POLICE OFFICERS'GUILD, NAT. U. OF POL. OF. v. Washington

• Citation: 369 F. Supp. 543
• Decision Date: 21 December 1973
• Docket Number: Civ. A. No. 1670-73.
• Parties: POLICE OFFICERS' GUILD, NATIONAL UNION OF POLICE OFFICERS, AFL-CIO, et al., Plaintiffs, v. Walter E. WASHINGTON, as Mayor Commissioner of Washington, D. C., Donald H. Weinberg, individually and as Director of Personnel of Washington, D. C., Government of the District of Columbia and the American Arbitration Association, Defendants.
• Court: U.S. District Court — District of Columbia

369 F. Supp. 543

POLICE OFFICERS' GUILD, NATIONAL UNION OF POLICE OFFICERS, AFL-CIO, et al., Plaintiffs, v. Walter E. WASHINGTON, as Mayor Commissioner of Washington, D. C., Donald H. Weinberg, individually and as Director of Personnel of Washington, D. C., Government of the District of Columbia and the American Arbitration Association, Defendants.

Civ. A. No. 1670-73.

United States District Court, District of Columbia.

December 21, 1973.

Elliot Bredhoff, George H. Cohen, Darryl J. Anderson, Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., for plaintiffs.

Mellie H. Nelson, Asst. Corp. Coun., Washington, D. C., for defendants Washington and Weinberg.

Gordon P. Ramsey, Washington, D. C., for intervenor, Local 442, International Brotherhood of Police Officers, a Division of the National Association of Government Employees.

Before FAHY, Circuit Judge, and FLANNERY and BRYANT, District Judges.

MEMORANDUM OPINION

FLANNERY, District Judge.

This action was instituted by the Police Officers' Guild, National Union of Police Officers, AFL-CIO (POG-NUPO) on its own behalf and on behalf of its members and by certain individual police officers employed by the Metropolitan Police Department of the District of Columbia and officials of POG-NUPO. Local 442, the International Brotherhood of Police Officers (IBPO) was granted leave to intervene as plaintiff and similarly brings this action on its own behalf and on behalf of its members.

Plaintiffs seek a judgment pursuant to 28 U.S.C. §§ 2201, 2202 declaring the first paragraph of Title 4, Section 125 of the District of Columbia Code unconstitutional because it prohibits police officers, under pain of immediate discharge, from associating freely and from becoming members of or affiliating with any organization which "holds, claims or uses" the right to strike.¹ In addition, plaintiffs seek to enjoin the defendants permanently from acting to enforce Section 4-125 or interfere with the plaintiffs' right to participate fully in a labor representation election to be held in the Metropolitan Police Department. The governmental defendants are officials of the District of Columbia responsible for the enforcement of Section 4-125 and ultimately responsible for administration of personnel matters within the Metropolitan Police Department. The jurisdiction of this court is asserted under 28 U.S.C. § 1331.

Upon application to the district judge to whom the case was originally brought for hearing and after briefing and oral argument by both sides, a temporary restraining order was issued staying the scheduled representation election. Subsequently, the plaintiffs' application for a three-judge court was granted and the temporary restraining order extended pursuant to 28 U.S.C. § 2284(3) until this case could be heard and determined by the three-judge panel. The plaintiffs then moved for a preliminary injunction and the matter is now before the court on the defendants' motion to dismiss for failure to state a claim. Fed.R.Civ.P. 12(b)(6). A hearing before this three-judge court was held on October 15, 1973. The court, having previously granted the plaintiffs' motion for consolidation of the trial on the merits with the hearing on their application for preliminary injunction, now deems the matter submitted.²

For the reasons hereinafter stated, the court believes that the first paragraph of D.C.Code Section 4-125 cannot be read narrowly to save it from a constitutional attack and concludes that it unlawfully infringes upon rights guaranteed the plaintiffs by the First Amendment to the Constitution of the United States.

BACKGROUND

The Parties

POG-NUPO is a labor organization with its principal place of business in Washington, D. C. Its membership consists of approximately 1,000 police privates and sergeants employed by the Department. Originally chartered as the Police Officers' Guild, an independent and unaffiliated organization, the members of POG on July 30, 1973 voted to affiliate themselves with the National Union of Police Officers, AFL-CIO (NUPO). NUPO is, in turn, an independent division of the Service Employees International Union, AFL-CIO (SEIU). NUPO was initially formed in 1972 and presently has 58 chartered locals with several thousand members. It is comprised exclusively of police officers, run by police officers, for the benefit of police officers. Thus, although NUPO is a division of SEIU it is governed by the provisions of its own constitution and by-laws which limit membership to full-time police officers. The SEIU, apart from its NUPO division, is comprised primarily of members who are employed in private sector industries. Insofar as the SEIU represents employees in the private sector, it asserts and, in fact, exercises the right to strike in support of its bargaining demands.

