More than a few contracts state that the union may not libel (or slander) any manager when using the agency’s internal communications systems.  But what can management do if the union does cross the line.  An old FLRA case offers us a glimpse.

The case began when the union posted on agency bulletin boards a document alleging that an employee had “been forced to resign” by a particular supervisor.  When the agency demanded the union publish a retraction, it refused and the agency filed a grievance to enforce the contract clause stating that the union would not post, “vulgar, libelous or defamatory materials directed at Agency officials or programs.” (AFGE, 47 FLRA 922)

The arbitrator agreed with management by concluding that the article contained several inaccuracies, was inadequately researched, and that the editors were “reckless in the fashion in which they validated the information for the article [and] . . . testimony by [Union witnesses] reflected malice toward [the grievant].”  His bottom line was “the Union newsletter was libelous by ordinary standards.”  He ordered the union to print a retraction.

FLRA upheld his award.  The Authority began by concluding that the contract language put enforceable limits on the union’s normally broad right to publicize its views—when the union wanted to use agency facilities such as its bulletin boards.  It also noted that while the union’s right to publicize its views is protected by statute the law does not entitle it to use agency bulletin boards.  Bulletin board access flows from negotiating a contract right and hence is controlled by whatever contract standards is agreed upon.  (For a good discussion of the union’s statutory right to distribute material, check out AFGE, 58 FLRA 14.)

Most importantly the FLRA ruled that the arbitrator did not have to apply the statutory standard for libel under federal law, but could apply whatever reasonable interpretation of the contract clause he saw fit.  Precedent holds that the arbitrator’s interpretation of a contract provision will only be overturned when it–

(1) cannot in any rational way be derived from the agreement;

(2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator;

(3) evidences a manifest disregard for the agreement; or

(4) does not represent a plausible interpretation of the agreement.

Frankly, we at FEDSMILL.com do not think the union posting libeled the manager; it seemed to be an opinion statement that almost anyone would read as one-sided.  But our opinion does not matter just like this union’s opinion did not.  So when agreeing to contract clauses limiting the union’s right to post material on agency bulletin boards, web sites, or e-mail systems recognize that the libel standard is already a broad one and there is no need for management to pile on with additional standards such as defame, denigrate, disparage, malign, etc.  If you want the reference to libel strictly limited to the federal legal standard, put that in the contract.  Otherwise, you may be surprised at some of the corrective actions you are ordered to take when expressing your opinion.  Retractions may be the least of your worries.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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