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June 10, 2005
Bannering was not unlawful secondary picketing
It can be a fine line between free speech protected by the first amendment and secondary picketing that violates the National Labor Relations Act (NLRA). Today's issue of Employment Law Memo tells the story:
Overstreet v. United Brotherhood of Carpenters (9th Cir 06/08/2005).
The NLRB's Regional Director sued the union under NLRA Section 10(l) seeking to enjoin an alleged violation of Section 8(b)(4)(ii)(B). The trial court denied the injunction; the 9th Circuit affirmed (2-1).
The union had a dispute with three contracting companies, objecting to their failure to hire union employees and alleged failure to meet local labor standards. In an effort to induce the contractors to change their practices, the union put pressure on 18 "retailers" who did business with them. Near each retailer, the union set up a 4x15 foot banner that read "SHAME ON [NAME OF RETAILER]" in large red letters, with the words "LABOR DISPUTE" in smaller black letters on each side. Individual union members held the banners from 20 to several hundred feet from the retailers' entrances. The union members remained stationary, did not block entrances, and did not confront customers.
(1) The court announced a new standard for granting Section 10(l) injunctions. Previously the standard was highly deferential to the Regional Director: whether the Regional Director had "reasonable cause" to believe the union violated Section 8(b)(4)(ii)(B). The court adopted the same standard used in Section 10(j) cases, which is the ordinary standard generally governing issuance of injunctions, including whether the Regional Director has a "fair chance of success on the merits." Additionally, because this particular case had 1st amendment overtones, the court said there should be no deference at all to the NLRB's conclusions and that there must be a "particularly strong" showing of likely success.
(2) The court held that the Regional Director was unlikely to succeed on the merits. The union conceded that its goal was to dissuade customers from patronizing the retailers, which had the goal of encouraging the retailers to cease doing business with the contractors. Thus, the issue was whether the union's actions fit the "threaten, coerce, or restrain" portion of Section 8(b)(4)(ii)(B). Here there was no "coercing" because there was no "picketing," and no one-on-one physical interaction or communication. The court also concluded that the union was not engaged in "signal picketing" (a signal to employees of the secondary employers) because the banners were directed toward passing motorists and were not directed at employees.
(3) The court rejected the argument that the banners were fraudulent in that they used the phrase "labor dispute" - suggesting that the union had a primary dispute with the retailers rather than with the contractors. The banners were not false because the union in fact did have a labor dispute with the secondary businesses (retailers).
The DISSENT said the Regional Director was likely to prevail on the "fraudulent speech" claim because the banners falsely conveyed the message that the union had primary labor disputes with the secondary employers, that is, that the retailers were treating their employees shamefully.
My view: Let the law review articles begin.
Posted June 10, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
May 02, 2005
Military recruiting issue goes to Supreme Court
On May 2, 2005 the US Supreme Court agreed to decide "Whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement?" Rumsfeld v. Forum For Academic and Institutional Rights (Docket No. 04-1152).
Lots of details at SCOTUSBlog: Court to rule on "Solomon Amendment"
Many law schools have tried to exclude military recruiters, and the government response has been to threaten withdrawal of funding - not just for the law school, but for the whole university. The law involved is the "Solomon Amendment."
Many schools have policies against discrimination on the basis of sexual preference, and refuse to allow the use of school resources for recruiting by employers who engage in sexual preference discrimination - including the military.
The 3rd Circuit held (2-1) that the law schools were likely to prevail on their first amendment arguments, and were entitled to a preliminary injunction against enforcement of the Solomon Amendment. Forum For Academic and Institutional Rights v. Rumsfeld (3rd Cir 11/29/2004). The 3rd Circuit issued a stay pending review by the Supreme Court.
My view: I'm doubtful that there are five justices that will agree with the 3rd Circuit. Schools remain free to teach and to say whatever they like, and to hire faculty on whatever basis they like. Any restriction on free speech (or association) seems quite incidental, especially when weighed against the Congress' powers regarding the spending power and the powers relating to war and the military.
