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Friday, January 23, 2015

Re-posted From 2013: Chapter Leaders and Freedom of Speech

Chapter Leaders and Freedom of Speech in NYC Public Schools
Link to US Supreme Court Decisions Involving the First Amendment

Policy and practice are out of sync and the United Federation of Teachers (UFT) is missing in action.That's why chapter leaders are being brought to mandatory arbitration under "Just Cause" for termination, and why this is all wrong. Many government officials look at speaking out as a matter of national security and against public policy.

In NYC, UFT Chapter Leaders are being charged and brought to 3020-a quickly, just like the teachers they are supposed to represent. As a result of this process very few people want to be Chapter Leaders. Mayor Mike Bloomberg built his 3-term mayoralty on getting the tenure laws changed or made so meaningless that no tenured teacher remains in the public school system, over which Bloomberg has total control.

So far, Mike Bloomberg has failed to be successful as the "education mayor". He is bothered, sources say, because he failed to make the changes to the teaching force that he wanted and tenure rights still exist.

Dennis Walcott
For the past several years, he has encouraged, through his puppet NYC DOE Chief Officer Dennis Walcott, the removal of Chapter Leaders (CL) from NYC public schools. Chapter Leaders get in the way. They want to stop the removal of a teacher for no reason; they will grieve something the principal does to a staff member, and sometimes they will win the grievance, which is not good. Any act or speech which makes the Department of Education or a member of the administration "look bad" is punished with charges and threatened with termination, because the machine works only when all systems face the same direction. The UFT is missing in action as the CL's rights are steadily and constantly ignored and denied.

1. The contentious situation between principals and Chapter Leaders

There is a current disconnect between policy and practice in NYC concerning the rights of chapter Leaders. According to the Chapter Leader Handbook, CLs are the collective voice of the union staff in the school. As the voice of the many, and elected to office, CLs who take their responsibilities seriously will speak on the members' behalf when necessary, and tell the principal what the staff is concerned about. bad move, although this is a duty of the CL.

Here is an excerpt from the UFT Chapter Leader Handbook:

Ways to keep your chapter informed –
1) Hold regular chapter meetings in your school or site. To bolster attendance,publicize the meeting date, time and location in advance and prepare an agenda that covers timely topics. Invite members to ask questions and raise issues, and then brainstorm how the chapter can tackle those issues. Report on your monthly consultation meeting with the principal and solicit suggestions about what needs to be on the agenda of the next one. Report on other UFT activities to your chapter and promote the union by explaining the actions and positions it takes and talking up union victories.
2) Publish a chapter newsletter. As chapter leader, you should publish a newsletter, whether printed or electronic, as frequently as your time allows and the situation requires. The weekly Chapter Leader Update is an excellent source of content for your newsletter (just cut and paste relevant parts), but always add your own school’s activities in the mix.
3) Use your school’s UFT bulletin board. Every school must have a bulletin board reserved in an accessible place for the UFT (see Article 19F of the UFT/DOE contract). Keep your bulletin board useful by posting up-to-date information about the union’s activities, including budget and other legislative fights, as well as important grievance and arbitration decisions and collective-bargaining updates. Post all UFT materials on the bulletin board as soon as you receive them. Invite members to get involved in union initiatives.
4) Face-to-face communication. Personally approach members who are directly affected by the issues. Make a point of introducing yourself to new members in your school and offer them your support.
Hold Monthly Consultation Meetings with the Principal – Improvements in your school are up to you, and your members. The principal must meet monthly with a UFT consultation committee to discuss matters of school policy and implementation of the contract. (Agree. Art. 19H) The UFT chapter should decide how it wishes the school procedures and routines to be changed and give guidance to the committee that meets with the principal. Minutes of these meetings should be made available to the chapter members preferably through the chapter newsletter or at chapter meetings.

Legislation and political action:
Political action, including legislative efforts, are vitally important to the welfare of our schools, our members and our union. Because education is a public function, publicly funded and regulated by the city and state and to a lesser extent the federal government, it’s crucial for union members to be politically involved. Rights that we have won at the bargaining table can be weakened or nullified by legislation. Legislative campaigns are a staple of our political work, and chapter leaders are important to their success. Every chapter should have a committee that is active in the union’s political work.

Organizing a legislative campaign
Elect or appoint a COPE/legislative representative for the chapter, along with a committee of
assistants so that there is one person to cover each floor, department or lunch period. That way your team can reach everybody to distribute information and materials, to collect back completed letters if you are doing a letter-writing campaign, and also to solicit COPE checkoff cards. Make sure to pass on information from the union dealing with legislation to the legislative representative and his/her committee.

