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Union and Associational Activity

     Monthly Law Journal Article: Picketing Rights of Public Employees, 2007 (11) AELE Mo. L. J. 201.

      In Illinois, a state statute gives unions representing public employees the right to collect dues from its members, but only “fair share” fees (a proportionate share of the costs of collective bargaining and contract administration) from non-member employees on whose behalf the union also negotiates. A lawsuit sought to preclude such fair share fees, arguing that the statute violated the First Amendment by compelling employees who disapprove of the union to contribute money. A federal appeals court upheld the dismissal of the lawsuit, noting that one of the plaintiffs has previously challenged the “fair share” provision in state court and that his claim is barred by claim preclusion.

     The appeals court also noted the U.S. Supreme Court’s decision, Abood v. Detroit Board of Education, #75-1153, 431 U.S. 209 (1977) upholding, against a First Amendment challenge, a Michigan law that allowed a public employer, whose employees (public-school teachers) were represented by a union, to require those of its employees who did not join the union nevertheless to pay fees to it because they benefited from the union’s collective bargaining agreement with the employer. Janus v. American Federation of State, County, and Municipal Employees, #16-3638, 851 F.3d 746 (7th Cir. 2017).
     A public employee union filed a lawsuit asserting a First Amendment challenge to an Alabama state statute that “prohibit[s] a state or local government employee from arranging by payroll deduction or otherwise the payment of any contribution to an organization that uses any portion of those contributions for political activity.” The union argued that the subjective motivations of state lawmakers in passing the law was to retaliate against the union for political speech on education policy. As part of pursuing this claim, the plaintiff union used subpoenas seeking the files of four state legislators. A federal appeals court reversed the trial court's refusal to quash the subpoenas. It noted that when a statute was facially constitutional, as this one was, a free speech challenge cannot be based on the subject motivation of the lawmakers, their purpose in passing the law. In re: Mike Hubbard, #13-10281, 2015 U.S. App. Lexis 17863 (11th Cir.).
    A sergeant working at a county jail was also a union leader. The union initiated mandatory contract arbitration with the sheriff's officer. At the arbitration, an undersheriff testified regarding training on CPR, firearms, and Taser. The sergeant then testified that the undersheriff had misrepresented the degree of training provided. Following this, the sergeant was told to wear business attire or his uniform to subsequent arbitrations. He later wore a golf shirt and blazer and was investigated for disobeying a direct order. He was then told that there would be an investigation regarding his actions during a power outage at the jail, and another investigation regarding subordinates' charges against him. He was ordered not to inquire into this last investigation with any witnesses or investigators but admittedly asked his subordinates for details concerning it. He was subsequently suspended without pay for several days and demoted for having created an unprofessional and hostile environment for subordinates as well as having made derogatory statements to female detainees. In a lawsuit for unlawful retaliation, a federal appeals court upheld summary judgment for the county. While his testimony at the arbitration was protected by the First Amendment, he failed to prove that his demotion and suspension were the result of him being punished for his criticism, rather than being punished for his own "extensive misconduct." Boulton v. Swanson, #14-2308, 2015 U.S. App. Lexis 13195, 2015 Fed. App. 170P (6th Cir.).
     The Michigan Supreme Court held that a state civil service commission lacked the authority under state law to compel civil service employees who were union-eligible employees who opt out of union membership to pay agency shop fees. Public employee unions had previously negotiated various collective bargaining agreements with the state that contain agency shop fee arrangements covering the employees whom they represent. UAW v. Green, #147700, 2015 Mich. Lexis 1772.
     A union representing Los Angeles police officers sued to attempt to invalidate a departmental order limiting the individual discretion of officers as to when to impound cars driven by unlicensed drivers. The union believed that the order conflicted with state statutes, resulted in fewer such cars being impounded, and could lead to civil liability for its members for failing to carry out mandatory duties required by state statutes. Rejecting these arguments, an intermediate state appeals court found that the order was within the broad discretion of the police chief, did not conflict with state statutes, and did not create new law, but merely implemented the state statutes. The union had no standing to challenge it in court, and had not shown that it fell within the topics of hours, wages, and working conditions that constituted the scope of its representation. Los Angeles Police Protective League v. City of Los Angeles, #B251796, 2014 Cal. App. Lexis 1180.
     A psychologist at an Illinois state prison claimed that he suffered retaliation in violation of the First Amendment after he was elected to his union's Executive Board and engaged in advocacy for union members, voicing employee concerns to management. Adverse actions allegedly included relocating his office, increasing his work load, denying his request for advance leave time, revising directives affecting his job duties without his input, removing him from a hostage crisis team, and making him meet with mentally ill inmates without a guard in the same room. He was, however, not fired, disciplined, or denied an employment opportunity. A federal appeals court upheld summary judgment for the defendants, ruling that because the plaintiff was acting as a union official, not as a public employee, when he made the statements that were at issue, and they were therefore not protected by the First Amendment. His complaints to management about the collective bargaining agreement and work conditions were merely employee grievances and he did not show that he addressed matters of public concern. Olendzki v. Rossi, #12-1340, 2014 U.S. App. Lexis 16866 (7th Cir.).
     The collective bargaining organization representing Philadelphia police officers, the Fraternal Order of Police, operated a political action committee to distribute political contributions to candidates for state and local office. The union, the political action committee, and four officers sued to question the constitutionality of provisions of the city charter that barred employees of the police department from making contributions "for any political purpose. The provision only applied to police, and not to other city employees and was adopted in 1951 because of a history of patronage employment. The federal appeals court found that the ban was unconstitutional, reasoning that it may address valid concerns (such as police partiality and politicized personnel practices) but that the city did not explain how the ban addressed the feared harms in a direct and material way. There was a lack of fit between the city's stated purpose and the means chosen to promote it, and it was illogically under-inclusive. Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia, #13-1516, 763 F.3d 358 (3rd Cir. 2014).
  A corrections officer was fired from his employment with the county after he spoke to a news reporter about the arrest of a university football player without authorization from the sheriff. He argued that this violated his First Amendment right to free speech. Rejecting this claim, a federal appeals court found that the statements made were ordinarily within the scope of his duties, and did not merely concern those duties. He did not speak to the news reporter as a private citizen and therefore his speech was not protected against employer discipline under the First Amendment. Hurst v. Lee County, #13-60540, 2014 U.S. App. Lexis 16153, 38 I.E.R. Cas. (BNA) 1607 (5th Cir.).
