Opinion

Opinion issued April 7, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00994-CV

———————————

Cathy Anderson , Appellant

V.

American

Federation of Government Employees, AFL-CIO; American

Federation of Government Employees, AFL-CIO , DISTRICT 10; American Federation of Government Employees,

AFL-CIO , COUNCIL 215; American

Federation of Government Employees, AFL-CIO , LOCAL 3506, Appellees

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Case No. 2009-24849

O P I N I O N

In

this appeal, we decide whether a federal government employee’s state law tort

claims against a labor union are completely preempted by the Civil Service

Reform Act of 1978. See 5 U.S.C. §§ 2301–2305 (West 1994 & Supp. 2010), 5 U.S.C. §§ 7101–7154 (West 1996 & Supp. 2010) (West

2010). Finding no complete preemption

under the circumstances presented in this case, we reverse and remand.

BACKGROUND

Anderson was a

group supervisor for the Social Security Administration Office of Disability

Adjudication and Review [“ODAR”] in Houston, Texas. Scott Stier was a case intake assistant and

reported to Anderson. On July 24, 2007,

Anderson issued a proposed three-day suspension to Stier for failing to

associate mail in a timely manner. On

October 2, 2007, Stier sent a letter to the Agency’s Office of Special Counsel,

in which he asserted that Anderson had been confiscating and hoarding his mail,

thereby violating his due process rights.

Stier also sent a copy of this letter to Anderson, Melissa Huett, a

hearing office manager for ODAR, and Mark Mephail, a hearing office

administrative law judge for ODAR. On

November 1, 2007, Huett placed Stier on a one-day suspension, rather than the

three-day suspension recommended by Anderson.

Stier

appealed his suspension to the Merit Systems Protection Board, alleging that

ODAR’s suspension of him was in retaliation for his complaint about Anderson.

On July 15, 2008, an administrative law judge [“ALJ”] upheld Stier’s

suspension. In his order, the ALJ

stated, “I find, however that because Huett’s decision to suspend [Stier] was

issued . . . just four months after the disclosure of which she had knowledge,

a reasonable person could conclude that the disclosure was a contributing

factor in the agency’s decision to suspend [Stier].” Nevertheless, the ALJ upheld Stier’s

suspension because he found that ODAR would have taken the personnel action

against Stier even if there had been no whistleblowing involved.

According

to allegations in her petition, Anderson discovered in February or early March

of 2009 that Stier, who was also an Executive Vice-President of Local 3506 of

the American Federation of Government Employees, AFL-CIO, had been sending

emails to other union members in Anderson’s office that contained a link to the

Local 3506’s website where they would find “disturbing” information about

Anderson. Anderson accessed the website

and found the following summary of Stier’s personnel matter: “ . . . the [ALJ] found that Stier’s disclosure

was based on a reasonable belief that Anderson was hoarding mail and that

action constituted an abuse of her authority.”

After

seeing the information about her on the union’s website, Anderson filed suit in

state court against the American Federation of Government Employees, including

the Local 3506, Council 215, and District 10 [hereafter, collectively “the

union.”], alleging libel, slander, and intentional infliction of emotional

distress. [1]

The

union filed a motion to dismiss based on lack of subject-matter

jurisdiction. Specifically, the union

claimed that Anderson’s state tort claims were preempted by the Civil Service

Reform Act of 1978 [“CSRA”], which is codified in Title 5 of the United States

Code. The trial court granted to union’s

motion and dismissed Anderson’s case.

This appeal followed.

PREEMPTION

UNDER THE CSRA

Standard

of Review and Applicable Law on Preemption

In filing a plea to the jurisdiction, a litigant

challenges the trial court’s subject-matter jurisdiction. Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). In order to

prevail, the party asserting the plea must show that, even if all the

allegations in the plaintiff’s pleadings are taken as true, there is an

incurable jurisdictional defect apparent from the face of the pleadings,

rendering it impossible for the plaintiff’s petition to confer jurisdiction on

the trial court. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.—Austin

2000, no pet.).

