Full opinion text
MEMORANDUM OPINION HUVELLE, District Judge. On December 9, 2003, plaintiffs Valda T. Johnson and Stuart E. Bernsen 1 — employees of the Pension Benefit Guaranty Corporation (“PBGC”), a federal agency, and former officers of the National Association of Government Employees (“NAGE”) Local R3-77 — filed suit under the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 401 et seq., seeking to overturn a trusteeship imposed by the national union on their local. Following the Court’s denial of plaintiffs’ two motions to temporarily enjoin the emergency trusteeship, see Johnson v. Holway, 329 F.Supp.2d 12 (D.D.C.2004), plaintiffs moved to amend their complaint on October 20, 2004, to add claims against Stephanie Zaiser, then-trustee of Local R3-77 (“the Ideal”), and Gerald Flynn, a national vice president who presided at the local’s trusteeship hearings. The amended complaint alleged defamation, additional violations of the LMRDA, and discriminatory and retaliatory conduct under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e etseq. In a December 6, 2005 Memorandum Opinion, the Court granted defendants’ motion for summary judgment in part, concluding that the challenge to the trusteeship was moot as a result of the trusteeship’s February 2, 2005 termination; plaintiffs had failed to demonstrate that the trusteeship was either proeedurally or substantively improper under Title III of the LMRDA and they were unable to challenge the trusteeship under Title I of the LMRDA; they had failed to show any procedural deficiencies with respect to their disciplinary hearings; their various-challenges to the national’s investigation and funding of arbitration cases could not be sustained under Title I; they lacked standing to raise the Title VII claims of other local members; Johnson had failed to demonstrate discrimination based on her sex or her race (African-American); and there was, as a matter of law, no claim for defamation. See Johnson v. Holway, Civ. No. 03-2513, 2005 WL 3307296 (D.D.C. Dee.6, 2005) (Mem.Op.). Plaintiffs were allowed, however, to go forward with three allegations: (1) that NAGE removed them from office pursuant to the imposition of the trusteeship in retaliation for conduct protected under Title VII; (2) that they were disciplined in retaliation for their civil rights activities, in violation of Title VII; and (3) that they were disciplined in retaliation for their criticism of the national union, in violation of Title I of the LMRDA. The case was tried before the Court between April 3 and April 7, with an additional trial day on April 27, 2006. Seven witnesses testified for plaintiffs: Valda Johnson; Ms. Johnson’s husband, Jeffery Johnson; Stuart Bernsen; Elizabeth Baker, the former Secretary of Local R3-77 (see n. 1, supra); former members of the local Stephen Williams and Duncan Cooper; and Joseph Donnellan, former Chief Counsel of NAGE. Defendants introduced fourteen witnesses: Jennifer Wasserstein, a former attorney for NAGE; Jason We-yand, a former PBGC attorney and local steward; Cyntbia Greene, another former PBGC attorney and member of the local; Dwayne Jeffers, an actuary with the agency and a former steward of the local; Robert Perry, a PBGC auditor and former Vice President at Large of the local; Mychael Patterson, a member of NAGE’s Executive Board; Marc Lawson, a NAGE National Vice President and the hearing examiner during both plaintiffs’ disciplinary proceedings; Barbara Osgood, a NAGE National Executive Vice President; Gina Lightfoot-Walker, former Washington Regional Counsel for the national union and its current Deputy General Counsel; Susanne Pooler-Johnson, a NAGE’s National Representative; David Bernard, former administrator to NAGE’s National Executive Board and the national union’s current National Director for the International Association of EMTs and Paramedics; John Sabulis, a National Representative and NAGE monitor prior to the trusteeship; Stephanie Zaiser, NAGE’s Director of Communications and the former trustee of Local R3-77; Richard Barry, Jr., General Counsel of NAGE; and David Holway, President of the national union. Based on the testimony and documentary evidence, the Proposed Findings of Fact and Conclusions of Law submitted by the parties, and governing law, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT As the origins of this dispute are as old as Local R3-77, the Court must begin its factual recitations with the union’s formation. I. Formation of the Local 1. Prior to the establishment of the NAGE Local R3-77, bargaining unit employees of the Pension Benefit Guaranty Corporation were represented by a chapter of the National Treasury Employees Union (“NTEU”). (See Bernsen Test, at 258:11-12; Johnson Test, at 8:13-16.) In 1995, following a round of contractual negotiations between the agency and the national union, dissatisfaction with NTEU’s representation emerged among the chapter’s members. (Bernsen Test, at 259:8-10.) Subsequent events affirmed the membership’s desire to leave NTEU. According to Stuart Bernsen — who joined PBGC’s NTEU chapter in 1988 — the union’s inadequate response to the termination of minority employees Louis Snead and Sylvia Pierce, among other issues, solidified members! discontent. (Id. at 258:11-12, 259:10-14.) According to Valda Johnson — who joined the chapter in 1996 and later served as its Vice President at Large — NTEU refused to take the “EEO cases” arising at the agency, leading many employees to conclude that “management was over the union as well as the EEO.” (Johnson Test, at 9:3-8.) 2. A committee formed to identify an alternate union ultimately settled on NAGE, a 45,000-member labor union that represented municipal, state and federal employees. (Bernsen Test, at 258:24-259:3, 259:17-24; Johnson Test, at 9:11-13; Holway Test, at 1292:18-1293:4.) NAGE, including its President, Kenneth Lyons; National Vice President, Susanne Pooler-Johnson; and one of the union’s attorneys, Edward Smith, campaigned for the support of PBGC’s employees by promising to contest the terminations of Snead and Pierce and providing both with representation prior to the election. (Bernsen Test, at 260:21-261:15.) The union also distributed campaign literature regarding its representation of workers in “lawsuits, arbitrations and in collective bargaining[,]” declaring that members with “a workplace complaint regarding discrimination, workers’ compensation, or an adverse action” were “entitled to representation by an attorney employed by NAGE at no cost [.]” (Pis.’ Ex. 3 (emphasis in original); see also Bernsen Test, at 562:11-563:9.) With the assistance of Johnson, Bernsen and others, NAGE prevailed in the election and was certified as the official representative of Local R3-77 on January 29, 1999. (See Bernsen Test, at 259:23-24.) 3. In April 1999, Johnson and Bernsen ran without opposition in the first of the local’s elections. (Johnson Test, at 10:21-11:4.) Johnson was elected President, and Bernsen was elected Executive Vice President. (Id.; Bernsen Test, at 265:24-25.) Plaintiffs were similarly unopposed in two subsequent elections, winning the same offices in August 2000 and March 2003. (Johnson Test, at 11:9-12:5.) II. The Local’s Bylaws 4. In the year following their election, Johnson, Bernsen and other members of the Executive Committee worked to draft a governing set of bylaws for the local. (See Bernsen Test, at 267:19-268:3; Johnson Test, at 13:3-22.) After a series of discussions with the membership, a final document was adopted on June 29, 2000, and later approved by the national office. (Id.; Pis.’ Ex. 2 at 000273 (hereinafter “Bylaws”).) 5. The local’s bylaws consist of thirteen Articles. Under Article III, membership meetings are “normally” to be held monthly, requiring a quorum of thirty percent for ordinary business. (Bylaws Art. III.) Article IV establishes a five-member Executive Committee — consisting of the union’s President, Executive Vice President, Secretary, Treasurer, and Vice President at Large — responsible for “the overall governing authority of the Local between membership meetings.” (Id. Art. IV § 1, Art. V § 1.) The Executive Committee is required to hold “regular meetings at least monthly” — meetings that are to be, “[t]o the extent practicable,” both “publicized and open to Local members.” (Id. Art. IV § 2; see also id. (“All Executive Committee members’ voices and votes shall be of equal weight in deciding matters of policy or procedure.”).) The bylaws, however, also provide that “[t]he Executive Committee may hold closed, executive sessions and may close portions of sessions.” (Id.) Emergency Committee action is also provided for: “[i]n emergencies, the President may confer with at least two other officers and reach a decision on behalf of the Executive Committee provided that at least two officers and the President agree to the decision.” (Id. Art. VI.) 6. The functions and authority of the Executive Committee are defined in Article IV. The Committee is responsible for union appointments, including the local’s stewards. (Bylaws Art. IV § 4.) This power includes the authority to “remove appointees” who, under the same provision, are expressly barred from making “statements or representations concerning policies, practices, rules and procedures of the Local without the specific authorization of the Executive Committee.” (Id.) The local’s Executive Committee also serves as the Grievance Committee required by Article TV of the NAGE Constitution. (Id. § 10; Pis.’ Ex. 1 Art. IV § 5 (hereinafter “NAGE Const.”).) Under Article IV § 10 of the bylaws, “the Local Grievance Committee is responsible for and has the authority to determine policy and strategy relating to issues involved in all grievances and to decide on proceeding with grievances ... [w]ith input from the stewards and members, as appropriate!.]” (Id. Art. TV § 10.) The Committee also holds the authority to “decide whether any grievance will proceed to arbitration.” (Id.) Consistent with Article IVA of the national union’s constitution, the bylaws indicate that members dissatisfied with the Committee’s decision not to pursue a grievance may appeal to NAGE. (Id.; NAGE Const. Art. IVA.) 7. The local’s bylaws also provide for the maintenance of union records. Under Article VI, the local’s Secretary is required to “[r]ecord[ ] minutes of all meetings of the Executive Committee and the Local and read! ] them at meetings.” (Bylaws Art. VI.) The local’s Treasurer is obligated to “[k]eep[ ] a current record of all receipts and expenditures in accordance with accepted accounting practices!,]” to “[m]ake[] financial reports at regular Executive Committee and membership meetings” and to “[p]repare[ ] and submit! ] financial reports required by the Department of Labor, the IRS and NAGE.” (Id.) Each of the local’s officers is required to maintain union records “with due care” and, “[u]pon vacating an office or at the end of a term,” turn over any documents held. (Id.) According to the bylaws, “[w]here records to be turned over contain confidential or privacy information pertaining to individuals, the records will be sanitized to remove identifying information unless the affected individual in writing authorizes the records to be turned over with the identifying information.” (Id.) III. NAGE’s Trusteeship and Local R3-77’s Complaints 8. Though a union of 45,000 members, NAGE is itself a local of the Service Employees International Union (“SEIU”). (See Bernsen Test, at 410:12-15; Barry Test, at 1240:13-14.) In August 2001, after four decades under the leadership of President Kenneth Lyons, NAGE was placed into a trusteeship by SEIU. (Barry Test, at 1240:13-14; Pis.’ Ex. 33 at 46.) As a result, National Trustee Joseph Buckley assumed control of the union, remaining in office through the union’s 2002 election. (Barry Test, at 1240:16-19.) 9. On January 16, 2002, almost a year before David Holway took office as the national union’s president, Johnson wrote Buckley in order “to put ... on the record” a number of issues regarding the national’s representation of local members — issues echoing those that lead to the local’s separation from NTEU. (Pis.’ Ex. 8A at 000445; see Johnson Test, at 9:3-8.) Johnson complained that despite its campaign promises, NAGE had failed to do anything more than “miss deadlines” in the Snead and Pierce cases. (Pis.’ Ex. 8A at 000445-46.) Johnson further suggested that the national attorney assigned to assist in the local’s contract negotiations was in conversation with management and otherwise stalling the process. (Id. at 000446.) Finally, Johnson raised a matter “of gravest concern” — the national’s alleged failure to support her in a June 26, 2001 grievance against PBGC. (Id. at 000446-47.) In a separate letter to NAGE General Counsel Richard Barry, Bernsen stressed the local’s need for “experienced legal representation^]” declaring that the national attorney with whom the local had worked previously had proven himself inadequate to handle the union’s cases. (Pis.’ Ex. 8B at 000448 (January 16, 2002 letter).) Bernsen went so far as to request “more information” about the prior experience of a new national attorney, Gina Lightfoot-Walker, in order to determine whether her counsel would'be sufficient for the local’s “legally complex and politically serious matters” — a number of which Bernsen outlined. (Id. at 000449.) 10. Despite Johnson and Bernsen’s letters, their dissatisfaction with the national union did not end with the tenure of Trustee Buckley. IV. The National Convention 11. In September 2002, a national convention was held in Las Vegas, Nevada. (Holway Test, at 1293:13-17.) Bernsen attended the gathering as the elected representative of Local R3-77 and joined a slate of candidates opposed to Holway, who had earlier announced his candidacy for the national presidency. (Bernsen Test, at 262:4-263:2.) Holway prevailed in the election, winning approximately 78% of the vote. (Holway Test, at 1295:1.) He was sworn into office on October 28, 2002. (Id. at 1293:6.) 