     A police sergeant who served as a union representative was transferred on the basis of the city's expressed concerns about his exercise of supervisory authority. The union tried to enforce a provision of the collective bargaining agreement prohibiting the transfer without voluntary agreement of certain union representatives between stations. A grievance arbitrator ordered the officer's reinstatement to his original position and damages, finding that the contract had been violated. The highest court in Massachusetts ordered that the award be vacated, finding that the arbitrator exceeded his authority in overturning the transfer, since the police commissioner had statutory non-delegable powers to assign and transfer officers within the department.  City of Boston v. Boston Police Superior Officers Fed'n, #SJC-11238, 466 Mass. 210, 2013 Mass. Lexis 688.
     Labor unions and state employees sued various state officials, claiming that they violated the plaintiffs' First Amendment right to freedom of association by targeting employees for firing on the basis of their union membership. A federal appeals court ruled that, based on stipulated facts, that was the case, and reversed summary judgment for the defendants, instructing that summary judgment be entered for the plaintiffs on their First Amendment claim and that appropriate equitable relief be granted. Further proceedings were ordered on individual plaintiffs claims. Claims for money damages against the defendants in their individual capacities were not barred by the Eleventh Amendment. State Employees Bargaining Agent Coalition v. Rowland, #11-3061, 2013 U.S. App. Lexis 10970 (2nd Cir.).
     The First Amendment prohibits a public employee union from increasing political activity fees for non-consenting nonmembers who are required to pay certain union dues. The special assessment or dues increase was imposed to raise funds for the political purpose of fighting state efforts to reduce public employee pay. These expenses were not disclosed when the regular assessment was set, so the union should have sent out a special notice to inform the non-members of them and should refrain from collecting such funds without the non-members' consent. Knox v. Service Employees International Union, #10-1121, 132 S. Ct. 2156, 2012 U.S. Lexis 4663.
     A county correctional employee was fired for transmitting a sexually explicit image to a subordinate's cell phone, and other charges. A federal appeals court ruled that the pre-termination hearing provided to the employee satisfied due process requirements. He claimed that he was fired in retaliation for having brought a lawyer to represent him at his pre-termination hearing, in violation of his First Amendment right to association. The appeals court rejected this claim, stating that his retention of an attorney did not relate to a matter of public concern. The court relied on Borough of Duryea v. Guarnieri, #09-1476, 2011 U.S. Lexis 4564, 131 S. Ct. 2488, holding that when a public employee claims retaliation against them based on the exercise of the First Amendment right to petition the government, they must show their actions related to a matter of public concern, The appeals court found that the same reasoning applied to First Amendment association claims. Merrifield v. County of Santa Fe, #10-2175, 654 F.3d 1073 (10th Cir. 2011).
     In a federal civil rights lawsuit against an officer alleging excessive use of force, the plaintiff asked to depose the officer's union representative. The trial court ruled that a conversation between the officer and his union representative would be privileged under federal law, but that the union representative, in this case, improperly attempted to invoke the privilege in refusing to answer even "foundational" questions. The privilege does not apply to answering questions about whether the conversation involved acting in the role of union representative. . Bell v. Village of Streamwood, #10-C-3263, U.S. Dist. Court (N.D. Ill. Aug. 15, 2011).
     A police chief who was fired won his job back through union arbitration, and was subsequently subjected to a variety of restrictions concerning how to do his duties by the borough council. He sued the borough under 42 U.S.C. Sec. 1983, arguing that his collective bargaining grievance constituted a "petition" protected by the provision in the First Amendment concerning the right to petition the government for redress of grievances. He further claimed that the restrictions imposed were unlawful retaliation for his exercise of his First Amendment rights, and that his request for overtime pay was also denied in retaliation for his filing of the lawsuit.. A federal appeals court ruled that the "public concern" test applicable to First Amendment cases brought by public employees does not apply to claims brought under the petition clause. The U.S. Supreme Court disagreed, holding that a public employee's exercise of rights under either the free speech or petition clauses must involve a matter of public concern to be protected. The petition clause does not create "a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts." The appeals court decision upholding jury awards of damages for the police chief was therefore vacated. Borough of Duryea v. Guarnieri, #09-1476, 2011 U.S. Lexis 4564.

     Statements by a public employee to a union steward are not private (privileged), if the steward voluntarily discloses the content to management. The employee had told him, "If I get fired, I'll kill myself." Berkner v. Dept. of Commerce, #DC-0752-09-0667-I-1, 2011 MSPB 27.
    Seventh Circuit resurrects a retaliation lawsuit brought by an ex-firefighter who claimed that his separation for sub-marginal performance was because of his pro union activities. Although in Illinois a small fire district is not obligated to bargain with a union, it can do so voluntarily. The plaintiff "had the right to join a union or to organize his fellow firefighters into a collective bargaining unit and to work to convince the District to bargain with a group representative over wages and benefits, even if the District had no obligation to engage in collective bargaining." Kodish v. Oakbrook Terrace Fire Prot. Dist., #08-1976, 2010 U.S. App. Lexis 9511, 604 F.3d 490 (7th Cir.).
     Where a fire district is authorized, but not required, to engage in collective bargaining, a firefighter has a First Amendment right to vigorously support unionization, and may not be terminated for such activities. To prevail, management must prove that it had just cause to terminate the firefighter in the absence of his pro union support. Kodish v. Oakbrook Terrace Fire Prot. Dist., #08-1976, 2010 U.S. App. Lexis 9511, 188 LRRM (BNA) 2513 (7th Cir.).
     Federal court declines to intervene in the removal of a union secretary from office for an alleged failure to properly perform his duties, even if his removal was intended to stifle his free-speech rights. Ferrer v. Intern. Longshoremen's Assn. L-1740, #3:2008cv01505, 2009 U.S. Dist. Lexis 102888 (D.P.R. 2009).
     Federal labor board sustains the termination of a private sector employee who intimidated a management official, by following him at night in a group that was shouting at and taunting him, and making intimidating statements such as, "We know where you live." The employee lost the protection of the National Labor Relations Act. Starbucks Corp. and L-660, IWW, #2-CA-37548, 354 NLRB No. 99, 2009 NLRB Lexis 343.