Because

subject-matter jurisdiction is a question of law, we conduct

a de novo review of the trial court’s ruling on the plea. See Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 928 (Tex. 1998). Upon review, we consider the pleadings and the

evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002). We do not consider the merits

of the case; our jurisdiction is limited to reviewing the grant or denial of

the plea to the jurisdiction that was filed. Id.; see also Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(8) (Vernon Supp. 2010); Brenham Hous. Auth. v. Davies, 158

S.W.3d 53, 61 (Tex. App.—Houston [14th Dist.] 2005, no pet.); City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680 , 686–87

(Tex. App.—Dallas 2003, pet. denied). We do not have jurisdiction to

consider grounds outside those raised in the plea to the jurisdiction. First

Trade Union Sav. Bank, 133 S.W.3d at 687 ; Davies, 158

S.W.3d at 61 .

In its motion to dismiss, the union acknowledged that Anderson’s

petition alleged state court causes of action, s ee

Tex.

Civ. Prac. & Rem. Code Ann.

§ 73.001 (2005) (libel); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)

(intentional infliction of emotional distress), but argued that Anderson’s

state court causes of action were completely preempted by the CSRA. To establish complete preemption, a defendant

must show that:

(1) the federal statute contains a civil enforcement

provision that creates a cause of action and both replaces and protects the

analogous area of state law;

(2) there is a specific jurisdictional grant to the federal

courts for enforcement of the right; and

(3) there is a clear Congressional intent that the claims

brought under the federal law be removable to federal court.

Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000) . To determine whether the

union has established the first element of the Johnson test, we must review the provisions of the CSRA upon which

it relies.

The Civil Service Reform Act

In its motion to dismiss, the union

alleged two bases for its contention that the CSRA completely preempts

Anderson’s state court causes of action.

First, the union argued that Anderson’s suit involved a “prohibited

personnel action” and thus was preempted by section 2303 of the CSRA. Second, the union argued that Anderson’s suit

alleged an “unfair labor practice” by the union and thus was preempted by

section 7101 of the CSRA. We will address each respectively.

1. Title II of the CSRA, 5 U.S.C. § 2302 et seq., Prohibited

Personnel Action

Federal employees

are generally precluded from bringing state tort claims when the claims arise

“out of an employment relationship that is governed by comprehensive procedural

and substantive provisions” which provide meaningful remedies. Bush v.

Lucas, 462 U.S. 367, 368 , 103 S. Ct. 2404, 2406 (1983). The CSRA

affords such remedies to federal employees. The Act provides “an integrated

scheme of administrative and judicial review, designed to balance the

legitimate interests of the various categories of federal employees with the

needs of sound and efficient administration.” United States v. Fausto, 484

U.S. 439, 445 , 108 S. Ct. 668, 672 (1988). The CSRA authorizes federal

employees to challenge “prohibited personnel practices” by their supervisors. See 5

U.S.C. § 2302 ; Saul v. United States, 928 F.2d 829, 833, 834

(9th Cir. 1991) (employee had redress under CSRA for claims of defamation

by supervisor). It is founded upon certain merit-system principles that govern

civil service employment and provides that employees are to be treated fairly

and equitably and “with proper regard for their privacy and constitutional

rights.” 5 U.S.C. § 2301 (b)(2).

Under the Act, prohibited personnel practices

include the taking of any “personnel action” that violates its merit-system

principles. 5 U.S.C. § 2302 . Specifically, a prohibited personnel practice

means any action that is described in subsection (b) of Section 2302,

which states that “any employee who has authority to take, direct others to

take, recommend, or approve any personnel action, shall not, with respect to

such authority,” engage any of the prohibited acts listed in the subsection. 5

U.S.C. § 2302 (b)(1)–(11). Therefore, an integral element of a “prohibited

personnel practice” is the taking of “personnel action” which is defined to

include actions such as, but not limited to, an appointment, a promotion, a

disciplinary or corrective action, a detail, transfer or assignment, or a

decision concerning pay, benefits, or education or training. 5 U.S.C. §

2302 (a)(2)(A). Thus, essentially, when a plaintiff’s claims arise out of his or

her employment relationship with the federal government and all supervisory

actions taken by the defendants are related to the plaintiff's status as a

federal employee, the actions constitute personnel decisions under the CSRA,

and are therefore exclusively remedied thereunder. Rollins v.

