652 F.2d 1286 (7th Cir. 1981), 80-1420, Perry Local Educators' Ass'n v. Hohlt

Docket Nº:80-1420.
Citation:652 F.2d 1286
Party Name:PERRY LOCAL EDUCATORS' ASSOCIATION, Evelyn E. Waddell and Judith M. Dietrich, Plaintiffs-Appellants, v. William HOHLT, et al., Defendants-Appellees.
Case Date:June 24, 1981
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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652 F.2d 1286 (7th Cir. 1981)

PERRY LOCAL EDUCATORS' ASSOCIATION, Evelyn E. Waddell and

Judith M. Dietrich, Plaintiffs-Appellants,

v.

William HOHLT, et al., Defendants-Appellees.

No. 80-1420.

United States Court of Appeals, Seventh Circuit

June 24, 1981

Argued Nov. 4, 1980.

Rehearing and Rehearing En Banc Denied August 14, 1981.

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Lawrence M. Reuben, Indianapolis, Ind., for plaintiffs-appellants.

Richard J. Darko, Louis H. Borgmann, Indianapolis, Ind., for defendants-appellees.

Before FAIRCHILD, Chief Judge, WISDOM, Senior Circuit Judge, [*] and CUMMINGS, Circuit Judge.

WISDOM, Senior Circuit Judge.

This case requires us to consider the constitutionality of a collective bargaining agreement between a teachers' union and a school board that both permits the union to use the school district's internal mail system and compels the school district to deny that right to competing unions. The plaintiffs, an insurgent union and two of its members, contend that their exclusion from the school mail system violates their first and fourteenth amendment rights. The district court disagreed. We reverse.

I.

The facts, as they appear in the parties' pleadings and affidavits, are not in dispute. The Metropolitan School District of Perry Township in Marion County, Indiana, operates a public school system made up of thirteen separate schools. Each school building is equipped with a set of mailboxes or mail slots each labelled with the name of a teacher at the school. Inter-school delivery by school employees permits messages to be delivered rapidly to every teacher in the district. The main function of this internal mail system is to transmit official messages among the teachers and between the teachers and the school administration. That is not its only function, however, for the present collective bargaining representative of the teachers in that school district, the Perry Education Association (PEA), also has access to the system for its own purposes.

Until 1978 the school district evidently had no firm policy on the use of the internal mail system by teachers' unions; both PEA and a minority union, the Perry Local Educators Association (PLEA), had access at least to the mailboxes, if not to the inter-school delivery system. In 1977, however,

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PLEA challenged PEA's status as de facto bargaining representative of the Perry Township teachers by filing an election petition with the Indiana Education Employment Relations Board. PEA prevailed in the election and was formally certified as exclusive bargaining representative. In anticipation of continuing opposition from PLEA, PEA negotiated a labor contract designed to cement its status as bargaining representative. In that contract, the school board (1) guaranteed PEA's access to the teachers' mailboxes, (2) permitted it to use the inter-school delivery system to the extent that the school district incurred no extra expense by such use, and (3) promised to deny those rights to any other "school employee organization" a term of art defined by Indiana law to mean "any organization which has school employees as members and one of whose primary purposes is representing school employees in dealing with their employer". 1 Effective in July 1978, the contract was renewed with these same provisions upon its expiration in 1980, and it is presently in force.

PEA's privilege is subject to certain obvious limitations. Because the contractual prohibition extends only to competing unions, PEA's letters and broadsides are not the only unofficial communications permitted to flow through the internal mail system. Teachers use the system to send purely personal messages. The school district allows outside organizations to use it with the approval of any building principal. Local parochial schools, church groups, YMCA's, and Cub Scout units use the system. Furthermore, the privilege extends only to use of the mail system; it does not prevent PLEA from using other school facilities to communicate with teachers. As with PEA, members of PLEA may post notices on school bulletin boards (where available); may distribute written material in the teachers' lounge; may speak with teachers during luncheon and free periods; may, with prior approval of the building principal, make announcements on the public address system; and, apparently, may freely hold meetings on school property after school hours. Finally, we may assume for purposes of this appeal that Indiana law would prevent PEA from using the mail system during the period immediately preceding an inter-union election. 2

PLEA and two of its members filed this action under 42 U.S.C. § 1983 (1976) against PEA and the individual members of the Perry Township School Board. They contend that their exclusion from the internal mail system violates their first amendment and equal protection rights, and they seek injunctive and declaratory relief and damages.

