17:0718(102)CA - Forces Korea / Eighth United States Army and NFFE Local 1363 -- 1985 FLRAdec CA
[ v17 p718 ]
17:0718(102)CA
The decision of the Authority follows:
17 FLRA No. 102
UNITED STATES FORCES KOREA/
EIGHTH UNITED STATES ARMY
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, Local 1363
Charging Party
Case No. 8-CA-20391
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, exceptions
to the Judge's Decision were filed by the General Counsel and an
opposition was filed by the Respondent.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 8-CA-20391 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., April 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------
------------- ALJ$ DECISION FOLLOWS ------------
E. A. Jones, Esquire
For the General Counsel
Lt. Colonel Michael L. Feighny
For the Respondent
Mr. Don C. Terrill
For the Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5
U.S.C.Section 7101, et seq., and the Rules and Regulations issued
thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46,
No. 154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to charge filed on July 7, 1982, by Local 1363, National
Federation of Federal Employees (hereinafter called NFFE or the Union),
a Complaint and Notice of Hearing was issued on September 30, 1982, by
the Regional Director for Region VIII, Federal Labor Relations
Authority, Los Angeles, California. The Complaint alleges that the
United States Forces Korea/Eighth United States Army (hereinafter called
the Respondent), violated Sections 7116(a)(1) and (2) of the Federal
Service Labor-Management Relations Statute (hereinafter called the
Statute), by virtue of its actions in issuing a formal reprimand to Mr.
Don Terrill because he engaged in "union activity protected by 5 U.S.C.
7102." /1/
A hearing was held in the captioned matter on November 8, 1982, in
Seoul, Korea. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on January 10, 1983, which have
been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Statement of Fact
Mr. Don C. Terrill, the alleged discriminatee herein, has been
employed as a computer programmer analyst by the U.S. Navy and assigned
to Respondent's Joint Command Information Systems since approximately
1977. Since March of 1979, Mr. Terrill has served as either president
or vice-president of the Union which represents approximately 450 of the
approximately 1,100 U.S. citizen civilian employees working for the
Respondent in Korea. At the time of the events herein, and for an
unspecified time prior thereto, Mr. Terrill was the president of the
Union.
Mr. Terrill's position as union president include presiding at
general membership meetings and representing the Union at all functions
where the Union needs a spokesman, such as negotiations with the
Respondent. Mr. Terrill is also responsible in his position as union
president, for the Union's correspondence with Respondent as well as the
publication of the Union's monthly newsletter.
The Union's newsletter contains national (U.S.) and local Korean news
which is of interest to bargaining unit employees. Additionally, the
Union newsletter contains a "general mixture of editorializing which is
often critical of the command's personnel policies. The newsletter is
often critical of the command's personnel policies. The newsletter is
generally distributed to dues paying members of the Union; U.S.
civilian employees in Korea; Federal employee unions in Okinawa,
Germany, and NFFE's national office; the Korea Herald; the Korea
Times; the Stars and Stripes; the editors of KORUS, Respondent's own
newspaper; the Southern Star, another of Respondent's newspapers;
Korean employee unions that represent Korean employees in Korea; and
Respondent's Civilian Personnel Officer. Additionally, Mr. Terrill has
from time to time sent either copies of the newsletter or other letters
on Union stationery to members of Congress, the President of the U.S.,
60 Minutes, MASH, the Washington Post, Jack Anderson, and the Office of
Personnel Management. The aforementioned letters, some 1,200 in number,
which were written on Union stationery and signed by Mr. Terrill in his
capacity as union president, like the Union's newspaper, were highly
critical of Respondent's policies with respect to the civilian employees
in Korea.
The record reveals that Mr. Terrill is empowered to author the
letters as union president without any prior approval from either the
International Office of the Union, his fellow officers or the Local 1363
executive board.