Marsh , 937 F.2d 134, 138 (5th Cir. 1991).

Thus, the question this Court must decide is whether Anderson’s claim

alleges the taking of a “personnel action” within the meaning of the CSRA.

The union relies on Bush , Fausto , Saul , and Rollins , in support of its argument that Anderson’s claims are

preempted. 462 U.S. at 367 ; 484 U.S. at 439 ; 928 F.2d at 843 ; 937 F.2d at 138 . In

Bush , the plaintiff, an aerospace

engineer for NASA, complained on television that his job was “worthless,” a “travesty,”

and that NASA was fraudulently spending taxpayer money. 462 U.S. at 369–70 . He was subsequently demoted and his pay grade

was reduced. Id. at 370 . Bush then filed suit against Lucas, the director of NASA,

for defamation. Id. at 371 . After Bush’s suit was dismissed, the Fifth Circuit

affirmed, holding that in light of the remedies available under the CSRA, Bush

had no private cause of action. Id

In Fausto ,

the plaintiff, an employee of the Department of the Interior Fish and Wildlife

Service, was suspended from his job for 30 days. 484 U.S. at 439 . He then filed suit against the United States

seeking back pay under the federal Back Pay Act. Id.

at 443 . The Court of Appeals held that

his suspension was unlawful and awarded Fausto back pay for the period of his

suspension. Id. The Supreme Court

reversed, holding that “[t]he CSRA established a

comprehensive system for reviewing personnel action taken against federal

employees.” Id. at 455 .

In Saul, a Social Security

Administration claims administrator sued two of his supervisors alleging that

they had seized and opened his private mail and defamed him. 928 F.2d at 831 . The Ninth Circuit held that the CSRA

preempted Saul’s common law tort claims because his petition alleged prohibited

personnel practices by his supervisors. Id . at 833 – 34.

In Rollins , the

plaintiff, a federal government employee for the Army, took nude pictures of

his wife, also a federal government employee for the Army, which were

subsequently published in Hustler Magazine.

937 F.2d at 135–36. As a result,

Rollins was temporarily suspended from his job and his wife lost her security

clearance. Id. at 136 . Rollins appeal his removal to the Merit Systems

Protection Board, and the ALJ held that Rollins’s removal was a prohibited

personnel action under the CSRA and ordered Rollins reinstated. Id. The Rollinses then filed

suit, naming the Secretary of the Army and fifteen supervisors and employees as

defendants . Id. The complaint alleged

violations of a broad array of federal constitutional and statutory rights as

well as state-law rights such as defamation.

Id. The Fifth Circuit held that because the

Rollinses’ claims arose out of their employment relationship with the federal

government, and all the actions taken by the defendants

were related to their status as federal employees, the actions taken against

them were personnel decisions under the CSRA. Id. at 138 .

As such, the

remedies provided by the CSRA preemped the Rollinses’ state-law remedies for

adverse personnel actions . Id. at 140.

In this case, the union’s reliance on Bush , Fausto , Saul , and Rollins is

misplaced. Each of those cases involve

an allegation of a prohibited personnel practice against the plaintiff, and the

plaintiff’s alleged claims arose directly out of those prohibited personnel

practices. Such is not the case here,

where Anderson alleges no personnel action against her by her federal employer.

Instead, we believe that the present case is

more like Gutierrez v. Flores , 543

F.3d 248 (5th Cir. 2008) and Gilding v.

Carr , 608 F. Supp. 2d 1147 (D. Ariz. 2009). In Gutierrez , the plaintiff, a federal employee of the Army and union

representative, received a 30-day suspension from the Army, his employer, after

an investigation revealed that Gutierrez had been taking money that his union

had intended for him to use to pay a cleaning services for its meeting room and

then cleaning the room himself. 543 F.3d at 249–250 . After

learning that the Army had taken personnel action against Gutierrez, a fellow

union member sent a letter to the Department of Labor and the local and national

presidents of the union asking why Gutierrez had been provided a representative

at union expense when he had acknowledged taking funds from the union. Id. at 250 . Based on this letter,

