429 U.S. 167 (1976), 75-946, City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission

Docket Nº:No. 75-946
Citation:429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376
Party Name:City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission
Case Date:December 08, 1976
Court:United States Supreme Court

Page 167

429 U.S. 167 (1976)

97 S.Ct. 421, 50 L.Ed.2d 376

City of Madison Joint School District No. 8


Wisconsin Employment Relations Commission

No. 75-946

United States Supreme Court

Dec. 8, 1976

Argued October 12, 1976



During the course of a regularly scheduled, open meeting of appellant Board of Education, public discussion turned to currently pending labor negotiations between the board and the teachers' union. One speaker was a nonunion teacher who, over union objection, addressed one topic of the pending negotiations, namely, the union's demand for a "fair share" clause, which would require all teachers (whether union members or not) to pay union dues. He read a petition signed by the teachers in the district, calling for postponement of the issue until it could be given closer examination by an impartial committee. Subsequently, after a collective bargaining agreement had been signed containing all the union's demands except the "fair share" clause, the union filed a complaint with the appellee Wisconsin Employment Relations Commission (WERC), claiming that the board had committed a prohibited labor practice in violation of Wisconsin law by permitting the nonunion teacher to speak at its public meeting because that constituted negotiations by the board with a member of the bargaining unit other than the exclusive collective bargaining representative. The WERC found the board guilty of the prohibited labor practice and ordered that it immediately cease and desist from permitting any employees but union officials to appear and speak at board meetings on matters subject to collective bargaining. The WERC was upheld on appeal, the Wisconsin Supreme Court concluding that the nonunion teacher's statement before the board constituted "negotiation" with the board, and holding that the abridgment of speech by the WERC was justified in order "to avoid the dangers attendant upon relative chaos in labor-management relations."


1. The circumstances do not present such danger to labor-management relations as to justify curtailing speech in the manner ordered by the WERC. Pp. 173-176.

(a) Where it does not appear that the nonunion teacher sought to bargain or offered to enter into any bargain with the board or that he was authorized by any other teachers to enter into any agreement on their behalf, there is no basis for concluding that his terse statement during the public meeting constituted negotiation with the board. Although his views were not consistent with those of the union, communicating

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such views to the employer could not change the fact that the union alone was authorized to negotiate and enter into a contract with the board. P. 174.

(b) Moreover, since the board meeting was open to the public, the nonunion teacher addressed the board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an [97 S.Ct. 423] important decision of his government. Where the board has so opened a forum for direct citizen involvement, it may not exclude teachers who make up the overwhelming proportion of school employees and are most concerned with the proceedings. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, under the First Amendment, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. Pp. 174-176.

2. The WERC's order, being designed to govern speech and conduct in the future, and not merely to punish past conduct, is an improper prior restraint on teachers' expressions to the board on matters involving the operation of schools. Pp. 176-177.

69 Wis.2d 200, 231 N.W.2d 206, reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 177. STEWART, J., filed an opinion concurring in the judgment, post, p. 180.

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BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings, at which public participation is permitted, if such speech is addressed to the subject of pending collective bargaining negotiations.

The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collective bargaining agreement during the calendar year of 1971.1 In January, 1971, negotiations commenced for renewal of the agreement, and MTI submitted a number of proposals. One among them called for the inclusion of a so-called "fair share" clause, which would require all teachers, whether members of MTI or not, to pay union dues to defray the costs of collective bargaining. Wisconsin law expressly permits inclusion of "fair share" provisions in municipal employee collective bargaining agreements. Wis.Stat. § 111.70(2) (1973). Another proposal presented by the union was a provision for binding arbitration of teacher dismissals. Both of these provisions were resisted by the school board. The negotiations deadlocked in November, 1971, with a number of issues still unresolved, among them "fair share" and arbitration.

During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit but not members of the union, mailed a letter to all teachers in the district

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expressing opposition to the "fair share" proposal.2 Two hundred teachers replied, most commenting favorably on Holmquist and Reed's position. [97 S.Ct. 424] Thereupon, a petition was drafted calling for a one-year delay in the implementation of "fair share" while the proposal was more closely analyzed by an impartial committee.3 The petition was circulated

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to teachers in the district on December 6, 1971. Holmquist and Reed intended to present the results of their petition effort to the school board and to MTI at the school board's public meeting that same evening.

Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union's position. During a portion of the meeting devoted to expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300-1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented "an informal committee of 72 teachers in 49 schools" and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the "fair share" clause. He then read the petition which had been circulated to the teachers in the district that morning and stated that, in the 31 schools from which reports had been received, 53 of the teachers had already signed the petition.

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Holmquist stated that neither side had adequately addressed the issue of "fair share," and that teachers were confused about the meaning of the...

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