Hamilton County Education Ass'n v. Hamilton County Board of Education

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0098p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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HAMILTON COUNTY EDUCATION ASSOCIATION, ┐

Plaintiff-Appellant, │

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v. > No. 15-5749

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HAMILTON COUNTY BOARD OF EDUCATION, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee of Chattanooga.

No. 1:14-cv-00105—Curtis L. Collier, District Judge.

Decided and Filed: April 20, 2016

Before: SUHRHEINRICH, McKEAGUE, and DONALD, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Richard L. Colbert, KAY, GRIFFIN, ENKEMA & COLBERT, PLLC, Nashville,

Tennessee, for Appellant. D. Scott Bennett, Mary C. DeCamp, LEITNER, WILLIAM, DOLEY

& NAPOLITAN, PLLC, Chattanooga, Tennessee, for Appellee.

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OPINION

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SUHRHEINRICH, Circuit Judge. Plaintiff-Appellant Hamilton County Education

Association (“HCEA”) is a voluntary association of employees of the Hamilton County

Department of Education (“HCDE”). HCEA brought this lawsuit against its members’

employer, Defendant-Appellee Hamilton County Board of Education (“Board”), asserting two

violations of the Tennessee Education Professional Negotiations Act (“EPNA”) and one

1

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violation of 42 U.S.C. § 1983 for infringing on HCEA’s First Amendment right of expressive

association. The parties filed cross-motions for summary judgment. The district court granted

the Board’s motion, denied HCEA’s motion, and dismissed the case. HCEA appeals that

decision. We affirm.

I. Background

The facts in this case are largely undisputed. HCEA was recognized by the Board under

EPNA as the exclusive representative of all the Board’s professional employees. On May 19,

2011, HCEA and the Board entered into a collective bargaining agreement that was set to expire

three years later on June 30, 2014. While this agreement was in effect, the Tennessee legislature

passed the Professional Educators Collaborative Conferencing Act (“PECCA”), which amended

and replaced EPNA. See 2011 Tenn. Pub. Acts ch. 378 (codified as amended at Tenn. Code

Ann. §49-5-601 to -609 (2011)). Under Tenn. Code Ann. § 49-5-604(b), however, PECCA

would not govern the parties’ relationship until the expiration of their existing agreement on June

30, 2014. HCEA and the Board entered into the most recent (and final) version of their

collective bargaining agreement under EPNA on September 20, 2013.

Although not yet applicable to the parties at the time of the underlying events, PECCA

implemented two changes relevant to this case. First, it created a new category of Board

employees known as “management team” members who are no longer considered “professional

employees” entitled to participate in concerted activities as part of a professional employee

organization. Tenn. Code. Ann. §§ 49-5-602(4), (8), (9), -603. This “management team”

includes principals and assistant principals. Id. § 49-5-602(4). PECCA also added a subsection

making it unlawful for a professional employee organization to “[c]oerce or attempt to intimidate

professional employees who choose not to join a professional employee organization.” Id. § 49-

5-606(b)(7).

On September 17, 2013, HCEA held its Representative Assembly, a monthly meeting of

HCEA representatives and building representatives. Following this meeting, the HCEA

Representative for Red Bank Middle School forwarded notes from the meeting to the Red Bank

Middle School teachers. One teacher who received the notes, Beth Morgan (“Morgan”),

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contacted Stacy Stewart (“Stewart”), the Board’s Assistant Superintendent for Human

Resources, about the notes. Morgan expressed concern about a portion of the notes reporting

“[h]orror stories” from other Tennessee counties where collective bargaining contracts expired,

including teachers receiving a 118-page code of conduct and losing their retirement benefits.

The notes suggested that if HCEA’s membership dipped to less than a majority, its contract

would become null and void and the county could require teachers to attend 40 hours of in-

service, force them to work 10 hours a day, and discontinue medical coverage upon retirement.

Morgan forwarded the notes from the Representative Assembly to Stewart. Following her

conversation with Morgan, Stewart obtained other materials distributed at the Representative

Assembly, including a promotional flyer that referred to a competing organization, the

Professional Educators of Tennessee (“PET”), as a “cheap dime-store knockoff” and “a dime-

store operation charging for services it cannot provide.” Stewart also learned of comments made

by HCEA President Sandra Hughes (“Hughes”) at a principals’ meeting encouraging the

principals to maintain their HCEA membership and offering HCEA’s continued support.