12. In the wake of the national election, Bernsen and other members of the opposition slate signed a petition contesting the conduct of the convention vote for numerous national board positions. (Bernsen Test, at 263:6-10.) The Department of Labor investigated the claim and later filed an August 8, 2003 complaint against NAGE and SEIU. See Johnson, 2005 WL 3307296, at *1. V. Local Dues Rebates 13. Among the issues discussed at the national union’s 2002 convention was the amount of the per capita dues rebate that NAGE would pay to locals as a means of funding their operation. (Holway Test, at 1295:8-12.) During a debate regarding two competing proposals for increasing the amount of the rebate — one to $36.00 for each member each year, and the other to $48.00 for each member each year — Trustee Buckley stated that locals were presently owed $30.00 per member, per year. (Bernsen Test, at 404:12-23.) In response, Bernsen stated from the convention floor that Local R3-77 had only received $22 for each of its members and asked whether it could be reimbursed for the difference. (Id. at 404:24-405:7, 406:8-13.) According to Bernsen, Buckley responded by instructing all locals claiming to have been shortchanged to submit a written request to the national’s next president. (Id. at 405:9-10.) Following his election, Holway reiterated to convention delegates that local’s seeking unpaid dues rebates should submit a request to him in writing. (Id. at 408:8-19.) According to Bernsen, Holway stated that locals would receive the difference with “[n]o questions asked.” (Id.) 14. Two months after the convention, in November 2002, Johnson and Bernsen submitted a letter to the newly-elected president indicating that Local R3-77 was owed “at least $3,048” in dues rebates for the prior three-year period. (Bernsen Test, at 407:8-10.) Plaintiffs documented their claim with copies of the local’s income checks from the relevant years and a record of the local’s membership numbers for each of the pay periods. (Id. at 407:19-21; Johnson Test, at 272:15-19.) 15. According to Johnson and Bernsen, President Holway did not respond to the request. (Johnson Test, at 276:18-277:6; Bernsen Test, at 412:22-413:1 (stating that as of November 2003, “Mr. Holway had not given the local a response to the letter from a year before about the per capita dues.”).) This assertion, however, is contrary to the record. In a January 7, 2003 letter to the local’s membership, President Holway stated that the national union’s financial department was “looking into the ‘supposed deal’ that [Local R3-77 member’s] dues would be $13 per pay period” with a resulting per capita dues rebate of “22.36 per Member per year.” (Pis.’ Ex. 151 at 1.) The union’s inquiry was a product of the “loose” rebate structure put into place during the Lyons presidency. (Barry Test, at 1258:6-17.) In recruiting new locals to the national union, President Lyons often offered a reduction in their members’ dues in exchange for a reduced per capita dues rebate. (Id. at 1258:18-22.) As a result of these side deals, many locals received less than a yearly $30 per member from the national union. (Id. at 1258:15-17.) After reviewing the records regarding Lyon’s financial arrangement with Local R3-77, NAGE’s financial department determined that the local’s membership was paying less than full dues, and as a result — contrary to plaintiffs’ claim— it had not been shortchanged. (Id. at 1259:2-1261:12; Holway Test, at 1304:8-1306:3.) According to Holway, local officials were informed of the national’s determination in February 2003. (Holway Test, at 1305:9-18.) Even President Johnson recalls that the local learned of its arrangement with Lyons after filing charges with the Federal Labor Relations Authority (“FLRA”). (Johnson Test, at 278:8-279:3; see also Pis.’ Ex. 144 ¶ 1 (Johnson’s written statement before Hearing Officer Flynn).) 16. In the months following their request for back dues, Johnson and Bern-sen’s complaints regarding the funds became increasingly strident. At a November 21, 2002 meeting, Bernsen informed members that the local was “waiting to see” if the national would provide it with the requested sum. (Pis.’ Ex. 6 at 000599 (minutes).) In December emails to President Holway, National Executive Vice President Osgood and members of the local, Johnson noted the local’s “concern[ ]” regarding the issue. (Pis.’ Exs. 19 and 20.) By May 23, 2003, Johnson asserted that NAGE’s withholding of the money was motivated in part by its hostility toward her, declaring to the FLRA that the union had “failed to pay more than $3,000 due Local R3-77 in part to prevent [her] from proceeding with an arbitration [against PBGC] concerning [her] working conditions and to deprive [her] of support and protection.” (Pis.’ Ex. 31 (May 23, 2003 Unfair Labor Practice charge).) Finally, on November 15, 2003, Johnson and Bernsen wrote Andrew Stern, International President of the Service Employees International Union, protesting Hoi-way’s “refus[al] to pay more than $3,000 that former NAGE President Ken Lyons withheld from SEIU/NAGE Local R3-77” and lodging charges against Holway under SEIU’s Constitution. (Pis.’ Ex. 131 at 1, 3.) However, based on the testimony of Barry and Holway, the Court finds that plaintiffs have failed to prove that the local was in fact owed this money. VI. Kaplan’s Letter 17. Shortly after Holway was sworn in, Arbitrator Roger Kaplan notified NAGE General Counsel Richard Barry that Local R3-77 had failed to pay a $3,500 bill for his services despite previous indications that it would soon pay the debt. (Defs.’ Ex. 81 at 000028.) In a November 7 letter, Kaplan advised Barry that he planned to “sue NAGE Local R3-77, NAGE National and Ms. Valda Johnson and Mr. Stuart Bern-sen individually to recover the[ ] just and earned fees” unless payment was received within two weeks. (Id.) 18. Arbitrator Kaplan’s protest to the national was not limited to the local’s delinquency in paying its arbitration bill. In response to the arbitrator’s October 1, 2002 demand for payment, Bernsen had mailed an October 21 letter to Kaplan indicating that he had charged too high a daily fee; challenging as improbable the number of days he claimed to have spent on the case; asking that he provide an accounting of the time spent on the local’s case and other matters for each of the days billed; declaring that he had already received compensation “in the form of secretarial services” due to PBGC’s provision of a written transcript at his request; and instructing him to provide the local with a “four day discount” due to his failure to order PBGC to provide a local representative with four days “official time” to work on final briefs for the arbitration. (Defs.’ Ex. 81 at 000025.) Kaplan informed Barry that “[njever in [his] professional career ha[d][he] received a letter as unprofessional as the one [he] received from Mr. Bern-sen” — -a career that included more than two decades as an arbitrator and three years as NAGE’s General Counsel. (Id. at 000028.) 19. Barry considered Kaplan’s letter a “very serious matter in labor circles,” one that could negatively impact the national union. (Barry Test, at 1250:23-1251:17.) In a November 13, 2002 letter to President Johnson, Barry noted the issue’s significance, stated that the local’s action “ha[d] an adverse impact on the National and other locals of th[e] union” and reminded Johnson that “the incurring of a liability by the local running to the National is prohibited by the Constitution and ByLaws recently adopted at the National Convention.” (Defs.’ Ex. 81 at 000023.) 20. The local settled its bill with Arbitrator Kaplan in January 2003 by paying him $3,500. (Johnson Test, at 380:12.) Johnson never questioned the wisdom in authorizing Bernsen to challenge the arbitrator’s invoice. (Id. at 283:6-8.) To the contrary, Johnson apparently believed that the letter had accomplished its underlying purpose, ie., to buy more time to pay the balance. (Id. at 283:11-13.) VII. President Johnson’s Arbitration 21. At the time of President Holway’s election, the local was heavily invested in a number of protracted arbitration proceedings. The Kaplan matter itself involved the union’s collective bargaining agreement with PBGC. (Bernsen Test, at 503:18-504:6.) After reaching an impasse over ten of the agreement’s articles, the local took their disagreement before Arbitrator Kaplan, where proceedings continued for a year and a half. (Id. at 504:2-6.) A number of individual grievances were pursued during the same period. In September 2002, arbitration proceedings began on behalf of local member Robinette Walters, an employee raising discrimination, retaliation and disability claims. (Johnson Test, at 22:17-20; 23:25-24:1; Pis.’ Ex. 12.) In 2003, the local invoked arbitration for Rhonda Baird, another member with Title VII claims. (Johnson Test, at 22:21-23:2.) Johnson and Bern-sen provided substantial assistance in each of these matters, as well as other grievance and EEOC proceedings on behalf of local members. (Id. at 22:11-28:11; Bern-sen Test, at 417:2-420:13, 429:14-442:8.) 22.Prime among the local’s arbitra-tions, however, was that of President Johnson. On June 20, 2001, PBGC Human Resources Department Director Sharon Barbee Fletcher posted an “institutional grievance” against Johnson, alleging that she had violated the NTEU-PBGC Collective Bargaining Agreement by distributing an email message suggesting that another Human Resources Department employee was a racist. (Pis.’ Ex. 4 at 1.) Fletcher characterized Johnson’s accusation as “unconscionable and irresponsible” — “but the latest of several completely unsupported allegations of racism against the Corporation.” (Id. at 2; see id. at 2 (“In your December 7, 2000 newsletter you accused the Corporation of killing Sylvia Pierce because it allegedly denied Ms. Pierce her civil liberties. And in your March 2000 newsletter, you compare your fight against the Corporation to the Allies’ fight against Hitler and Nazi Germany in World War II. These outrageous accusations reflect your unprofessional and undisciplined conduct as union president.”).) Fletcher requested that Johnson apologize for the incident, “[t]hat Local R3-77 cease making unsupported allegations of racial discrimination,” and that “before Local R3-77 decides to file a grievance or proceed to arbitration, it obtain a signed certification from a NAGE national representative that the representative has personally investigated the facts and believes the grievance or arbitration request is appropriate under the circumstances.” (Id. at 2-3.) A. PBGC’s Settlement Offer 23. On June 26, 2001, the local filed a first step grievance against the agency, alleging that it had engaged in unlawful discrimination and retaliation by posting the institutional grievance. (Defs.’ Ex. 82 at 3 (arbitrator’s decision).) Arbitration was invoked on November 26, 2001. (Id. at 13.) In the months following, Johnson filed a series of grievances alleging that PBGC had discriminated against her in failing to select her for a number of vacancies. (Id. at 13-14.) The union invoked arbitration with regard to these grievances in March and October of 2002. (Id.) 24. In the fall of 2002, with Johnson’s arbitration date approaching, attorneys in the national union’s Alexandria, Virginia office received a request for assistance in the matter. (Lightfoot-Walker Test, at 1101:18-21.) Attorney Gina Lightfoot-Walker, an African-American, was initially assigned to the case. (Johnson Test, at 192:15-17; Lightfoot-Walker Test, at 1101:18-1102:5.) In a September 2002 discussion with one of the agency’s attorneys, Lightfoot-Walker was notified that PBGC was willing to settle the matter by promoting Johnson into a non-bargaining unit position. (Lightfoot-Walker Test, at 1102:15-18.) Consistent with her obligations as Johnson’s legal representative, Lightfoot-Walker conveyed the offer to Johnson. (Id. at 1102:19-20.) Johnson indicated a lack of interest in a non-bargaining unit position, and Lightfoot-Walker reported her decision to the agency. (Id. at 1102:21-1103:3.) 25. After declining the agency’s offer, Johnson distributed messages to President Holway, other national officials, and members of Local R3-77 characterizing the settlement as a “[b]ribe” offered by PBGC and NAGE in order to get her out of the union. (Pis.’ Ex. 15 at 2.) In a later charge with the FLRA, Johnson declared that “the Union [had] attempted to coerce [her] to move to a non-bargaining unit position where [she] would no longer be able to serve as a union representative and where [she] would lose important protections.” (Pis.’ Ex. 35 at 000624.) According to Johnson’s testimony, had management actually intended to settle her grievance, they would have presented it to her in writing. (Johnson Test, at 193:14-23.) Contrary to Johnson’s position, Lightfoot-Walker did what was required of her as an attorney and the Court finds that Light-foot-Walker did not coerce plaintiff to accept PBGC’s offer. B. Johnson’s Decision to Proceed without NAGE Representation 26. Following Johnson’s rejection of PBGC’s settlement offer, her case was transferred from Lightfoot-Walker to Jennifer Wasserstein, a new attorney in NAGE’s Alexandria office. (Lightfoot-Walker Test, at 1103:4-10; Wasserstein Test, at 757:15-18.) Johnson informed Wasserstein that she wished to expand the arbitration beyond the posting issue raised in the first of her grievances and include within it her subsequent claims for discriminatory nonselection. (Johnson Test, at 288:15-289:1; " Wasserstein Test, at 758:24-759:3; Barry Test, at 1254:19-1255:5.) In response to Johnson’s request, Wasserstein contacted PBGC and requested that it consent to a consolidation of the posting arbitration with the later-invoked proceedings concerning Johnson’s promotion claims. (Johnson Test, at 211:8-12; Wasserstein Test, at 758:24-759:6; Barry Test, at 1255:1-5.) PBGC refused. (Johnson Test, at 211:12-19; Wasserstein Test, at 759:4-6; Defs.’ Ex. 8 at 006099 (Wasser-stein’s November 27, 2002 email message to Richard Barry).) Because' arbitrations had been independently invoked for the later grievances and there was a year separating the relevant events, Wasserstein was not surprised by the agency’s decision. (Wasserstein Test, at 759:4-6; Defs.’ Ex. 8 at 006099.) After researching the possibility of proceeding with Johnson’s nonselection claims unilaterally under a “continuing violation” theory, Wasserstein concluded that the later grievances could not properly be raised in the December arbitration. (Wasserstein Test, at 758:24-759:6; Defs.’ Ex. 8 at 006099.) On November 26, 2002, Wasserstein met with Johnson and Bern-sen for more than five hours, notifying them of her conclusion, indicating that the agency’s institutional grievance did not appear to violate the union’s collective bargaining agreement, and stating that she would nonetheless handle the arbitration, which should require no more than one day. (Defs.’ Ex. 8 at 006099; Wasserstein Test, at 761:18-21.) 27. Johnson responded with a November 27 email informing Wasserstein that “[a]fter careful consideration,” she had “decided that the Local w[ould] handle [her] case.” (Defs.’ Ex. 8 at 06100.) The message requested that Wasserstein provide Johnson with her file and noted that while it would be “helpful” to have the attorney’s research as well, she would “understand” if Wasserstein did not wish to share it. (Id.) On the same afternoon, Bernsen wrote Wasserstein to thank her for “all [her] hard work” on Johnson’s case. (Defs.’ Ex. 10.) Upon receiving Johnson’s message, Wasserstein forwarded the requested file with a letter “confirming that, as a result of [Johnson’s] request,” NAGE’s involvement in the grievance had come to an end. (Defs.’ Ex. 9 (Wasser-stein’s November 27, 2002 letter to Johnson).) 28. With this, which she perceived as an unforgivable slight to her position as President of the local, Johnson’s tone changed dramatically. In her December 2, 2002 reply to Wasserstein, Johnson declared that she had been “coerced to drop important aspects of the grievance” and that the national union had offered no more than a day’s representation. (Pis.’ Ex. 18 at 0088.) Johnson further stated her “assum[ption]” that Wasserstein’s comments regarding the merits of the posting grievances were “National’s way of getting back at [her]” for a November 19, 2002 message to national officials and the local membership, in which Johnson had protested NAGE’s alleged representational failures and suggested that the union had conspired with PBGC in its handling of the Kaplan matter. (Id.; Pis.’ Ex. 15.) In addition, after President Holway distributed a letter to the Local R3-77 membership indicating that NAGE would not be financially responsible for the arbitration as a result of Wasserstein’s removal from the case (Pis.’ Ex. 151), Johnson’s rhetoric became even more shrill. In a January 15, 2003 message to national officials and members of the local, Johnson declared NAGE “never intended to pay for the case I carried to them.” (Pis.’ Ex. 22 at 1.) “National didn’t want to invest in [the] arbitration,” Johnson explained, “because they [were] interested in a ‘cushiony’ relationship with management without having to pay monies on our behalf.” (Id.) NAGE’s failure to support the arbitration of Local R3-77’s president, Johnson concluded, “show[ed] ... blatant disrespect for the Local.” (Id.) Finally, in a statement to Hearing Officer Flynn, Johnson declared that national officials had refused to support her arbitration because “[t]hey were working with management to interfere with [her] work and [her] relationship with managers and [her] peers.” (Pis.’ Ex. 144 ¶ 12.) VIII. NAGE Arbitration Policy 29.Johnson and Bernsen’s mounting frustration with the national union’s handling of her case was fueled by their conclusion that the NAGE had amended its policy for funding arbitrations and applied it retroactively to her case. (Johnson Test, at 293:9-20.) On December .16, 2002, NAGE’s National Executive Board initiated an arbitration policy developed for the purpose of “providing] fair and equitable legal services to members and ... establishing] a clear policy for arbitration requests.” (Defs.’ Ex. 79 at 2.) Under the system, each case was to be submitted to the national union’s legal staff “for review.” (Id.) A case determined meritorious received legal and financial support, the national paying half of the union’s bill; one “found to lack merit”- was instead returned to the local with a written notice outlining the deficiencies identified and providing an opportunity to offer further information in support of the arbitration. (Id.) Those cases that “continue[d] to lack merit” were forwarded to the Chief Counsel for consideration. (Id.) When in agreement with the staff attorney’s determination, the Chief Counsel provided the local president and grievant with a notice explaining that the national would not be responsible for either the costs of the arbitration or legal representation. (Id.) The Chief Counsel’s determination was appeal-able to an appellate board and, ultimately, the national union’s president. (Id.) 30.Plaintiffs’ contention that the December 16 policy was inappropriately and discriminatorily applied to Johnson’s case — like their related suggestion that the nationwide policy was instituted as a means of retaliating against the Local R3-77 president — is without support in the record. (See Johnson Test, at 52:4-12, 292:19-293:20; Pis.’ Ex. 26 (Johnson’s Apr. 1, 2003 request for reconsideration).) There is no evidence that the policy was relevant to the handling of Johnson’s case by national officials. In notifying local members that NAGE would not “accept any responsibility” for her arbitration costs, President Holway explained that Johnson had opted to proceed without the national’s legal assistance. (Pis.’ Ex. 151 at 0095.) 31. Moreover, • NAGE’s December 16 policy was not the departure that plaintiffs try to portray it as. While national officials such as Barbara Osgood indicated that the cost of an arbitration should not govern a local’s arbitration decisions (see Bernsen Test, at 450:2-25; see also Pis.’ Ex. 33 at 58 (Holway’s statements at June 11, 2003 meeting)), the cost of an arbitration is distinct from an assessment of its merits, and it is evident that the national union’s practice of evaluating the merits of arbitrations before accepting legal and financial responsibility predated December 16, 2002. Whether this practice was in place prior to the removal of President Kenneth Lyons by an SEIU trusteeship in 2001 is unclear (see Donnellan Test, at 1420:3-1421:7; but see Barry Test, .at 1245:17-23), but it was undoubtedly operational during the term of National Trustee Joseph Buckley. (Barry Test, at 1244:11-1245:15.) The same is true of members’ claims with the EEOC, which NAGE attorneys consistently reviewed before accepting responsibility. (Id. at 1246:18-1247:5; Lightfoot-Walker Test, at 1098:8-1099:2; Defs.’ Ex. 102.) Bernsen conceded this in a November 17, 2002 letter to Richard Barry, stating that the local “kn[ew] that the Union [was] not a charity; and that the merits of eases must be evaluated.” (Id.) As President Holway and Barry credibly testified, the December 16 policy functioned only as an extension of union members’ rights, providing an avenue of relief for those grievants dissatisfied with the decision of the national’s reviewing attorney. ■ (Barry Test, at 1247:21-1248:24; Holway Test, at 1300:17-1301:10.) IX. December 18, 2002 Meeting ■ 32. In the weeks following Johnson’s November 27, 2002 decision to conduct her arbitration without national representation, plaintiffs’ relations with some members of the local and the national leadership deteriorated steadily. Internally, there were increasingly pronounced signs of dissent. In a message distributed to the membership and NAGE officials, Johnson confirmed that “a few Local members” — later identified as five employees within the Office of General Counsel, including Joe Burns, Lorraine Johnson and Jason Weyand — had asked the national to impose a trusteeship. (Pis.’ Ex. 20 at 2 (Dec. 5, 2002 email message); Johnson Test, at 197:11-199:25.) Johnson explained that the members were “in cooperation with management to overturn [the] Local leadership[,]” being “displeased that the Union [was] representing certain other members in promotion cases that involve their non-Union friends.” (Pis.’ Ex. 20 at 2.) 33. At the same time, Johnson’s statements regarding NAGE’s newly-elected President and other national officials became unmistakably vicious. In a November 19, 2002 email message to Holway, other national officials, and the local’s membership, Johnson complained that after going to the National Convention to “show ... support” for Holway and “receiving. promises” that he would “honor [his] word and pay outstanding dues money[,]” no one from his office even “bothered] to pick up the phone to call [the local] and tell us what is going on.” (Pis.’ Ex. 15 at 1.) “All of this oecurs[,]” Johnson declared, “when the Local Union president asks for [the national’s] support in legal matters.” (Id.) The national attorney responsible for her case, she protested, had “state[d] that, she owe[d] me Nothing as a Local President[,]” while another NAGE attorney had “[o]n other EEO matters ... missed important court dates for an[ ] employee without apology.” (Id.) After declaring PBGC had attempted to prevent her from receiving Barry’s letter regarding the local’s outstanding arbitration and thus force a lawsuit, Johnson stated that the agency was “playing” the local and national “against each other” and “us[ing] Roger Kaplan to do it.” (Id.) The local had members, according to Johnson, willing to “donate to keep [it] operational until [Holway] ma[de] good on sending ... dues.” (Id. at 2.) “I certainly believe we can work this out[,]” Johnson closed. (Id.) “All you have to do is want to work it out.” (Id.) 34. Less than two months after taking office, Holway asked National Executive Vice President Barbara Osgood to schedule a meeting with Local R3-77 in an attempt to address the issues that Johnson had raised. (Osgood Test, at 1088:8-14; Holway Test, at 1298:6-22.) It was the first time the national president — who had yet to even meet Johnson- — had given such attention to a local. (Osgood Test, at 1088:24-1089:4; Holway Test, at 1298:23-1299:3; Johnson Test, at 197:22-198:3.) Even the planning of the meeting proved contentious. In a December 5 email message, President Holway notified local members that it was “[his] understanding that National Executive Vice President Barbara Osgood will be meeting with your local in Washington on Thursday, December 12th.” (Pis.’ Ex. 19 at 3.) Johnson and Bernsen responded immediately, instructing the membership that “[t]here w[ould] not be a membership meeting on Dec. 12 because we are doing the arbitration for the Local President on Dec. 12 and Dec. 13,” but suggesting that “if Barbara is available on December 12, 2002, she might be willing to sit in on the arbitration for the Local President and help with the proceeding.” (Id. at 1-2.) Johnson’s message added another item to the list of the “concerns” to be discussed with NAGE officials once the meeting was rescheduled: the national’s “willing[ness] to meet at a time that would jeopardize the career/future of [the] Local President at the request of a few members ... who won’t do work when asked.” (Id. at 1.) 35. Plaintiffs grounded their open hostility toward President Holway and the national on two misconceptions. First, Johnson and Bernsen concluded that Hol-way had selected the date in order disrupt Johnson’s case, believing that the national president was aware of the arbitration’s timing as a result of Gina Lightfoot-Walker’s involvement in the scheduling process and subsequent email messages indicating that a meeting could not be held “before December 15” because the local had “important arbitrations to do.” (Johnson Test, at 34:8-35:16; Bernsen Test, at 445:4-16; see also Pis.’ Ex. 17.) The record, however, does not support such a conclusion. As Holway and Osgood credibly testified, it was Osgood who arranged the gathering. (Osgood Test, at 1088:8-14; Holway Test, at 1298:6-22; see also Pis.’ Ex. 19 at 3 '(Holway’s December 5 email message indicating an “understanding” that Osgood would be meeting with local members on December 12).) In any event, the meeting date was changed in order to accommodate Johnson’s request. (Johnson Test, at 35:8-16; Bernsen Test, at 447:15-17.) Second, Johnson and Bern-sen viewed the scheduling of a meeting by the national as an affront to local autonomy, believing that the local’s Executive Committee alone had authority to make such arrangements. (See Bernsen Test, at 445:20-447:5; Pis.’ Ex. 24 at 1 (January 22, 2003 email from Johnson complaining that the national was attempting to schedule a meeting without consulting the Executive Committee and asking Holway “not send any more e-mail messages to my members without my consent”).) At trial, however, Bernsen conceded that the national could “meet with any members [it] want[ed] to[.]” (Bernsen Test, at 446:9-10.) While Bernsen nonetheless argued that “ ‘membership meeting’ is a term of art” referring to a meeting where “business can be conducted” and Holway thus acted inappropriately by “us[ing] the term ... quote, unquote, ‘membership meeting’ ” in reference to NAGE’s sessions with local members (id. at 446:9-447:5), this by no means supports plaintiffs’ charge that holding a meeting was a violation of local autonomy. 36. On December 18, 2002, Barbara Osgood, Chief Financial Officer Bernard Flynn, National Vice President Debra En-nis, and National Executive Board Member Mychael Patterson met with thirty to forty members of Local R3-77. (Osgood Test, at 1089:10-16; Bernsen Test, at 448:1-2.) At the meeting, President Johnson addressed issues she had outlined in her previous email messages: the national’s payment of dues rebates; “National counsel’s intimidation earlier [in the] year when [the local] questioned the behaviour of one of its attorneys[;]” General Counsel Barry’s November 13 letter addressing the Kaplan matter and “suggesting that the Local had committed a prohibited -action[;]” PBGC’s “request ... that National deal directly with ... Management” without input from the local; the request of “[a] few Local members” for a trusteeship; “National counsel’s implication that Stuart had written an unprofessional letter because Stuart was concerned about National counsel’s errors in its analysis and refusal to try an EEO case for a Union member[;]” unelaborated “Boston connections between our National and our Head of Agency!;]” and the cooperation of local members with the agency. (Pis.’ Ex. 20 at 1-2; Bernsen Test, at 448:3-12.) Bernsen spoke about Johnson’s arbitration, stating that the national’s failure to support a local president in her case would amount to “scabbing!.]” (Bernsen Test, at 450:5-9.) According to Bernsen, when those in attendance were asked whether they supported Johnson’s arbitration and believed the national should fund it, all raised their hands. {Id. at 450:9-13.) The local’s members were also given opportunity to speak. {Id. at 448:12-13.) On behalf of the national union, Osgood informed the membership that the merits of an arbitration' — not its cost — should govern the union’s decision with regard to its pursuit. {Id. at 450:16-451:1.) She later reported to President Holway, noting the local’s issues regarding finances, its dues rebate, and pending arbitrations. (Osgood Test, at 1090:5-1091:10.) X. February 7, 2003 Meeting 37.Following the meeting, leaders of the local and national wrote local members in order to address the issues that had been raised. In a January 3, 2003 message to the membership, Bernsen described “a unanimous feeling that [the] new national union leadership need[ed] to provide [the local] with reinforcement to stop management’s escalating attacks and management’s mistreatment and disrespect.” (Pis.’ Ex. 21 at 000550.) Reporting “only ... some of the basics ... [s]ince management monitor[ed] [the local’s] emails,” Bernsen stated that national representatives had promised to provide a check for several months of unpaid dues, take action on behalf of a member with pending EEO deadlines, “[h]ave National President David Holway issue a letter supporting the Local” and meet with an agency official on the local’s behalf, “[l]ook into providing support” at Johnson’s next arbitration hearing and “[l]ook into” assisting local representatives in obtaining official time from the agency for work on representational matters. {Id. at 000550-51.) According to Bernsen, the local had “made it clear that the National union must provide both financial and legal support for Valda’s arbitration.” {Id. at 000551.) In closing, Bernsen acknowledged grudgingly that NAGE had since provided a check for the previous months’ dues and “provide[d] the assistance that one member urgently needed in her EEO case.” (Id.) 38. On January 7, 2003, President Hol-way distributed his own letter to members of Local R3-77, stressing that “the National Association of Government Employees supported] all its members and w[ould] continue to support the members of R3-77 in an appropriate capacity.” (Pis.’ Ex. 151 at 0095.) Responding to concerns discussed at the December 18 meeting, Hol-way noted that the missing dues payment had been replaced, that the national’s financial department was “looking into the ‘supposed deal’ that [the local’s] dues would be $13.00 per pay period” with a “pro-rated” per capita yearly payment of $22.36 per member and that a letter had been sent to a PBGC official in order to request that he meet with the national president. (Id.) Addressing Johnson’s case specifically, Holway stated that the national “fully supported]” her and would have National Representative Susanne Pooler-Johnson attend her January 22, 2003 arbitration date. (Id.) “However,” Holway noted, “because [the local’s] President requested that NAGE Attorneys withdraw from the case, the National w[ould] not accept any financial responsibility for th[e] arbitration.” (Id.) 39. Johnson’s response to Holway’s letter — sent to local members, President Hol-way and Barbara Osgood — was vituperative. (See Pis.’ Ex. 22 (Johnson’s January 15, 2003 message to local members and national officials).) The local president first challenged Holway’s characterization of the national’s withdrawal from her arbitration, declaring that NAGE had “never intended to pay for the case” and thus she had little choice but to proceed without its representation. (Pis.’ Ex. 22 at 1.) The national’s newly-elected president, Johnson declared, “ha[d] shown his blatant disrespect for the Local by not supporting a Union president financially.” (Id.) Johnson went further, however, asserting that Holway had noted the national’s lack of financial responsibility for her case so that the information could “be leaked to management a week before [her] arbitration.” (Id.; see also Johnson Test, at 233:10-11 (“He was letting management know he was not taking the bill.”).) According to Johnson, “National didn’t want to invest in [her] arbitration, because they are interested in a ‘cushiony’ relationship with management without having to pay monies on our behalf. But to hell with Valda’s career after she ha[d] represented employees as a NAGE Local President.” (Id.) Holway’s letter, she suggested, was simply an “attempt to unrattle” them before the following week’s arbitration. (Id. at 2.) Johnson asked that local members pray she would “be victorious” and “pray for the hardened hearts of those in power at NAGE National.” (Id. at 1-2.) At the time of the message, she had not yet spoken or met with President Holway. (Holway Test, at 1306:5-1307:5; Johnson Test, at 231:25-232:5.) 40. At trial, Johnson identified the root of her animosity toward Holway and the national union. When notified that the national would not accept financial responsibility for her arbitration, Johnson “felt like they chopped [her] off at [her] knees.” (Johnson Test, at 242:9-243:2.) Johnson and Bernsen had campaigned vigorously for the union. (Id. at 241:17-242:5.) When it appeared that NAGE was not fulfilling its campaign promises, Johnson felt both “used” and disrespected in her role as Local R3-77 president. (Id. at 241:24-242:21.) Moreover, Johnson believed that national leaders were “playing politics.” (Id. at 243:8-17.) When asked if she believed, by February 2003, that NAGE was discriminating against her by refusing to support her arbitration, Johnson testified that she instead “felt that they wanted the Collective Bargaining Agreement [“CBA”] in place” as they had “expressed ... their disgruntlement” regarding “EEO proceedings” that were preventing the finalization of the local’s contract. (Id. at 243:4-17.) While acknowledging that the union had a responsibility to negotiate a CBA, Johnson believed that the agreement should not be pursued “at the expense of EEO issues on behalf of members.” (Id. at 244:17-15; see also Bernsen Test, at 701:18-702:16 (indicating that the allocation of resources between individual grievances and collective bargaining is difficult and context-specific).) 41. Holway responded to Johnson in a January 21, 2003 message to the local’s membership, expressing “amaze[ment] not only at the contents but also the tone of [her] email.” (Pis.’ Ex. 23 at 1.) “For an elected member of a local to believe that those in the national office spend their efforts to conspire with management against our members[,]” he declared, was “ludicrous[J” (Id.) Holway noted that Johnson’s “diatribe” against the national’s staff was “unprecedented” — “[t]o think that all the decisions made at the national headquarters are designed to undermine you[,]” he told Johnson, “brings the paranoia level to new heights.” (Id.) Holway stated, however, that Johnson’s allusions to leaving the union were the “most damaging!]]” as management “love[d] to see” such an outburst on “the opposite side of the table.” (Id.) The president concluded by noting that another membership meeting would be scheduled “so we can again air our concerns.” (Id. at 2.) 42. President Holway’s meeting with Local R3-77 — -his first ever visit of this sort with any of the national’s approximately 500 locals — was scheduled for February 7, 2003. (Holway Test, at 1293:4, 1308:1-13.) Again, even the scheduling of the meeting proved contentious. In a January 22, 2003 message, Johnson protested Holway’s alleged “insist[ence] upon having a meeting without first confirming the time and date with the executive committee!]]” declaring that she would “not allow him to come in ... and try to start running things ... as Management ha[d] suggested.” (Pis. Ex. 24 at 1.) After stating that there would be “a meeting for the executive committee and advisory committee only on ... February 7,” Johnson asked that Holway “not send any more e-mail messages to [her] members without [her] permission.” (Id. at 1-2.) 43. On February 7, President Holway arrived in Washington, finding an inch of slush on the ground. (Holway Test, at 1308:20-1309:2.) Prior to his meeting with Local R3-77 members, Holway traveled to the national’s Alexandria office. (Id. at 1309:3-4.) While there, Holway learned that Susanne Pooler-Johnson was on the telephone with Johnson, who was again protesting the propriety of a meeting scheduled without her approval. (Id. at 1309:1719; Pooler-Johnson Test, at 1132:5-16.) Holway asked to speak with Johnson, and informed her that the meeting would go forward. (Holway Test, at 1309:19-21; Pooler-Johnson Test, at 1132:17-20; Pis.’ Ex. 33 at 48-49 (transcript of June 11, 2003 meeting).) Johnson, however, was undeterred. In a subsequent message to the membership, the local president announced that the meeting with national officials had been “cancelled due to inclement weather.” (Defs.’ Ex. 110; Holway Test, at 1310:2-1311:15.) 