant penalties if employees fail to abide by
them, the Article stated, inter alia, as follows:
"Raynold Cole is an exact replica of the house negroes whom in
exchange for a lesser burden, kept order among the defiant masses
to the extent of initiating penalties if the 'massuh' felt it was
warranted . . .
It appears that Raynold Cole is an updated rendition of the
infamous era of the past that black artists captioned as 'the
spook who sat by the door and the Uncle Tom' era which plagued and
demoralized blacks in the past. AFGE Local 2031 is demanding the
removal of Raynold Cole (underscoring supplied).
8. The term "house negroes" in the aforesaid article, as testified
to by McCullom, denoted a black person who, during slavery, was assigned
as the house negro. The latter's function was to keep the other blacks
in line and be sure they didn't disturb the slavery arrangements. In
return, the house negro's burden was lessened. /9/
9. Webster's Third New International Dictionary, Unabridged, refers
to "Uncle Tom" as the hero of the novel, "Uncle Tom's Cabin" by Harriet
Beecher Stowe, and defines the term "Uncle Tom" as a negro hav ing a
bearable and submissive attitude or philosophy."
10. In respect to the description of Cole as "The Spook who sat by
the door" in the Union Newsletter, and its intended meanings, McCullom
testified as follows:
. . . The Spook Who Sat By The Door was a novel, and it was
about a position -- a person who was token. He was actually
appointed to satisfy an affirmative action quota.
And Mr. Cole's tenure on the EEO Committee is token. Mr. Cole
has no authority to make decisions. All he did, the only
authority he had, was concerning the actual way the committee was
run. But any action, items or anything formidable that the
committee was going to do had to be approved by the director,
because it's an advisory committee.
11. The term "spook" is defined in Webster's Third New International
Dictionary, Unabridged as "ghost," "specter," "apparition." As a slang
word it is defined as "negro."
12. Respondent sent a written reprimand, dated July 9, 1985, to
Lonnie Carter based on the publication and distribution of the June 12
Union Newsletter. /10/ The reprimand, which was written by Gary
Roselle, Chief of Medical Service, recited that the article contained
statements which are derogatory, insulting and disrespectful of Raynold
Cole in his capacity of Chief, Building Management Service.
Respondent's letter of July 9, 1985 also stated that Carter violated
VA Regulations which is as follows:
a. VA Regulation 810(A) and 5 CFR 0.735-10 -- Each VA employee
shall be expected to serve diligently, loyally, and cooperatively;
to exercise courtesy and dignity, and to conduct himself, both on
and off duty, in a manner reflecting credit upon himself and the
VA.
b. VA Regulation 810(B)(6) and 5 CFR 0.735.10 -- An employee
shall avoid any action which might result in, or create the
appearance of affecting adversely the confidence of the public in
the integrity of the Government.
c. VA Regulation 820(B) and 5 CFR 0.735.20(b) which states, in
part, an employee shall live up to common standards of acceptable
work behavior. Disrespectful conduct; use of insulting and
abusive language about other personnel; making false or unfounded
statements about other employees which are slanderous or
defamatory is inappropriate work attitude and work behavior.
13. At the hearing herein Roselle testified that the basis for the
reprimand were the remarks in the Newsletter which labeled Cole as
"Uncle Tom" and "The Spook who sat by the door."
14. The aforesaid reprimand was put in Carter's file. No further
issue has been published or distributed of the Union Newsletter.
Conclusions
A resolution of the dispute herein requires a determination of two
primary issues: (1) whether the issuance and publication of the Union's
Newsletter of June 15, 1985 and its contents constitute concerted
activity which is protected under the Statute; (2) if so, were the
references in the Newsletter describing management's representative,
Raynold Cole, as an "Uncle Tom" and "The Spook who sat by the door" so
offensive and disparaging as to forfeit the protection otherwise
afforded.
(1) Under Section 7102 of the Statute each employee has the right to
form, join, or assist any labor organization freely without fear of
penalty or reprisal, and each employee "shall be protected in the
exercise of such right." Moreover, such right under 7102(1) includes the
right to act for a labor organization as a representative and to present
its views to the head of an agency or other appropriate authorities.
Both the National Labor Relations Board in the private sector, as
well as the Federal Labor Relations Authority, in the public sector,
have had occasion to consider whether the writing of articles in a union
publication is a protected activity. Thus, in Springfield Library and
Museum, 238 NLRB No. 221. The NLRB /11/ concluded that an article
written by a union president for a union newsletter, wherein reference
was made to an official of the employer, was protected concerted
activity. To the same effect see United Parcel Service, Inc., 234 NLRB
No. 11.