Based on this information, Stewart wrote a letter addressed to Hughes in her capacity as

HCEA President. The letter addressed three issues. First, Stewart referred to the comments

made at the principals’ meeting and noted that, under PECCA, HCEA could not represent

management team members such as principals and assistant principals nor count them among

membership totals. Stewart concluded, “I trust that this information will be shared appropriately

with any HCDE administrators who inquire about remaining members of the Association.”

Second, Stewart mentioned the statements from the Representative Assembly notes that

described the potential consequences of decreased membership and suggested that these

statements “could be construed as intimidating.” Third, Stewart pointed to the promotional

document distributed at the Representative Assembly that referred to PET in what Stewart

described as “pejorative ways.” Stewart concluded the letter by citing to PECCA’s new

prohibition on coercing or intimidating employees who choose not to join a professional

organization and stating that “HCDE respectfully asks that HCEA and its representatives refrain

from continuing such negative or coercive statements.” While noting the Board’s desire to

maintain “a collaborative relationship” with HCEA, Stewart stated that “[c]ontinued such

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coercion, however, will either result in an official request for a retraction of such statements or in

clarification/correction of these statements by the district.”

HCEA filed suit against the Board on the basis of this letter in Hamilton County

Chancery Court on March 20, 2014. HCEA alleged that the letter violated two provisions of

EPNA and infringed on its First Amendment right of expressive association. The Board

removed the action to the United States District Court for the Eastern District of Tennessee.

After discovery, both parties filed a motion for summary judgment. By this time, PECCA had

replaced EPNA as the governing law between HCEA and the Board.

The district court granted the Board’s motion for summary judgment and denied HCEA’s

motion. The court first found that HCEA’s EPNA claims were not rendered moot by the

intervening arrival of PECCA’s effective date. Proceeding to the merits, the court held that

Stewart’s letter did not violate EPNA because the letter contained no threat of reprisal and thus

“fell squarely within the protective space afforded to the Board [under Tenn. Code Ann. § 49-5-

606(a)(5)] to ‘express any views or opinions on the subject of employer-employee relations.’”

As for the First Amendment claim, the district court ruled that Stewart’s letter did not

significantly burden HCEA’s expressive activity and, therefore, did not violate HCEA’s

constitutional rights. HCEA timely appealed the district court’s order.

The district court properly exercised jurisdiction over this case under 28 U.S.C. §§ 1331

and 1441. This court has jurisdiction over HCEA’s appeal under 28 U.S.C. § 1291 as an appeal

from the final decision of a United States district court.

II. Standard of Review

We review a district court’s grant of summary judgment de novo, applying the same

standard as the district court. Keith v. Cnty. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013).

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The court must view the facts and draw reasonable inferences in the light most favorable to the

non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Summary judgment may be granted “unless there is sufficient evidence favoring the nonmoving

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party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986). This standard of review does not differ when reviewing cross-motions for summary

judgment versus a motion filed by only one party. U.S. SEC v. Sierra Brokerage Servs., Inc.,

712 F.3d 321, 327 (6th Cir. 2013).

III. Analysis

A. EPNA Claims

HCEA claims that the Board’s letter violated two provisions of EPNA. First, HCEA

asserts that the Board’s comments violated § 49-5-606(a)(2) by interfering with, restraining, or

coercing employees in the exercise of their rights under § 49-5-603, which protects professional

employees’ right to self-organization and other concerted activities. Second, HCEA alleges the

Board dominated or interfered in the administration of HCEA and assisted its rival organization

PET in violation of § 49-5-606(a)(7). The Board argues that both EPNA claims became moot in

July 2014 when PECCA became effective between HCEA and the Board, thereby supplanting

EPNA. The Board further asserts that, even if HCEA’s EPNA claims are justiciable, they fail on

the merits because the Board’s letter merely exercised its right under EPNA § 49-5-606(a)(5) to

express its views on employer-employee relations.