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3 Upon cross-motions for summary judgment, the district court gave judgment for the defendants. Quoting Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471, 481 (2d Cir. 1976), the court held that "the restrictions placed upon the use of facilities not open to the general public, designed to transmit communications of limited public interest and supplemented by numerous alternative means of communication by PLEA members are 'so inconsequential that ... (they) cannot be considered an infringement of First Amendment rights of free speech' ". Applying rational basis scrutiny to the plaintiffs' equal protection claim, the court found, citing Memphis American Federation of Teachers Local 2032 v. Board of Education, 534 F.2d 699 (6th Cir. 1976), that the exclusive access policy was rationally related to the goal of preserving labor peace within the school system.

From this holding, plaintiffs appeal.

II.

The plaintiffs' constitutional contentions arise from the confluence of two developments of relatively recent vintage: the rapid growth of collective bargaining in the public sector in the last two decades, and the erosion of the notion that public employment is a "privilege" to which some constitutional guarantees may be inapplicable. 4 We therefore have not had occasion to consider the merits of any similar claims before, 5 and none of the Supreme Court cases on the constitutional law of public sector labor relations is directly applicable. 6 Still, the district court had authority for rejecting the plaintiffs' claims. Our research discloses ten cases fairly on point, including two decided by federal Courts of Appeals, five decided only at the district court level, and three decided by state appellate courts. All but one, a district court opinion, rejected such claims. 7 Indeed,

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many of these cases upheld exclusive access policies considerably broader than the one followed by the Perry Township school board. For example, the two leading cases, Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471 (2d Cir. 1976) (Connecticut SFT ), and Memphis American Federation of Teachers Local 2032 v. Board of Education, 534 F.2d 699 (6th Cir. 1976) (Memphis AFT ), upheld grants to a majority union of an exclusive right to use school meeting facilities and bulletin boards, as well as the internal mail system.

We are, of course, not bound by these cases, and their reasoning fails to persuade us. We hold that when the Perry Township school board opens its internal mail system to PEA but denies it to PLEA, it violates both the equal protection clause and first amendment as incorporated into the fourteenth.

To help place the issue in context, we begin by noting that similar behavior by a private employer subject to the National Labor Relations Act (NLRA) 8 would constitute an unfair labor practice. NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974), struck down an employer's rule, authorized by its collective bargaining agreement, that prohibited employees from distributing literature to each other on the business premises and gave the incumbent union exclusive access to in-plant bulletin boards. The Court reasoned that the employees' right to criticize or to oppose a union, guaranteed by § 7 of the NLRA, implies that they have a nonwaivable right effectively to disseminate their opinions to other employees while on the business premises. As a corollary, the union's adversaries must have " 'equal access to and communication with their fellow employees' ". 415 U.S. at 326, 94 S.Ct. at 1102, quoting NLRB v. Mid-States Metal Products, Inc., 403 F.2d 702, 705 (5th Cir. 1968). Although Magnavox and the cases following it to date involved discriminatory bans on leafleting, posting of notices, or meeting on company property, 9 the principle of equal access established in Magnavox would seem applicable to a discriminatory grant of access to an employer's internal communications system. 10 With respect to communications

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relating to "mutual aid or protection" within the meaning of § 7 a term that has been interpreted broadly 11 an employer therefore may not open one particularly effective channel of communication to certain employees or members of one labor organization and deny it to others.

The teachers of the Perry Township Schools, however, as employees of a municipality, are not covered by the NLRA, 12 and the Indiana Education Employment Relations Board, which administers the analogous Indiana statute governing labor relations in Indiana public school systems, has ruled that a school district may, as a matter of state law, grant a majority union the exclusive right to use school facilities to communicate with teachers. Pike Independent Professional Educators, No. U-76-16-5350 (May 20, 1977). 13 Of course, we do not sit to judge the wisdom of that state policy, but only to ensure that it falls within the limits...

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