The law at work, Monthly Labor Review Online, Apr. 2000

April 2000, Vol. 123, No. 4

The law at work

Free Speech
Age discrimination
Duty to bargain
Briefs
Footnotes

Charles J. Muhl
Formerly of the Office of Publications and Special Studies, Bureau of Labor Statistics

One of the strongest principles emanating from the U.S. Constitution, contained in the first amendment, is that citizens have the right to freedom of speech. In the past, the Supreme Court has held that, generally, government cannot regulate speech solely on the basis of its content, but that certain kinds of speech, such as obscenity and "fighting words," can be regulated. Those kinds of words are of such slight social value that the freedom to utter them is outweighed by the social interest in morality and order.¹ In the employment context, courts often deal with the question of whether a government employer committed improper actions in response to an employee’s exercise of the first amendment right to free speech. When speaking completely outside the employment context, government employees are protected by the same standard as private citizens. Thus, in general, government employers are not permitted to retaliate against employees for their exercise of the right to speak, but exceptions to the rule exist. Three recent court of appeals cases dealt with this issue.

In Bonds v. Milwaukee County,² the Court of Appeals for the Seventh Circuit held that the county’s decision not to hire an individual after he made inflammatory public comments was justified by its interest in government efficiency and harmony in the workplace. Michael Bonds worked for the city of Milwaukee as a senior fiscal analyst for the Community Development Block Grant Committee, an elected body of 10 members that makes all decisions regarding the distribution of funds from the Federal Government for community development. In his position, Bonds evaluated policy proposals concerning such distribution. In the spring of 1997, Milwaukee mayor John Norquist recommended a new approach to distributing funds called the "Neighborhood Strategic Planning Process." According to his proposal, Milwaukee would be divided into 17 service areas, each of which would compete for portions of the overall funding allocation. Bonds evaluated the proposal in his position, found it to be seriously flawed, and became strongly opposed to its implementation. Despite his evaluation, the city adopted the plan in July 1997.

That same month, Bonds applied for a job as a research analyst with the Milwaukee County Board of Supervisors. Karen Ordinans, chairperson of the board, told Bonds during an interview that she expected her staff to be providers of information, to be objective about research and analysis, and not to get into the political part of debating issues and making policy decisions. Bonds indicated to her that he understood that, irrespective of his personal opinions on policy proposals, he was not to comment on them publicly. Bonds was subsequently offered the job and accepted. One day after taking the job, Bonds participated in a "Community Brainstorming Conference" that focused on the proposed Neighborhood Strategic Planning Process. During this event, Bonds was openly critical of the program, calling it "sinister," and attacked both the city of Milwaukee, to which he remained employed at the time, and Mayor Norquist. Bonds’ comments were reported the next day in the Milwaukee Journal Sentinel, a local newspaper, including the following quote: "Anyone who is concerned about racial harmony should be at City Hall raising hell. . . [t]his is pitting black against white when we should be working together."

When the county board learned of Bonds’ actions at the conference, many of its members became concerned about his future employment with the board. Ordinans made her hiring decision based on her belief that Bonds would not comment publicly on any disagreements he had with policy proposals; she found his actions at the conference to have exhibited "extremely poor judgment," given that he had made inflammatory statements on a matter that had already sparked political controversy. After verifying that Bonds could remain at his job with the city, Ordinans withdrew the offer of employment. Bonds filed suit against the county, claiming he was retaliated against for exercising his first amendment right to free speech.

The standard for courts to evaluate free-speech rights of government employees in the employment context was first enunciated by the Supreme Court in Pickering v. Board of Education.³ There, the Court held that the State has interests as an employer in regulating the speech of its employees far different than the interests it has in regulating private citizens’ speech. The Supreme Court established a balancing test in Pickering whereby courts weigh the government employer’s interest in efficiency and effectiveness against the public employee’s right to free speech. Later, the Court added an exception to this test,⁴ under which government employees can be prevented from publicly criticizing their employer on a matter of public concern if they work in a "policymaking" position. If such criticism occurs, the employee can be subjected to an adverse employment action.