Letter-writing campaigns
Be sure to follow UFT instructions in addressing letters to the chairperson of the committee considering a particular bill in each house, to legislators from each member’s home district, and to key people as directed by the UFT. Always identify bills by their bill numbers. Keep letters short, to the point and personal. Provide sample letters. AVOID FORM LETTERS.
Create a routine for writing letters. Devote one lunch period to it, or set up a legislative corner with stationery and directions in the faculty lounges and workrooms. Have all the completed letters mailed by the school legislative committee. Keep track of members who have participated in your letter-writing effort.

Mike Mulgrew

A critical responsibility for you and your political action team is the collection of COPE payroll deduction cards from each member. COPE is an acronym for Committee on Political Education. COPE is the union’s political action arm. UFT members make voluntary contributions to COPE so that the union can make political contributions to candidates who share our concerns about education, human rights and labor issues. Members need to fill out only one card one time in their career. If they are returning from a leave, they should check their payroll stub to see if deductions are being made. In addition to collecting COPE cards, it is important to encourage members to volunteer for the UFT’s telephone banks and other political activities.

UFT endorsements
For local (New York City) races—Mayor, City Council, Borough President, District Attorney—
recommendations are made to the UFT Executive Board and Delegate Assembly. For statewide and national races, recommendations are made to the NYSUT Board of Directors. Generally, new people running for office are screened at the borough, district or city level. Incumbents’ voting records are very carefully scrutinized, as well as their activities in their home districts.

Creating parent support:
Meet and confer with the Parent Association – Parents of your school can be strong allies. Reach out to the leaders of the PA/PTA and develop ongoing communications. Alert them to your chapter’s priorities and program when appropriate and advisable and find out what issues are of concern to parents. The chapter leader should confer with PA/PTA leaders on issues such as school-based management, safety and improvement of school-wide programs. Parents also might be interested in learning more about UFT-sponsored programs and materials that offer direct help to families, such as Dial-A-Teacher, the union’s annual parent conference and the UFT Scholarship Program. Make sure Dial-A-Teacher information is distributed as soon as it arrives. It really helps students complete their homework. Parent outreach is of the greatest importance to the UFT, because from partnership comes
progress for all our kids. The UFT has a great parent liaison in every borough (contact them through the borough offices, listed at the front of this manual), along with conferences, workshops and committees to help engage parents in all critical areas of their children’s education. School + parents + students = success.

Contract enforcement/conflict resolution:
Your job is multifold – In addition to your work in building the chapter and organizing your school, you have an important role in resolving grievances and enforcing various contracts. It is important that you deal with situations in the school in a way that demonstrates that the UFT is concerned about members’ professional welfare, and that it stands ready and able to help them. One of the purposes of the grievance procedure is to secure the satisfactory resolution of disputes. That is why the UFT places so much emphasis on the “conference” rather than the “hearing” as a step in the procedure. This is by no means merely a semantic difference. It is a frank recognition that there must be free communication and mutuality of striving in order to reach such resolutions.
A word of caution – Don’t let personal likes and dislikes influence your decisions. Always keep in mind the need for unity in the chapter. If a problem seems likely to arouse dissension within the chapter, try to handle it so as to secure a consensus rather than a simple majority. Seek assistance from your district representative if you need it.

Chapter elections and referenda:
There are a variety of elections that may be conducted in your school under your direction. The procedures for properly running those elections are contained in the booklet How To Run A Chapter

The underlying assumption is that the CL is protected by the First Amendment and the Collective Bargaining Agreement, and his or her speech is protected when he/she meets with a principal about staff concerns. This is no longer true, at least in the minds of principals.

For many years principals have not given any special consideration to anyone in the CL elected position. In fact, as their "job" is not just to teach, but to file grievances against the principal, grieve and report all violations of the contract and law, and in general watch out for every staff member's health, safety, and welfare. A principal who sees these responsibilities as an obstruction of, and hindrance to, the leadership required, may, and will, go after charging the CL and removing him or her from the school.

The process available to principals to charge and remove employees who "get in the way" gives no special consideration to CLs who, a principal may say, is either incompetent as a teacher or commits corporal punishment. Nor should they. However, when a CL speaks out as a CL on behalf of the constituents who elected him/her, policy considerations and the Collective Bargaining Agreement give the CL a "right" to say what the many cant.

