[ v26 p114 ]
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.