The county argued on appeal that its decision to rescind the employment offer was a protected employment action under the policymaking employee exception to the Pickering balancing test. The seventh circuit found that the exception did not apply in this context, because the adverse employment action was taken by an employer other than the one that had been criticized. Bonds criticized his current employer, the city of Milwaukee, and suffered an adverse employment action from his potential future employer, the county of Milwaukee. The appellate court held that the exception applies only if the employer retaliating against an employee is the one that had been criticized to begin with. Thus, the court found, the policymaking employee exception could not be used by the county as a defense for withdrawing its employment offer to Bonds.

However, the court went on to conduct the Pickering balancing test and found that the county’s interest in government efficiency and workplace harmony did permit it to rescind the employment offer to Bonds. Under the first prong of the Pickering test, the court considered the "content, form, and context" of Bonds’ statement to determine whether his speech regarded a matter of public concern. The court noted that the Neighborhood Strategic Planning Process had generated strong public interest and that Bonds’ statements were relevant to the public at large and not just himself. Thus, the speech did regard a matter of public concern.

Next, the court evaluated whether Bonds’ first amendment interests outweighed the county’s interests in government efficiency and workplace harmony. The factors to be considered in weighing this issue include (1) whether the speech would create problems in maintaining discipline or harmony among coworkers, (2) whether the employment relationship presupposes personal loyalty and confidence, (3) whether the speech impeded the employee’s ability to perform his responsibilities, (4) the time, place, and manner of the speech, (5) the context in which the underlying dispute arose, (6) whether the matter was one on which debate was vital to informed decisionmaking, and (7) whether the speaker should be regarded as a member of the general public. In determining whether Bonds’ conduct would create workplace dissension, would impede his ability to perform his responsibilities, and would weaken his ability to inspire loyalty and confidence when conducting his duties, the court found that his status as a policymaking employee weighed heavily against him. The court stated that "the special loyalty and confidentiality needed from policymaking employees like Bonds exacerbates the damage to the employment relationship and government effectiveness caused by their insubordinate, disloyal, or inappropriate speech."⁵ The court found that Bonds’ speech rightly troubled the county because it undermined his credibility with several of the board supervisors for whom he would have been working and that Ordinans was properly concerned about workplace dissension after learning of Bonds’ statements about the Neighborhood Strategic Planning Process. Thus, the court said, the county’s interests in government efficiency and workplace harmony justified its decision to withdraw Bonds’ employment offer, outweighing his first amendment rights.

The Ninth Circuit Court of Appeals took up the same issue recently in Wasson v. Sonoma County Junior College.⁶ In this case, Professor Sylvia Wasson of the Sonoma County Junior College District was alleged to be the author of six publicly disseminated writings that criticized the College District’s president, Robert Agrella, and its vice president, John Roberts. After the anonymously written letters were disseminated, the district board hired a handwriting specialist to determine who, among a number of suspects, was the author. The specialist concluded that Wasson had written the letters, and Agrella and Roberts subsequently sought her dismissal. Although Wasson was never actually terminated, she brought suit against Agrella and Roberts, claiming that they took improper retaliatory employment actions against her in violation of her free-speech rights. The actions cited were the investigation into who wrote the letters and the recommendation that Wasson be fired because she wrote them. The twist in this case was that Wasson vehemently denied being the author of the letters, presenting the ninth circuit with the question of whether a claim can be maintained for wrongful retaliation for the exercise of the right to free speech when the plaintiff denies making the speech in question. The appellate court ruled that, under these circumstances, the plaintiff is not stating a valid claim.

The court began by stating the general rule that the first amendment precludes retaliation by a public employer against an employee for speaking when the matter is of public concern and the employee’s interest in engaging in such speech outweighs the State’s interest in promoting the efficiency of public services. The court noted that, in most contexts, plaintiffs in wrongful retaliation suits admit to making the speech in question. Here, however, Wasson denied writing the letters that supposedly spawned the retaliatory employment actions, but argued that her first amendment rights were violated because Agrella and Roberts believed her to be the author of the criticisms directed at them. The ninth circuit was unwilling to extend the Pickering protection that far, holding that a plaintiff must demonstrate that he or she has engaged in constitutionally protected speech to establish a first amendment retaliation claim.

Finally, in Breaux v. City of Garland, ⁷ the Court of Appeals for the Fifth Circuit threw out first amendment retaliation suits brought by two Garland, Texas, police officers who claimed that they suffered adverse employment actions after making public allegations of corruption in the Garland Police Department. The appellate court found that neither employee had suffered an action sufficiently serious to be deemed a constitutional injury requiring a remedy.

