Hanover Tp. Fed. of Teach. L. 1954 v. Hanover Com. Sch. Corp., 18800.

• Citation: 457 F.2d 456
• Decision Date: 14 March 1972
• Docket Number: No. 18800.,18800.
• Parties: HANOVER TOWNSHIP FEDERATION OF TEACHERS LOCAL 1954 (AFL-CIO), an unincorporated voluntary association of teachers by Larry Kirgan and Irene Joyce, as representatives of said association, and of all teachers that belong to said Federation, et al., Plaintiffs-Appellants, v. HANOVER COMMUNITY SCHOOL CORPORATION et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

457 F.2d 456 (1972)

HANOVER TOWNSHIP FEDERATION OF TEACHERS LOCAL 1954 (AFL-CIO), an unincorporated voluntary association of teachers by Larry Kirgan and Irene Joyce, as representatives of said association, and of all teachers that belong to said Federation, et al., Plaintiffs-Appellants, v. HANOVER COMMUNITY SCHOOL CORPORATION et al., Defendants-Appellees.

No. 18800.

United States Court of Appeals, Seventh Circuit.

January 12, 1972.

Rehearing Denied March 14, 1972.

COPYRIGHT MATERIAL OMITTED

Saul I. Ruman, Hammond, Ind., for plaintiffs-appellants.

Dennis J. Stanton, Crown Point, Ind., for defendants-appellees.

Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.

STEVENS, Circuit Judge.

Appellants, a teachers' union and 22 of its members, contend that a local school board's unfair labor practices are proscribed by the Civil Rights Acts, 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), (4). The district court found merit in some, but not all, of their contentions. They appealed from two orders entered on August 3 and August 14, 1970, 318 F.Supp. 757, which dismissed their claims but ordered reinstatement of nine other teachers (who were plaintiffs in the court below) and enjoined defendants¹ from discriminating against members of appellant's union.

I.

The local union representing the teachers in the Hanover School District was organized in the 1969-70 school year. It selected six representatives to negotiate with the defendants. Although a few meetings were held, defendants refused to engage in meaningful bargaining with the union.

The school board met on April 14, 1970, to consider the reemployment of the teaching staff. A week later, nine of the most active leaders were notified that their contracts would not be renewed. On April 24, 1970, the discharged teachers and the union commenced this action.

On April 28, 1970, the defendants mailed to each teacher who had not been fired a contract for the 1970-71 academic year and a statement that the contract would have to be signed and returned by June 1. Apparently some teachers, not parties to this litigation, executed and returned the tendered contracts. The 22 individual appellants did not.

After the original complaint was filed, it was amended several times and a number of evidentiary hearings were held. The record on appeal does not include any of those transcripts,² but it is fair to infer from the docket entries that plaintiffs presented a substantial quantity of evidence relating both to the merits and to their request for a preliminary injunction during May and early June.

Before the evidentiary hearings had been completed, on June 18, 1970, plaintiffs filed their Third Amended Complaint which, for the first time, asserted a claim on behalf of the 22 appellants who had not returned the 1970-71 contracts mailed to them in April. In that pleading appellants alleged that the mailing of individual contracts violated a duty to negotiate a master agreement with the union and was intended to undermine and destroy the union, and to "violate the First Amendment rights of the said plaintiffs."³ In explanation of their decision not to execute the individual agreements, appellants alleged:

"27. That upon said receipt of the contract, twenty-two (22) of the union teachers believing it was a violation of the contract requiring a negotiation of a master contract and believing it a violation of the statutes of the State of Indiana and their constitutional rights to belong and act through a union and believing that under the statutes of the State of Indiana they are not required to execute a contract, said plaintiffs did not sign the contract nor have they resigned. That said school administration, the defendants, has made it known that said twenty-two (22) teachers will not be re-employed and are terminated."

They made no allegation that the contracts tendered to the 22 appellants were less favorable than those tendered to non-union teachers, or than the contracts for the previous year.

The trial resumed after the Third Amended Complaint was filed, but it does not appear that any answer to that pleading was filed by defendants. Appellants do not suggest that they were prevented from adducing any evidence relevant to the claims of the 22 individual appellants or indeed to any other issue. The trial concluded on July 10, 1970, written briefs were thereafter filed, and on August 3 and August 14, 1970, the court made its rulings.