Yet in practice, large numbers of Chapter Leaders are brought to 3020-a for simply asserting the concerns of the staff. It is essential to keep in mind that labor arbitration systems are the result of negotiated arrangements between often powerful institutional parties who are concerned with collective, as opposed to, individual rights. (Alexander v Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, 7 F.E.P. cases 81 (1974)). When a CL is brought to arbitration and the issue under review becomes one of whether or not the CL has the right to speak out about collective concerns, then an arbitrator should give special attention to the "right" of the CL to say what these concerns are, pursuant to the CBA, and this speech is protected. As the context of the speech under review here incorporates public employees, the standard of review is raised to a level where additional questions such as "bad faith" and "just cause" must necessarily be attached to outcomes of the protected speech.

Thus, if a CL speaks out as a messenger of information and concerns from the staff to the principal, and is subsequently punished, policy and practice are not in sync.

In labor arbitrations arbitrators are selected pursuant to, and derive their authority from, the collectively bargained agreement. They are constrained to avoid dispensing their own brands of industrial justice. (United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L.Ed.2d 1424, 46 L.R.R.M. 2423 (1960)).

Martin Scheinman and Dan McRay, in their very interesting article "Labor Arbitration and the First Amendment" (ADR News November 2011/January 2012, p9, 32-39) write that:
"Arbitral standards of just cause place primary emphasis on whether the employer has been harmed as the justification for discipline - rather the offensiveness of the speech or conduct" and, "'Just cause' is the typical standard an employer must meet in order to discipline an employee protected by a collective bargaining agreement. Lurking in the background when the employer is a government entity is the First Amendment and whether it requires some different test or heightened restriction on discipline of speech than just cause requires."

Scheinman and McRay ask,
(a) can a just cause analysis allow a public employee to be disciplined for engaging in conduct protected by the Constitution?

(b) If not, should the application of the just cause standard include an explicit analysis of First Amendment cases?

They argue that First Amendment jurisprudence does not just focus on employer harm...(but also) whether the speech is on a matter of "public concern" (i.e., "newsworthy"). They review the termination of a teacher who worked for the NYC Board of Education and was also a leader of the North American Man/Boy Love Association (NAMBLA). This organization encouraged sexual activity between adult men and underage boys. The arbitrator in that case ruled that the employer could, indeed, terminate the teacher because of his political expression and association as well as because his presence in the school would cause too great a disruption of the normal day. (p. 33).

Scheinman and McRay continue,
"Government employers have less authority than private employers to restrict free speech of their employees because the First Amendment only applies to government action. However, the government has greater authority to restrict the speech of its employees than it does members of the general public because of its obligation to ensure the efficiency of its operations....public employees do not give up all their First Amendment rights when they accept employment with the government. The Supreme Court has consistently ruled a government has no right to discipline an employee for outside political speech or associations absent a showing of harm to the operations of the employer." (pp. 34-35)

Under the Pickering test (Pickering v. Board of Education of Township High School, 391 U.S. 563 (1968)) the court first determines whether the employee is speaking on a matter of public concern as opposed to a private matter. Because speech involving matters of public concern is closer to the "core" of the First Amendment, a government employer has less authority to impose discipline than for speech involving private concerns. The Supreme Court has defined a matter of public concern to be a "subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." (p. 35). City of San Diego v. John Roe, 543 U.S. 77, 83-84 (2004).

"If the matter is of public concern, under the Pickering test the burden shifts to the employer to show the reason for the discipline was not to penalize the employee for the speech, but rather because there is a substantial showing that the speech is, in fact, likely to be disruptive to government operations." (Waters v Churchill, 511 U.S. 661, 674 (1994).

Scheinman and McRay believe that "Proof of demonstrated harm to the employer is a more reliable standard.....even if the employer is harmed, the employee might still win if he or she has a sufficient "interest" in the speech....The greater the interest of the employee, the more harm the employer must show to justify discipline. The lesser the interest of the employee, the less harm the employer must show." (p. 38)

2. Implied covenant of good faith

The Chapter Leader may rely on the contract and the CL duties and responsibilities as a part of a common law employment “contractual” doctrine. This 'doctrine', agreed to in the UFT-DOE Bargaining Agreement, guarantees a safe environment in which to work and offers an implied in law covenant of good faith and fair dealing. Rosen v Gulf Shores,Inc. 610 So. 2d 366, 369-70 (Miss. 1992). Express or implied in fact promises usually obligate the employer to continue employment as agreed to in the bargaining agreement until the occurrence of a condition subsequent, which is any fact the existence or occurrence of which by agreement of the parties operates to discharge a duty of performance after it has become absolute. In the instant case CL and employer agreed to continue working together with both sides protecting and preserving rights of the other in terms of safe and secure environment, etc. Restatement of Contracts § 250(b) (1932); Murray §101, at 553-56. American Bank Stationery v Farmer, 106 Nev. 698, 799 P.2d 1100, 1102 (1990).