Officers Allen Breaux and Joe Ambrogio raised allegations that Garland’s then city manager, Ron Holifield, and then police chief, Terry Hensley, had arranged to engage in improper political investigations and were also conducting illegal electronic surveillance of the department’s officers. After these accusations were made, Hensley brought Internal Affairs charges and investigations against Breaux and Ambrogio for making false statements about the investigations and other alleged violations of general orders of the police department. Breaux and Ambrogio were questioned on multiple occasions, and Breaux was required to take both a polygraph and a psychiatric examination. The Internal Affairs investigations concluded that the officers had lied in making their allegations of illegal political investigations, and Hensley posted the results of the Internal Affairs investigations in the department and made them available to several local news outlets.

To conduct its analysis, the fifth circuit began with the assumption that the jury properly concluded that Breaux and Ambrogio made truthful allegations of public corruption. The court then moved to the question of whether the plaintiffs suffered any adverse employment action. The court identified such actions as "discharges, demotions, refusals to hire, refusals to promote, and reprimands." The court found that the actions the two plaintiffs complained of, including Internal Affairs investigations, criticisms, public reprimands, psychological and polygraph testing, and suspension with pay, did not individually or collective constitute adverse employment actions. The court noted that neither plaintiff had been discharged, been demoted, been denied a promotion, suffered a reduction in pay, or lost seniority as a result of the exercise of free speech. Thus, the plaintiff’s suit was properly dismissed.

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Age Discrimination

The Age Discrimination in Employment Act (ADEA) of 1967 prohibits an employer from failing or refusing to hire or from discharging any individual because of the individual’s age.⁸ The Supreme Court recently held that individuals cannot sue a State employer under the ADEA, despite Congress’ clear statement to the contrary in the Act itself. In general, the 11th amendment to the U.S. Constitution proscribes citizens from bringing suit against States. Previously, the Supreme Court had held that Congress can abrogate States’ immunity by including a clear statement of its intent to abrogate in any legislation.⁹ In Kimel v. Florida Board of Regents,¹⁰ the Court held that Congress exceeded its authority under section 5 of the 14th amendment to the U.S. Constitution when it abrogated States’ immunity under the ADEA.

A number of cases were consolidated before the Supreme Court in Kimel. J. Daniel Kimel, Jr., one of the plaintiffs and a member of the faculty of Florida State University, alleged that the Florida Board of Regents refused to require the two State universities to allocate funds to provide for increases in salaries that it had previously agreed to. The plaintiffs claimed a violation of the ADEA because the board’s action allegedly had a disparate impact on the base pay of employees with a longer service record, most of whom were older.

In evaluating the ADEA, the Court found that Congress included an unmistakably clear statement of its intention to subject States to suits under the Act. The text of the statute indicates that employees may bring actions for backpay "against any employer (including a public agency) in any Federal or State court of competent jurisdiction." The Act defines "public agency" to include "the government of a State or political subdivision thereof" and "any agency of. . .a State, or a political subdivision of a State."¹¹ However, Congress’ right to abrogate States’ immunity is limited by section 5 of the 14th amendment, which the Court has interpreted to authorize such abrogation only when there is a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." ¹²

The Court found that the substantive requirements imposed on State and local governments by the ADEA are disproportionate to any unconstitutional conduct that could conceivably be targeted by the Act. Because age is not a suspect classification under the Equal Protection Clause, the Supreme Court analyzes the constitutionality of an employer’s age discrimination under the rational basis standard, meaning that an employer may discriminate on the basis of age without offending the 14th amendment if the age classification in question is rationally related to a legitimate State interest. The Court found that the ADEA would likely prohibit substantially more State employment decisions and practices than would be held unconstitutional under the rational basis, equal protection standard, because of the Act’s broad restriction on the use of age as a discriminating factor. However, the Court noted that prohibiting a small amount of conduct that would ultimately be held unconstitutional was not, in and of itself, sufficient to find that Congress exceeded its authority under section 5 of the 14th amendment.