In Department of Navy, Naval Air Rework Facility, A/SLMR No. 543, the
chairman of the union shop Committee issued a flyer wherein he
questioned the truthfulness of the Commanding Officer. The Assistant
Secretary of Labor for Labor-Management Relations held that, under
Section 1 of Executive Order 11491, as amended, the Article so published
constituted protected concerted activity. /12/
The Supreme Court in Old Dominion Branch No. 496, National
Association of Letter Carriers, AFL-CIO v. Austin et al. 4180.5.264
concerned itself with the issue as to whether statements in the union
newsletter regarding certain non-union employees were so defamatory as
to be libelous. The relevant federal law was Executive Order 11491.
The Court recognized that statements made in a union publication fell
within the ambit of protected activity; that this protection was only
lost if the statements or comments exceed permissible bounds. In this
respect it was made clear that Section 1 /13/ of the Executive Order
guarantees federal Employees similar rights as Employees are granted
under Section 7 /14/ of the National Labor Relations Act (NLRB).
In the instant case the Newsletter issued by the Union, together with
the message from its president in June, 1985, stemmed from complaints
received by the Union about Cole, management's representative. The
article therein represents Union dissatisfaction with the policies and
action taken by Cole. It is quite clear that the issuance of said
Newsletter is protected activity and falls squarely within the rights
assured employees under 7102 of the Statute. I so conclude.
(2) Considerable case law exists dealing with the issue as to whether
statements made in union publications, or by union officials, lost
protection because of the particular language used in various articles.
A review of these cases should be some guideline in determining if the
remarks concerning Cole, as adopted and approved by Carter, went beyond
permissible bounds and justified the reprimand issued to him by
Respondent.
In the Letter Carriers case, supra the Supreme Court discounted the
usage of the term "scab" as being defamatory, even though set forth in a
union newsletter which applied the term to certain employees and
characterized them to be traitors. The Court determined that federal
policies -- whether the relevant law is Executive Order 11491 or the
NLRA -- favor uninhibited, robust, and wide-open debate in labor
disputes. While the word "scab" was a true and applicable description
of certain named employees, the term "traitor" was not deemed a
representation of fact. Despite its pejorative quality, the Court
concluded that designating one as a traitor in the union newsletter was
an expression of opinion protected under federal labor law.
The Supreme Court in the foregoing decision paid particular attention
to its former holding in Linn v. Plant Guard Workers, 383 U.S. 53. In
that case a union leaflet, issued during a campaign to organize the
company's employees, charged a general manager with "lying" to employees
and "robbing" them of pay increases. The Court concluded that the
quoted words were not so indefensible as to remove them from the
protection of Section 7 of the NLRA. It sanctioned the right of a union
to use intemporate, abusive, or insulting language without fear or
restraint or penalty if it believed such rhetoric to be an effective
means to make its point. Justice Clark stated it succinctly:
The most repulsive speech enjoys immunity provided it falls
short of deliberate wreckless truth. (383 U.S. at 63).
Further consideration is given to Springfield Library and Museum,
supra which is somewhat similar to the case at bar. A Union Newsletter
was issued in the cited case wherein the president of the union authored
an article which was prompted by problems confronting library employees.
The article commented on the fact that each library had administrative
difficulties. The union president then stated that Respondent's chief
administrator was:
"a man who never 'lost contact' with working professionals
because he never had it to begin with. He's simply a man who,
when he lost his job at Forbes and Wallace, was put on a form of
welfare-for-the-rich courtesy of his friends on the Board of
Trustees."
Respondent therein gave the union president a formal reprimand since
it deemed the aforesaid statement to be insulting and not permissible.