Although not entirely clear from the record, it appears that sometime
around April of 1982, General John A. Wickham, Jr., who at the time was
Commander in Chief, U.S. Forces in Korea, was accused by the Christian
leaders in Korea of making a speech or statement in the past wherein the
Korean people were referred to as "lemmings" who were willing to follow
any leader they get. The aroused Christian leaders demanded and/or
urged that General Wickham be recalled for making such a statement about
the Korean people. A story concerning the alleged insulting remark of
the General was published in a number of Korean newspapers and
subsequently the story was picked up by one or more United States
newspapers. The accusations made by the Christian leaders concerning
General Wickham appeared in a story involving arson at the U.S. Pusan
Cultural Center. The article indicates that a bitter dispute existed
with respect to the philosophies of the Government and the Christian
leader. According to Mr. Terrill, it was from the American Newspapers
that he became aware of the alleged incident involving the General. /2/
Upon hearing of the complaints by the Christian leaders in Korea,
including their request for the recall of General Wickham, who because
of his position was the head of the Activity in which the Union enjoyed
recognition, Mr. Terrill decided that the incident would be a good
vehicle for the airing of a number of labor relations complaints that
the Union had with the United States Forces in Korea, which was
commanded by General Wickham. To this end, Mr. Terrill, in his capacity
as union president, on April 22, 1982, wrote a letter on Union
stationery to the editor of the Korea Herald which read as follows: /3/
Dear Sir:
I am writing on behalf of a labor Union which represents most
of the U.S. citizen civilian employees of U.S. Forces Korea USFK).
We have read in the Pacific Stars & Stripes (published by the
U.S. Department of Defense) that prominent Korean church leaders
have requested the recall of GEN Wickham from Korea. According to
those church leaders, GEN Wickham said that the Korean people are
like "lemmings" who are willing to follow any leader they get. If
GEN Wickham did indeed make such a statement, we apologize on
behalf of American workers to the Korean people. The General is a
senior representative of the United States Government in Korea,
and his public statements are usually seen as statements of
American policy. In this case, however, he was not stating the
views of the people of the United States.
The irony is that on past occasions GEN Wickham's
representatives had admonished our Union's representatives for
some of the statements we have made concerning our daily lives in
Korea. It appears, however, that GEN Wickham enforces two
different standards.
Both the officers and members of our Union have been
continually impressed with the tremendous degree of national pride
displayed by the Korean people. This unified sense of national
purpose has lifted Korea out of the wreckage of war, provided a
stable government, and made Korea into an economic powerhouse and
a shaper of world events. We Americans have much to envy in
Korea's national spirit, accomplishments, and traditions.
The American civilian employees of USFK are also extremely
unhappy with GEN Wickham over his personnel policies. Were it
within our power, we too would like to see him recalled to the
United States. He has treated us as second-class citizens, has
displayed little regard for basic American freedoms or for our
country's labor laws, has refused to bargain with our Union over
important personnel policies, has used his office for personal
advantage through a policy which exempts himself and his fellow
generals from USFK's severe ration control restrictions, and has
sought to destroy our Union through a series of improper actions
including a request to President Reagan to take from our Union its
statutory right to represent employees in essential personnel
matters. GEN Wickham has alienated most of the civilian employees
and has given USFK a reputation which is so bad that this agency
has great difficulty recruiting civilians from the U.S. to come to
work here, even though America is presently seized by
extraordinary unemployment problems. How this man could be
selected to be Vice Chief of Staff of the Army is a marvel of poor
judgment. GEN Wickham will be departing this summer, or sooner if
the Christian leaders prevail, and there will be no tears shed
here by his civilian employees upon his departure.
Sincerely,
DON C. TERRILL
President
Local 1363, National Federation of
Federal Employees
On or about April 26, 1982, union first vice-president, David
Rydzynski, who works in the Office of the Judge Advocate, gave Major
Vincent Nealey, Respondent's labor counsel, a copy of Mr. Terrill's
April 22, 1982 letter to the Korea Herald and indicated that he was not
in sympathy with it. Major Nealey read the letter and concluded, after
talking with Mr. Rydzynski, that the letter was a malicious attack on
General Wickham and did not constitute protected union activity.
Thereafter, Major Nealey contacted Mr. Terrill's immediate supervisor,
Major Dennis Strobel, informed him of his own personal opinion of the
letter and recommended that Mr. Terrill be given a reprimand for writing
such a letter.
On May 28, 1982, Major Strobel, Mr. Terrill's immediate supervisor,
gave Mr. Terrill a letter of reprimand which read in pertinent part as
follows:
1. This is notice that you are formally reprimanded for making
malicious statements against General John A. Wickham, Jr.
2. The specific reason for this reprimand is as follows:
On 22 APRIL 1982, you did sign and forward to the editor of The
Korea Herald the letter attached as Inclosure 1. This letter
includes malicious statements against General Wickham and the
National Command Authority who selected him to be the next Vice
Chief of Staff of the Army. These statements include but are not
limited to allegations that General Wickham:
(a) treats civilian employees as second-class citizens,
(b) displays disregard for basic American freedoms and laws,
(c) uses his office for personal advantage,
(d) uses improper methods to try to destroy the union to which
you belong, and
(e) has given USFK a bad reputation.