     Management violated the collective bargaining agreement when it asked the president of the firefighter’s union what he would be doing while on union leave. The CBA stated that president “shall be granted” leave “for the purposes of discharging his official duties as Local President”, and nothing authorized his superiors to request the particulars of a leave request. Union Township, Ohio and IAFF L-3412, FMCS #08/02678, 125 LA (BNA) 1638 (Rosen, 2008).
     Seventh Circuit rejects a civil rights suit filed by two FOP members who were expelled from the organization after they backed opposition candidates in a union election. While "unions should tolerate ... dissension among their ranks ... the Constitution ... does not require private organizations to provide free speech or due process rights to its members in matters concerning their purely private and internal affairs." The First and Fourteenth Amendments "protect citizens from conduct by the government, but not from conduct by private actors, no matter how egregious that conduct might be." Hallinan v. FOP L-7, #06-3602, 2009 U.S. App. Lexis 14038 (7th Cir.).
     Dues check off – Supreme Court, in a 6 to 3 ruling, holds that Idaho’s "Right to Work Act," which allows public employees to authorize payroll deductions for general union dues, but prohibits deductions for union political activities, does not violate the unions’ First Amendment rights. "The First Amendment ... does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho’s law does not restrict political speech, but rather declines to promote the speech by allowing employee check offs for political activities." Ysursa v. Pocatello Educ. Assn., #07-869, 129 S.Ct. 1093, 2009 U.S. Lexis 1632.
     Federal labor board upholds the termination of two courthouse security officers for neglect of duty. Although they had a legal right to confer about work activities, they created a security risk by convening a meeting of officers in a room where they could not effectively monitor the courthouse. However, the employer unlawfully ordered officers not to speak to an agent of the National Labor Relations Board or to others regarding discharges of employees. Akal Security and United Govt. Security Officers L-118, #2009.19-CA-30891, 354 NLRB No. 11, 186 LRRM (BNA) 1097, 2009 NLRB Lexis 131.
    Eleventh Circuit upholds the termination of two police union officials who attempted to put financial pressure on government by initiating a citation-writing slow-down campaign, and also violated a policy against secretly audio-taping others. Douglas v. DeKalb Co., #08-10052, 2009 U.S. App. Lexis 1266 (Unpub. 11th Cir.).
     Arbitrator finds that management retaliated against a police union steward by denying a request for light-duty assignment, where other employees had been given such assignments, and the chief ordered officer to fire from kneeling position during a qualification test after grievant had returned from knee injury, even though the grievant "had been instructed at academy not to include this dangerous maneuver as part of qualification course." Dept. of Veterans Affairs and AFGE L-1539, FMCS Case #08/57425, 125 LA (BNA) 1528 (Neigh, 2008).
     Federal court refuses to enjoin an internal union hearing of charges brought against officials of a local. The plaintiffs were unable to show imminent irreparable harm or bias by members of the executive board. Babler v. Futhey, #1:08cv912, 2008 WL 3822179, 2009 U.S. Dist. Lexis 10484, 195 LRRM (BNA) 2993 (N.D. Ohio).
     In a dues check-off case, the Supreme Court concludes that the First Amendment permits a local union to charge nonmembers for national litigation expenses as long as the subject matter is related to collective bargaining rather than political activities, and the charge is reciprocal. Locke v. Karass, #07-610, 2009 U.S. Lexis 590.
     First Circuit affirms a jury verdict of $17,980 against a Massachusetts sheriff for retaliation against correctional officers for engaging in pro-union activity. Davignon v. Hodgson, #06-1191, 2008 U.S. App. Lexis 8855 (1st Cir.).
     National Labor Relations board, in a 3-to-2 ruling, holds that employers can prohibit union solicitations on internal e-mail systems. The Guard Pub. Co. and Eugene Newspaper Guild, CWA L-37194, # 36-CA-8743-1, 351 NLRB No. 70, 2007 NLRB Lexis 499, 183 LRRM (BNA) 1113.
     Federal appeals court reinstates an action filed by Ohio firefighters who claimed they were passed over for promotion because of their union activities. Zerman v. City of Strongsville, #06-4461, 2008 U.S. Dist. App. Lexis 367 (Unpub. 6th Cir.).
     New Jersey appellate court upholds the assessment of a fine and costs against a union official that erected a ten-foot inflatable rat on the sidewalk in front of the premises that the union was seeking to organize. The National Labor Relations Act did not preempt a local sign ordinance, it did not violate the First Amendment, was not unconstitutionally vague, was a content-neutral restriction, and was not selectively enforced against labor unions. New Jersey v. DeAngelo, # A-4229-05T3, 2007 N.J. Super. Lexis 304 (App. Div.).
     Fifth Circuit finds that it was clearly established that a municipal fire chief violated the First Amendment by retaliating against a subordinate for engaging in union activities by submitting a grievance on behalf of the union calling for the chief's termination. Phillips v. City of Victoria, #06-40629, 2007 U.S. App. Lexis 18427 (5th Cir.).
     Reversing the District Judge, the Ninth Circuit reinstates a wrongful discharge action filed by a union in behalf of a TSA screener that claimed he was dismissed for engaging in union activities. "If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly. We conclude that the statutory scheme governing TSA security screeners does not express a clear intention on the part of Congress to preclude judicial review of screeners' constitutional claims." AFGE L-1 v. Stone, #05-15206, 2007 U.S. App. Lexis 21180 (9th Cir.).
     Sixth Circuit finds that a terminated police officer's union activity and speech addressing internal personnel issues were not matters of public concern protected by the First Amendment, where the issues were personal in nature. Van Compernolle v. City of Zeeland, #06-1904, 2007 U.S. App. Lexis 16735 (6h Cir.) affirming, 2006 U.S. Dist. Lexis 32963 (W.D. Mich. 2006).
     Appellate court rejects retaliation claims filed by police officers that alleged anti-union bias. The failure to promote action was seven months after participation in a union's petition drive. Harvey v. City of Rio Rancho, #06-2278, 2007 U.S. App. Lexis 18010 (10th Cir.)