1. Mootness

A case is moot only “when a live controversy no longer exists such that a court is no

longer able to affect the legal relations between the parties.” Cam I, Inc. v. Louisville/Jefferson

Cnty. Metro. Gov’t, 460 F.3d 717, 719–20 (6th Cir. 2006). A controversy does not cease to exist

merely by virtue of a change in the applicable law. Id. at 720. Rather, the court should consider

whether the new statute “is sufficiently similar to the repealed [statute] that it is permissible to

say that the challenged conduct continues.” Ne. Fla. Chapter of Associated Gen. Contractors of

Am. v. City of Jacksonville, 508 U.S. 656, 662 n.3 (1993). Stated another way, the question is

whether the underlying statute “has been sufficiently altered so as to present a substantially

different controversy.” Green Party of Tenn. v. Hargett, 700 F.3d 816, 823 (6th Cir. 2012)

(quoting Ne. Fla. Chapter of Associated Gen. Contractors, 508 U.S. at 662 n.3). “Where

changes in the law arguably do not remove the harm or threatened harm underlying the dispute,

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‘the case remains alive and suitable for judicial determination.’” Hadix v. Johnson, 144 F.3d

925, 933 (6th Cir. 1998) (quoting Pub. Serv. Co. of Col. v. Shoshone-Bannock Tribes, 30 F.3d

1203, 1205 (9th Cir. 1994)), abrogated on other grounds by Miller v. French, 530 U.S. 327

(2000).

The EPNA provisions invoked by HCEA’s complaint continue to exist in identical form

in PECCA, just in a different numbered section of the Tennessee Code. Compare EPNA § 49-5-

609(a)(2) (making it unlawful to “(2) Interfere with, restrain, or coerce employees in the exercise

of the rights guaranteed in § 49-5-603”), and EPNA § 49-5-609(a)(7) (making it unlawful to

“(7) Dominate, interfere or assist in the administration of any professional employee

organization”), with PECCA, § 49-5-606(a)(2) (making it unlawful to “(2) Interfere with, restrain

or coerce employees in the exercise of rights guaranteed in § 49-5-603”), and PECCA § 49-5-

606(a)(7) (making it unlawful to “(7) Dominate, interfere or assist in the administration of any

professional employee organization”). As the district court rightly observed, “[m]erely

renumbering a statute” in this fashion “does not constitute a ‘repeal’ of that statute such that a

claim under that statute is moot.” Mem. Op. at 5 (citing Cmty. Health Partners, Inc. v. Kentucky,

230 F.3d 1357, at *1 n.1 (6th Cir. 2000) (unpublished table decision)). The new and old statutes

in this case are not only “sufficiently similar” to present the same controversy—they are totally

identical. The substance of the relevant EPNA provisions was not repealed or even altered, but,

rather, reenacted in duplicate form in PECCA, thereby preserving the controversy between

HCEA and the Board over whether Stewart’s letter interfered with the exercise of employees’ §

603 rights, interfered with the administration of HCEA, and assisted a rival organization.

HCEA’s EPNA claims are not moot.1

2. Merits of the EPNA Claims

At the outset, the parties dispute whether this Court, in applying EPNA to HCEA’s

claims, should consult cases interpreting analogous provisions of the NLRA. The NLRA

contains two provisions that respectively correspond to the two EPNA provisions HCEA claims

were violated by the Board. EPNA’s prohibition on interference with employees’ rights parallels

1

Unless otherwise stated, all citations in this opinion are to the current Tennessee Code—that is, PECCA.

No. 15-5749 Hamilton Cnty. Educ. Ass’n. v. Hamilton Cnty. Bd. of Educ. Page 7

§ 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), which makes it an unfair labor practice “to

interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section

157 of this title.” Likewise, EPNA’s prohibition on employer domination of or interference with

an employee organization resembles NLRA § 8(a)(2), 29 U.S.C. 158(a)(2), which makes it an

unfair labor practice “to dominate or interfere with the formation or administration of any labor

organization or contribute financial or other support to it.” The NLRA also features a provision

similar to Tenn. Code Ann. § 49-5-606(a)(5), which preserves the board of education’s right to

speak on matters pertaining to employer-employee relations. See 29 U.S.C. § 158(c) (The

expressing of any views, argument, or opinion, or the dissemination thereof . . . shall not

constitute or be evidence of an unfair labor practice.”).

We agree with the district court that these NLRA provisions and the case law interpreting

them provide helpful guidance in construing and applying the corresponding EPNA provisions at

issue in this case. First, the relevant EPNA provisions are very similar to the corresponding

sections of the NLRA; in some respects, they are exactly the same. As the district court

observed, the Tennessee Court of Appeals recently resorted to NLRA jurisprudence in analyzing

whether PECCA provided a teacher the right to have an association representative present during

a disciplinary investigation. See Union Cnty. Educ. Ass’n v. Union Cnty. Bd. of Educ., No.

