Vicksburg Firefighters Ass'n, Local 1686 Intern. Ass'n of Firefighters, AFL-CIO, CLC v. City of Vicksburg, Miss.

• Decision Date: 31 May 1985
• Docket Number: AFL-CI,CLC,No. 84-4126,84-4126
• Citation: 761 F.2d 1036
• Parties: 119 L.R.R.M. (BNA) 2978 VICKSBURG FIREFIGHTERS ASSOCIATION, LOCAL 1686 INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,, et al., Plaintiffs-Appellants, v. CITY OF VICKSBURG, MISSISSIPPI, etc. et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1036

761 F.2d 1036

119 L.R.R.M. (BNA) 2978

VICKSBURG FIREFIGHTERS ASSOCIATION, LOCAL 1686 INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, CLC, et al Plaintiffs-Appellants, v. CITY OF VICKSBURG, MISSISSIPPI, etc. et al., Defendants-Appellees.

No. 84-4126.

United States Court of Appeals Fifth Circuit.

May 31, 1985.

John L. Quinn, Jackson, Miss., for plaintiffs-appellants.

John L. Maxey, II, Jackson, Miss., for Vicksburg Firefighters.

J. Stanford Terry, Edley H. Jones, Jr., Vicksburg, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RUBIN, RANDALL and HIGGINBOTHAM, Circuit Judges.

RANDALL, Circuit Judge:

In this civil rights case, plaintiffs seek, inter alia, to enjoin the City of Vicksburg, Mississippi, from giving force and effect to a municipal resolution prohibiting captains of the Vicksburg Fire Department from belonging to a union or labor organization having in its membership rank-and-file firefighters of that department. The district court refused to issue the injunction on the ground that captains in the Vicksburg Fire Department are supervisors with interests adverse to those of the lesser-ranked firefighters and that therefore the prohibition against membership in a union representing the rank and file was a valid limitation on the exercise of the captains' first amendment rights. Finding ourselves in substantial agreement with the district court, we affirm.

I.

The Vicksburg Firefighters Association, Local 1686 is a voluntary unincorporated labor organization affiliated with the International Association of Firefighters, AFL-CIO, CLC. While the membership of Local 1686 is comprised mostly of firefighters holding the rank of private or lieutenant, since the organization's inception captains in the Vicksburg Fire Department have been allowed to join and become officers. The purpose of Local 1686 is to assist its members to work collectively for their mutual benefit and protection and to engage in legislative lobbying activities to promote the employment-related interests of its members. In addition, Local 1686 over the years has held fire safety programs for the citizens of Vicksburg, sponsored training programs for its members to enhance fire safety and performance, and raised funds for the Muscular Dystrophy Association and the Mississippi Burn Center. The City of Vicksburg is under no obligation to recognize Local 1686 as a collective bargaining representative ¹ and has not done so. Nor has the City signed a collective bargaining agreement with any other organization of firefighters or even engaged in any collective bargaining with its firefighters.

It is undisputed that the Vicksburg Fire Department has generally functioned well and has enjoyed good relations between superior officers and their subordinates. Since the creation of Local 1686 in 1967, there have been no strikes or work stoppages. In September of 1978 and September of 1980, however, off-duty members of Local 1686 engaged in informational picketing in an effort to gain public support for a wage increase. Approximately ten captains were members of Local 1686 at the time of the picketing.

On April 19, 1982, the Mayor and Board of Aldermen of the City of Vicksburg adopted the following resolution:

WHEREAS, it has come to the attention of the Mayor and Board of Aldermen that some of the captains in the City Fire Department are members of Local 1686, International Association of Firefighters, AFL-CIO and CIC; and

WHEREAS, the captains in the Fire Department are in supervisory positions and exercise supervision over the other members of the Fire Department at various stations and on various shifts; and,

WHEREAS, under the National Labor Relations Act, employers are not compelled to regard supervisors as employees for purposes of collective bargaining, and under the Taft-Hartly Act, a policy is expressed that supervisory membership in rank and file unions is inimical to efficiency; and,

WHEREAS, although the National Labor Relations Act and the Taft-Hartley Act do not apply to public employers, the Mayor and Board of Aldermen believe that the policies established by these Acts are the proper policies for the City to follow and believes [sic] that captains by virtue of their supervisory responsibilities, should have complete and undivided loyalty to the Fire Department and, therefore, should not be members of a union or labor organization having as members those fire fighters whom said captains are employed to supervise.

NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Aldermen of the City of Vicksburg, that it is hereby accepted as the policy of said City that individuals occupying the position of captain in the Vicksburg Fire Department will not be permitted to belong to a union or labor organization having as members rank and file fire fighters of the Vicksburg Fire Department.

Under the resolution, in order to retain their present rank, thirteen captains of the Vicksburg Fire Department who belonged to Local 1686 were required to resign from that organization. The resolution, however, did not prohibit membership in the union by lesser-grade firefighters or preclude captains from joining any labor organization whose membership did not consist of rank-and-file firefighters of the Vicksburg Fire Department.

Following adoption of the resolution, the plaintiffs--consisting of Local 1686, firefighters in the Vicksburg Fire Department holding the rank of captain, and lieutenants who have passed their captain examinations but have not yet been promoted ²--filed the instant action in the District Court for the Southern District of Mississippi pursuant to 42 U.S.C. Secs. 1983 and 1985. Asserting that the resolution unconstitutionally infringed on first amendment and due process rights, the plaintiffs sought declaratory and injunctive relief as well as damages against the City of Vicksburg, its Mayor, and its Board of Aldermen. The district court ordered the resolution held in abeyance pending disposition of the case, and, after a two-day trial, upheld the resolution as a legitimate restriction on constitutional rights. Judgment was entered accordingly, and this appeal followed.

II.

There can be no doubt that the City of Vicksburg's resolution forbidding captains from belonging to labor organizations comprised of rank-and-file firefighters implicates important first amendment protections. The first amendment's freedom of association provides both public and private employees the right to organize, solicit members for, and belong to labor unions. See Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 464-66, 99 S.Ct. 1826, 1827-28, 60 L.Ed.2d 360 (1979); Thomas v. Collins, 323 U.S. 516, 532, 65 S.Ct. 315, 319, 89 L.Ed. 430 (1945). These rights, however, are not absolute, especially with respect to public employees. While the government cannot condition public employment on the relinquishing of first amendment protection, Perry v. Sindermann, 408 U.S. 593, 596-98, 92 S.Ct. 2694, 2696-98, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 605, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967), the government has legitimate interests as an employer in regulating the first amendment conduct of its employees that differ significantly from those it possesses in connection with the population in general. See Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708 (1983); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). "The problem is to balance the rights of the employees as citizens against the interests of the state in promoting efficient public service." Battle v. Mulholland, 439 F.2d 321, 324 (5th Cir.1971); see also McBee v. Jim Hogg County, 730 F.2d 1009 (5th Cir.1984) (en banc); Bickel v. Burkhart, 632 F.2d 1251, 1256 (5th Cir.1980). In order for an intrusion on associational rights to withstand judicial scrutiny, the government must show that the regulation serves a legitimate and substantial government interest and that the means employed are the least drastic restriction of constitutional rights. Elrod v. Burns, 427 U.S. 347, 363, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960); see generally Developments in the Law--Public Employment, 97 Harv.L.Rev. 1611, 1678 (1984).

In holding that the City of Vicksburg's resolution was a legitimate limitation on the exercise of first amendment rights, the district court relied heavily on the case of Local 2263, International Ass'n. of Fire Fighters v. City of Tupelo, 439 F.Supp. 1224 (N.D.Miss.1977). Tupelo as well as two other cases--York County Fire Fighters Ass'n., Local 2498 v. County of York, 589 F.2d 775 (4th Cir.1978), and Elk Grove Firefighters Local 2340 v. Willis, 400 F.Supp. 1097 (N.D.Ill.1975), aff'd mem., 539 F.2d 714 (7th Cir.1976)--concerned the constitutionality of municipal resolutions that were substantially identical to the one at bar. ³ We think these cases were correctly decided and accordingly adopt their reasoning. We hold that prohibiting firefighters properly characterized as supervisors from belonging to labor organizations composed of the rank and file serves a legitimate and substantial government interest in maintaining efficient and dependable firefighting services. "Management, like labor, must have faithful agents." Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 660, 94 S.Ct. 2023, 2027, 40 L.Ed.2d 443 (1974) (quoting H.R.Rep. No. 245, 80th Cong., 1st Sess. 16 (1947)). An identity of interests on the part of supervisors with the rank and file poses a significant threat that the loyalties of the supervisors will be divided and that consequently the discipline and effectiveness of the fire department will be impaired. Indeed, it is not difficult to imagine numerous instances in...