     Michigan sheriff lawfully disciplined a detective who had faxed an internal pager policy to the union's attorney without complying with the department's prior-authorization rule, even though employee work rules are a mandatory subject of bargaining. Ingham Co. v. Capitol City FOP L-141, #263956, 2007 Mich. App. Lexis 890, 181 LRRM (BNA) 3052.
     Federal appeals court rules that a security guard firm could enforce an anti-fraternization rule regarding workplace romances, but it could not prevent employees from discussing working conditions with each other or with representatives of the client organization where they are assigned. A chain-of-command rule or a no-fraternization rule cannot interfere with, restrain, or coerce employees" in the exercise of their right to collective action. Guardsmark v. NLRB, #05-1216, 2007 U.S. App. Lexis 2263 (D.C. Cir.). [N/R]
     Pennsylvania law banning political endorsements by state workers did not apply to officers of a corrections union who were on official leave for association purposes, even if their state salaries continued while on leave. Pinto v. Civil Serv. Cmsn., #70 MAP 2005, 2006 Pa. Lexis 2519 (Penna. 2006). [N/R]
     Federal jury rejects claims by the former AFGE president who alleged that the union and its officers retaliated against him for making controversial statements. He was ordered to pay more than $25,000 in costs. Commer v. McEntee, #00Civ.7913, 44 (2186) G.E.R.R. (BNA) 1326; facts and prior ruling at 2006 U.S. Dist. Lexis 82395, 180 LRRM (BNA) 3105 (S.D.N.Y. 2006). {N/R}
     National Labor Relations Board affirms an ALJ's finding that the employer violated 8(a)(1) of the Act by initiating a drive to decertify a union and then coercing its employees to support the decertification drive. Corrections Corp. of Amer. and Int. Union, Security, Police, and Fire Prof. of Amer., #21-CA-36223, 2006 NLRB Lexis 297, 347 NLRB No. 62 (2006). {N/R}
     Dept. of Labor revises regulations applicable to Federal labor organizations subject to the Civil Service Reform Act of 1978, the Foreign Service Act, and the Congressional Accountability Act. Labor organizations will be required to periodically inform their members of their rights as union members, provide written notice to existing members and to new members within 90 days and at 3-year intervals. Notification may be made by hand delivery, regular mail, electronic mail, or a combination of methods. Standards of Conduct for Federal Sector Labor Organizations, 71 (106) Fed. Reg. 31929 (6/2/2006). {N/R}
     NLRB finds that an employer could erect no trespassing signs giving notice that all activities were being monitored by video camera. Signs acknowledging the existence of video surveillance did not restrain, coerce, or interfere with the employee's rights to organize. Consolidated Biscuit and AFL-CIO, #8-CA-33402, 346 NLRB No. 101 (NLRB 2006). {N/R}
     Illinois appeals court reinstates a suit by a police officer who claimed he was passed over for promotion in retaliation for his first amendment-protected activities as a union representative. Schlicher v. Board of Fire and Police Cmsnrs. of Westmont, #2-05-0774 2006 Ill. App. Lexis 144 (2d App. Dist. 2006).{N/R}
     Washington Supreme Court strikes down a requirement that a public employee's union must rebate to all nonunion members of a bargaining unit, the prorata share of amounts spent on nonbargaining political activity, unless the nonunion members have given their written permission. Washington State Public Disclosure Cmsn. v. Wash. Educ. Assn., #74268-5, 2006 Wash. Lexis 260 (2006). [2006 FP May]
     Federal appeals court rejects a firefighter's claim that his failure to receive a promotion was retaliation for his union activity. Edgar v. Collierville, #04-5986, 2005 U.S. App. Lexis 27776 (6th Cir. 2005). {N/R}
     Former President of the Broward County (Florida) Federation of Public and Private Employees sentenced to 82 months in federal prison for receiving $600,000 in payoffs and union funds. The union represented various school, correctional and port employees. U.S. v. Browne (S.D. Fla. 2005). {N/R}
     Federal court holds that a union was not the official bargaining agent for airport screeners, and therefore lacked standing to bring a back pay lawsuit in behalf of one of its members. AFGE v. Stone, #3:04-CV-1219, 342 F.Supp.2d 619, 2004 U.S. Dist. Lexis 22082 (N.D.Tex. 2004). {N/R}
     Distinguishing uniformed public safety employees, the Fifth Circuit holds that the wearing of a pro union lapel pin by a county hospital worker, in violation of the employer's dress code, was speech regarding a matter of public concern, and not speech publicizing a personal employment grievance. Communications Workers of America v. Ector County Hospital Dist., #03-50230, 2004 U.S. App. Lexis 24768 (5th Cir. 2004). [2005 FP Feb]
     A union composed of sheriff department employees is not a "public entity" within meaning of Colorado Governmental Immunity Act, and is not entitled to governmental immunity from lawsuits. Podboy v. FOP L-27, #02cv8267, 94 P.3d 1226, 2004 Colo. App. Lexis 969, 175 LRRM (BNA) 2085 (2004). {N/R}
     Arbitrator holds that management was obligated to pay a union steward for time spent at a grievance meeting that ran past his normal work period, where the contract provided that a steward shall be granted reasonable amount of time, without loss of pay, to investigate and present grievances. Ohio Turnpike Cmsn. and Teamsters L-436, 119 LA (BNA) 1028 (Feldman, 2004). [2004 FP Sep]
     Federal appeals court upholds an unfair labor practice charge against a city bus operator that, without resorting to the bargaining process, restricted the right of the union to post notices on the employer's bulletin boards. ATC v. NLRB, #03-3476, 2004 U.S. App. Lexis 10789 (7th Cir. 2004). {N/R}
     California Public Employment Relations Board judge rules that management violated state law by placing an administrator on leave and then demoting her, because she testified in support of two subordinate workers at a grievance hearing, resulting in a back pay award. Cal. State Employees Assn. v. Dept. of Consumer Affairs, #SA-CE-1385-S, 2004 PERC (LRP) Lexis 48, 28 PERC 98 (PERB 2004). [2004 FP Aug]