The agreement of affiliation between NUPO and SEIU expressly provides that NUPO shall be a separate and distinct police division of SEIU. NUPO is opposed to strikes by police officers; its constitution and by-laws specifically preclude it from striking.³ The SEIU in October, 1972 approved NUPO's constitution, including the express prohibition against strikes. POG's articles of incorporation specifically prohibit its members from acting inconsistently with law. It appears uncontradicted from the record that POG has adopted without reservation the policies and charters which govern NUPO.

Local 442, International Brotherhood of Police Officers (IBPO), Intervenor, is a labor organization with its principal place of business in Washington, D. C. and with membership consisting of police officers employed by the Department. IBPO is an affiliate of a parent labor organization, the National Association of Government Employees (NAGE). NAGE, an independent government employee union, has more than 800 locals across the United States and represents more than 200,000 federal, state and local government employees. The IBPO Division of NAGE has more than 136 local unions representing police officers employed by approximately 136 police departments.

According to allegations in its complaint, it is the policy of IBPO to observe all governmental rules and regulations. NAGE and IBPO specifically disavow the right of police officers to engage in economic strikes. NAGE's constitution, however, does not contain a no-strike clause. In addition, NAGE is the certified collective bargaining representative of certain Pennsylvania local governmental employees who lawfully may engage in economic strikes in support of their bargaining demands. As to these employees, NAGE holds, claims and may use economic strikes in support of such local unions' collective bargaining efforts. Indeed, NAGE has publicly called for the removal of all statutes prohibiting federal, state and local government employees from engaging in economic strikes.

Facts

The facts leading to this action are not in dispute. Pursuant to Chapter 25A of the District of Columbia Personnel Manual⁴ and to a Decision and Order of the Board of Labor Relations of the District of Columbia issued on July 23, 1973,⁵ a representation election was scheduled to be held among certain officers of the Metropolitan Police Department. The representation proceedings were initiated as a result of a request for exclusive recognition by the Policemen's Association of the District of Columbia and a similar request for recognition by IBPO. Subsequently, on February 23, 1973 and February 26, 1973, the Police Officers' Guild (then an independent, unaffiliated organization) duly intervened in the proceedings. At present, the Department does not recognize any labor organization as the exclusive bargaining representative of any of its officers.

Throughout the proceedings the Board considered POG and the two other competing organizations to be labor organizations as defined in Chapter 25A, Section 3(n) of the Manual. All three unions participated fully in the proceedings through legal counsel. Each entered documentary evidence; gave testimony before the Board; presented oral argument; and submitted written briefs to the Board. The Board's Order of July 23, 1973 established the appropriate unit⁶ of employees within which a representation election would be conducted for the purpose of determining which labor organization would be its exclusive bargaining representative and provided the employees of this unit a choice between the Policemen's Association; Local 442, International Brotherhood of Police Officers; the Police Officers' Guild; and no labor organization.⁷

On July 30, 1973 the Police Officers' Guild became affiliated with the National Union of Police Officers, AFL-CIO. Defendant Donald H. Weinberg, Director of Personnel for the District of Columbia, immediately notified POG-NUPO that, in his opinion, under the provisions of D.C.Code Section 4-125 POG's affiliation with NUPO, AFL-CIO placed all its members in jeopardy of loss of employment because NUPO was a labor organization indirectly affiliated with the AFL-CIO whose other affiliations engage in strikes.⁸ Thereafter, solely on the basis of the POG-NUPO affiliation, Mr. Weinberg issued his decision to strike POG-NUPO from the ballot and exclude it from further participation in the representation proceedings.⁹ On August 27, 1973 the plaintiffs filed this action.

DISCUSSION

Jurisdiction in This Court

Clearly all the parties herein have standing to bring this action.¹⁰ When an action against an employee for arguably legitimate First Amendment activity is actually begun or clearly imminent, a justiciable controversy is presented to the court.¹¹

At the outset, defendants deny that a federal question under 28 U.S.C. § 1331 is raised. Defendants urge it was the intent of Congress in enacting The District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473 hereinafter, the D.C. Court Reform Act that disputes regarding laws of local application, such as Section 4-125, be...