In Rethinking Wrongful Discharge: A Continuum Approach by Robert C. Bird, (University of Cincinnati Law Review, Winter, 2004, 73 U. Cin. L. Rev. 517) Bird writes:
“Employers acting with just cause treat their employees with punctilious concern for fairness and equity. Only the most qualified employees are promoted. Office politics and arbitrary decision making do not infect the employment relationship…….. Whenever the employer acts, it subjectively believes that it has the company's altruistic motives in mind and objectively possesses substantial evidence or good reason to support its decision. Anything less than substantial evidence cannot justify the employer's conclusion that the employee is "guilty" of misconduct. Finally, the employer's disciplinary action is evenhanded, proportionate to the proven offense, and considers the employee's length of service with the company. If the employer fails to achieve any or all of these high standards, it risks punishment in a court of law. This is the idealized domain of "just cause" employment.”

Estelle D. Franklin asks questions in her Maneuvering Through the Labyrinth: The Employers' Paradox in Responding to Hostile Environment Sexual Harassment-A Proposed Way Out, 67 Fordham L. Rev. 1517, 1562 (1999) (citing Enterprise Wire Co., 46 Lab. Arb. Rep. (BNA) 359 (1966) (Daugherty, Arb.)):
“The arbitrator, as stated by Franklin, articulated the following factors: (1) Did the company give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct? . . . . (2) Was the company's rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company's business and (b) the performance that the company might properly expect of the employee? . . . . (3) Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? . . . . (4) Was the company's investigation conducted fairly and objectively? . . . . (5) At the investigation, did the [factfinder] obtain substantial evidence or proof that the employee was guilty as charged? . . . . (6) Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees? . . . . (7) Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employee's proven offense and (b) the record of the employee in his service with the company? Id. (citing Enterprise Wire, 46 Lab. Arb. Rep. (BNA) at 363-64)). The standard was applied strictly, the failure to satisfy even one of the seven factors would preclude a finding of just cause. Id. (citing Enterprise Wire, 46 Lab. Arb. Rep. (BNA) at 362); see also Grief Bros. Cooperage Corp., 42 Lab. Arb. Rep. (BNA) 555 (1964) (Daugherty, Arb.)."

3. Cases
The Department wants arbitrators at 3020-a hearings to believe that a finding of “Just Cause” is subjective and discretionary. In New York State and New York City it is not, at least in disciplinary hearings where public school tenured teachers are involved.

Richard Santer, appellant, v Board of Education of East Meadow Union Free School District

Like other public employees, teachers "do not leave their First Amendment rights at the schoolhouse door, even though it is plain that those rights are somewhat diminished in public employment" (Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d 185, 192, cert denied 540 U.S. 1183, 124 S. Ct. 1424, 158 L. Ed. 2d 87). HN5 In determining whether a disciplinary measure taken against a public employee violates the employee's First Amendment rights, a court must first determine whether the speech that led to the discipline related to a matter of public concern. If so, the court must balance free-speech principles against the threat to effective government operation presented by that speech (see Pickering v Board of Educ. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193; Rankin v McPherson, 483 U.S. 378, 384-388, 107 S. Ct. 2891, 97 L. Ed. 2d 315). The government bears the burden of showing that the disciplinary measure is justified (see United States v Treasury Employees, 513 U.S. 454, 466, 115 S. Ct. 1003, 130 L. Ed. 2d 964; Rankin v McPherson, 483 U.S. at 388; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193).

Santer's "speech" regarding collective bargaining issues indisputably addressed matters of public concern (see Clue v Johnson, 179 F3d 57, 61; Boals v Gray, 775 F2d 686, 693). Moreover, despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030, 933 N.Y.S.2d 106), we find that the District failed to meet its burden of demonstrating that Santer's exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline (see Rothschild v Board of Educ. of City of Buffalo, 778 F Supp 642, 656).
The Supreme Court of the United States has stated that HN6 "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools" (Shelton v Tucker, 364 U.S. 479, 487, 81 S. Ct. 247, 5 L. Ed. 2d 231). The disciplinary measures imposed on Santer would likely have the effect of chilling speech on an important matter of public concern—the negotiation of a collective bargaining agreement.

