Confusion Brewing in the Courts Over Union Members’ Free Speech by Michael J. Goldberg, Esq.

Michael J. Goldberg is an attorney and serves as an AUD Director.

The Union Members’ Bill of Rights, part of the federal Labor-Management Reporting and Disclosure Act of 1959, protects the freedom of speech of union members. That protection is very broad, especially outside the context of official union meetings. The statute protects the rights of members “to express any views, arguments, or opinions,” so long as they do not violate reasonable union rules “as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.” LMRDA § 101(a)(2). Unfortunately, some sloppy thinking and writing in a number of federal court decisions is generating some confusion over the extent of the law’s protection of union member free speech that could ultimately scale back those rights.

The confusion is over the question whether members’ speech, in order to be protected, must relate to matters of general union concern, as opposed to union related matters that are primarily of interest to the particular member, or matters that are not directly related to union affairs at all. The statute permits speech during union meetings to be limited to “business properly before the meeting,” but outside of meetings, as the late Clyde Summers, one of the AUD’s founders and for decades the leading academic expert on union democracy explained shortly after the Act was passed, a member’s right “‘to express any views’ makes reasonably clear that this includes full freedom to debate the public issues of the day. The union cannot curtail this basic right of citizenship.”

For the most part, the courts have agreed. Numerous cases interpreting the provision have applied its protections broadly, to speech arguably only tangentially related to union concerns. For example, one case overturned the union’s expulsion of a member who had violated a union rule against “advocating Communist ideas,” and another court held that a union officer’s opposition to displays of the Confederate flag was protected speech.

Recently, however, a series of cases, most dealing with alleged violations of union officers’ or employees’ free speech rights, have applied a narrower test, suggesting that to be protected by §101(a)(2), speech must “‘be fairly characterized as a matter of union concern’ — that is, . . . the speech ‘relates to the general interests of the union membership at large.” See Trail v. Local 2850, UAW, 710 F.3d 541 (4th Cir. 2013) and Hylla v. Transportation Communications Int’l U, 536 F.3d 911 (8th Cir. 2008). In the Trail case, the plaintiff, who was the local’s recording secretary, alleged that the union retaliated against her by failing to represent her effectively in a discharge grievance against her employer because she had complained about two of her local’s officers viewing pornography on union computers in the union hall. The court rejected her claim on the grounds that her complaints about her local officers were not the type of speech the LMRDA was intended to protect.

In reaching that conclusion, the court made explicit reference to Supreme Court cases limiting the reach of First Amendment protections for speech by government employees. With respect to speech by union officers (like Trail) and member-employees, that analogy may hold up. The Supreme Court has recognized in some situations narrower protections of union officers’ speech under the LMRDA than the protections afforded to ordinary members. See, e.g., Finnegan v. Leu, 456 U.S. 431 (1982). Even where §101(a)(2) protects officers’ speech, that speech “‘must be judged by the LMRDA’s basic objective: to ensure that unions are democratically governed, and responsive to the will of the union membership.” Sheet Metal Workers v Lynn, 488 U.S. 347 (1989). As for Trail’s speech itself, the court failed to recognize that union officers viewing porn on the union’s time and the union’s dime might be of concern to other members, and could, for example, be an issue in those officers’ reelection campaigns. It may be, therefore, that the court misapplied the standard borrowed from the First Amendment public employees’ cases, but because Trail herself was an officer of the local, at least the court was in the right legal ballpark.

Unfortunately, Trail and other cases relying on that public employee analogy could end up generating confusion resulting in unjustified limits on union member speech, because while the cases applying this more limited interpretation of §101(a)(2) involved the speech of union officers or employees, the leading opinions were not written in a way to suggest that the approach adopted was limited to such circumstances. On the contrary, some of the language in the opinions suggests otherwise. For example, in Trail v. Local 2850, UAW, the court stated, “Just as the First Amendment does not protect government employee speech that ‘touch[es] upon matters of public concern in only the most limited sense,’ . . . so section 101(a)(2) does not protect union member speech that is of only limited significance to the union” (emphasis added). But that is where the analogy to First Amendment doctrine breaks down. Under the First Amendment, which guards against government infringements on free speech, the speech of ordinary citizens who are not government employees is protected whether or not that speech has anything to do with matters of “public concern,” and whether or not the speech relates to a purely personal matter. By the same token, in the union context, where the LMRDA guards against union infringements on free speech, the better argument is that the speech of ordinary members, who are not officers or employees of the union, should be protected from union retaliation whether or not that speech has anything to do with matters of general union concern.

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