By Mitchell Polman
Washington, June 3 — Two former employees of Radio Free Europe/Radio Liberty (RFE/RL) recently sent U.S. to Attorney General Eric Holder a petition alleging unfair labor practices at the U.S.-supported radio and information service.  The petition is the latest salvo in an ongoing labor dispute that is causing international embarrassment for a venerable institution of America’s public diplomacy.  It is also causing some headaches for the Obama Administration and especially for Secretary of State Clinton, whom the plaintiffs at one point petitioned to appear before the court in her capacity as a member of the Broadcasting Board of Governors (BBG), RFE/RL’s parent agency.
The former employees of RFE/RL, Snježana Pelivan of the Croatian service, and Anna Karapetian of the Armenian service, are suing RFE/RL and the BBG in the European Court of Human Rights in Strasbourg over the radios’ employment practices.  The Croatian and Armenian governments are supporting their lawsuits.
Much more than background noise
Radio Free Europe and Radio Liberty were created in 1950, as the Cold War was heating up, to broadcast news and information behind the Iron Curtain that people living in the region could not get from their own governments.  Until 1995, RFE/RL – often called simply “the Radios,” had its headquarters in Munich, Germany.  It was an important outpost for Western reporters, scholars, and human rights activists.  To the governments of Soviet-dominated Eastern Europe, RFE/RL’s news and features were a serious problem – one they drew attention to by attempting to jam the radio broadcasts. 
Today “the Radios” broadcast and maintain a web presence from a different headquarters in Prague, Czech Republic, to twenty countries in twenty-eight different languages.  All of the countries RFE/RL broadcasts to either lack a free press or are struggling to create one.  RFE/RL’s journalists often take great risks to report on sensitive topics.
Prior to moving to Prague from Munich in 1995, RFE/RL employees were covered by either German or American labor laws and many were members of American labor unions.  Today, the Radios are incorporated as a non-profit organization based in Delaware and thus are free to operate as a private entity in the Czech Republic. 
In their lawsuit, Pelivan and Karapetian allege that RFE/RL’s employment policies unfairly discriminate against the Radios’ non-Czech and non-American employees.  Czech employees are covered by Czech employment law and American employees by American employment law.  Third-country nationals are covered by a Czech law that allows foreign companies in the Czech Republic to fire foreign employees at will and without cause.
The suit also alleges that when RFE/RL moved from Munich to Prague, employees were not informed of the changes in their employment status, in violation of U.S. law.  Pelivan told me that “. . . people who worked for RFE/RL in Germany before moving to Prague, signing new contracts in Prague, had no clue that all of a sudden, they were at-will employees. No one from RFE/RL management had ever explained to people this essential change in contracts prior to their signature. Many of these people would not risk [moving] from their countries or from Germany for such low job security at RFE/RL.” 
The petitioners, who go so far as to ask Holder for a criminal investigation of RFE/RL, call the omission of information about employees’ new status “a dirty trick” and claim the change was “intentionally hidden from them by RFE/RL management.”  Pelivan says that even though this may be a violation of U.S. law, foreign employees of U.S. corporations are not allowed to challenge such violations in U.S. courts.  She feels that employees at RFE/RL who had neither American nor Czech citizenship were “placed in a legal vacuum and deprived of their fundamental human right to challenge a wrongful termination in any legal institution.”
In 2005, the plaintiffs’ attorney suggested an out-of-court settlement , and the Czech court invited RFE/RL to a mediation session on March 3 of that year, but RFE/RL did not appear.  On April 8, 2009 the Czech Constitutional Court found in favor of RFE/RL and the BBG, saying that no Czech law was violated in the dismissal of the employees.  The Czech court ruled that Pelivan and Karapetian’s employment contracts were governed by U.S. and DC employment law. 
Critics of the BBG allege that this labor law situation is part of a larger problem at RFE/RL, which is a small but important tool of America’s foreign policy.  According to many former employees (whose bias may be clear, but whose concerns about the Radios go beyond the issue of their termination), the firings of so many employees have intimidated those who remain into going along with changes in broadcasting strategies that they disagreed with, or keeping silence over mistakes made in RFE/RL broadcasts.  They further allege that this atmosphere of fear and possible retribution has made it easy for the BBG to hide problems at RFE/RL from Congress and presidential administrations.