In the Matter of the Application of Lisa Capece f/k/a LISA GRANDE, Petitioner, against Margaret Schultz, Individually and in her capacity as Community Superintendent of Community School District 31, COMMUNITY SCHOOL DISTRICT 31, by its Trustees and/or Directors; and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.

In her verified petition, petitioner alleges that she was subjected to harassment and discriminatory treatment at the hands of the administration of P.S. 1, in particular Principal Gordin and Assistant Principal Lisa Arcuri, at least in part in retaliation for her union activities. In support, petitioner reiterates that she received solely satisfactory evaluations, letters of praise, and commendations from the previous administration and her colleagues for the prior two and a half years of her probation, as evidenced by, inter alia, the six initial "Supervisor Observation Forms", and APPR's dated June 6, 2005, June 1, 2006 and June 18, 2007, some of which were authored by Principal Gordin, herself. According to petitioner, everything changed after March 15, 2007, "in apparent revenge" for her continuing activities as the UFT co-chapter leader. It is further alleged that "in order to create their false and fabricated file" of unsatisfactory performance, Principal Gordin and co-conspirator Assistant Principal Arcuri engaged in "an intense, guerilla campaign of intimidation, criticism and unwarranted attacks upon her…and a pattern of issuing her conflicting instructions and engaging in discriminatory treatment." By way of example, petitioner notes that in her final June 18, 2007 APPR, although she received an overall "satisfactory" rating, three of the twenty-three categories were rated "unsatisfactory" by Principal Gordin based upon her alleged manipulation of test score data using a "skewed" analysis to compare the performance of petitioner's students against other students. Allegedly, no other fifth grade teacher was evaluated in this way. In addition, petitioner claims that during the observations of her teaching performance by Principal Gordin on or after March 15, 2007, the latter engaged in a series of disruptive actions calculated to intimidate petitioner and disrupt her lessons from proceeding as planned. Illustrative of the foregoing, is the Principal's purported sorting through items on and inside petitioner's desk while the latter was trying to teach, examining folders that were irrelevant to the lesson, and interrupting petitioner during "guided reading" and "share time". Petitioner also claims to have been "denied continued enrollment" in a literacy workshop for teachers due to her observance of a Catholic holy day of obligation which happened to coincide with the first day of the workshop. It is claimed that none of her colleagues were similarly penalized. Her petition also includes other instances of alleged harassment and abuse on the part of Principal Gordin in support of the contention that her termination was unjust and that she was "singled-out by an administration that took revenge for her serving as an advocate for unionized colleagues."

Stated alternatively, judicial review of the discharge of probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason (see Matter of Swinton v Safir, 93 NY2d 758, 763, 720 N.E.2d 89, 697 N.Y.S.2d 869; Matter of Johnson v Katz, 68 NY2d 649, 650, 496 N.E.2d 223, 505 N.Y.S.2d 64). In such cases, it is the employee who "bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation " (Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d at 368). Were it to be held otherwise, substantial evidence of, e.g., bad faith, would be required in every case of a probationer's dismissal, thereby standing the probationary process on its head (see Matter of Cipolla v Kelly, 26 AD3d 171, 812 N.Y.S.2d 462). Thus, the law has developed that the appropriate standard of review to be applied in these types of cases is whether the determination to terminate petitioner's probationary employment was arbitrary and capricious (see Von Gizycki v Levy, 3 AD3d 572, 574, 771 N.Y.S.2d 174).

Consonant with the foregoing, it is the Court's opinion that petitioner herein has sustained her evidentiary burden by the production of sufficient evidence to raise a material issue of fact as to whether or not her discontinuance was made in bad faith, i.e., as a "retaliatory measure designed to punish her at least in part for her exercise of her constitutional right to engage in activities as a member of the local teachers' union" (Matter of Tischler v Board of Educ., Monroe Woodbury Cent. School Dist. No. 1, 37 AD2d 261, 263, 323 N.Y.S.2d 508).