E2013-02686-COA-R3-CV, 2014 WL 4260812, at *4–6 (Tenn. Ct. App. Aug. 28, 2014). In

doing so, the Tennessee court noted that the relevant PECCA provision “is very similar to, and

was clearly modeled after, section 7 of the NLRA. Thus, although the NLRA is not applicable to

this case, and the [case law interpreting it] is not binding, we consider them to be highly

informative and persuasive.” Id. at *6. The Tennessee court emphasized that NLRA case law

issued before the enactment of EPNA in 1978 and PECCA in 2011 is especially relevant, as the

Tennessee legislature is presumed to be aware of those opinions when it enacted the state laws.

Id. at *6. The level of similarity between the relevant EPNA and NLRA provisions in this case

is comparable to that in Union Cnty. Educ. Ass’n. Moreover, in contrast to the scarcity of

Tennessee law interpreting § 49-5-606(a)(5), there is extensive federal law interpreting the

analogous NLRA § 8(c). Some of that federal law preceded EPNA’s original enactment in 1978,

making it even more persuasive in understanding the legislative intent underlying § 49-5-

606(a)(5). Second, the important terms in the relevant EPNA provisions here—“interfere,”

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“coerce,” “dominate,” “assist,” and “threat”—are susceptible to multiple layers of meaning.

That flexibility distinguishes them from the unambiguous EPNA terms at issue in Hamblen

County Education Ass’n v. Hamblen County Board of Education, 892 S.W.2d 428, 432 (Tenn.

Ct. App. 1994), where the Tennessee Court of Appeals found it unnecessary to consult NLRA

jurisprudence.

NLRA case law addressing the employer’s right of expression under 29 U.S.C. § 158(c),

while not binding, is especially helpful in this case because the district court’s analysis turned on

EPNA’s analogous provision, now codified at § 49-5-606(a)(5). Present in both EPNA and

PECCA, this subsection protects the board of education’s right to “express any views or opinions

on the subject of employer-employee relations; provided, however, that such expression shall

contain no threat of reprimand, discharge or promise of benefits.”2 Tenn. Code Ann. § 49-5-

606(a)(5). The district court found that the Tennessee legislature likely modeled this provision

after § 8(c) of the NLRA, which provides, “[t]he expressing of any views, argument, or opinion,

or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice

under any of the provisions of this subchapter, if such expression contains no threat of reprisal or

force or promise of benefit.” 29 U.S.C. § 158(c). As the Supreme Court observed prior to

EPNA’s original enactment in 1978, this provision “implements the First Amendment.” NLRB v.

Gissel Packing Co., 395 U.S. 575, 617 (1969). Furthermore, it reflects a “congressional intent to

encourage free debate on issues dividing labor and management.” Chamber of Commerce of

U.S. v. Brown, 554 U.S. 60, 67 (2008) (quoting Linn v. Plant Guard Workers, 383 U.S. 53, 62

(1966)).

The Supreme Court has recognized the tension between the employer’s right of

expression and the employees’ right to be free from interference, restraint, or coercion in self-

organizing. Gissel Packing, 395 U.S. at 617. “[A]ny balancing of those rights,” the Supreme

Court held, “must take into account the economic dependence of the employees on their

employers, and the necessary tendency of the former, because of that relationship, to pick up

2

The EPNA version of this provision differs only slightly, providing that “the board of education or its

designated representative may express any views, arguments or opinions on the subject of employer-employee

relations; provided, that such expression contains no threat of reprimand, discharge or promise of benefits.” EPNA

§ 49-5-609(a)(5).

