Employment Law Daily School custodian’s union associational rights were ‘matter of public concern’
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Thursday, June 27, 2019

School custodian’s union associational rights were ‘matter of public concern’

By Ronald Miller, J.D.

When a public employee asserts a free speech claim and a pure union association claim, those First Amendment claims must be analyzed separately. And, for a pure union association claim, there is no need to separately show that the union activity addresses a matter of public concern.

Because a school custodian raised a triable issue about whether he was retaliated against based solely on his union association, the Third Circuit reversed that portion of a district court ruling finding that his union activity was not constitutionally protected because it did not implicate a matter of public concern. Citing its recent ruling in Palardy v. Township of Millburn, the appeals court determined that his free speech claim and union association claim had to be analyzed separately. Moreover, there was no need to make a separate showing of public concern for a pure union association claim because under Palardy and longstanding Supreme Court precedent, membership in a public union is “always a matter of public concern” (Baloga v. Pittston Area School District, June 25, 2019, Krause, C.).

School custodian, union official. The employee was a custodian for the school district and vice president of the custodial union. As union vice president, he was regularly approached by fellow custodians about problems they were having with the school district, and he made efforts to resolve them internally. According to union officials, the relationship between the union and school district was strained, particularly with regard to the school district’s maintenance director. Over the years, the director repeatedly threatened that the school district would eliminate union members’ days off if the union continued to file grievances.

In January 2016, the employee learned that the school district intended to require custodians to work on Martin Luther King Jr. Day even though they had received that day as a holiday for the past 26 years. The union filed a grievance challenging the decision as a violation of a past practice. That same day, the employee had an email exchange with the maintenance director regarding the holiday. He also exchanged words with his supervisor who stated that because the union had filed a grievance, the school board now says that custodians have to work full days on snow days.

Early transfer. On January 26, the employee spoke directly with the director regarding the grievance. According to the employee, the director was angry and threatened to transfer him prematurely from the high school to the primary center. Later that day, the employee was transferred, more than a month before his usual transfer date. He has not been assigned to work at the high school again since the transfer. Although the transfer did not change his pay or benefits, the employee reported that it negatively affected him in other ways, including scheduling, as well as reputational and emotional costs. Fearful of further retribution, the employee did not file a grievance to contest his transfer.

First Amendment retaliation. The employee filed suit asserting two First Amendment retaliation claims against the school district and maintenance director alleging a violation of his freedom of speech and a violation of his right to associate with the union. On cross-motions for summary judgment, the district court granted summary judgment in favor of the school district and the director.

The court analyzed the employee’s speech and association claims together, and concluded that the employee’s activity was not constitutionally protected because it did not implicate a matter of public concern. Thus, in treating his speech claim and association claim as coextensive, the district court concluded that the employee did not engage in constitutionally protected activity.

Association claim. Here, the appeals court addressed only the employee’s association claim. It undertook a three-prong inquiry to arrive at a balance between the interests of the employee and the interests of the state: (1) whether the employee spoke as a citizen; (2) whether the statement involved a matter of public concern; and (3) whether the government employer nevertheless had “an adequate justification for treating the employee differently from any other member of the general public” based on its needs as an employer.

Public concern. Finding no dispute that the first prong was satisfied, the appeals court considered the second and third prongs—the public concern requirement and the balance of interests. In Palardy, the Third Circuit concluded that in the context of a pure association claim based on union membership, the public concern element is necessarily satisfied. The court observed that where an association claim is premised on one’s membership in a union, no “justiciable basis” exists to determine which union association merits First Amendment protection and which does not.

In this instance, the employee adduced sufficient evidence to persuade a reasonable jury that the school district’s action was either to intimate public employees from joining a union or from taking an active part in its affairs or to retaliate against those who do.

Balance of interests. Next, the appeals court considered whether the employee’s associational rights were outweighed by the public employer’s interest in maintaining an efficient workplace and avoiding disruption. Assuming that “Pickering balancing” applies to pure associational claims based on union membership, the appeals court found that the employer failed to establish as a matter of law that its interest outweighed the employees.

The employer identified two interests that it contended outweighed the employee’s associational interests: first, that the school district had unfettered discretion concerning when to transfer him; and second, the need to avoid the disruption that the employee allegedly caused by bringing down employee morale. The appeals court found that neither assertion was sufficient to tip the balance in the employer’s favor.

While a public institution has an interest in assigning employees according to its needs, it may not do so for the purpose of chilling the exercise of constitutional rights. Further, while the need to avoid disruption in the workplace is certainly legitimate, the scant evidence offered by the employer was insufficient to outweigh the employee’s associational rights.

Accordingly, the appeals court concluded that because the employee’s union membership involved a matter of public concern and the school district failed to establish that its purported interest in efficiency and avoiding disruption outweighed his associational interests, his conduct was protected by the First Amendment.

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