Overseas Education Association and Joseph Cardone (Authority decision, August 9, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Overseas Education Association published an article about an employee's unfair labor practice charge against the union. It used a substitute name but provided enough details to identify him, and it referred to members' wrath and a call for vengeance. The Authority found those statements could reasonably intimidate the employee and others from filing charges. It held that the union violated 5 U.S.C. § 7116(b)(1) and ordered it to stop making such threats and post a notice. The outcome is affirmed under the direct Authority case rule because no Judge's decision was under review and a violation was found.

Decision snapshot

• Authority: Union unfair labor practice under 5 U.S.C. § 7116(b)(1).
• Outcome: Violation found; cease and desist and notice posting ordered.
• Key point: A union publication can unlawfully coerce employees when it identifies a charge filer and implies reprisals.

Full text (FLRA public release)

[ v15 p488 ]

15:0488(105)CO

The decision of the Authority follows:

15 FLRA No. 105

OVERSEAS EDUCATION ASSOCIATION
Respondent

and

JOSEPH CARDONE
Charging Party

Case No. 3-CO-93

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the stipulation of facts, accompanying exhibits, and the contentions of the parties, the Authority finds:

The complaint alleged that the Respondent, Overseas Education Association (OEA or the Union) violated section 7116(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by publishing and distributing an article in its publication, The Washington Journal, disparaging and ridiculing unit employee Joseph Cardone, the Charging Party, and calling for revenge or reprisal against him because he had filed an earlier unfair labor practice charge against the Union under the Statute. In March 1981, Joseph Cardone filed a charge with the Authority against the Respondent. /2/ In April 1981, the Union distributed an edition of its Washington Journal, on page 12 of which appeared an article concerning two new unfair labor practice charges that had been filed against the OEA. /3/ The article stated that, "(i)n an attempt to protect the charging parties from the wrath of our membership, the actual names will not be used." The charge filed by Cardone was quoted verbatim in the article, as set forth below, except that "Ima Turkey" was substituted for the Charging Party's real name:

On or about October 1979 and again on or about January 1981 OEA officials did interfere with and restrain Ima Turkey, a unit employee assigned as a teacher to the Aschaffenburg ES/JHS in the exercise of his rights under the Act by attempting to penalize him for having engaged in protected activities by filing a law suit against him. Again in December 1980 the OEA faculty representatives at Aschaffenburg ES/JHS protested Ima Turkey's reading of an OEA Journal, stating vociferously before other unit employees that because he was a non-member, he had no right to read the OEA Journal, an external publication of the OEA, and that he had stolen it from another teacher's mailbox. Again in December 1980 as a result of the above incident OEA officials reported Ima Turkey to the CID (Criminal Investigation Division) of the U.S. Army for prosecution. The actions of the OEA were motivated by an attempt to punish and penalize Mr. Turkey for complaining about a lack of union representation and then filing an unfair labor practice charge.

The article then concluded with the following statement concerning the above charge filed by Cardone:

This obviously is a hot one which cries for vengeance. If anyone in the area of Aschaffenburg could supply the librarian, Mr. Turkey, with a copy of the Washington Journal, we would be most appreciative. It is OEA policy to share our Journal with both believers and nonbelievers and to accuse a librarian of stealing a book or magazine is a dastardly accusation.

The General Counsel argues that the remarks contained in the publication, which referred to Cardone as "Ima Turkey"; which gave sufficient information so as to reveal Cardone's identity; which suggested that Cardone would incur the wrath of the Union membership; and which referred to his unfair labor practice charge as "a hot one which cries for vengeance," exceeded the bounds of legally permissible conduct. More specifically, the General Counsel argues that such remarks would reasonably intimidate and discourage Cardone and other employees from exercising their statutory right to file charges against the Union. The Respondent Union, on the other hand, argues that the remarks did not intimidate or coerce Cardone in the exercise of his protected rights but, rather, constituted a valid communication to employees relating matters of Union concern. By substituting "Ima Turkey" for Cardone's name, the Respondent further argues, it was attempting to protect Cardone and inject some humor into the situation. Moreover, the Respondent argues that its "cries for vengeance" comment was simply an expression of the Respondent's belief as to the merits of the charge.

In the Authority's view, the remarks contained in the publication were violative of section 7116(b)(1) of the Statute inasmuch as they could reasonably tend to have a coercive effect on the exercise by unit employees of their protected rights under the Statute. Thus, where a Union publication designed to communicate matters of concern to unit employees contains an article which not only describes an employee who had filed an unfair labor practice charge against the Union in a derogatory way, but also with sufficient particularity that his identity could clearly be ascertained; suggests that the employee needs protection from the wrath of the Union membership for having filed such a charge; and concludes that the filing of such charges "cries for vengeance," the Authority finds that such remarks constitute implied threats which tend to have a coercive and restraining effect not only on the particular employee in the exercise of his protected rights under the Statute, but also on other employees who might similarly wish to engage in such rights protected by the Statute. Accordingly, the Authority concludes that the Respondent's conduct violated section 7116(b)(1) of the Statute. /4/

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Overseas Education Association, shall:

1. Cease and desist from:

(a) Threatening Joseph Cardone, or any other employee, with vengeance or reprisals by its members for filing an unfair labor practice charge under the Federal Service Labor-Management Relations Statute.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Post at its business offices and its normal meeting places, including all places where notices to member and non-member overseas teachers are customarily posted, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of the Overseas Education Association, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and other employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., August 9, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

NOTICE TO ALL MEMBERS AND OTHER 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

WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:

WE WILL NOT threaten Joseph Cardone, or any other employee, with vengeance or reprisals by our members for filing an unfair labor practice charge under the Federal Service Labor-Management Relations Statute.

WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. Labor Organization By: (Signature) (Title)

Dated: . . .

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 its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8452.

--------------- FOOTNOTES$ ---------------

/1/ Section 7116(b)(1) provides:

Sec. 7116. Unfair labor practices

. . . .

(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter(.)

/2/ That charge, in Case No. 3-CO-81, was subsequently withdrawn.

/3/ The first charge referred to in the article is not at issue herein.

/4/ See Federal Election Commission, 6 FLRA 327 (1981); National Army and Air Technicians Association, Local 371, 7 FLRA 154 (1981).