26:0114(14)CA - VA, Washington, DC and VA Medical Center, Cincinnati, OH and AFGE Local 2301 -- 1987 FLRAdec CA



[ 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
 organiz