Woodruff v. Board of Trustees of Cabell Huntington Hosp.

• Citation: 173 W.Va. 604,319 S.E.2d 372
• Decision Date: 11 July 1984
• Docket Number: No. 16313,16313
• Court: West Virginia Supreme Court
• Parties: , 116 L.R.R.M. (BNA) 3482 Tom WOODRUFF, et als. v. BOARD OF TRUSTEES OF CABELL HUNTINGTON HOSPITAL, etc., et als.

Page 372

319 S.E.2d 372

173 W.Va. 604, 116 L.R.R.M. (BNA) 3482

Tom WOODRUFF, et als. v. BOARD OF TRUSTEES OF CABELL HUNTINGTON HOSPITAL, etc., et als.

No. 16313.

Supreme Court of Appeals of West Virginia.

July 11, 1984.

Syllabus by the Court

1. "A writ of mandamus will not issue unless three elements coexist--(1) a clear right in the petitioner of the relief sought; (2) a legal duty on the part of the respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2 State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. Under article III, §§ 1, 7, and 16 of the West Virginia Constitution, collective bargaining agreements in the public sector may not contain provisions abrogating employees' fundamental constitutional rights, including rights of expression, assembly, association, and petition.

Grant Crandall and Bradley J. Pyles, Crandall, Pyles & Crandall, Charleston, for petitioners.

William C. Beatty and Richard J. Bolen, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, for respondents.

McGRAW, Justice:

The petitioners in this original proceeding in mandamus are fourteen former employees of Cabell Huntington Hospital, and their union district president, Tom Woodruff. The respondents are the Board of Trustees of Cabell Huntington Hospital; its acting president, Stephen E. Shride; and its vice-president, Walter M. Jacob.

The petitioner employees seek reinstatement after they were discharged for distributing leaflets on and near the hospital premises. This request for extraordinary relief is based upon the petitioner employees' contention that their activities were protected exercises of free speech rights guaranteed under the state and federal constitutions.

On April 16, 1984, the respondent Board of Trustees announced its decision to eliminate forty-three positions at the hospital. The union representing a substantial number of the employees at the hospital, including thirty-nine of those whose positions were to be eliminated, publicly disputed the necessity of the proposed job eliminations. The union, and its members, utilized various public forums for the expression of their views on this issue. The respondents state that any retaliatory action taken against the petitioners was not in response to these activities. On May 9-13, 1984, however, the petitioners participated in the group distribution of leaflets on and near the hospital premises. The respondents state that the petitioners were discharged for participating in this group distribution. Although the respondents complain that negative comments concerning hospital management were made by those participating in this group distribution of leaflets; that some nonunion personnel felt inconvenienced by the petitioners' activity; and that there was some littering in connection with the distribution of leaflets, there is no indication that this distribution was anything but peaceful. ¹ Additionally, there is nothing in the record, beyond the respondents' bald allegations to the contrary, which indicates that the normal operations of the hospital were, in any way, adversely affected by the group distribution of leaflets.

Nevertheless, on May 11, 1984, respondent Jacob issued a memorandum to the union which characterized the group distribution of leaflets on and near the hospital premises as a violation of a collective bargaining agreement provision which prohibited "picketing or patrolling." On May 12, 1984, nine hospital employees, with a total of eighty-four years' experience at the hospital, were terminated for the distribution of leaflets. On May 14, 1984, five other hospital employees, with a total of forty-six years' experience at the hospital, were also terminated for the continued distribution of leaflets. Among the petitioners discharged were all of the local union officials and every hospital employee who was a union district official. The respondents contend, however, that no attempt was made to single out union officers for discipline.

On May 14, 1984, the eight hospital employees initially discharged, along with the president of their union district, filed a petition for a writ of mandamus against the respondents. A rule to show cause was issued by this Court against the respondents on May 15, 1984, made returnable on May 22, 1984. On May 17, 1984, a supplement to the petitioners' request for a writ of mandamus was filed, requesting the addition of the five employees discharged on May 14, 1984. On May 30, 1984, this Court entered an order which reinstated these fourteen hospital employees with back pay, noting that a more comprehensive opinion supporting our order would follow. The primary issue presented in this action is whether the disciplinary actions taken by the hospital in response to the group distribution of leaflets by the fourteen hospital employees violated their free speech rights under the federal and state constitutions.