     New York court enjoins the transfer of a NYPD union representative pending determination of an unfair labor practice charge. His transfer to another borough undercut his status as Precinct representative and his candidacy as a borough official. P.B.A. (Anthony) v. City of New York, 196 Misc.2d 396, 765 N.Y.S.2d 152, 2003 N.Y. Misc. Lexis 774 (2003). [2004 FP Jul]
     Massachusetts holds that management must bargain with the union before ordering the removal of union buttons from their uniforms, where officers have worn those buttons for many years with adverse consequences. The bargaining requirement does not apply to non-union pins or accoutrements. Sheriff of Worcester Co. v. Labor Relations Cmsn., #01-P-1628, 60 Mass. App. Ct. 632, 805 N.E.2d 46, 2004 Mass. App. Lexis 284 (2004). [2004 FP Jul]
     Illinois Labor Board declines to interfere with disciplinary action against officers who did not report outside earnings on their tax returns. There was no proof of union bias, and "the fact that [the officers] were more active members of the [union] is a mere coincidence." Metrop. Alliance of Police #165 and Vil. of Bensenville, IL, #S-CA-00-197, 18 PERI (LRP) 2076, 2003 PERI (LRP) Lexis 1 (ILRB 2003). [2004 FP Jan]
     California appeals panel holds that a teacher's wearing of a union button in the classroom constitutes "political activity," which may be prohibited by management. Turlock Elem. Sch. Dist v. P.E.R.B., #F041187, 2003 Cal. App. Lexis 1513 (5th Dist. 2003). {N/R}
     Federal appeals court affirms the right of nonunion members to obtain financial information justifying a deduction for bargaining activities. Although an independent audit is not required, a union must provide a statement of its chargeable and nonchargeable expenses, together with an independent verification that the expenses were actually incurred. Harik v, Cal. Teachers Assn., #01-15590, 326 F.3d 1042; 2003 U.S. App. Lexis 7079 (9th Cir. 2003); cert. den. sub nom Sheffield v. Aceves, 2003 U.S. Lexis 7714 (2003). {N/R}
     Arbitrator holds that a public employees' union may post "generic" employment information on workplace bulletin boards, but not "internal" membership information. Naval Inventory Control Point and AFGE L-1156, 118 LA (BNA) 695 (Pritzker, 2002). [2003 FP Oct]
    Tenth Circuit allows payroll checkoff deductions of "permit fees" assessed against newly hired workers. Courts have consistently interpreted "membership dues" broadly to include initiation fees and other assessments of employees by their unions. NLRB v. Okla. Fixture Co., #01-9516, 2003 U.S. App. Lexis 12287, 172 LRRM (BNA) 2821 (10th Cir. 2003). {N/R}
     Sixth Circuit upholds right of uniformed employees to wear a union-distributed button opposing forced overtime. The nurses were engaged in protected activity that did not involve either a slowdown or work stoppage. Mt. Clemens Gen. Hosp. v. NLRB, #01-2263, 328 F.3d 837, 2003 U.S. App. Lexis 9349, 172 LRRM (BNA) 2513, 2003 FED App. 0143P (6th Cir. 2003). {N/R}
     Union was not liable for a breach of its duty of fair representation when it chose not to pursue the arbitration of a forced transfer of one of two employees who were bitter enemies in the workplace. Driver v. U.S. Postal Service and Amer. Postal Workers Union, #01-6079, 2003 FED App. 0140P, 2003 U.S. App. Lexis 9195 (6th Cir. 2003). [2003 FP Jul]
     Arbitrator finds that management improperly lowered two employee's performance ratings in retaliation for their union organizing activities. Naval Surface Weapons Center (Carderock Div.). and Int. Assn. of Mach. & Aerospace Workers L-282, 118 LA (BNA) 55 (Allen, 2002). {N/R}
     Federal appeals court allows a union to charge a "reentry fee" equal to unpaid dues, to former union members who resigned but continued to be members of the bargaining unit, as it promotes union membership, and permits members to resign without coercion. Lee v. NLRB, #01-1434, 2003 U.S. App. Lexis 6572 (6th Cir. 2003). {N/R}
     Federal court refuses to dismiss a damage suit against the village and fire chief that alleges the denial of a promotion and other retaliation because of the plaintiff's long-term efforts to unionize and collectively bargain. Cunningham v. Vil. of Mount Prospect, #02C4196, 2002 U.S. Dist. Lexis 22772 (N.D. Ill. 2002). [2003 FP May]
     Arbitrator reinstates a corporal who was fired because of very minor actions. The grievant also was president of the FOP and had cost the city substantial amounts for the arbitration actions he initiated. City of Coweta, Okla. and FOP L-192, FMCS Case#02/11822-8, 117 LA (BNA) 1547 (Crow, 2002). [2003 FP May]
     Arbitrator rules that the U.S. Border Patrol could not require a union local president to submit a written report concerning when he plans to be out of town on union business, including the purpose of meeting, with whom he is meeting, and what the meeting is about. The requirement was not authorized under the bargaining agreement and is overly intrusive. I.N.S., Border Patrol, El Paso and Natl. Border Patrol Council, AFGE L-1929, 117 LA (BNA) 1252, FMCS Case #00/13188-A (Massey, 2002). {N/R}
     A firefighter who was passed over for lieutenant after he headed a union committee to negotiate higher wages can proceed with his claim that the village retaliated against him for engaging in protected activity. Cunningham v. Village of Mount Prospect, #02CV4196, 2002 U.S. Dist. Lexis 22772 (N.D. Ill. 2002). {N/R}
     En banc appeals court holds that a nonunion employee is required to pay his share of the union's cost in recruiting members outside of the bargaining unit. Supreme Court denies review. United Food and Comm Wrkrs. L-1036 v. NLRB, 284 F.3d 1099 (9th Cir. en banc); cert. den. Mulder v. NLRB, #01-1867, 71 U.S.L.W. 3338, 2002 U.S. Lexis 8430 (2002). {N/R}
     Federal appeals court affirms a holding that township officials were not entitled to qualified immunity for laying off an employee who advocated union representation and had filed for a representation election. Supreme Court denies review. Wershing v. Hinckley Township, #01-3365, 36 Fed. Appx. 179; 2002 U.S. App. Lexis 9617 (Unpub., 6th Cir. 2002); cert. den., #02-282, 2002 U.S. Lexis 5377 (2002). {N/R}
     A contract in which a municipal employees union agreed to indemnify the city for any legal challenge to fair-share fees deducted from the pay of nonunion employees was void. The broad scope of the indemnity also protected the city's liability for its mistakes. Wessel v. City of Albuquerque, #01-2155, 299 F.3d 1186, 2002 U.S. App. Lexis 16369, 170 LRRM (BNA) 2718 (10th Cir. 2002). {N/R}