Gutierrez sued three fellow union members in state court, alleging libel, libel

per se, and intentional infliction of emotional distress. Id. The case was removed to federal court, and Gutierrez moved to

remand. Id. at 251. The union, relying on Bush , Saul , and Rollins , contended that remand was inappropriate because Gutierrez’s

state law causes of action were completely preempted by the CSRA. Id.

at 253 . The Fifth Circuit held that the

union’s reliance on those cases was misplaced because those cases concerned

“disputes arising from the employment relationship wherein a government

employer or supervisor takes an action against a government employee that allegedly

violated the merit principles outlined in Title II of the SCRA.” Id.

at 253 . In contrast, Gutuerrez’s claim

did “not involve the employment relationship or any adverse employment

action.” Id . at 254. Although there

was an “adverse employment action” — Gutierrez’s suspension by the Army — his suit against the union

solely concerned the allegedly defamatory letter sent by union members about

his suspension. Id. at 254 n.8. Similarly,

in this case, no employment action was alleged to have been taken against

Anderson. Furthermore, the subject of

Anderson’s defamation suit is not any statements that were made during the

course of Stier’s disciplinary proceeding.

Instead, Anderson’s suit against the union is based solely on the

alleged defamatory statements that the union published about her on its

website.

In Gilding ,

the plaintiff, a manager with the Federal Aviation Administration [“FAA”] sued

a former FAA employee, two air traffic controllers assigned to his office who

were also local union officers, and the air traffic controllers’ union for

allegedly publishing defamatory statements about him on a blog. 608 F. Supp. 2d at 1149–50. Gilding alleged that because of the

defamatory blog, he was placed on administrative leave and removed from his

managerial position. Id. at 1150 . He did not sue the FAA or any of the

employees involved in the decision to remove him from his managerial

position. Id. The court noted that the

CSRA prohibits only “personnel practices” that are undertaken by “any employee

who has authority to take, direct others to take, recommend or approve any

personnel action” with respect to the plaintiff.” Id.

at 1151 (quoting 5 U.S.C. § 2302 (b)). The court then concluded that the union

was clearly not “an employee” who could recommend or approve a personnel action

against Gilding. Id. at 1152 . As such,

Gilding’s defamation claim against the union was not preempted. Id. at

1154 . [2]

Here, as in Gilding , the only

defendant is the union that Anderson contends defamed her. And, as in Gilding , there is no evidence that the union was taking,

recommending, or approving any personnel action against Anderson when it placed

the allegedly defamatory statements about her on its website.

Because Anderson’s complaint does not

involve a “prohibited personnel practice” by an “employee who has authority to

take, direct others to take, recommend or approve any personnel action” against

Anderson, section 2302 of the CSRA does not preempt her defamation claim

against the union.

2. Title VII of the

CSRA, 5 U.S.C. § 7101 et seq., Unfair Labor Practices

The union also argues that Anderson’s

claims are preempted under section 7107 et seq., which governs union affairs

and collective bargaining agreements. Title VII of the CSRA allows collective

bargaining in the public sector and provides a detailed methodology for dispute

resolution. See 5 U.S.C. §§ 7116(d), 7121, 7122. The statute created

the Federal Labor Relations Authority [“FLRA”] and gave it the responsibility

of supervising the collective bargaining process, promulgating administrative

rules for federal labor relations, and adjudicating disputes over matters such

as negotiability, bargaining units, arbitration, and representation

elections. Montplaisir v. Leighton , 875 F.2d 1, 2 (1st Cir. 1989).

Section 7118 of the CSRA provides that “any agency or labor

organization” charged “with having engaged in or engaging in an unfair labor

practice” shall be investigated by the General Counsel for FLRA. 5 U.S.C. § 7118(a)(1). The

section then provides a detailed administrative scheme that must be followed in

actions before the FLRA. See 5 U.S.C. § 7118 (a)(2)–(8). The union argued that because Anderson did

not file a grievance for an “unfair labor practice,” she cannot now proceed

with her state court claims. Thus, the

issue this Court must decide is whether Anderson’s claim alleges an “unfair

labor practice.”