The Court went on to examine the legislative record behind the ADEA for evidence that Congress enacted the statute because it believed, in part, that State and local governments were unconstitutionally discriminating against their employees on the basis of age. The legislative history contained no such findings, the Court ruled: Congress had not identified any pattern of age discrimination by State and local governments. Thus, the Court found, Congress had no reason to enact "broad prophylactic legislation" in this area and thereby abrogate State immunity. Accordingly, rather than suing under the ADEA, State employees who believe they have been discriminated against because of their age must sue under State age discrimination statutes, which are in force in nearly every U.S. State.

In another recent ADEA case, two former employees of the Sundstrand Corporation filed suit against the company, claiming that they were "riffed," or laid off pursuant to a reduction in force (RIF), because of their age. In Thorn v. Sundstrand Aerospace Corp., ¹³ the Court of Appeals for the Seventh Circuit threw out one employee’s suit for lack of evidence and sustained another employee’s cause of action when reviewing the district court’s previous summary judgment rulings.

In an ADEA case, the plaintiffs may use the "McDonnell Douglas formula," established in an earlier case,¹⁴ to shift the burden of production on a summary judgment motion. Essentially, the plaintiff must present satisfactory evidence that he or she (1) is a member of the class of protected ADEA employees (those workers 40 years or older), (2) is performing his or her job satisfactorily, and (3) was replaced by a much younger worker following discharge or layoff. If these criteria are met, the burden shifts to the defendant to show that it had noninvidious grounds—or a valid business reason unrelated to age—for the discharge. In the case in question, Sundstrand would have to show that the employees who were laid off were not subjected to the RIF because of their age.

Plaintiff Thorn was a department manager at Sundstrand’s aerospace division until September 1992, when his department was merged with another and he became a contract administrator. At that time, he was 61 years old; his supervisor, Schneeberger, was nearly 20 years his junior. Schneeberger did not get along with Thorn. When the RIF was announced in 1993, Schneeberger reduced Thorn’s performance rating from a 6 to a 5, which three other junior workers who were retained also had. Schneeberger also altered Thorn’s performance appraisal to eliminate all positive statements, even though no complaints had been made by customers or coworkers about Thorn’s work. The company retained two employees who had numerous complaints against them and who had not shown any inclination to do their work properly. Schneeberger cited "low productivity" as his reason for terminating Thorn. The court found that Thorn presented satisfactory evidence that he was performing up to his employer’s expectations and that, although it was contested, he also presented sufficient evidence to show that he was the most productive worker in his department and thus that "low productivity" could not have been the reason for his being "riffed." Hence, the appellate court reversed the district court’s ruling that granted summary judgment to Sundstrand in its suit against Thorn.

Plaintiff Curran was an engineer engaged in developing and marketing new technologies and spent most of his time working on a product called the vortex turbine. He was included in the RIF at age 50. Part of the company’s justification for the RIF was that it was to shift its focus to current products and abandon the pursuit of new technologies. Thus, the company argued, it had a valid business reason other than age for dismissing Curran. Curran’s main piece of evidence in support of his claim was a statement made by Linton, the Sundstrand employee responsible for deciding who was to be laid off. In response to a question about what criteria he had been told by superiors to use, Linton stated that he had to decide "which people [we felt had] the longest term potential for those whose product lines we were eliminating." The court found that his use of "longest term potential" was not a synonym for "youngest" and that, in fact, an employer can consider which employees are likeliest to contribute most to the company over the long haul in deciding whom to lay off. Thus, the appellate court affirmed the district court’s ruling that granted summary judgment to Sundstrand in its suit against Curran.

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Duty to Bargain

The Court of Appeals for the Ninth Circuit recently held that a successor employer has a duty to bargain with an incumbent union before the employer unilaterally imposes different employment terms from those of its predecessor if the successor employer hires its initial workforce from the employees represented by the bargaining unit of the pred-ecessor employer. In NLRB v. Advanced Stretchforming Intern, Inc., the appellate court enforced a National Labor Relations Board (NLRB ) order that terms of employment could not be changed under these circumstances without first bargaining with the union.