     Fifth Circuit affirms a back pay judgment for an officer who was fired because of his union involvement, but holds that $224,000 in damages for emotional distress was too high. Hitt v. Connell, #01-50117, 301 F.3d 240, 2002 U.S. App. Lexis 15334, 170 LRRM (BNA) 2789 (5th Cir. 2002). [2002 FP Nov]
     A divided NLRB holds that an inquiry to a worker regarding the "union sympathies of employees" is not per se coercive and is not "unlawful interrogation" in violation of §8(a)(1) of the National Labor Relations Act. John W. Hancock, Jr., Inc. and United Steelworkers of Amer., #11-CA-18716, 2002 NLRB Lexis 381, 337 NLRB No. 183 (2002). {N/R}
     Sixth Circuit holds than an employer did not unlawfully discriminate against a union, under the National Labor Relations Act, by permitting the Girl Scouts and Salvation Army to solicit on its property, while denying union representatives the same privilege. Albertson's Inc. v. NLRB, #00-2359, 301 F.3d 441, 2002 U.S. App. Lexis 16668, 2002 FED App. 0281P, 170 LRRM (BNA) 2769 (6th Cir. 2002). {N/R}
     Appeals court holds that employees cannot be directly solicited to appear in an anti-union video. Allegheny Ludlum v. NLRB, #01-2338, 301 F.3d 167, 2002 U.S. App. Lexis 17664, 170 LRRM (BNA) 2923 (3rd Cir. 2002). {N/R}
     A provision in a CBA that the union would indemnify the county, as employer, for any litigation challenging the withholding of representation fees from paychecks, could not be challenged by nonunion members of the bargaining unit. They were unable to show the agreement harmed them. Prescott v. County of El Dorado, #01-15913, 298 F.3d 844, 170 LRRM (BNA) 2667, 2002 U.S. App. Lexis 15408 (9th Cir. 2002). {N/R}
     Federal appeals court holds that a union that is the exclusive bargaining representative can charge all members of the bargaining unit, members and non-members alike, its costs in organizing other similar employers within the same labor market as the bargaining unit. It affirms a NLRB ruling that everyone's wages are raised through increased union penetration. United Food Workers v. N.L.R.B., #99-71317, 2002 U.S. App. Lexis 4754, 169 LRRM (BNA) 2786 (9th Cir. 2002). [N/R]
     Federal court upholds an officer's lawsuit against the chief and mayor who imposed a two-day suspension for disturbing the mayor's inauguration by blowing a truck airhorn. The protest was protected speech under the First Amendment. Meaney v. Dever, #99-11538, 2001 U.S. Dist. Lexis 16148, 168 LRRM (BNA) 2518 (D. Mass. 2001. [2002 FP Jan]
     Use of racial slurs by employees waiting in voting line at a unionization election does not invalidate the election, absent some evidence of intent to use race to affect the outcome. NLRB v. Foundry, #00-5062, 2001 U.S. App. Lexis 17707, 2001 FED App. 0263P (6th Cir. 2001). {N/R}
     Federal appeals court overturns a recent national labor board ruling which had allowed the union to photograph an intimidating certification election. Randell Warehouse v. NLRB (SMWI L-359, AFL-CIO), #00-1155, 252 F.3d 445, 2001 U.S. App. Lexis 12400, 167 LRRM (BNA) 2340 (D.C. Cir.). [2001 FP 126]
     N.Y. court upholds the termination of a security officer who twice left a high security post without permission to meet with a union officials about a work-related event. The reason did not justify her unexcused absence. Leon v. Brooklyn Dev. Disab. Serv., Kings Co. N.Y. Sup. Ct., QDS: 42269726, unrptd. (2001).
     A public employer that deducts union fees from a nonunion employee's paycheck is not liable if the union fails to provide the employee with the required financial disclosure. Foster v. Mahdesian, #00-15028, 2001 U.S. App. Lexis 22288 (9th Cir. 2001). {N/R}
     Title III of the Labor Management and Reporting Disclosure Act of 1959 does not allow individual union members to sue for damages arising from the loss of an appointed union position. Ross v. Hotel Empl. Int. Union, #00-3142, 2001 U.S. App. Lexis 20652 (3d Cir. 2001). {N/R}
     NLRB orders an employer not to interfere with discussions among employees concerning their grievances and complaints. Gag rule violates 29 U.S. Code 158(a)(1). Lockheed Martin and Fiala, #27-CA-14557 et al., 2000 NLRB Lexis 6, 330 NLRB No. 66. [2000 FP 61-2]
     Firefighters, who founded the union and were not rehired after a reorganization, win $2.2 million in their wrongful employment and retaliation lawsuit. Gilbert v. N. Charleston, 37 (1839) G.E.R.R. (BNA) 1535 (D.S.C. 1999). [2000 FP 29-30]
     Appellate court upholds ouster of a former chief from the state's police chiefs assn. His post retirement conduct was hostile to the interests of active chiefs. Stowell v. N.J. St. Assn. of Chiefs of Police, 739 A.2d 1011, 1999 N.J. Super. Lexis 370 (App. Div.). [2000 FP 30]
     New Jersey court invalidates law allowing members of fire and police unions to attend union conventions with pay as "special legislation." N.J. Firemens MBA v. N. Hudson Reg. Fire Sq., Hudson Co. #L-6510-99, N.J. Law J. 2/24/2000. {N/R}
     National Labor Relations Board overturns a judge and rules that a terminated employee's act of parading a live goose through the workplace wearing a "vote yes" sign (promoting unionization) was not organizational activity protected by Sec. 7 of the NLRA. In re NACCO, #9-CA-35318-2, 331 NLRB No. 164 (NLRB 2000). {N/R}
     Reinstatement and back pay ordered for a security officer who was terminated for minor transgressions. Reasons were a pretext to oust the officer because of his opposition to the existing union. J. K. Guardian Services and Kissel, #13-CA- 33699, 326 NLRB No. 116, 1999 NLRB Lexis 80. [1999 FP 78-9]
     Federal Labor Relations Authority upholds a warden who put the president of the corrections union on "home-duty" status and temporarily prohibited him from visiting the prison for union purposes. The union official allegedly made statements that could "incite inmates and staff members to fight one another." An "employer retains the right to respond to an alleged offense by an employee which may adversely affect the employer's confidence in the employee or the security or orderly operation of the institution." An "employer may elect to reassign the employee to another job within the institution or remove the employee from the institution pending investigation and resolution of the matter, in accordance with applicable laws, rules and regulations." U.S. Penitentiary, Leavenworth, Kan. and AFGE L-919, #DE-CA-60349, 55 FLRA No. 127 p.704, 1999 FLRA Lexis 198 (1999). {N/R}