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intended implications of the latter that might be more readily dismissed by a more disinterested

ear.” Id. In determining whether a statement is a coercive threat, “[i]t is unnecessary to show

that any employee was in fact intimidated or coerced by the statements made.” Torbitt

& Castleman, Inc. v. NLRB, 123 F.3d 899, 906 (6th Cir. 1997). “Rather, the test is whether the

statement has ‘a tendency to coerce.’” Id. (quoting NLRB v. Okun Bros. Shoe Store, Inc.,

825 F.2d 102, 107 (6th Cir. 1987)).

In delineating between protected employer expression and impermissible threats, the

district court relied on two Sixth Circuit cases, DTR Industries, Inc. v. NLRB, 39 F.3d 106 (6th

Cir. 1994) (DTR I), and DTR Industries, Inc. v. NLRB, 297 F. App’x 487 (6th Cir. 2008) (DTR

II). Both cases involved an employer’s statements about the potential negative effects of

unionization at its company. In DTR I, the court found that the employer’s statements were

protected because they were objective predictions that customers sole-sourcing with the

employer were likely to split their business to ensure an alternative supply source in the event of

a strike. 39 F.3d at 114. DTR II, in contrast, found that the employer’s similar predictions about

sole-source business, when combined with an explicit statement that the decrease in business

would lead to layoffs, constituted a coercive threat unprotected by NLRA § 8(c). 297 F. App’x

at 493. Based on these cases, the district court concluded that the Board’s letter to Hughes was

permissible employer expression because the only conceivable “threat” in the letter—an official

request for a retraction of HCEA’s statements or a statement by the Board correcting HCEA’s

statements—was “incomparable with the predictions of dire economic ruin” in DTR II and other

cases where § 158(c)’s protection did not apply.

The district court correctly demarcated the line between threats and non-threats and

rightly concluded that the Board’s letter fell on the non-threatening side of the line. HCEA

resists this analysis with four arguments, none of which have merit.

First, HCEA argues that Stewart’s statements were not protected because they did not

express an opinion on the desirability of union presence or joining a union. Appellant Br. 12, 14.

In rejecting a similar argument based on § 49-5-606(a)(5)’s structure, the district court correctly

found that the language granting protection for employer expression is not limited to speech that

could be construed as discrimination on the basis of union membership. Rather, it broadly

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protects “any views or opinions on the subject of employer-employee relations.” Tenn. Code

Ann. § 49-5-606(a)(5). This language, particularly “any views” and “the subject of employer-

employee relations,” comprehends a range of expression much broader than opinions on the

desirability of unionism or union membership. And even though most cases dealing with

employer expression, including those cited by the district court, involve comments on the merits

of impending unionization in the employer’s company, case law upholding the employer’s right

to expression is not limited to this circumstance. See Fla. Steel Corp. v. NLRB, 587 F.2d 735,

751–53 (5th Cir. 1979) (holding that company letter to employees advising them of their right to

ask for an opportunity to obtain legal counsel before speaking with a NLRB agent following a

failed union election was protected speech under the First Amendment and § 8(c)); NLRB v.

Monroe Tube Co., 545 F.2d 1320, 1325–27 (2d Cir. 1976) (ruling that employer did not interfere

with employees’ rights by advising them they could withdraw their union authorization cards and

by supplying the address of the union headquarters for that purpose); J.P. Stevens & Co. v.

NLRB, 449 F.2d 595, 597–98 (4th Cir. 1971) (holding that § 8(c) protected an employer’s

speech, undertaken to “correct any misunderstandings,” informing employees that their signed

union cards were not confidential and that the employer retained the right to discharge or

discipline employees for cause); NLRB v. Robinson, 251 F.2d 639, 641 (6th Cir. 1958) (per

curiam) (holding that an employer did not violate NLRA § 8(a)(1) by notifying strikers that they

had been temporarily replaced and would be permanently replaced unless they reported for work

because the statement simply stated the employer’s “legal position that it was entitled to make

employment replacements to take over the positions of the strikers”).

Second, HCEA argues that Stewart’s comments went beyond an expression of opinion by

insisting that Hughes communicate Stewart’s views to HCEA members and by ordering HCEA

to refrain from certain statements. Appellant Br. 13. This argument incorrectly portrays

Stewart’s comments as orders rather than opinions. As we said in Dayco Corp. v. NLRB,

382 F.2d 577, 579 (6th Cir. 1967), “[a] single sentence contained in a letter or speech of an

employer, cannot be considered apart from the entire statement and background in which it was

made.” HCEA places great weight on one sentence from the letter, where Stewart, after

explaining that PECCA removes principals and assistant principals from the collaborative

conferencing unit, stated, “I trust this information will be shared appropriately with any HCDE

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administrators who inquire about remaining members of [HCEA].” While this statement could

conceivably be read as a command in other contexts, here the full text of the letter confirms that

Stewart’s statement is a request rather than an order. Notably, Stewart did not seek to compel

HCEA’s compliance with this request by suggesting that noncompliance would result in any

negative consequences. Although HCEA suggests that Stewart’s statements interfered with its

recruiting methods, the letter did not threaten discharge or any other disciplinary response,

separating it from cases finding that employer speech impermissibly interfered with core union

activities like soliciting members and presenting grievances. See, e.g., NLRB v. Clinton Elecs.

