WINNER, District Judge.
Fisher was a Salt Lake City fireman, and Walker was the city's fire chief. Before 1969, the Salt Lake City Fire Department had two functioning organizations, the Firemen's Relief Association and the International Association of Fire Fighters, Local Union No. 1645 (herein called the union). The Relief Association had responsibility for insurance and welfare benefits, while the union was charged with responsibility for negotiation of wages and terms of employment. The union was composed of both firemen and officers, but in July, 1969, the officers formed a separate organization, the Salt Lake City Fire Officers' Association to handle their own individualized problems as officers. The formation of the Officers' Association met with extreme disfavor on the part of some union members, and Fisher, who was the union president, wrote "a letter from the president" in the September, 1969 issue of the local union publication, the Fire Flyer, and it is this letter which forms the nub of the controversy.
The letter in its entirety said:
"LETTER FROM THE PRESIDENT
"As we have informed you before, a separate officer\'s organization is not a legitimate part of the IAFF and the intentions of those who fostered the birth of this illegitimate organization are highly suspect. We call it an illegitimate birth because Lynn Marsh or Mayor Lee would deny having had any part in such conception, though we know those officers who instigated this organization met with them prior to its being conceived.
"We do not believe in the virgin birth of this organization since it has all of the characteristics of the parent (like its twins in other cities) of city managers trying to break the union.
"Those unfaithful fire fighters who crawl into bed with city officials, feeling no moral regress for their infidelity (and even boast about) their adulterous ways should be condemned by every firefighter. Their child is named Divide and Conquer. The parents of this child have found they could not, on their own, destroy the Union. Their mischievous child is Union destruction.
"Brothers there would not be such a push for the Union\'s destruction if we hadn\'t shown that by unity we had and showed a strength never before encountered and WE WERE EFFECTIVE!
"The action taken by those professing to represent the officers has taken every man on the job a big step backward because of the selfishness of a few officers who wanted everything for themselves.
"For those officers who want such an organization we ask two very important questions. 1. If there is only so much money for wages, who goes down to get it, the officers for them alone or the Union for everyone? 2. If the officers want separation at City Hall do the privates continue to support the lion\'s share of the officer pension or do they separate at the State level also?
"Every officer should ask those who are at the head of this `officers organization\' these questions and so should every private.
"Let us now re-unite and sluff off this chain so we can once more rattle the walls of City Hall for everyones benefit and get all of the things fire fighters deserve. There is a lot of hard work left to do .... Let\'s do it together!"
In the same issue of the Fire Flyer, there was a reprint of an editorial originally printed in the magazine published by the international union, and in it the international president said:
"FIRE FIGHTER EDITORIAL ATTACKS DIVIDE AND CONQUER TACTIC
"The following article is a reprint of President Wm. Howard McClennan\'s editorial in your September, 1969, Fire Fighter Magazine.
`DIVIDE AND CONQUER\' VS. THE IAFF
"A disturbing pattern of attempted `divide and conquer\' is emerging in the dealings of some city managers with the IAFF.
"Many city managers are attempting to demand that fire service officers drop their membership in IAFF local unions, or to `insist\' that they move to separate local unions.
"Except for a few of the very largest cities where separate locals for officers have an old, traditional place, the general principle of the IAFF has been to charter a single local union for each fire department. The reason is simple but compelling: In union there is strength.
"We have always known that all members of a fire service benefit when all those members join in a single voice to speak for the good of the fire service. Wages, hours, and other working conditions are interconnected, and the officers and men of a fire service each have a stake in improving the lot of all members of the service.
"Over the years, the IAFF has made enormous strides toward its goals of improved and adequate wages and working conditions, precisely because it has spoken for the vast majority of the professional fire fighters of the nation. The principle of a single local in a single fire service has proved itself time and time again. We like it and we\'re ready to fight for it.
"There is no good reason to abandon that principle, despite the few historic exceptions to it in large cities. Especially, we\'re not about to abandon that principle when the motives of the city managers who advocate abandonment are so obvious.
"They want to weaken the IAFF. We absolutely are not going to go along with them!"
The next issue of the Fire Flyer printed a second letter from Fisher:
"It has come to my attention that my letter in the September Fire Flyer needs clarification. It was directed to, and only to, those officers who instigated and organized the Officers organization.
"I have been told that some officers took exceptions to my letter because they thought it referred to them and they have always been faithful Union members; and have never taken action against the Union. To those officers, the vast majority of officers, they need not be offended because no offense was intended. My letter did not infer that all officers took part in organizing this officers group.
"The organization of officers, away from the rest of the fire fighters, does not and did not originate (as I pointed out in my September letter) with Salt Lake City. It is a well organized move across the country, on the part of city management, to stop the effectiveness of the IAFF because other public employees were `catching on\' and wanting to organize the same way.
"City management could see the hand writing on the wall. Already the police have organized as the fire fighters have. City management does not want Unions. They are afraid of them. City fathers cry great howls of anguish and indignation when employees unionize. They use the scare of a `strike\' threat against the public and a `job\' scare against the employee. We have had both. What in truth city management is afraid of is that the unions destroy the spoils system for political payoffs. When a union is told there is no money for wages it looks around to see where the money is being spent. This can be political death for elected officials.
"It is as simple, yet as complicated, as that. This is what it is all about.
"A separate officers organization, no matter how many times it is said contrarywise, is a NATION WIDE UNION BREAKING DEVICE, aimed at making the largest, most effective public union, the IAFF, less effective and thus discourage more militant unionism of other public employees.
"WE HAVE GAINED SO MUCH IN THE IAFF UNION HERE THAT SALT LAKE IS USED AS AN EXAMPLE IN OTHER PARTS OF THE COUNTRY ON HOW TO USE UNIONISM. Is it any wonder that city hall wants to try and split apart our Union in hopes of less gain for unionism? Other city employees are not blind to what is going on in our union.
"We have been warned against a separate officer organization movement by the IAFF (which is another proof that it is a nationally organized union breaking move—and let\'s call it what it is) and have been told to fight it because it brings no good to the fire fighter. It does end up doing, among other things, the following:
"1. The officers lose because they are no longer members of a union and become a minority group. They become subject to management with no recourse of action and lose many Union gained benefits, viz.: bid rights.
"2. The privates lose because they must now fight the number of officer positions as being too high and thus diminish their chance for advancement.
"3. Both officers and privates lose because a divided department causes morale problems.
"4. EVERYONE LOSES BECAUSE A DIVIDED DEPARTMENT IS NOT AND CANNOT BE AS STRONG AND EFFECTIVE AT CITY HALL OR THE STATE CAPITOL WHEN ONE GROUP CAN BE PLAYED AGAINST THE OTHER. SO, IN THE END, LITTLE IS GAINED FOR THE FIRE FIGHTER.
"If there is still any doubt of why and what will happen, who is behind a separate officers organization and its results, then let\'s get together and get all of the points out in the open.
"I pleaded for unity in our Union in my Fire Flyer letter of September, I do so again at this time."
Believing that their loyalty to their men was being questioned and that they were being accused of being scabs, officers of the department took umbrage at the letters and the editorial, and they asked Walker to discipline Fisher. The chief asked Fisher to meet with him and representatives of the Officer's Association to smooth things over and to apologize. This Fisher refused to do. Thereafter, on January 23, 1970, Walker suspended Fisher for five days without pay, and in his notification of the suspension, Walker said:
"This action is initiated as a result of your impugning the character of the organizers and officers of the Salt Lake City Fire Officer\'s
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