The Board concluded that the message involved concerted and union
matters, i.e. new evaluation for professional employees, the absence of
a contract, and the possible elimination of benefits. Finally, the
article suggests that the work-related problems could stem from the
manner in which administrators are chosen. Attacking the credentials of
the chief administrator, it was determined, may have offended
management. However, the statement fell short of a deliberate and
reckless untruth and can be called "rhetorical hyperbole" which is
immune from restraint or interference. The reprimand was deemed
violative of Section 8(a)(1)(3) of the NLRA. /15/
The Circuit Court in Maryland Drydock Co. v. NLRB 183 F2d 538 (4th
Cir.) concluded that the publication of a union newspaper did not retain
its protected status in view of certain comments therein. Certain
articles in the newspaper lampooned the company president as a "goose"
and a "vulture." While the Board found an unfair labor practice
resulting from the banning of the newspaper by the employer, the Circuit
Court disagreed with that conclusion. The basis for this disagreement
concerned the fact that, as determined, the literature held the official
up to ridicule and contempt; that it tended to destroy discipline in
the plant. It was, however, concluded that the right to prohibit the
distribution of insulting and defamatory literature depended on the
character of the articles and the effect it might normally be expected
to produce.
Cases in the public sector dealing with the issue at hand have given
recognition to the rationale expressed in the foregoing decisions.
Thus, in United States Forces Korea/Eighth United States Army, 17 FLRA
No. 102 Administrative Law Judge Sternburg stated that it is only those
statements which are knowingly false and uttered with reckless abandon
which lose the protection of the Statute. The Authority, however, did
adopt the judge's conclusion that statements by the union president in a
letter, which attacked the commanding general, undermined the
credibility and confidence of U.S. government officials in a foreign
country. /16/ It was concluded that the remarks had no reasonable nexus
to legitimate labor relations problems, albeit they were not recklessly
uttered or disruptive of discipline.
A contrary conclusion concerning the protection afforded statements
contained in a union publication was reached in Internal Revenue
Service, North Atlantic Service Center (Andover, Mass.), 7 FLRA No. 92.
A union leaflet in the cited case referred to a supervisor as "this
seasons holiday turkey," and it was stated that the supervisor was being
so recognized since she excelled at discontent and disruption.
Respondent's contention that the leaflet was both scurrilous and
defamatory was not upheld. The comments re the supervisors were not, as
was true in Maryland Drydock, supra, insults to management without
concern about working conditions. Accordingly, it was concluded that the
leaflet fell within the protection of the Statute.
The Authority has also determined that remarks by a union president
at a grievance meeting, which were inherently inflammatory, were still
protected activity. See Department of Housing and Urban Development,
San Francisco Area Office, San Francisco, California. 4 FLRA No. 64.
The agency issued a reprimand to the employees who, as a union official,
represented the grievant. The said union official called the grievant's
supervisor a racist, sexist and ageist. While the language used may be
deemed indelicate and intemperate in labor relations, it did not
constitute "flagrant misconduct" beyond the ambit of protected activity.
/17/
In respect to the case at bar, Respondent takes the position that the
remarks about Cole were far removed from the arena of robust debate. It
is contended, in essence, that the statements in the Newsletter
describing the Chief of Building Management Service as an "Uncle Tom"
and the "Spook Who Sat By The Door" were opprobrious and a libel to
Cole's reputation. Further, Respondent adverts to the fact that the
article in the Newsletter did not allude to any bargaining issue on the
table between the Union and management.
It is recognized that an employer is entitled to maintain discipline
among employees and not have management be subjected to defamatory or
libelous statements. But a balance must be struck between this right
and that afforded a union to engage in protected activity which
encompasses the publication of newsletters or leaflets involving
employee-employer relations.
As indicated in Linn v. Plant Guard Workers, supra, the Supreme Court
accords considerable latitude to a union unless it issues leaflets or
other publications which may attack management or its representatives.
It has sanctioned the use of intemperate, abusive or insulting language.
Reference in the Newsletter herein to Cole as "Uncle Tom" or a "Spook"
may be regarded as abusive in nature. However, I am not persuaded that
it extends beyond the scope of rhetoric which, in the foregoing cited
case, is within the ambit of protected activity. Rather do I view
comments as similar in nature to those made by the president of the
union in Springfield Library and Museum, supra, which demeaned and
criticized the chief administrator. As in the case at bar, the article
by the union official also dealt with matters concerning the
administration of the library which affected employees. The critique of
the Chief Administrator was deemed "rhetorical hyperbole," which was
considered to be immune from a reprimand. In much the same view, the
remarks re Cole were also made in connection with the complaints by
employees as to practices affecting their employment. /18/
While Respondent relies heavily on the Korea case, supra, note is
taken that a prime consideration therein was the effect which the union
president's letter to the Korean newspaper had upon the relationship
between United States and Korea. The remarks by the union official
tended to undermine the credibility and confidence of U.S. government
officials in a foreign country. Further, it was concluded the selection
of a Korean newspaper to advocate the recall of the general and
criticize his appointment interjected the Union into a political dispute
between Christian leaders and the Korean government. No such wide
ramifications are present in the instant case, nor is the embarrassment
of the country a likely result of the Newsletter article herein. It is
also noted that there was little, if any, nexus in the cited case
between the derogatory comments about the general and labor relations
problems. Contrariwise, in the case at bar the Newsletter referred to
several complaints dealing with employee's problems at work, and the
remarks re Cole were in conjunction therewith.
