Sixth Circuit: Union Fundraising is Not Constitutionally Protected Speech

This morning, the Sixth Circuit reversed a trial court which had found that disciplinary action taken against a fire union for fundraising activities was unlawful retaliation. Doherty v. City of Maryville, No. 09-5217. In that case, the IAFF Local Union had signed a contract with a telemarketing firm to sell concert tickets to raise money for union activities. Thinking the calls were coming from the City, several citizens complained about rudeness and threats. The City met with the union officials who signed the contract and warned them that they would be fired if the City received any more complaints. The City did not ask the union to cancel the fundraiser. The union cancelled the telemarketing contract and then renewed the contract, but with a revised script. When the City received additional complaints, it put a letter of reprimand in the union officer’s file. After the union and the officer filed suit for violation of First Amendment rights, the trial court denied the City’s motions for summary judgment and judgment as a matter of law and the jury found against the City. On appeal, the Sixth Circuit concluded the trial court erred in examining the totality of the circumstances (i.e., the content of the telemarketing calls and the intended uses for the funds). Instead, the only conduct at issue was the signing of the telemarketing contract and that conduct was commercial, not protected political, speech. “As a matter of law, the conduct in question — i.e., the act of contracting with a third party to make telemarketing calls — did not touch on a matter of public concern.”

“When a plaintiff is a public employee who is claiming retaliation by his employer (the government) for his speech or his associations, his speech or association is protected only if (1) it touches on a matter of public concern and (2) there is no overriding state interest that would be undermined by the employee’s speech or association.”

The only activity that is relevant in this case is the Plaintiffs’ act of contracting with a third-party telemarketing organization to make fundraising phone calls. In their summary judgment pleadings, the Plaintiffs conceded that they allege retaliation by the City solely because of their involvement with the phone calls. There is absolutely no evidence in the record that the Plaintiffs were targeted because of their membership in the union or because of the union’s other community activities. Rather, all the evidence shows that they were targeted because they were in charge of this particular fundraising activity.
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This was a business transaction, and the conduct had a commercial focus. Furthermore, the subject of the contract, making phone calls, was also commercial in nature. Doherty testified at trial that the purpose of the phone calls was to sell a product—tickets to a concert. The act of signing a business contract does not fall within traditional understandings of matters constituting a public concern

Although courts “evaluate several factors to determine whether speech is a matter of public concern, including “the focus of the speech; the point of the speech in question; to what purpose the employee spoke; the intent of the speech; or the communicative purpose of the speaker,” the Court found the trial court erred:

by examining a much broader array of activity; it looked at everything that the union did in the community, as well as the contract with FireCo and the phone calls that FireCo made. The district court further erred by suggesting that the Plaintiffs may have been disciplined for the positive aspects of the phone calls (as opposed to the threatening and misleading aspects). Local 4053’s activity, other than the act of contracting with FireCo, is irrelevant to the retaliation claim at hand.

. . .

The Plaintiffs argue that because the phone calls aimed to raise money for the union’s broad activities, some of which are matters of public concern, the act of contracting with a telemarketer to make those phone calls is also a matter of public concern. Even if we were to ignore the attenuated nature of the link between the contract and potential issues of public concern, the fact that the purpose of the FireCo contract was to raise money for union activities does not change the nature of the contract itself. “[A]n employee’s speech, activity, or association, merely because it is union related, does not touch on a matter of public concern as a matter of law.” . . . Similarly, FireCo’s passing references during the calls to some of the union’s protected activities do not transform the nature of the calls (much less the contract to make the calls). We have held that “the proper inquiry is not what might be incidentally conveyed by the speech, and that passing or fleeting references to an arguably public matter do not elevate the speech to a matter of public concern where the focus or point of the speech advances only a private interest.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.