Section 7116 of the CSRA provides

that it is an unfair labor practice for a union:

(1)

to interfere with, restrain, or coerce any employee in the exercise by

the employee of any right under this chapter [5 USCS §§ 7101 et seq.];

(2) to cause or attempt to cause an

agency to discriminate against any employee in the exercise by the employee of

any right under this chapter [5 USCS §§ 7101 et seq.];

(3) to coerce, discipline, fine, or attempt to coerce a

member of the labor organization as punishment, reprisal, or for the purpose of

hindering or impending the member’s work performance or productivity as an employee or the discharge of the

member’s duties as an employee;

(4) to discriminate against an employee with regard to the

terms or conditions of membership in the labor organization on the basis of

race, color, creed, national origin, sex, age, preferential or nonpreferential

civil service status, political affiliation, marital status, or handicapping

condition;

(5) to refuse to consult or negotiate in good faith with an

agency as required by this chapter [5

USCS §§ 7101 et seq.];

(6) to fail or refuse to consult or

negotiate in good faith with an agency as required by this chapter [5 USCS §§

7101 et seq.];

(7)(A) to call, or participate in, a

strike, work stoppage, or to call, or participate in, a strike, work stoppage,

or slowdown, or picketing of an agency in a labor-management dispute if such

picketing interferes with an agency’s operations, or (B) to condone any

activity described in subparagraph (A) of this paragraph by failing to take

action to prevent or stop such activity; or

(8) to otherwise fail or refuse to

comply with any provision of this chapter [5 USCS §§ 7101 et seq].

5 U.S.C. § 7116 (b)(1)–(8).

The union argues that Anderson’s

libel claim alleges an “unfair labor practice” under subsections (5) & (8)

of the statute above. Regarding

subsection (5), there is no allegation by Anderson that the union failed or

refused to consult or negotiate with her agency, the Social Security

Administration. Thus, we turn to the

union’s argument that the catch-all provision found in section 7116(b)(8),

which provides that it is an unfair labor practice to fail or refuse to comply

with any provision of this chapter, was triggered by Anderson’s allegation that

the information contained on the union’s website defamed her.

The union points out that under

section 7102 of the statute, “[e]ach employee shall have the right to form,

join, or assist any labor organization” and that such right includes the right

“to act for a labor organization in the capacity of a representative and the

right, in that capacity, to present the views of the labor organization to

heads of agencies and other officials of the executive branch of the

government, the Congress, or other appropriate authorities.” 5 U.S.C. § 7102 (1). The union argues that to the extent that

Anderson’s petition alleges that the union “exceeded its authority to communicate

views of the labor organization under Section 7101 and 7102,” such action would

be an “unfair labor practice” under section 7116(b)(8).

The union made a similar argument in

Gutierrez v. Flores . In Gutierrez ,

the union argued that the plaintiff’s defamation suit against several union

officials constituted an allegation of an “unfair labor practice” and should

have been brought pursuant to the grievance procedures in Chapter 71 of the

CSRA. 543 F.3d at 254–55. The Fifth Circuit disagreed, holding that

“on the face of his well-pleaded complaint, [Gutierrez] alleges that [the union

officials’] letter and e-mail were defamatory and intended to inflict emotional

distress. Nothing in the CSRA pertains

to this specific scenario.” Id. at 255 . Because Gutierrez’s complaint did not allege

an “unfair labor practice,” his claim was not preempted by section 7116(b)(8)

of the CSRA. Id. The Court also concluded

that the union’s contention that it was exercising its free speech rights might

be a defense to liability on Gutierrez’s libel claim, but it would not serve as

a basis for federal question jurisdiction.

Id. at 255 n.11.

The same is true in this case. Anderson’s complaint, like that in Gutierrez , is that the statements on the

union’s website defamed her and caused her emotional distress. As noted by the Gutierrez court, “[n]othing in the CSRA pertains to this specific

scenario.” Id. at 255 . To the extent

that the union is arguing that it was merely exercising its right under section

7102 to communicate the union’s views, such right might be a defense to

liability, but would not confer federal question jurisdiction. Id. at

255 n.11. [3]

The union relies on Montplaisir v. Leighton to argue that

the unfair labor practices provisions of the CSRA preempt Anderson’s state law

claims. In Montplaiser , four air traffic controllers who were fired for

participating in an unlawful strike filed a legal malpractice suit against the

union lawyers who had assured them during the collective bargaining process

that if they participated in the strike they ran no significant risk of losing

their jobs. 875 F.2d at 1–2. The court held that that the plaintiffs’

claims raised an unfair labor practices charge under section 7116(b)(7), id. at 3, and that under such

circumstances, the “CSRA necessarily precludes the maintenance of state-law

malpractice claims against lawyers acting as the union’s emissaries in the

collective bargaining process.” Id. at 8.