Corp., 284 F.3d 731, 738–39 (7th Cir. 2002) (ruling that a written warning submitted to an

employee for soliciting another employee to join a union violated § 8(a)(1) because the employer

enforced its no-solicitation rule discriminatorily); NLRB v. Almet, Inc., 987 F.2d 445, 452–53

(7th Cir. 1993) (holding that threatening to discipline employees for not reporting union

solicitation violated § 8(a)(1)); Trailmobile Div., Pullman Inc. v. NLRB, 407 F.2d 1006, 1008

(5th Cir. 1969) (holding that threatening to discharge union secretary for presenting employee

grievances violated § 8(a)(1)).

Third, HCEA contends that the district court incorrectly discounted Stewart’s hiring and

firing authority in determining whether the letter had a tendency to coerce. Appellant Br. 13.

The district court correctly held that HCEA cannot rely solely on Stewart’s authority to hire,

discipline, and terminate employees to prove that her statements constituted coercion. Although

Stewart’s power over important personnel decisions is certainly relevant in demonstrating a

tendency to coerce, it is not dispositive. Because Stewart’s statements contained nothing that

could be construed as a threat, even by an employee with knowledge of Stewart’s hiring and

firing power, we agree with the district court that the letter constitutes protected employer

speech.

Finally, HCEA asserts that the district court did not sufficiently address its claim that the

Board interfered with its administration and assisted a rival organization in violation of § 49-5-

606(a)(7). Appellant Br. 15 & n.3. In fact, the district court decided this claim in the same

manner it decided the interference claim under § 49-5-606(a)(2)—by holding that the letter fell

within the Board’s right to express its views under § 49-5-606(a)(5) and thus did not violate any

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provisions of EPNA. The employer’s right to expression under § 49-5-606(a)(5) provides a

defense against a claim of unlawful domination or assistance of an employee organization as

much as it does against a claim of interference with, restraint, or coercion of employees’ exercise

of their rights.

Therefore, because the Board’s letter expressed its views on employee-employer relations

and contained no threat of reprimand or promise of benefit, the district court correctly granted

summary judgment to the Board on HCEA’s EPNA claims.

B. First Amendment Claim

In addition to its state-law claims, HCEA asserts that the Board violated its First

Amendment right of expressive association by attempting to interfere with HCEA’s membership.

Appellant Br. 21. We analyze expressive association claims under a three-step test: (1) whether

the group is entitled to protection by engaging in expressive activity that could be impaired, (2)

whether the challenged government action significantly burdens the group’s expression

(affording deference to an association’s view of what would impair its expression), and

(3) whether the government’s interest in any restriction outweighs the plaintiff’s right of

expressive association. Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010). We

agree with the district court that the Board’s letter did not impose a burden on HCEA’s speech.

A significant burden requires government action that “directly or indirectly interferes

with group membership,” id., or that hinders a group’s expression as a result of its interference

with group membership, Boy Scouts of Am. v. Dale, 530 U.S. 640, 653–54 (2000). The

government may not establish “a general prohibition against certain forms of advocacy” or

“impos[e] sanctions for the expression of particular views it opposes.” Smith v. Ark. State

Highway Emps., Local 1315, 441 U.S. 463, 464 (1979) (per curiam). A group claiming

infringement of its right to expressive association may not rely on generalizations to show a

burden on its expression, but rather must support that claim of burden by evidence in the record.

See Roberts v. U.S. Jaycees, 468 U.S. 609, 627–28 (1984). A government entity may not burden

the expressive association of a union or its members by “prohibit[ing] its employees from joining

No. 15-5749 Hamilton Cnty. Educ. Ass’n. v. Hamilton Cnty. Bd. of Educ. Page 13

together in a union, or from persuading others to do so, or from advocating any particular ideas.”

Ark. State Highway Emps., 441 U.S. at 465.