Reporters and editors for Radio Free Europe and Radio Liberty are generally native speakers familiar with the political and cultural background of the countries they cover.  Their broadcasts often criticize the governments of their home countries – and this criticism is not taken lightly.  A surprising number of RFE/RL employees have died in mysterious circumstances or been the victims of seemingly random violence, both during the Cold War and more recently.  Not surprisingly, the victims of violence – such as former Soviet dissident Tengiz Gudava of the Russian and Georgian services — had built up a base of listeners in countries still starved for real news about their own political systems. Gudava, formerly a popular broadcaster to Russia and Georgia, left RFE/RL in 2004 under protest, but from a home base in Prague, he had continued to write and report about human rights problems in the Caucasus and Central Asia.  On April 15, 2009, after leaving his apartment to buy a pack of cigarettes, Gudava disappeared. He was found two days later in a morgue not far from his home, the apparent victim of a hit and run car accident. 
While the reason for Gudava’s death has not been determined, it is clear that RFE/RL’s employees work in a highly-charged atmosphere and that, for people paid by the U.S. government, they take unusual risks – and lack corresponding protections.  Many foreign employees cannot easily return to their home countries because of their on-air criticisms against their home governments and leaders. If fired from RFE/RL, these employees face the challenge of finding other employment or gaining political asylum. 
The thorny relationships and complex expectations of employees in a radio service staffed largely by émigrés is an issue the United States has faced elsewhere, including at the Voice of America.  But clearly, the legal dispute is symbolic of a deeper conflict between RFE/RL’s management and its long-time employees, many of whom consider themselves as much freedom fighters as employees of a U.S.-sponsored radio service. 
Lawyers for RFE/RL weigh in
Understanding Government asked the Office of Legal Counsel for RFE/RL in Washington to address the issues raised by the petitioners.  
To begin with, RFE/RL’s legal counsel noted that during the move from Munich to Prague in 1995, many citizens of third countries (i.e., not citizens of the U.S. or the Czech Republic) “would have refused to stay with the Company had they not been given U.S.-law contracts, and today most third-country nationals prefer to be employed under U.S.-law contracts.”
Under these contracts, RFE/RL said, employees can “receive substantial and important benefits, such as an employer-funded savings plan, health insurance, life insurance, and long-term disability insurance.”
RFE/RL’s legal counsel went on to say that if employees were to sign contracts subject to Czech law, they would be obliged “to contribute a significant portion of their paychecks to the social security system of a country — the Czech Republic — in which they are not likely to settle when they retire.”  This argument seems ambiguous, however, since generally speaking, pension benefits are transferable between countries that have signed bilateral agreements — such as the Social Security agreement signed by the U.S. and the Czech Republic.  
The most important claim made by RFE/RL legal counsel is that the Radios do not “terminate employment relationships without reasonable cause, such as budget cuts, shifts in operational priorities, or performance-related factors.” 
Employees charge deception and subterfuge
Petitioners Karapetian and Pelivan, by contrast, argue that they and others have been subject to “acts of deception during the hiring process, and subsequent arbitrary terminations.”  A more disturbing allegation made by these two petitioners, and echoed by others, is that after their terminations, in order to receive the severance pay they were due, they were forced to sign non-disclosure agreements that forbid them from speaking publicly about RFE/RL’s operations and the circumstances of their departure.  According to the petition, some employees – who had no practical recourse and nowhere to go – “were forced to accept severance payments prepackaged by RFE/RL as . . . ‘shut up’ money.”
This objection is certainly heartfelt.  It also illustrates a cultural chasm between long-time employees of RFE/RL, many of whom lived much of their lives under authoritarian governments, and the usual expectations of employees of a U.S. company or non-profit organization.
According to RFE/RL’s Office of Legal Counsel, “severance is paid pursuant to a separation agreement that contains, among other things, a provision on confidentiality and a provision on mutual non-disparagement.  The confidentiality provision is standard in separation agreements used by American companies, and the mutual non-disparagement provision, also very common in such agreements, reflects and memorializes the fact that, in signing the agreement, both parties are expressing their desire to settle the matter amicably.”