Here, the evidence before the Court indicates that the unsatisfactory performance evaluations and alleged incidents of professional misconduct occurred solely within the period that she was engaged in union activities. This is also the same period during which she filed the harassment grievance against Principal Gordin. In fact, even the recommendation of discontinuance by the majority of the members of the Chancellor's Committee was forced to concede that the onset of petitioner's "negative evaluations…[happen to] coincide with her…election as the union's co-chapter leader." All teachers have the right of free association and union membership as guaranteed by the First Amendment, and where the dismissal of a probationary teacher represents a substantial interference with his or her First Amendment rights, "such action cannot be permitted to stand unless it can be shown that the conduct in question has a clear relationship to the maintenance of an efficient educational system, and the dismissal was motivated by a desire to benefit the system rather than to interfere with the exercise of his or her constitutional rights" (id. at 264).

Under these circumstances, since the retaliatory nature of petitioner's dismissal cannot be determined on the facts thus far adduced and the reasonable inferences that may be drawn therefrom, judicial review is mandated (see Matter of New York City Dept. of Envtl. Protection v New York City Civil Serv. Comm., 78 NY2d 318, 323, 579 N.E.2d 1385, 574 N.Y.S.2d 664), and the matter must proceed to trial (CPLR 7804[h]; see Martinez v. State Univ. of N.Y.-College at Oswego, 13 A.D.3d 749, 750-751; cf. Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 844, 801 N.Y.S.2d 302; but see Matter of Johnson v Katz, 68 NY2d at 650; Matter of Weintraub v Board of Educ. of City School Dist. of City of NY, 298 AD2d 595, 748 N.Y.S.2d 685).
Accordingly, the petition is granted to the extent that the parties are to appear for a Preliminary Conference on September 15, 2009 at 9:30 A.M.

Local Union 1392, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner, v. National Labor Relations Board, Respondent; Indiana & Michigan Electric Co., Intervenor

No. 85-5221


786 F.2d 733; 1986 U.S. App. LEXIS 23325; 121 L.R.R.M. 3259; 104 Lab. Cas. (CCH) P11,797

February 13, 1986, Argued
March 26, 1986

PRIOR HISTORY: On Petition for Review of an Order of the National Labor Relations Board.


PROCEDURAL POSTURE: Petitioner union filed a petition for review of a decision by respondent National Labor Relations Board, which ruled in favor of the employer. Respondent found that the employer did not violate § 8(a)(1) and (3) of the National Labor Relations Act when it imposed a harsher discipline on 2 union officers than on 10 other employees.

OVERVIEW: Petitioner union filed unfair labor practice charges against an employer under § 8(a)(1) and (3) of the National Labor Relations Act (Act) because the employer imposed a harsher discipline on 2 union officers than it did on 10 other employees for an unauthorized work stoppage. Respondent National Labor Relations Board found no violation and dismissed the complaint. Petitioner sought review and the court denied the petition and ordered enforcement of respondent's decision. The court held that an employer could impose selective discipline of a union official based on his union status if the union had made a "clear and unmistakable" waiver of its officials' statutory right to be free from such disparate treatment. The court found that the contractual language in this case showed petitioner's intent to waive its officials' right to be free from selective discipline when they engaged in unauthorized work stoppages. The court held that the union employees were bound by the waiver. The court concluded that respondent's interpretation of the collective bargaining agreement was reasonable and consistent with the policies of the Act.

OUTCOME: The court denied petitioner union's petition for review of a decision by respondent National Labor Relations Board, and ordered enforcement of respondent's decision to dismiss petitioner's complaint. The employer could impose selective discipline of a union official based on his union status because petitioner had made a "clear and unmistakable" waiver of its officials' statutory right to be free from such disparate treatment.

CORE TERMS: union official, work stoppage, discipline, steward, unauthorized, contractual, selective, participated, no-strike, labor practice, statutory right, contractual language, unmistakable, unfair, union officers, illegal strike, valid waiver, collective bargaining agreement, superseniority, rank-and-file, disparate, administrative law, suspensions, harsher, plant

Governments > Legislation > Statutory Remedies & Rights
Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination
Labor & Employment Law > Discrimination > Disparate Treatment > Employment Practices > Adverse Employment Actions > Discipline

An employer may impose selective discipline of a union official based on his union status if the union has made a "clear and unmistakable " waiver of its officials' statutory right to be free from such disparate treatment.

Governments > Legislation > Statutory Remedies & Rights
Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination
Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages
A valid waiver of an employee's statutory right renders the right unprotected under the National Labor Relations Act. Clearly, rank-and-file employees may be discharged for disobeying a contractual no-strike clause. A valid waiver of union officials' protected rights should have the same effect.

Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages

A union's assumption of the duty to end an unauthorized work stoppage necessarily imposes a concomitant duty upon its officials to implement that obligation.