44. Holway’s first meeting with Local R3-77 members was sparsely attended as a result of Johnson’s message. (Holway Test, at 1310:2-9.) Bernsen was present; Johnson participated by speakerphone. (Id. at 1311:16-25.) General Counsel Richard Barry, attorney Gina Lightfoot-Walker and local members Dwayne Jef-fers, and Robert Perry were also in attendance. (Jeffers Test, at 918:9-12.) Bernsen spoke again at length, outlining the EEO cases the local was pursuing and the issues it faced with the agency. (Bern-sen Test, at 452:19-^453:11.) According to Jeffers, Bernsen was confrontational at the gathering, calling Barry a “scab” and declaring that the national was “selling out” Johnson’s arbitration. (Id. at 919:3-8.) XI. Johnson’s Unfair Labor Practice Charge 45. On April 1, 2003, nearly three months after Local R3-77 members were notified that the national would not be accepting financial responsibility for their president’s arbitration, Johnson wrote Hol-way “to confirm in writing [her] appeal of the decision made by [him] in [his] capacity as National President of NAGE, SEIU 5000 requiring [her] to pay for the National’s portion of the arbitration cost” in her case. (Pis.’ Ex. 26.) In the letter, Johnson again asserted that NAGE had failed to provide legal counsel, failed to support her financially, and denied such support on the basis of a policy that “was not the policy in effect when [her] case began.” (Id.) 46. After Johnson failed in her efforts to get the national to pay for her arbitration, she filed with the FLRA an unfair labor practice charge (“ULP”) against NAGE on May 23, 2003. The charge, drafted with Bernsen’s assistance, alleged that NAGE had violated its duty of fair representation and discriminated against her on the basis of race, color, creed, and sex “[b]eginning November 26, 2002 ...[,] act[ing] initially and primarily through Chief Counsel Richard Barry, who was aided and supported by NAGE President David Holway, Executive Vice President Barbara Osgood, Bernard Flynn, and Jennifer Wasserstein.” (Pis.’ Ex. 35 at 000624; Bernsen Test, at 516:21-517:4.) The focus of her charge was her arbitration: the union, she alleged, had “failed to fairly represent [her] and discriminated against [her] in connection with the processing and handling of grievances and arbitrations concerning [her] working conditions where [she was] employed at the Pension Benefit Guaranty Corporation[.]” (Pis.’ Ex. 35 at 000624.) This allegation was supported by a familiar set of complaints — the union, she declared, had refused to pursue certain issues as part of her case, had refused to provide legal and financial support for the arbitration, had attempted to “coerce” her into taking a non-bargaining unit position, and had “failed to pay more than $3,000 due Local R3-77 in part to prevent [her] from proceeding with [her] arbitration ... and to deprive [her] of support and protection.” (Id.) The charge added other allegations as well, stating that the national union had “interfered” with her service as an officer and representative of the local, interfered with her “right to run for office,” attempted to cause PBGC to retaliate against her, and “acted to discredit [her] in the eyes of members of NAGE Local R3-77 and PBGC management through innuendo, slander and public ostracism.” (Id.) As relief, Johnson asked “to be reimbursed for all costs, expenses and legal fees [she] incurred as a result of the Union’s violation,” for “proper payments” to the local, and for the posting and distribution of “appropriate notices.” (Id.) 47. Johnson’s move was an unusual one. While disagreement between local leaders and the national union was not unprecedented, such conflict was generally not aired in a public forum. (Cooper Test, at 803:24-804:11.) Johnson’s charge exposed the rift between the local’s leadership and NAGE, undoubtedly compromising the union’s bargaining strength in its negotiations with PBGC. (Id. at 804:12-22.) In the words of Duncan Cooper, a former local member and witness for plaintiffs, the ULP was thus “a very extreme step to take.” (Id. at 804:6.) 48. As is clear from the record, Johnson sought to gain a tactical advantage by filing. Though the May 23 charge was her first against the union, she had earlier threatened such an action in an attempt to sway the national’s handling of her case. (See Pis.’ Ex. 15 at 2 (Johnson’s November 19, 2002 email asking Holway to “[t]ell Mr. Barry I’ll apologize for threatening a DFR if he’ll apologize for the way he has treated me”).) As Bernsen reiterated after her filing of the ULP, Johnson would have withdrawn the charge upon receipt of a check from the union. (Bernsen Test, at 704:7-705:12; Pis.’ Ex. 33 at 69-70 (Bern-sen’s June 11, 2003 statement that if Hol-way were to call Johnson “this thing will settle and it will go away”); Defs.’ Ex. 104 (Bernsen’s June 12, 2003 email message to member Jason Weyand stating that NAGE “would have avoided all or most of this” had they “ke[pt] their pledge and pa[id] the National’s share of the arbitration fee in Valda’s case”).) As Johnson recounted, “I filed the duty of fair representation charge against David Holway. And I also offered him an informal way to deal with it.” (Johnson Test, at 300:2-7.) XII. June 11, 2003 Meeting 49. President Holway declined to take the informal route. In a June 5, 2003 letter, Holway notified local members that their president “ha[d] filed a charge with the Federal Labor Relations Authority claiming that NAGE ha[d] violated its duty of fair representation.” (Pis.’ Ex. 31A at 000290.) The charge itself was enclosed for each member’s review. (Id. at 000291.) “In [Holway’s] judgment,” Johnson’s filing of the charge was “an emergency situation” that required him to “act to the best of [his] ability to further the purposes and objectives of th[e] organization and to protect the interests of its members.” (Id. at 000290.) Holway assured members that NAGE “denie[d]” the charges and asked that they attend a June 11, 2003 meeting for the purpose of “discusspng] the future representation of NAGE with [their] local” and ensuring that their interests “continue^] to be protected.” (Id.) 50.Unbeknownst to the others in attendance, Bernsen attended the June 11 meeting with a tape recorder concealed in his jacket. (Bernsen Test, at 461:15-462:22.) At trial, Bernsen identified two purposes for surreptitiously recording the event: (1) for the benefit of Johnson, who was not in attendance, and (2) in order to “have a record in case [he] needed it because of anything that happened at the meeting.” (Id. at 460:25^161:14, 620:14-23.) According to Bernsen, neither of these ends could have been accomplished with the recorder exposed as Holway would not then have spoken as freely. (Id. 622:22-623:18.) The resulting transcript, marred by sporadic and at times suspicious lapses, thus documents an uneven exchange. What it fails to document, however, is the retaliatory animus that plaintiffs have alleged. 51. Holway opened the meeting with an acknowledgment of its catalyst, stating that he had “called the meeting because ... [he] was ... quite shocked ... when [he] received a National Labor Relations complaint against [the] Chief Counsel,” other national officials, and himself. (Pis.’ Ex. 33 at 2.) Holway acknowledged the seriousness of the charges. Never before, he noted, had he “been accused of being biased against anybody.” (Id. at 2-3.) All of the named officials, in Holway’s words, considered the charges “v