In sum, I am satisfied that the terms "Uncle Tom" and "Spook Who Sat
By the Door," as referable to Chief Cole, were not so offensive as to
warrant a reprimand by the agency. There is no showing, nor am I able
to conclude in any event, that these comments would disrupt discipline
among Respondent's employees. Further, I cannot characterize the
statements as reflective of a reckless disregard of the truth. As
characterizations, the remarks were perhaps insulting but did not, in my
opinion, rise to the level of such denigrations which might otherwise be
deemed inexcusable. The reprimand given to Lonnie Carter for adopting
the remarks, and putting him imprimature thereon, was indefensible in
view of the protection accorded them. Reprimanding the employee for
engaging in union activity, i.e. the issuance and publication of a Union
Newsletter containing remarks of a protected nature, was violative of
7116(a)(1) and (2) of the Statute.
Having concluded that Respondent violated the Statute as aforesaid, I
recommend the Authority issue the following:
ORDER
Pursuant to Section 2423.79 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the Veterans Administration, Washington, D.C. and
Veterans Administration Medical Center, Cincinnati, Ohio, shall:
1. Cease and desist from:
(a) Discouraging membership in American Federation of
Government Employees, Local 2301, AFL-CIO, or any other labor
organization, by issuing a reprimand to Lonnie Carter, or any
other Union representative, for engaging in protected union
activity under the Statute.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Remove or expunge from the personnel folder of Lonnie
Carter any reference to the written reprimand, dated July 9, 1985,
given to Lonnie Carter, and acknowledge the removal to him in
writing.
(b) Post at its facilities at Cincinnati, Ohio, copies of the
attached notice marked "Appendix" on forms to be furnished by the
Authority. Upon receipt of such forms, they shall be signed by
the Director and shall be posted and maintained by him for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The Director shall take reasonable steps to
assure that such notices are not altered, defaced or covered by
any other material.
(c) Notify the Regional Director of Region 5, Chicago,
Illinois, within 30 days from the date of the Order as to what
steps have been taken to comply herewith.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: May 2, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The newsletter item at issue is reproduced as Appendix B to this
Decision.
(2) At p. 6 of his decision, the Judge inadvertently referred to
"concerted" activity as protected under the Statute. Section 7 of the
National Labor Relations Act contains such language; the Statute does
not.
(3) In the federal sector, for example, as noted by the Judge, the
Authority has previously found that an agency committed an unfair labor
practice when it confiscated union literature which referred to a
supervisor as "this season's holiday turkey," Internal Revenue Service,
North Atlantic Service Center, Andover, Massachusetts and National
Treasury Employees Union, Local 69, 7 FLRA 596 (1982); and when it
reprimanded a union official who called a management official a "racist,
sexist, and ageist" at a grievance meeting, Department of Housing and
Urban Development, San Francisco Area Office, San Francisco, California
and National Federation of Federal Employees, Local 1450, 4 FLRA 460
(1980). In the latter case, the Authority also adopted the Judge's
conclusion that "flagrant misconduct by an employee, even though
occurring during the course of protected activity, may justify
disciplinary action by the employer." Id. at 466.
(4) The concept of uninhibited and robust debate in labor-management
disputes, broad though it may be, does not sanction every kind of insult
or disparagement. See, for example, Timpte, Inc. v. NLRB, 590 F.2d 871,
873 (10th Cir. 1979), in which it was held that the "combination of
profanity and filthy language in the disparagement of persons" was not
sanctioned in the private sector under section 7 of the National Labor
Relations Act. Furthermore, the concept is not without bounds so far as
other activities are concerned. See, for example, NLRB v. Washington,
Aluminum Co., 370 U.S. 9, 17 (1962) in which the Supreme Court stated
that the protections of section 7 were denied to "activities
characterized as 'indefensible' because they . . . show a disloyalty to
the workers' employer which (is) unnecessary to carry on the workers'
legitimate concerted activities."