You made these statements knowing that they could harm or
destroy the reputation, authority, or official standing of General
Wickham and his superiors in the chain of command.
The letter went on to inform Mr. Terrill that he could grieve the
reprimand through the third step of the Department of the Navy grievance
procedure. In this latter connection the only evidence bearing upon the
workings of the Department of the Navy's grievance procedure appears in
the testimony of Mr. Lloyd Garreau, a labor relations specialist
assigned to the Seoul Civilian Personnel Office. According to Mr.
Garreau's testimony a grievance concerning the reprimand would be
submitted in the third step of the grievance procedure to someone in the
chain of command higher than the person proposing the disciplinary
action. In the absence of an allegation that such person participated
in the decision or had knowledge of the decision, the reviewing
individual's decision in the third step of the grievance procedure would
be final.
The record reveals that both prior to, and subsequent to the issuance
of the reprimand on May 28, 1982, Mr. Terrill had conversations with
Major Nealey and Major Strobel. The conversation with Major Nealey
occurred around May 7, 1982, when Mr. Terrill, who at the time was aware
that discipline for his April 22, 1982, letter was under consideration,
requested under the Privacy Act all records related to the matter of the
April 22, 1982 letter. During the conversation Major Nealey informed
Mr. Terrill that he was of the opinion that Respondent had three options
it could utilize with respect to the discipline to be accorded Mr.
Terrill for his April 22, 1982 letter, which he, Major Nealey,
considered to be a violation of OPNAVINST 1200014, Chapter 18, CBI 752,
Department of Navy Adverse Actions. The three options were deportation,
dismissal from the Civil Service or some lesser adverse action. Major
Nealey further informed Mr. Terrill that he was of the opinion that the
April 22, 1982 letter had not been sent by Mr. Terrill as president of
the Union but rather as an individual. /4/
The conversations with Major Strobel occurred on May 28, 1982 and
June 7, 1982. During the above conversations Major Strobel told Mr.
Terrill that he did not believe that Mr. Terrill was acting on behalf of
the Union when he wrote the April 22, 1982 letter which in Major
Strobel's opinion was not only malicious but a violation of SECNAV
Instruction 5370.2G, paragraph 5(b)(3)(6).
SECNAV Instruction 5370.2G reads in pertinent part as follows:
5 General policies governing the conduct of naval personnel.
(b) Conduct prejudicial to the Government. Naval personnel
shall avoid any action, whether or not specifically prohibited by
this instruction, which might result in or reasonably be expected
to create the appearance of:
(3) Impeding Government efficiency or economy.
(6) Adversely affecting the confidence of the public in the
integrity of the Government.
According to Mr. Terrill the letter was written to the Korean Paper
in hopes that it would be picked up by some American Papers since the
matters touched on, i.e., demand by Christian leaders for the recall of
General Wickham, were of interest in the United States as well as Korea.
Mr. Terrill was in hopes that if the story was in fact picked up by the
United States papers, the Union would be able to get some publicity with
respect to some of labor relations problems existing in Korea between
Respondent and the Union. The mention of the civilian employees being
treated as second-class citizens referred to an alleged policy of
Respondent in giving preference to the military personnel over civilian
personnel with respect to family housing on the base and restricting the
use by civilian employees of post office facilities to only certain
hours. The reference to General Wickham displaying little regard to
"basic American freedoms or for our country's labor laws" concerned the
alleged policy of allowing the MP's to arrest civilian employees outside
the base and the fact that the Union had filed some 77 unfair labor
practice complaints under the Statute. The statement in the letter to
the effect that the General had sought to destroy the Union was based
upon Respondent's attempt to seek an Executive Order which would reduce
certain bargaining obligations imposed upon the Respondent by the
Statute and the fact that the Union believed that certain actions taken
by the Respondent were motivated by a desire to rid itself of the Union.
The characterization of the General's appointment to be Vice Chief of
Staff of the Army as "a marvel of poor judgment" was for purposes
pointing out the poor labor relations history the Union enjoyed under
the General's current command and the fear that such history would
continue if the General was given a new and higher position in the chain
of command. The reference in the letter to the General having used his
office for personal advantage in the area of ration control was
predicated on the fact that military officers names had been deleted
from computer programming which listed the names of ration control
violators. In this latter respect, Major Nealey confirmed the fact that
military officers were deleted from the computer program, but pointed
out that the programming did make the names of military officer
violators available to higher ranking general officers.