     NLRB rules that if an employer allows a charity to solicit funds while on or adjacent to its property, it must allow a labor union the same privileges. Decision not binding on, but may have persuasive affect on state PERBs. Four B Corp. and UFCWU l-576 (AFL-CIO), 1997 NLRB Lexis 946, 157 LRRM (BNA) 1068, 1997 NLRB Dec. (CCH) 16384, 325 NLRB No. 20 (affirming 1996 NLRB Lexis 190). [1998 FP 61]
     A police chief did not violate the First Amendment in suspending a police officer who disobeyed his order to answer questions pertaining to a "confidential memorandum" regarding the strategy to obtain the union's agreement to a proposed consolidation of police with a neighboring town. Heil v. Santoro, 147 F.3d 103, 1998 U.S. App. Lexis 11627, 14 IER Cases (BNA) 30 (2nd Cir. 1998). {N/R}
     Although the bargaining agreement allowed the union to have access to a prison-owned copier, if union officials provide their own paper, it was not a “clear and patent breach of the agreement” when management denied the union unrestricted access to the machine to copy dental insurance information. U.S. Penitentiary, Florence, CO and AFGE L-1301, #DE-CA-60383, 54 FLRA No. 6 (FLRA 1998). {N/R}
     Michigan appellate court finds that management committed an unfair labor practice by disciplining a union vice-president who spoke to reporters about unsafe conditions at the county jail. Even if the criticism violated an otherwise legitimate rule, management had to justify any restriction on the exercise of union rights, where the officer's comments were clearly directed to the jail staffing issue and not at the specifics of an investigation related to escaped prisoners. Police Officers Assn. of Mich. v Ottawa County Sheriff, #194712, 1997 Mich. App. Lexis 2238 (Unpub. 1997). {N/R}
     Federal judge orders a union to rebate the dues paid by a Catholic corrections officer who objects to the unions' position on abortion and the death penalty. EEOC v. AFSCME C-82, 71 FEP Cases (BNA) 1151 (N.D.N.Y. 1996). [1996 FP 174-5]
     Incumbent fire union which did not submit recognition petition could not be listed on the representation election ballot. There was no provision to exempt existing unions. Chino Valley Fire Dist. and Firemens Assn. L-3522, 106 LA (BNA) 721 (Gentile, 1996). {N/R}
     Federal jury awarded $685,00 to a police officer who alleged his First Amendment rights were violated when his promotion to sergeant was denied because of his duties as president of the police union. See 34 (1673) G.E.R.R. (BNA) 971 (7/2/96). Four days later, the court granted a defense motion, as a matter of law, because the plaintiff failed to prove that his speech and actions related to matters of "public concern". Gros v. Port Washington Police Dist., 1996 U.S. Dist. Lexis 9505, 932 F.Supp. 63, 11 IER Cases (BNA) 1510 (E.D.N.Y.). {N/R}
     Firefighters lose a damage suit brought against their union, alleging harassment. Burrell v. Int. Assn. of Firefighters (New Rochelle), 628 N.Y.S.2d 355 (A.D. 1995). [1996 FP 62-3]
     Employer can prohibit union notices on the employee notice board. Guardian Industries v. NLRB, 49 F.3d 317 (7th Cir. 1995). [1996 FP 28-9]
     Employer rule banning union messages in e-mails is overturned because employer allowed other non business e-mails to be sent to/from workers. E.I. du Pont, 311 NLRB 893 (1993). {N/R}
     Federal appeals panel upholds termination of a union president for misuse of union funds. Beck v. Dept. of Justice, 67 M.S.P.R. 219, 1995 MSPB Lexis 648. [1995 FP 165]
     Federal appeals court reinstates a federal civil rights suit brought by a town constable who claimed she was fired for organizing a labor union. Wilbur v. Harris, 53 F.3d 542 (2d Cir. 1995). [1995 FP 157]
     Federal jury awards commander $3.8 million because the former police chief and other superiors retaliated against him for his union membership. Case settled for $3.3 million. Meeks v. City of Long Beach, #CV 92-1849-WJR (C.D.Cal. 1995). [1995 FP 142; 175]
     Arbitrator sets aside the termination of a union representative who was overly aggressive in his representation of an employee. No guidelines existed which established appropriate behavior of employee reps. "The grievant was merely an agent of the local union... [and] it is the [union] that should be charged in this matter, if anyone." Federal Bur. of Prisons and AFGE Local 171, FMCS #93-15515, 101 LA (BNA) 975 (Goodstein, 1993). [1994 FP 142]
     Arbitrator upholds a disciplinary suspension of a union representative for directing profane language at a management negotiator after leaving the bargaining session. However, blue language uttered during the bargaining process was protected speech. AFGE L-3254 and Grissom A.F.B., FMCS #93-19558, 32 (1556) G.E.R.R. (BNA) 355 (Speroff, 1994). [1994 FP 91]
     "Right to Work Law" protected Virginia fire captain who was fired for belonging to an IAFF Local. Norfolk Airport Auth. v. Nordwall, 436 S.E.2d 436 (Va. 1993). [1994 FP 61-2]
     Federal appeals court holds that union steward can be fired for disrupting roll call sessions. Wiggins v. National Gallery of Art, #92-3106, 30 (1494) G.E.R.R. (BNA) 1642 (D.C. Cir. 1992). [1993 FP 29-30]
     Federal court refuses to dismiss suit against city and chief brought by police union president, alleging harassment and retaliatory discipline. Broderick v. Roache, 803 F.Supp. 480 (D.Mass. 1992). [1993 FP 110]
     Federal court holds that state laws that prohibit police associations from selling magazine advertisements or soliciting funds from the public are unconstitutional, where the legislature allowed a one-time exception. Ashburn Police Union v. Tierney, 756 F.Supp. 610 (D.Me. 1991). [1992 FP 45-6]
     Massachusetts Democrats and police union settle suit that claimed disruptive picketing. Decree specifies number of informational pickets allowed, distances and notice requirements. Democratic State Committee v. Springfield Police Local 364, Hampden Co. Super. Ct. (9/5/91).