Advanced Stretchforming International, Inc. (ASI) manufactures structural body components used in the aerospace industry at a site in Gardena, California. Prior to ASI’s creation, an employer named Aero Stretch, Inc., conducted identical business at the same location. Aero filed for bankruptcy in 1992, continued to operate for a short period of time, and eventually laid off all its employees. The last terminations came on the day that ASI purchased the plant. Aero told its terminated employees to report to the plant the next day to interview for positions with ASI. The successor company required all applicants to acknowledge that they understood that ASI would not be assuming the collective bargaining agreement between Aero and the United Auto Workers (UAW) union. asi hired 8 of the 17 former Aero production and maintenance employees and, for the first 6 months or so of its operation, had only former Aero employees on its payroll. The union sent a letter to ASI demanding that the company recognize it as the employees’ bargaining representative. When ASI refused, the union filed a complaint with the NLRB claiming that the company had engaged in unfair labor practices by refusing to recognize and bargain with the UAW, as it was required to do as a successor employer. The Board found that ASI improperly changed its employees’ terms and conditions of employment under the "successorship" doctrine.

The "Burns rule," first enunciated by the Supreme Court in NRLB v. Burns Int’l Sec. Servs., Inc., ¹⁵ permits a new employer who acquires a business to set the initial terms and conditions of employment without being bound by what its predecessor had done. However, that freedom to set initial terms is tempered by the requirement that a new employer recognize and bargain with the union representing its predecessor’s employees if the new employer is a "successor"—an employer that conducts essentially the same business as the former employer, with a majority of its workforce being former employees of the predecessor. Thus, a successor employer has an affirmative duty to bargain with the union in good faith to reach a new agreement, which may or may not have the same or similar terms as the agreement that covered the same employees when they worked for the predecessor.

The right to set initial terms of employment also is eliminated if the "perfectly clear" exception applies. Under this exception, the duty to bargain with the union arises as soon as the successor employer becomes aware that the union represents a majority of employees hired by the successor. If the successor intends to hire its entire initial workforce from its predecessor’s staff, who were covered by a collective bargaining agreement, then it is perfectly clear to the successor that the union represents a majority of new employees and must be bargained with.

In Burns, the appellate court found that ASI had clearly intended to hire its initial workforce solely from the ranks of former Aero employees. ASI did not interview any non-Aero employees and did not hire its first non-Aero employee until several months after the takeover. Because ASI should have known immediately that a majority of its workforce was represented by a union, its imposition of terms of employment without first consulting with the union was an unfair labor practice, according to the court.

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Briefs

Smoking on airplanes. The Court of Appeals for the Ninth Circuit overturned a lower court decision and allowed a class action suit to proceed by nonsmoking flight attendants of Northwest Airlines who are suing the company for allowing smoking on trans-Pacific flights. The suit seeks damages for about 4,000 flight attendants employed at Northwest who were allegedly forced to breathe tobacco smoke on long international flights for years after the airline had banned smoking on domestic flights. Smoking is now prohibited on all Northwest flights.

Student unions. A regional director of the NLRB ruled that New York University graduate teaching assistants have the right to organize a union, despite the fact that they are employed while enrolled as students. The school had claimed that the teaching assistants did not have such a right because their primary function at the school was not employment.

Physician unions. Doctors at a Michigan health maintenance organization became the first physicians to join the new Physicians for Responsible Negotiation, a union of the American Medical Association. The union was created to address the expanding workload and financial pressures that doctors increasingly face in the managed-care working environment, according to the association. Federal antitrust laws prohibit most of the country’s 650,000 doctors from joining a union, because they are self-employed.

AIDS at work. The Connecticut Supreme Court threw out a $12.2 million damage award to a former intern at the Yale Medical School who contracted the AIDS virus while working on a patient in 1988. The court ruled that the trial judge had improperly rejected Yale’s claim of immunity under workers’ compensation laws. A new trial was ordered.

Sweatshops. Eight major U.S. clothing retailers settled a class action lawsuit which alleged that the companies maintained sweatshop labor conditions in the U.S. territory of Saipan, a South Pacific island. The suit, filed in a Hawaii court, is the first attempt to use federal racketeering laws to hold U.S. companies responsible for mistreating workers in foreign-owned factories operating on U.S. soil. The retailers who joined the settlement were Calvin Klein, Jones Apparel Group, Liz Claiborne, the May Department Stores, Oshkosh B’Gosh, Sears Roebuck, Tommy Hilfiger USA, and Warnaco. The eight companies joined nine others in an overall settlement in which the employers agreed to pay more than $8 million in damages and independently monitor the factories in Saipan where the sweatshop conditions exist.

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