Labor & Employment Law > Collective Bargaining & Labor Relations > Arbitration > Judicial Review of Awards > General Overview
Labor & Employment Law > Collective Bargaining & Labor Relations > Federal Preemption
Labor & Employment Law > Collective Bargaining & Labor Relations > Interpretation of Agreements

The National Labor Relations Board's interpretation of a collective bargaining agreement is entitled to deference if it is reasonable and consistent with the policies of the National Labor Relations Act.

COUNSEL: Laurence J. Cohen, Robert D. Kurnick, and Victoria L. Bor, (argued), Sherman, Dunn, Cohen, Leifer, Counts, Washington, District of Columbia, for Appellant.

Guy Farmer, (argued), Jonathan A. Cohen, Vedder, Price, Kaufman, Kammholz & Day, Washington, District of Columbia, and Fredric L. Sagan, Senior Labor Counsel, American Electric Power Ser. Corp., Columbus, Ohio, for Intervenor.

Elliott Moore, Deputy Associate General Counsel, National Labor Relations Board, Washington, District of Columbia, and Fred Havard, (argued) and William Little, Regional Director, Region 25, National Labor Relations Board, Indianapolis, Indiana, for Appellee.

JUDGES: Keith and Martin, Circuit Judges; and Weber, * District Judge.
* Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.



BOYCE F. MARTIN, JR., Circuit Judge.
Local 1392 of the International Brotherhood of Electrical Workers petitions this Court for review of a decision of the National Labor Relations Board in favor of the employer, Indiana & Michigan Electric Company. 273 N.L.R.B. No. 193 (1985).
In November, 1978, Local 1392 filed unfair labor practice charges against Indiana & Michigan alleging that the employer had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by imposing harsher discipline on two union officers than on ten other employees, all of whom had participated in the same unauthorized work stoppage. After an investigation, the Board's General Counsel issued a complaint against the employer. The administrative law judge upheld the unfair labor practice charges, finding that the employer had violated the Act. On review, the NLRB reversed the administrative law judge's decision and dismissed the complaint. The Union appeals this dismissal.
The facts of this case are straightforward and undisputed. On August 21, 1978, fifteen employees in the line department at Indiana & Michigan's Muncie, Indiana plant staged an unauthorized work stoppage. The employer issued three-day suspensions to the ten rank-and-file members who participated in the work stoppage, and five-day suspensions to the two instigators of the incident and two union stewards. 1 The employer based its harsher discipline of stewards Ridley and Maxwell on their "greater responsibility [**3] to end the unauthorized work stoppage"; the company did not contend that the stewards led or actively promoted the misconduct.

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1 The Union's highest official at the plant was not suspended because the employer's investigation revealed he attempted to persuade the employees to return to work.

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The issue presented by these facts is whether an employer's selective discipline of a union official, based on his union status, violates section 8(a)(3) of the NLRA. The Board's inconsistency on this issue 2 was resolved by the Supreme Court's decision in Metropolitan Edison v. NLRB, 460 U.S. 693, 75 L. Ed. 2d 387, 103 S. Ct. 1467 (1983), which held that HN1 an employer may impose selective discipline in this situation if the union has made a "clear and unmistakable " waiver of its officials' statutory right to be free from such disparate treatment. Id. at 707. The parties agree on the applicability of the legal principles of Metropolitan Edison to this case; they disagree as to whether their particular contractual language constitutes the requisite "clear and unmistakable" waiver.

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2 The Board's most definitive holding on this issue prior to Metropolitan Edison was in Precision Castings Co., 233 N.L.R.B. 183 (1977), in which it held that selective dismissal of a shop steward who participated in and made no effort to terminate an illegal strike constituted discrimination based solely on the holding of union office and thus was violative of sections 8(a)(1) and 8(a)(3). Before Precision Castings, the Board, on several occasions, had found no unfair labor practice in the dismissal of union stewards based on their participation in illegal strikes. See, e.g., Chrysler Corp., 232 N.L.R.B. 466 (1977); Super Value Xenia, 228 N.L.R.B. 1254 (1977).

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The Metropolitan Edison court, in reaffirming union officials' statutory right to be free from selective discipline based on their union status, held that a general no-strike clause was insufficient to establish waiver of such a protected right. Id. at 707-08. The court recognized, however, that "a union and an employer reasonably could choose to secure the integrity of a no-strike clause by requiring union officials to take affirmative steps to end unlawful work stoppages." Id. at 707. Specifically, the court ruled that "a union may waive this protection by clearly imposing contractual duties on its officials to ensure the integrity of no-strike clauses." Id. at 710.