Under these standards, the Board’s letter did not interfere with HCEA’s membership or

significantly burden its expression. Nothing in the Board’s letter “affects the internal

membership decisions” of HCEA. Miller, 622 F.3d at 538. While expressing its view that

HCEA should inform principals and assistant principals of their altered status under PECCA, the

Board did not dictate whether HCEA could accept principals and assistant principals as

members. In fact, the letter explicitly recognized that “if an administrator wants to continue to

pay dues to [an employee] organization, including HCEA, they certainly may.” Similarly, the

letter’s request that HCEA refrain from making comments the Board rightly or wrongly believed

to be improper did not constitute a “a general prohibition against certain forms of advocacy,” nor

did it “impos[e] sanctions for the expression of particular views.” Ark. State Highways Emps.,

441 U.S. at 464. Rather, the Board “respectfully ask[ed] that HCEA and its representatives

refrain from continuing such negative or coercive comments” and alerted HCEA that

“[c]ontinued such coercion . . . will either result in an official request for a retraction of such

statements or in clarification/correction of these statements by the district.” Thus, the letter did

not forbid the allegedly intimidating comments, nor did it threaten any negative consequences

beyond its own protected expression for a failure to cease such comments. In sum, none of the

letter’s statements hindered employees’ association with HCEA, prevented employees from

soliciting others to join HCEA, or discouraged HCEA from advocating on behalf of its members.

Cf. Thomas v. Collins, 323 U.S. 516, 535-38 (1945) (holding that a law forbidding solicitation of

union membership without obtaining an organizer’s card infringed on the right of speech and

assembly to inform people of the advantages of union membership and persuade them to join a

specific union); Columbus Educ. Ass’n v. Columbus City Sch. Dist., 623 F.2d 1155, 1159 (6th

Cir. 1980) (holding that a reprimand letter sent in response to a teacher’s union representation of

a fellow employee’s grievance infringed on the teacher’s right of free association).

HCEA suggests that the Board’s letter prevented HCEA from admitting desired members

and controlling the content of its recruiting speech, but the record shows that HCEA did not

adjust its recruiting methods, much less turn away willing members, in response to the Board’s

No. 15-5749 Hamilton Cnty. Educ. Ass’n. v. Hamilton Cnty. Bd. of Educ. Page 14

letter. While we must “give deference to an association’s view of what would impair its

expression,” Boy Scouts, 530 U.S. at 653, we agree with the district court that “such deference

has its limits.” Thus, we need not accept HCEA’s claim of impairment when it has failed to

demonstrate how the Board’s letter either disrupts its ability to associate or substantially weakens

its message by imposing restrictions on association. See U.S. Citizens Ass’n v. Sebelius,

705 F.3d 588, 600 (6th Cir. 2013) (recognizing that a court must afford deference to a group’s

view of what impairs its expression yet finding that the plaintiffs failed to show how the

Affordable Care Act’s individual mandate significantly burdened the group’s expression).

Because the Board’s letter did not significantly burden HCEA’s right to expressive

association, the district court correctly granted summary judgment to the Board on the First

Amendment claim. As a result, we do not address whether HCEA is an expressive association

entitled to constitutional protection3 or whether governmental interests in restriction outweigh

HCEA’s right to association.

IV. Conclusion

For these reasons, we AFFIRM the district court’s decision granting summary judgment

to the Board and denying summary judgment to HCEA.

3

The parties vigorously dispute whether HCEA is entitled to constitutional protection in their briefing.

Because HCEA’s association is undertaken in the context of its members’ public employment, HCEA’s expressive

association claim would be analyzed under the same standard as state employees’ freedom of speech claims. See

Akers v. McGinnis, 352 F.3d 1030, 1036 (6th Cir. 2003). Therefore, in order for the Board’s action to be subject to

intermediate scrutiny, HCEA would have to show not only that it is an expressive association, but also that its

association touched on a matter of public concern. See id. at 1037. Union-related association, however, does not

inherently touch on a matter of public concern. Boals v. Gray, 775 F.2d 686, 693 (6th Cir. 1985). Thus, it is not

immediately apparent whether the expressive association allegedly burdened in this case touched on a matter of

public concern. But this case is not the case to address this conundrum, as it would be very difficult to isolate the

exact nature of the expressive association at issue when we have decided that HCEA’s association was not

significantly burdened in any way.