Discussion and Conclusions
Respondent urges dismissal of the instant complaint on the grounds:
(1) Mr. Terrill's letter was personal and not union activity, (2)
assuming the letter was union activity, it is unprotected since it was
false and malicious and because it violated the Status of Forces
Agreement which prohibits political activity by civilian employees, and
(3) there exists an established appeals procedure which Mr. Terrill by
virtue of Section 7116(d) of the Statute is obligated to follow.
The General Counsel urges a 7116(a)(1) and (2) finding on the ground
that Mr. Terrill's letter was written not as an individual but as union
president and that the content of the letter did not exceed the bounds
of protected activity.
Contrary to the contention of Respondent, I find that Mr. Terrill was
indeed acting as union president and not an individual employee when he
wrote the April 22nd letter. Thus, the record establishes that the
letter was written on Union stationery and signed by Mr. Terrill in his
capacity as union president. Additionally both the testimony of Mr.
Terrill and Mr. Rydzynski support such conclusion and indicate that Mr.
Terrill has the authority to write on behalf of the Union without first
seeking approval of such action from either his fellow officers or the
Union's national office.
I further conclude, again contrary to the contention of the
Respondent, that Section 7116(d) of the Statute does not preclude the
processing of the instant unfair labor practice complaint. Only those
appeals procedures which provide for third party review fall within the
purview of Section 7116(d). Veterans Administration Regional Office,
Denver, Colorado and AFGE, AFL-CIO, Local 1557, 7 FLRA No. 100.
Accordingly, inasmuch as the sketchy record evidence indicates that
review of Mr. Terrill's reprimand will be in the hands of a superior
officer in the chain of command and not a disinterested third party, I
find that Section 7116(d) is not a bar to the instant proceeding.
Having concluded that Mr. Terrill was acting in his capacity as union
president when he wrote the April 22nd letter and that the instant
proceeding is not barred by Section 7116(d) of the Statute, the sole
issues remaining for consideration are whether appeals to the public
constitute protected activity, and if so, was the April 22nd letter of
Mr. Terrill so defamatory that it lost the protection of the Statute.
With respect to the first question, the Authority in Veterans
Administration, Veterans Administration Medical Center, Shreveport,
Louisiana, 5 FLRA No. 27, found a 7116(a)(1) and (2) violation
predicated upon an Agency's action in reprimanding the Chief Union
Steward because of her action in contacting a TV reporter concerning a
labor relations dispute at the Agency's installation. Accordingly,
based upon the Authority's decision in Veterans Administration Medical
Center, supra, I find that contacting newspapers for the purpose of
publicizing labor disputes is activity protected by the Statute.
The second question, i.e., was the April 22nd letter so defamatory
that it lost the protection of the Statute does not lend itself to an
easy resolution.
Although the Authority has not had the opportunity to consider
publications similar to that under consideration herein, the Supreme
Court, various Circuit Courts of Appeals and the National Labor
Relations Board have had such opportunities. Inasmuch as the Supreme
Court in National Association of Letter Carriers v. Austin, 418 U.S. 264
made it clear "that the same federal policies favoring uninhibited
robust and wide open debates" allowed under the NLRB are applicable in
the federal sector it is clear that cases arising under the NLRB should
be given precedential weight.
A review of the cases arising under the NLRB indicate that the
Supreme Court, Circuit Courts and the NLRB have been extremely reluctant
to restrict the employees freedom of speech in the labor relations arena
and have found statements, leaflets or publications to be unprotected
only when such statements or publications were disloyal to the
employer's product or disruptive of discipline. NLRB v. Local 1229, 346
U.S. 464; Southwestern Bell Telephone Co. 200 NLRB 667. In the absence
of a showing of disloyalty to the employer's product or of a possible
disruption of discipline, the use of intemperate, abusive, and insulting
language has been found to be an insufficient reason to remove a union's
leaflet, statement or publication from the protection of the NLRB or the
Statute. National Association of Letter Carriers, supra; NLRB v. New
York University Medical Center, CA 2, No. 82-4137, 1/21/83, and the
cases cited therein. Thus, as pointed out by the 2nd Circuit in New
York University Medical Center, supra, the Supreme Court in National
Association of Letter Carriers made it clear that Federal Law gives a
union a license to use intemperate, abusive, or insulting language
without fear of restraint or penalty if it believes such rhetoric to be
an effective means to make a point; and erroneous assertions lose their
protected status only when they are published with knowledge or their
falsity or with reckless disregard of whether they be true or false.