This case is more like Gutierrez than Montplaisir. Anderson’s

claim that she was defamed by the information on the union’s website is not

included within the list of “unfair labor practices” set forth in section

7116(b) because “[n]othing in the CSRA pertains to this specific scenario.” Gutierrez ,

543 F.3d at 255 . In contrast, the

plaintiffs’ petition in Monplaisir

alleged an unfair labor practice under section 7116(b)(7), which prohibits

participating or condoning a strike.

Also, the actions complained of in Montplaisir

were committed during the course of the collective bargaining process. Such is not the case here.

Because Anderson’s complaint does not involve a “unfair

labor practice” by the union, section 7116(b)

of the CSRA does not preempt her defamation claim against the union.

CONCLUSION

Because this case does not involve

an adverse personnel action or an unfair labor practice, the union failed to

satisfy the first prong of the Johnson

test for preemption, i.e., showing that the CSRA contains a civil enforcement

provision that both replaces and protects Anderson’s state law claims. See

Gutierrez , 543 F.3d at 255–56.

Therefore, the trial court erred in dismissing her state court claims.

Accordingly, we reverse the judgment

of the trial court and remand for further proceedings.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Alcala and Bland.

1 Anderson had previously filed suit in

state court against Stier, alleging that his October 2, 2007 letter about her to

the ODAR’s Office of Special Counsel was libelous. The State court action was removed to federal

court. The federal district court

dismissed Anderson’s claims against Stier and substituted the United States as

the defendant pursuant to the Federal Tort Claims Act. The federal court then dismissed Anderson’s libel, slander and

defamation claims based on limitations and dismissed her intentional infliction

of emotional distress claim for failure to exhaust her administrative remedies. The Fifth Circuit recently reversed, holding

that Stier, not the United States, was the proper party because he was acting

outside the scope of his employment when he allegedly defamed her. See

Anderson v. United States , 364 F.

App’x 920 (5th Cir. 2010). Because Stier

was the proper party and Anderson filed her claim within the 1-year state of

limitations for defamation claims in the State of Texas , see Tex. Civ. Prac. &

Rem. Code Ann. § 16.002(a), the dismissal based on limitations was also

erroneous . Anderson , 364 F. App’x . at 925. Similarly, because the United States was not

the proper party, there were no administrative remedies to exhaust before

bringing her intentional infliction of emotional distress claim. Id.

[2]

We note that there have been

cases in which a supervisor’s defamation claims against subordinates have been

held to be preempted. See Schwartz. v. Int’l Fed. of Prof’ls &

Technical Eng’rs , No. 3:07-CV-0978-1,

2007 WL 3196347 (N.D. Tex. Oct. 31, 2007) (memo op.) (holding that

claims based on alleged defamatory statements made during course of grievance

were preempted by CSRA because, as union representative, subordinate was

recommending personnel action against supervisor by filing grievance); Greene

v. Am. Fed. of Gov’t Employees , AFL-CIO,

Local 2607 , No. Civ. A. 05-0408 RMU, 2005 WL 3275903 (D.D.C. Sept. 7, 2005)

(holding that supervisor’s libel claims against supervisee and supervisee’s

union representative were preempted by CSRA because statements giving rise to

supervisor’s claims were made during course of administrative grievance against

supervisor). Here, the alleged defamatory statements were not made by

Anderson’s subordinate Stier, were not made during the course of any

disciplinary proceedings, and were not made as a part of any recommended

personnel action against anyone.

[3]

We also note that section 7102

gives employees the right to present “the views of the labor organization to

heads of agencies and other officials of the executive branch of the

Government, the Congress, or other appropriate authorities.” 5 U.S.C. § 7102(1). There is nothing in the record to show

that the statements on the union’s website were directed to any of the entities

listed in the statute.