Posted May 02, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
February 28, 2005
Whistleblowing Assistant DA gets to US Supreme Court
The Supreme Court has another chance to tell the 9th Circuit how the 1st amendment works for public employees. Assistant DA Richard Ceballos sent a memo to his supervisor alleging that a sheriff deputy lied on a search warrant. Ceballos later filed suit claiming his superiors retaliated against him for this.
The last time the Supreme Court had a public employee 1st amendment case from the 9th Circuit the Justices reversed the 9th Circuit without even hearing oral arguments. Ouch. That was San Diego v. Roe (12/06/2004) [full text pdf] in which a police officer was discharged for selling videos of himself masturbating. The 9th Circuit actually thought that was protected by the US constitution. The Supreme Court's per curiam decision (a rare item) said it was "not a close case."
Now comes Garcetti v. Ceballos - certiorari granted February 28, 2005. [9th Circuit decision pdf] The 9th Circuit went through the drill of asking (1) whether Ceballos' speech was a matter of public concern [YES] and, if so, (2) whether his interests outweighed the public employer's interest [YES].
The real question? Whether his speech lacks constitutional protection because it was uttered in the course of carrying out his employment obligations.
9th Circuit Judge Diarmuid O'Scannlain, in a concurring opinion, argued that the 9th Circuit's jurisprudence in this area is flat wrong. (He couldn't know that the Roe case would be summarily reversed.) He traces it all to Roth v. Veteran's Administration, 856 F.2d 1401 (9th Cir 1988), in which the court said that when a public employee speaks on matters of public importance, that speech automatically comes within the definition of a matter of public concern.
My view: The 9th Circuit's Roe decision was off the wall. Its Ceballos decision seems to lose track of what the 1st amendment is for. It is not to protect employees in the conduct of their day-to-day employment duties. Perhaps there should be laws to protect assistant DAs from getting demoted when they tell the boss that a police officer rigged a search warrant. I could vote for that. But a constitutional right? I don't think so.
Posted February 28, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
Whistleblowing Assistant DA gets to US Supreme Court
The Supreme Court has another chance to tell the 9th Circuit how the 1st amendment works for public employees. Assistant DA Richard Ceballos sent a memo to his supervisor alleging that a sheriff deputy lied on a search warrant. Ceballos later filed suit claiming his superiors retaliated against him for this.
The last time the Supreme Court had a public employee 1st amendment case from the 9th Circuit the Justices reversed the 9th Circuit without even hearing oral arguments. Ouch. That was San Diego v. Roe (12/06/2004) [full text pdf] in which a police officer was discharged for selling videos of himself masturbating. The 9th Circuit actually thought that was protected by the US constitution. The Supreme Court's per curiam decision (a rare item) said it was "not a close case."
Now comes Garcetti v. Ceballos - certiorari granted February 28, 2005. [9th Circuit decision pdf] The 9th Circuit went through the drill of asking (1) whether Ceballos' speech was a matter of public concern [YES] and, if so, (2) whether his interests outweighed the public employer's interest [YES].
The real question? Whether his speech lacks constitutional protection because it was uttered in the course of carrying out his employment obligations.
9th Circuit Judge Diarmuid O'Scannlain, in a concurring opinion, argued that the 9th Circuit's jurisprudence in this area is flat wrong. (He couldn't know that the Roe case would be summarily reversed.) He traces it all to Roth v. Veteran's Administration, 856 F.2d 1401 (9th Cir 1988), in which the court said that when a public employee speaks on matters of public importance, that speech automatically comes within the definition of a matter of public concern.
My view: The 9th Circuit's Roe decision was off the wall. Its Ceballos decision seems to lose track of what the 1st amendment is for. It is not to protect employees in the conduct of their day-to-day employment duties. Perhaps there should be laws to protect assistant DAs from getting demoted when they tell the boss that a police officer rigged a search warrant. I could vote for that. But a constitutional right? I don't think so.
Posted February 28, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