Applying the above cited body of law to the contents of the April
22nd letter, I find that the statements or allegations contained therein
while not disruptive of discipline were disloyal to the Respondent.
Aside from the statement of opinion that the selection of General
Wickham to be Vice Chief of Staff was "a marvel of poor judgment" and
advocating the recall of the General, the letter related to a number of
continuing and ongoing labor relations policies of the Respondent which
the Union was unhappy with.
As Mr. Terrill's record testimony indicates, the accusations were
based upon the Union's views and perspectives of certain actions which
had been taken by the Respondent. The fact that Respondent or an
independent third party might reach different conclusions with respect
to the actions of the Respondent does not remove the Union's statements
thereon from the protection of the Statute. It is only those statements
which are knowingly false and uttered with reckless abandon which lose
the protection of the Statute. Here, however, each statement or
allegation of Mr. Terrill, in his position as union president, was shown
to be related to a past action taken by Respondent. While his views of,
and statements about, such actions might have been incorrect, they did
not rise to the ilk of being knowingly false slanderous statements,
recklessly uttered. Viewing Mr. Terrill's record testimony concerning
the basis for his allegations in the April 22nd letter against Major
Nealey's denials and explanation of the reasons for Respondent's actions
in the various situations, I conclude, that at best, Mr. Terrill's
allegations concerning General Wickham's actions in the field of labor
relations were exaggerations of existing facts. Being of such a nature,
they were not removed from the protection of the Statute.
The above conclusions aside, I am not persuaded that under all the
circumstances present herein, Mr. Terrill's actions fall within the
protection of the Statute. Mr. Terrill, in order to publicize the
Union's legitimate labor relations problems, interjected the Union into
a highly charged political dispute between the Christian leaders and the
Korean government, selected a Korean newspaper as a vehicle, and then
advocated the recall of the commanding general and criticized his
appointment as Vice Chief of Staff of the Army. By taking such action,
Mr. Terrill made common cause with the Christian leaders and engaged in
conduct prejudicial to the Government of the United States.
All comments or actions by union officers which are related to labor
relations do not fall within the protection of the Statute. To the
extent that a union officer includes in his statements or publications
about existing labor relations problems derogatory and/or defamatory
remarks which undermine the credibility and the confidence of U.S.
government officials in a foreign country and which have no reasonable
nexus to his union's legitimate labor relations problems, such union
agent loses the protection of the Statute.
My decision herein should not be interpreted as a finding that the
right accorded to unions by the Statute, i.e., to publicize labor
relations problems and seek outside support and assistance, ceases to
exist by virtue of the fact that it is exercised on foreign soil.
However, I do find that the exercise of such right must be tempered by
the possible repercussions its exercise might have on the political
situation then existing between the United States and the host nation.
Similarly, I recognize that embarrassment of the management officers
involved is generally an incidental by-product of all publications
concerning labor relations disputes. Here, however, the embarrassment
flowing to the General, the senior U.S. military representative in
Korea, is more than an incidental by-product of Mr. Terrill's
publication.
Accordingly, based on the foregoing conclusions, I find that Mr.
Terrill's actions exceeded the bounds of protected activity and I
recommend that the Authority adopt the following order dismissing the
complaint in its entirety.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 8-CA-20391,
should be, and hereby is, dismissed in its entirety.
BURTON S. STERNBURG
Administrative Law Judge
Dated: February 17, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Mr. Terrill's alleged protected activity consisted of writing a
letter on union stationery, in his capacity as union president, to a
local Korean newspaper.
/2/ On April 20, 1982, the Korean Times reported that the U.S. Forces
Korea Public Affairs Office had informed the Korean Times that General
Wickham had never made the alleged remark. Terrill, who is credited,
denied knowledge of General Wickham's denial prior to writing the letter
quoted infra.
/3/ The letter was never published.
/4/ On direct examination Major Nealey in answer to a question from
Respondent's Counsel stated he was of the opinion that Mr. Terrill's
action constituted a violation of the Status of Forces Agreement which
prohibits participation of civilian employees in any political activity
in the Republic of Korea. In this connection, it should be noted,
however, that reprimand to Mr. Terrill, which was the decision of Major
Strobel, was based solely on a violation of Navy regulations and that
Major Strobel testified that he was not "well versed" in the Status of
Forces Agreement.