In a carefully prepared memorandum, the district court found that the teaching contracts of the nine original individual plaintiffs were terminated in retribution for their union activities. The court held that: "By discharging the nine teachers for exercising that freedom of association guaranteed by the Constitution, the defendants have violated the civil rights of these plaintiffs." (A. 178) The defendants were ordered to offer those plaintiffs contracts for the 1970-71 year no less favorable than their 1969-70 contracts; futhermore, defendants were enjoined "from discriminating in any way against members of the Hanover Township Federation of Teachers for exercising their First Amendment right of association." (A. 179) No appeal was taken from this aspect of the order.

In a separate memorandum the court considered the contention that the action of the school board in sending out individual contracts constituted a failure to bargain in good faith with the union. He concluded that the claims of the 22 appellants raised state law issues, but did not present any federal question; he therefore dismissed them from the action. Finally, he also found that the union and its officers did not have standing under the Civil Rights Act and ordered them dismissed as parties. The 22 individuals and the union have appealed.

II.

The First Amendment protects the right to advocate, either individually or through an association, and also the association's right to engage in advocacy on behalf of its members. N. A. A. C. P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Eastern Railroad Presidents Conf. v. Noerr Motor Freight Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464. A State may not invade that constitutional protection either by a general advance prohibition against certain forms of advocacy, N.A.A.C.P. v. Button, supra, or by attempting to punish the expression of views that it opposes. E.g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125. See also Musser v. Utah, 333 U.S. 95, 98-103, 68 S.Ct. 397, 92 L.Ed. 562 (Rutledge, J., dissenting). A public employee is protected against discharge in retaliation against the exercise of his constitutional rights, such as his right to speak freely on issues of public importance, Pickering v. Board of Education, 391 U.S. 563, 574-575, 88 S.Ct. 1731, 20 L.Ed.2d 811, his rights of association, Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, Mr. Justice Frankfurter dissenting at 496, 81 S.Ct. at 256, or his right to claim the privilege against self-incrimination when questioned about matters unrelated to the performance of his official duties, Uniformed Sanitation Men v. Commissioner of Sanitation, 392 U.S. 280, 284, 88 S.Ct. 1917, 20 L.Ed.2d 1089.

With this background, and with cases in the non-public employee category upholding free speech and related rights in connection with labor matters,⁴ the courts, as the court below did in this action with respect to the nine teachers ordered reinstated, have accepted a general proposition that public employees cannot be discharged for engaging in "union activities." Thus, if there is a discharge because of union membership, the general constitutional right of free association, as recognized in N. A. A. C. P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, and Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231,⁵ and the free speech right recognized in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, are correctly applied to invalidate the discharge, since there is no reason to distinguish a union from any other association.⁶

Such protected "union activities" include advocacy and persuasion in organizing the union and enlarging its membership, and also in the expression of its views to employees and to the public. For that reason, the State may not broadly condemn all union activities or discharge its employees simply because they join a union or participate in its activities. It does not follow, however, that all activities of a union or its members are constitutionally protected.⁷

Thus, the economic activities of a group of persons (whether representing labor⁸ or management⁹) who associate together to achieve a common purpose are not protected by the First Amendment. Such activities may be either prohibited or protected as a matter of legislative policy. Thus, some private employers may agree to fix prices¹⁰ and others may not¹¹; their employees' collective economic acivities are affirmatively protected by statutes which do much more than preserve their right to speak and to advocate.¹²

For purposes of decision we may, therefore, assume that the procedure followed by defendants in mailing individual contracts to union members while collective bargaining discussions were in progress would have been an unfair labor practice if the Labor-Management Relations Act were applicable, and that this procedure tended to undermine the economic strength of the union. It may also have deprived the teachers of benefits they sought to obtain by exercising their First Amendment rights. That amendment, however, provides no guarantee that a speech will persuade or that advocacy will be effective.

Since the coverage of the relevant parts of the Civil Rights Act is no broader than the constitutional protection, those statutes are not equivalent to the Labor-Management Relations Act in the field...