We agree with the Board that Indiana & Michigan's contract with Local 1392 imposed affirmative duties on union officials sufficient to establish a waiver of those officials' section 8(a) 3 right to be free from disparate discipline. The relevant contractual language provides:
The Union agrees that, in the event of any violation (other than lockout) of the provisions of the foregoing paragraph, it will in good faith and without delay publicly disavow such violation, exert itself to bring about a quick termination of such violation and insist that the employee or employees involved cease such violation. To that end the Union will promptly take whatever affirmative action [**6] is necessary. If the Union has not authorized, participated in or condoned such violation and fulfills its obligations under this paragraph with respect to any such violation, the Company agrees that it will not sue the Union for any damages resulting from such violation.
Art III, § 2.

The Union argues that because the language of the contract refers to the union as an entity, and not to its individual officers, the union officers owe no duty to the employer. It correctly notes that the contractual assumption of these duties imposes damage liability on the union under Carbon Fuel v. Mine Workers, 444 U.S. 212, 216-18, 62 L. Ed. 2d 394, 100 S. Ct. 410 (1979), and contends that this liability is the extent of the employer's remedy for breach of the provision. The Union bases its argument on the well-established principle of agency that an agent is liable only to the principal for a breach of a duty owed to a third party.

The Union's reliance on agency principles in this context is misplaced. A valid waiver of an employee's statutory right renders the right unprotected under the National Labor Relations Act. Clearly, rank-and-file employees may be discharged for disobeying a contractual no-strike clause. A valid waiver of union officials' protected rights should have the same effect. The District of Columbia Circuit assessed a similar argument advanced by the Board as "wholly unconvincing," Fournelle v. NLRB, 216 U.S. App. D.C. 173, 670 F.2d 331, 339 & n. 16 (D.C. Cir. 1982), and we agree.
In a case decided before Metropolitan Edison, the Third Circuit found the language of a collective bargaining agreement imposed specific enforceable duties on union officials. Gould, Inc. v. NLRB, 612 F.2d 728 (3d Cir. 1979), cert. denied, 449 U.S. 890, 101 S. Ct. 247, 66 L. Ed. 2d 115 (1980). The contractual obligations assumed by the union in that case were very similar to those agreed to by Local 1392. The language of the Gould contract, however, imposed these duties specifically upon "the Union, its officers and representatives" (emphasis added) rather than on the Union alone. Id. at 730, n. 3.

This difference in language cannot hold the legal significance attributed to it by the Union in this case. Obviously, unions act only through their officers. A union's assumption of the duty to end an unauthorized work stoppage necessarily imposes a concomitant duty upon its officials to implement that obligation. We believe that the contractual language in this case illustrates the intent of the Union for its officials to attempt to prevent unauthorized work stoppages, and that this language constitutes a "clear and unmistakable waiver" of those officials' right to be free from selective discipline. 3 This waiver is the result of the specific additional duties assumed by the union under the contract, and is not necessarily inherent in an employee's position as a union official. NLRB v. Babcock & Wilcox Co., 697 F.2d 724, 732-33 & n. 9 (6th Cir. 1983). Compare Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 230 (7th Cir. 1979).

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3 In its amicus brief, the Chamber of Commerce notes that imposing these obligations on union stewards is the logical corollary to the award of superseniority against layoff permitted the officials because of the importance of their function. Dairylea Cooperative, Inc. 219 N.L.R.B. 656 (1975). This interesting argument is not persuasive here, both because we have no evidence before us concerning the parties' agreement on the contractual issue of superseniority, and because this Court has already rejected the notion of a higher responsibility imposed on union representatives by virtue of their office. NLRB v. Babcock & Wilcox, 697 F.2d 724, 732 (6th Cir. 1983).

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The Board's interpretation of a collective bargaining agreement is entitled to deference if it is reasonable and consistent with the policies of the Act. NLRB v. City Disposal Systems, 465 U.S. 822, 829-30, 79 L. Ed. 2d 839, 104 S. Ct. 1505 (1984); NLRB v. Local 534, Construction & General Laborers' Union, 778 F.2d 284, 287 (6th Cir. 1985). The Board's interpretation of the language of this contract was reasonable, consistent with the policies of the Act, and in accord with the Supreme Court's pronouncements in Metropolitan Edison. The petition of the Union is therefore denied, and the order of the Board is enforced.

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