I.

A threshold issue we must first address prior to our discussion of the free speech issue, however, is whether extraordinary relief is appropriate in this case. ² It is well established in this jurisdiction that "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of the respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969); see also Reed v. Hansbarger, 314 S.E.2d 616, 619-20 (W.Va.1984), and cases cited therein.

The first two elements of this formula require an inquiry into the respective legal rights and duties of the parties, and therefore will be addressed in our discussion of the free speech issue. As to the third element, the respondents strongly suggest that a grievance and arbitration clause in the collective bargaining agreement does provide the sole and exclusive remedy for the petitioners to challenge their terminations. Although it is true that article XXIV of the collective bargaining agreement provides that "Any such employee who feels that he or she has been unjustly disciplined, suspended or discharged, and who desires to contest the discipline, suspension, or discharge shall follow and be bound by the procedures set forth in Article XXIII Grievance and Arbitration established for the processing of Employee Grievances," the petitioners were discharged pursuant to article XXV of the collective bargaining agreement, which provides in section 1 that: "During the term of this agreement, the grievance and arbitration machinery of this agreement and the administrative and judicial remedies and procedures provided by law shall be the sole and exclusive means of settling any employee and/or Union grievance with the Hospital, or any other type of dispute ..." (Emphasis added). Therefore, by the terms of the collective bargaining agreement, the grievance and arbitration procedure contained therein is not the sole and exclusive avenue of relief in all disputes arising under the agreement, particularly with regard to grievances arising under the agreement's "no strike" provision. ³

We recognize, as we have in the past, that "While it is true that mandamus is not available where another specific and adequate remedy exists, if such other remedy is not equally as beneficial, convenient, and effective, mandamus will lie." Syl. pt. 4, Cooper v. Gwinn, 298 S.E.2d 781 (W.Va.1981); United Mine Workers of America v. Miller, 291 S.E.2d 673, 677 (W.Va.1982). Because of the importance of the constitutional issues raised in this case, and because it is apparent that the respondents have continued to take retaliatory action against the continued distribution of leaflets, the grievance and arbitration procedure under the collective bargaining agreement is not equally as beneficial, convenient or effective as is extraordinary relief in this case.

II.

The Cabell Huntington Hospital is a public institution, created by an act of the Legislature in 1945. See 1945 W.Va. Acts ch. 157, as amended, 1947 W.Va. Acts ch. 166. Its construction was financed through bonds approved by the voters of Cabell County and the city of Huntington. See 1953 W.Va. Acts ch. 183. Its administration and management is vested by statute in a board of trustees appointed by the county commission. West Virginia Code § 7-3-15 (1984 Replacement Vol.). Additionally, the Legislature provided in 1953 that "the title to all property constituting or belonging to the hospital shall be vested jointly in the county court and the city of Huntington." 1953 W.Va. Acts ch. 183. Finally, in 1980, the Legislature authorized the issuance of revenue bonds to finance the construction and purchase of "additions, betterments, enlargements, extensions and improvements to and equipment and furnishing for" the hospital. 1980 W.Va. Acts ch. 131. As a public institution, it is subject to the limitations imposed by free speech rights guaranteed its employees under the federal and state constitutions.

Article XXV, § 1 of the collective bargaining agreement between the union and the hospital provides, in pertinent part, that:

neither the Union nor the employees or any of them will instigate, cause, encourage, promote, sponsor, lend aid to, sanction, engage in or condone any strike, slowdown in any facility of the Hospital or any curtailment of work or restriction of production of the Hospital or any picketing or patrolling during the term of this agreement.

Section 4 of article XXV further provides that "The Hospital shall have the right to ... discharge any employee who violates Section 1 of this Article." The termination actions taken by the hospital were made pursuant to these two contract provisions.

The United States Supreme Court has long held that public employees may not "be compelled to relinquish the...