     Supreme Court places new limits on dues expenditures by public employee unions. Lehnert v. Ferris Faculty Assn., 111 S.Ct. 1950 (5/30/91).
     California Public Employment Relations Board holds that a union has no right to be physically present at grievance meetings where employees do not seek representation by the union. Chula Vista Educ. Assn. v. C.V. School Dist., Docket #LA-CE-2038, Order #834, 1990 PERC (LRP) Lexis 304 (Cal. PERB 1990). {N/R}
     Courts periodically uphold the right of a union to fine or discipline a member for disruption or conduct inconsistent with union goals. CBA Record 35 (May, 1989).
     Mayor could lawfully prohibit police union from soliciting funds from public. Petri v. Milhim 523 N.Y.S.2d 602 (A.D. 1988); see also McGuire v. Krane, 48 N.Y.2d 661, 396 N.E.2d 742.
     Police chief did not violate Ohio labor law by attempting to question a union official regarding his representation of a police officer in drug testing matter. The questioning of the union official was behind closed doors and ceased as soon as official asserted that his representation was related to union matters. No union representative was ever ordered to answer questions or that any action was taken against him for refusing to do so. Ohio SERB v. Rudolph, #87-ULP-05-0209, 5 Ohio Pub. Emp. Rptr. (LRP) ¶ 5706, 1988 OPER (LRP) Lexis 2822 (Ohio SERB Hrg.Ofcr. 1988). {N/R}
     Police officer's issuance of a citation to union official for "interfering", violated labor relations laws. Long Beach Naval Shipyard and Federal Employees, etc. Council, Case #8-CA-60037, 25 FLRA No. 84 (2/27/87).
     Advocacy of contract changes not protected speech; captain could be transferred without legal recourse. Shafer v. City of Ft. Wayne, 626 F.Supp. 1115 (N.D. Ind. 1986).
     Union President who called the chief a "chicken shit" and liar could be rejected for promotion. Germann v. City of Kansas City, 776 F.2d 761 (8th Cir. 1985).
     Florida appellate court upholds charges against fire union for harassment of non-union firefighter. DeCosta v. P.E.R.C. and Miami Assn. of Fire Fighters Local 587 IAFF, 443 So.2d 1036 (Fla. App.) reh. den. (1984).
     Suit against police chief for surveillance of union meeting is not an "invasion of privacy." International Union v. Garner, 601 F.Supp. 187 (M.D. Tenn. 1985) affirming 579 F.Supp. 180 (W.D. Mo. 1984).
     City could not pass over deputy chief (for promotion to acting chief) because of his union activities. town of Burlington v. Labor Relations Cmsn., 459 N.E.2d 125 (Mass. App. 1984).
     Firefighter could unilaterally revoke his dues checkoff authorization. City of Firefighters" Assn. v. City of Philadelphia, 81-83 PBC (CCH) ¶ 37,762 (Super. 1983).
     Federal Appeals Court reinstates $25,000 jury verdict for demotion of fire union president. Williams v. City of Voldosta, 689 F.2d 964 (11th Cir. 1982).
     Seventh Day Adventists do not have to join a closed shop union; Title VII supercedes bargaining laws. Tooley v. Martin-Marietta Corp., 476 F.Supp. 1027 (D. Ore. 1979).
     Federal court rules that termination of union president on disciplinary charges was pretextual and violated First Amendment. Gerrin v. Hickey, 464 F.Supp. 276 (E.D. Ark. 1979).
     Supreme court lets stand a $175,000 award to worker against union for "emotional distress" in refusing to arbitrate his termination. Sherrod v. Chauffeurs, Teamsters and Helpers etc. (Cal.App. 1979); cert. den. 100 S.Ct. 1024 (1980).
     One union can expel members who belong to competing union; court cites need for harmony and strategy. Calabrese v. Policemen's Benevolent Assn. Local 76, 157 N.J. Super. 139, 384 A.2d 579 (1978).
     Employees dismissed for union activities reinstated; disciplinary charges were pretextual. General Drivers and Helpers Union v. Brown County, 269 N.W.2d 795 (S.D. 1978).
     Alabama rules union could not sue in behalf of employees. Frazer v. Alabama State Policemen's Assn., 346 So.2d 959 (Ala. 1977).
     Supreme Court declines to review dismissal of union president for insubordinate behavior. Intern. Assn. of Firefighters L-782 v. Olson, #75-1159 (unpublished decision (10th Cir.) cert. den., 97 S.Ct. 1681 (1977).
     NLRB affirms an employee's right under NLR Act Sec. 8(a)(3) to distribute union literature on premises, and overturns a dismissal. Beth Israel Hosp. and Mass. Hosp. Wkrs. L-880 SEIU, 228 N.L.R.B. 1495, 1977 NLRB Lexis 384; 95 LRRM (BNA) 1087, 228 NLRB No. 195, 46 L.W. 4783.
     Subject matter of union newsletters discussed: Eastex Inc. v. NLRB, 46 L.W. 4783 (1978).
     Legality of union shop requirement discussed: Image Carrier Corp. v. Beame, 45 L.W. 2499 (S.D.N.Y. 1977).
     California appeals court rejects union security agreement, outlaws agency shops. City of Hayward v. United Public Employees L-390, AFL-CIO, 126 Cal.Rptr. 710 (App. 1976).
     Privileged communications: See “Disciplinary Interviews & Compelled Reports - Privileged Communications,” concerning the “Union Official-Union Member Privilege.”
     · See also: Collective Bargaining; Emotional Distress; First Amendment Related; Uniforms.


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