Still, it does seem that employees who seek to dispute their terminations are in an untenable position.  If they seek redress for their termination, they lose their severance pay.  But they also seem convinced that they have no way to seek redress from RFE/RL for unfair treatment.  And there appear to have been no efforts to settle the dispute by RFE/RL.  Hence Pelivan and Karapetian’s petition to Attorney General Holder.
An insider’s look
One former employee who refused to sign a secrecy agreement was Mario Corti, an Italian journalist and expert on Russia who worked for RFE/RL from 1979-2005.  Corti’s most pressing concern is more with the way RFE/RL has been managed than the labor rights question – though he sees the issues as connected. Corti was promoted to Director of the Russian language service but later fired after repeated clashes with then-RFE/RL Director Jeffrey Trimble, who is now the Executive Director of the Broadcasting Board of Governors. 
In  an interview with freemediaonline.org, Corti charges that RFE/RL management seemed determined to gut the Russian-language service – and that “those among the old KGB and the new FSB officials, who see the U.S. as an enemy rather than a valuable and generous partner of Russia, could only be enormously happy with such leaders in charge of U.S. international broadcasting as the current U.S. Broadcasting Board of Governors (BBG) executive team.”  According to Corti, then-director Trimble even planned to shut down the Russian-language news service completely, but “did not carry it out because he was afraid of a mass rebellion in the Russian Service.” 
This former insider has telling criticisms of the way RFE/RL targeted its broadcasting within Russia, as well.  Corti says that RFE/RL management told them to “[f]orget about the regions” and concentrate only on audiences in Moscow and St. Petersburg, though Corti had been trying to build up the Radios’ presence in provincial cities. 
Corti also alleges that the BBG kept hiring outside consultants to conduct studies of the Russian service’s listenership until they got results showing declining ratings — which they then used to justify the termination of service.  On the other hand, Corti clearly has a long-standing loyalty to RFE/RL, where he worked for many years; he commented that the Radios’ “mission is indeed more noble than the judgment and behavior of some individuals who unfortunately happened to work there.”
Radio-free Radio Free Europe?
Because there are clearly so many unhappy former employees (not for nothing was the Broadcasting Board of Governors recently identified as the worst place in government to work), it’s hard to pass off their complaints as the opinions of a disgruntled few. Still, the legal issues are complicated and they may not be easily resolved.  But the charge that the Radios are denying basic labor rights to foreign employees of a U.S. government body that works on behalf of human rights and freedom of information is an embarrassment and may be symptomatic of a larger problem – the mismanagement of America’s public diplomacy strategies in recent years by Washington. 
America’s government-sponsored broadcasters have increasingly begun to imitate private sector commercial media entities that view ratings as paramount, and they have moved to eliminate radio broadcasting in such vital languages as Russian, Cantonese, and Hindi in favor of the Internet. RFE/RL, however, has a very different mission from a commercial broadcaster.  It has a mission to provide certain types of news and information to audiences that can not easily obtain them elsewhere.  Ms. Pelivac’s husband, Lev Roitman, was an RFE/RL Russian service broadcaster from 1975-2005 when he voluntarily retired.  Roitman says that he “was the first and, to the best of my knowledge, remain the last RFE/RL employee in Prague to have a title of ’senior commentator’. However, immediately after my retirement, my highly popular program ‘Commentators at the Round Table’, which on a daily basis covered social, economic, legal, human rights, historical, and international topics, was shut down. Somehow, I think, it could not be married to the market where the commentaries are not offered anymore — to an ever dwindling number of buyers.” 
RFE/RL has been under the leadership of Jeffrey Gedmin since March 2007. The BBG (as previously reported here) is largely vacant and four of its five members are serving after their terms have expired.  It would seem appropriate for the White House to step in and ask both sides to call off the lawyers — and resolve the unfortunate and unpopular legal dispute.  Thus far the Obama Administration has been silent on the issue.  A resolution of the legal case as well as the underlying strategic problems that made such a lawsuit possible seems essential not only for the sake of RFE/RL’s current and former employees, but also for the future of the Radios and their still-vital mission.