Union Advocacy and Free Speech

I have written about the free speech rights of public employees a few times now but a recent case from a federal court in New York creates an important precedent for union members advocating on their coworkers’ behalf.  See Pekowsky v. Yonkers Bd. of Educ., No. 12 Civ. 4090 (S.D.N.Y. May 29, 2014).  Before getting into the details of Pekowsky, it’s important to understand the general landscape of public employee First Amendment rights.  The courts have taken several opportunities to limit general free speech rights in the somewhat unique scenario where the government is also an individual’s employer.  In order for a public employee’s speech to be protected under the First Amendment (and therefore protect them from any discipline for that speech), the speech must meet four tests:

  1. The employee must be speaking as a citizen and not pursuant to their official duties;
  2. The speech must be on a topic of public concern;
  3. The employee’s free speech interests must outweigh the employer’s interests; and
  4. The speech must be the motivating factor of an adverse employment action.

At issue in Pekowsky, was how these tests would apply to a union representative disciplined after advocating for his coworkers.  Hit the jump for more…

As is the case for many public education union representatives, the plaintiff in Pekowsky was also a full-time teacher.  In addition to his duties as a middle-school music educator, the plaintiff served as the president of the local union organization and was responsible for attending disciplinary meetings, bringing grievances, and generally advocating for teacher rights.  Due to a series of events, including multiple grievances, a dispute over compensation, and attempts to circumvent the plaintiff during disciplinary meetings, the relationship between the plaintiff and his principal deteriorated.  After the plaintiff had an altercation with a student, the principal requested that the plaintiff be removed from the building and the plaintiff’s schedule was modified so that he split time between two other buildings, making it impossible for him to continue as president and thereby foregoing a stipend paid to that position.  The plaintiff then brought suit alleging retaliation for his union advocacy speech.  Both the plaintiff and the school then moved for summary judgment, which would allow the court to render a decision prior to trial.

The court analyzed each of the tests for free speech in turn.  The court first found that the union representative duties were clearly separate from the individual’s teacher duties, therefore the teacher was speaking as a citizen (the court also cited two other cases from other jurisdictions with similar holdings).  Next, the court found that the plaintiff’s union advocacy was a “matter of importance to the functioning of our public education system” and a “feature of contemporary public debates,” and therefore the speech was on a matter of public concern.  Finally, the court noted that, while there was a dispute as to the exact reasons for his transfer, there was sufficient evidence of retaliation that a jury should have an opportunity to decide based on all of the evidence.  Therefore, the court dismissed the school’s motions for summary judgment and allowed the case to go to trial.  Additionally, the court noted that the free speech rights of public employees are “clearly established” and therefore the principal could be directly liable for her role in the transfer of the plaintiff.

The most striking aspect of the Pekowsky decision is how clearly the court finds the speech to be on a matter of public concern.  The free speech protection for internal work complaints has been somewhat in flux since the U.S. Supreme Court decision Borough of Duryea v. Guarnieri where the Court found that even internal complaints must address matters of public concern.  Some commentators had raised the concern that nearly all internal grievances are related to specific individual complaints which a court may decline to interpret as matters of public concern.  The Pekowsky court sidestepped the issue by focusing on the fact that championing individual disputes as a union representative is itself activity on a matter of public concern, without necessitating closer individual inspection of each complaint raised.

The Pekowsky decision is just a trial court decision so it is far from the final word in the matter but it does strike a hopeful note for those who wish to advocate for the good of their coworkers without facing adverse employment actions for that advocacy.  Missouri NEA members who feel they have been retaliated for their union advocacy work should immediately contact their UniServ Director for assistance.

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