(5) Equal Employment Opportunity Act of 1972, Pub. L. 92-261.
(6) See, for example, Sewell Mfg. Co., 138 NLRB 66 (1962);
Allen-Morrison Sign Co., 138 NLRB 73 (1962). However, courts and the
NLRB have distinguished legitimate insinuations of race into a labor
dispute from irrelevant and inflammatory appeals to racial and ethnic
prejudice, which are impermissible, in representation election
campaigns. See, for example, NLRB v. Eurodrive, Inc., 724 F.2d 556 (6th
Cir. 1984) and cases cited therein; YKK (U.S.A.) Inc. and Sandra M.
Collins and Local 571, United Cement, Lime & Gypsum Workers
International Union, 269 NLRB 82 (1984).
(7) At the hearing it was disclosed that the article in the
Newsletter was not, as alleged, written by Carter. It was written by
Brenda McCullom, Secretary-treasurer of the Union but approved and
adopted by Carter. The undersigned granted General Counsel's motion to
amend its Complaint to allege that Carter was reprimanded because, as
President of the Union, he adopted the article so written. Respondent
did not object to the said motion, and it admitted that the reprimand
was issued to Carter based on his adoption of the contents and being
responsible for the Newsletter's issuance and distribution.
(8) The Newsletter of June, 1985 stated "From the President's Desk .
. . "
(9) The June, 1985 Newsletter also describes the appointment of Cole
as Chief of Building Management Service as token in nature. Mention is
made therein that it is typical of a means used in the past to mentally
enslave blacks, to persuade them to deny their heritage by
substantiating that they are homogeneous with their anglo saxon
counterparts.
(10) At the hearing Respondent's Counsel conceded and agreed that the
reprimand was not for distributing the Newsletter but for the contents
thereof.
(11) National Labor Relations Board, hereinafter referred to as the
Board.
(12) Cf. United States Forces Korea/Eighth United States Army, 17
FLRA No. 102 where the writing of a letter to a TV reporter re a labor
relations dispute at the Agency's installation was protected activity,
albeit the letter was deemed to defamatory that the protection was
forfeited.
(13) "The right freely and without fear of penalty or reprisal, to
form, join, and assist a labor organization."
(14) Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing and to engage in concerted
activities, for the purpose of collective bargaining or other mutual aid
or protection.
(15) See also United Parcel Service, supra, where a union newspaper,
published to afford employees an opportunity to vent dissatisfaction,
contained numerous statements maligning the employer. Although some
were perhaps obscene and derogatory, the Board held the publication to
be protected. Emphasis was placed on the fact that it did not appear
there was a breakdown in "order and respect" at the facility, nor were
the statements made with a deliberate or malicious intent to injure the
employer.
(16) Some of the allegations re the General recited that he: (a)
treated civilian employees as second-class citizens; (b) displays
disregard for basic American Freedom and laws; (c) uses his office for
personal advantage; (d) uses improper methods to try to destroy the
union; (e) has given USFK a bad reputation.
(17) See also Department of the Navy, Naval Air Rework Facility,
supra, where the flyer issued by a union official implied that the
agency Commander lied re the latter's authority to pay a certain amount
as per diem for certain employees on TDY. Such statement, it was held,
did not constitute a reckless untruth, and it was deemed immune from
reprisal by the agency.
(18) The case cited Respondent, Local 2578 AFGE and Carmen Delle
Donne v. U.S. General Services Administration et al., (appeal No.
83-1407) U.S. Court of Appeals for the Federal Circuit, (July 5, 1984),
is quite distinguishable. In the cited case the threat by the employee
to "get" the lawyer if documents were not produced was a personal
dispute. Moreover, it caused the lawyer to fear for his safety. Such
behavior was clearly unprotected and far removed from characterizations
made in context with labor-relations complaints emanating from
employees.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discourage membership in American Federation of
Government Employees, Local 2301, AFL-CIO, or any other labor
organization, by issuing a reprimand to Lonnie Carter, or any other
employees, for engaging in protected activity under the statute.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL remove or expunge from the personnel folder of Lonnie Carter
any reference by the written reprimand, dated July 9, 1985, given to
Lonnie Carter, and acknowledge the removal to him in writing.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 5,
whose address is: 175 Jackson Blvd., Suite 1359-A, Chicago, IL 60604
and whose telephone number is: (312) 353-6306.