Amicus Brief — City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission

IN THE

Supreme Court of the Ciyttep States _

es. Dp

OCTOBER TERM, 1975

MAY 14 1975

No. 75-946

CITY OF MADISON, JOINT SCHOOL DISTRICT

No. 8, et al.,

Appellants,

WISCONSIN EMPLOYMENT RELATIONS COMMISSION,

et al.,

Appellees.

ON APPEAL FROM THE SUPREME COURT

OF WISCONSIN

BRIEF AMICUS CURIAE

ON BEHALF OF THE UNITED STATES

CONFERENCE OF MAYORS,

URGING REVERSAL

UNITED STATES CONFERENCE

OF MAYORS

JOHN J. GUNTHER

United States Conference

of Mayors

1620 Eye Street, N.W.

Washington, D.C. 20006

Tel. (202) 293-7330

Executive Director and

Member of the Bar of the

Supreme Court of the

United States

Washington, 0.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

EEE EEE OO

a eaten ees ee ee

: (i)

| TABLE OF CONTENTS

Ee ee ee Sw er ee ee ee 2

I. THE DECISION IN THE CASE AT BAR

COULD HAVE A SUBSTANTIAL IMPACT

ON OUR NATION’S MAYORS. THE

UNITED STATES CONFERENCE OF

MAYORS IS THE ONLY ORGANIZATION

WHICH CAN EFFECTIVELY REPRESENT

THE “OLLECTIVE INTERESTS OF

Demme EAICAL, GHP UCOAED 2 wc ccc ccc ccccees 2

A. The United States Conference of Mayors

has been the representative organization

for the Mayors of our nation’s largest

oe oe oer rer ree 2

B. As the Chief Elected Official and as the

Chief Executive Officer of local govern-

ment, Mayors would be significantly

affected in performing the duties of

these often conflicting roles by an

affirmance of the Wisconsin Supreme

cea? aS Ne 3

II. PRIVATE SECTOR LABOR LAW CON-

CEPTS OF EXCLUSIVITY CANNOT BE

PROPERLY INTERPRETED TO PROHIBIT

COMMENTS FROM _ INDIVIDUAL

TEACHERS AND MINORITY UNIONS

DURING PUBLIC SCHOOL BOARD

PEED So dK cee bn a cceneroneeedesboccseeces 6

A. The history of the “Exclusivity” princi-

ple in the private sector relies upon the

need for peace in the collective bar-

gaining process and the need to protect

the right to organize collectively ..............6

(ii)

B. Blind application of private sector con- Page

cepts of exclusivity to public sector

labor relations, without adequate con-

sideration of the different obligations

imposed in each, is improper, and may

result in the imposition of significant

burdens on the exercise of First Amend-

ment rights by public employees............. 8

C. The facts of the present case accurately

illustrate the problems of balancing these

rights and obligations at the interface of

constitutional and labor relations princi-

PL debs MAEMO ae CARS Raa ee 1]

1. While the state has a legitimate

interest in stable labor relations in

the ‘public sector, the “clear and

present danger’ cases are not the

appropriate cases for defining the

extent to which that state interest

may be invoked to infringe on

GR GHEE os oe ceceseuseeenecs's ll

2. The significance of the public forum

and the need for protection of

vigorous comment on issues of public

importance require that the solution

to the case at bar include the most

extensive protections available for

First Amendment rights ...............-. 15

3. As an agent of the state, the Madison

School Board is obligated to treat all

citizens who participate in a public

meeting, regardless of their employ-

ment status or their union status,

equally. The decision of the Wis-

consin Supreme Cou this case

would require the See Board to

violate this responsi

ns fe oe ow Oe ot Te om a a

(iii)

III. BOTH IN TERMS OF VIOLATING FIRST Page

AMENDMENT RIGHTS OF FREE SPEECH,

PETITION AND ASSOCIATION, AND IN

TERMS OF THE PRACTICAL APPLI-

CATION OF LABOR LAW PRINCIPLES

TO THE PUBLIC SECTOR, THE DECISION

OF THE WISCONSIN SUPREME COURT

MUST BE REVERSED ...............-eeeee- 21

oo Pe ee ee Pere ee Tee Te eee ee eee 27

TABLE OF AUTHORITIES

Cases:

Adderly v. Florida, 385 U.S. 39 (1966) ............... 14

Amalgamated Federal Employees Union v. Logan

Valley Plaza, 391 U.S. 308 (1968) ................ 15

Avondale School District Board of Education, 1968

I ee ge er ae, wae ies 20

Board of Schoo! Directors v. Wisconsin Employment

Relations Commission, 42 Wis. 2d 637, 168

ee o's ee Chad Cee os 20, 23, 24, 26

Borreca v. Fasi, 369 F. Supp. 906 (U.S.D.C., D.Ha.)

SERENE ate agin eer iy an a) Re eg oF gaa 3

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)....... 2!

Burton v. Wilmington Parking Authority, 365 U.S.

Pe sctecse bbc badse Ketek anes ewes 3

Cafeteria & Restaurant Workers, Local 473 v.

McElroy, 365 U.S. 886 (1961) .............--05- 10

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ...... 13

Cox v. Louisiana, 379 U.S. 536 (1965) .............. 5, 16

Cox v. New Hampshire, 312 U.S. 569 (1941)........... 16

Dennis v. United States, 341 U.S. 494(1951) .......... 14

Edwards v. South Carolina, 372 U.S. 229 (1963) ........ 18

Ex parte Virginia, 100 U.S. 339 (1880)............. 19, 21

Garrity v. New Jersey, 385 U.S. 493 (1967) ........... 12

(iv)

Page

Grayned v. City of Rockford, 408 U.S. 104 (1972) ...... 17

Gregory v. Chicago, 349 U.S. 111 (1969) .......... 3, 5,18

SD V. Cos Se ee GP CUD ek wc ccccceecceess 15

Healy v. James, 408 U.S. 169 (1972) ..............4.. 25

Keyishian v. Board of Regents, 385 U.S. 589 (1967)... . 10,12

Lombard v. Louisiana, 373 U.S. 267 (1963) ........... 21

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) ... 15

Marsh v: Alabama, 326 U.S. 501 (1946) .............. 15

Medo Photo Supply Corporation v. National Labor

Relations Board, 321 U.S. 678 (1944) ............. 7

Michigan City Federation of Teachers, Local 399 v.

Michigan City Area Schools, Civ. No. 72594

ee 5 ne wan ahi a we ene 4 os 0s 25

Milwaukee Teachers Union, Dec. No. 6995-A

(Wisconsin Employment Relations Board, March

i EEE? "34 Or gs Ws oe bed EO ee 22, 23

NAACP vy. Alabama ex rel Patterson, 357 U.S. 449

ee re ee ee ee 13

New York Times v. Sullivan, 376 U.S. 254 (1964) ..... 16,17

Pickering v. Board of Education, 391 U.S. 563 (1968) . 3, 10, 12,

Police Department of the City of Chicago v. Mosley, 14, 16, 22

I i TR a a ong 17

Railway Employes’ Department v. Hanson, 351 U.S.

ED a ae ee re OL Seg ea 19

Schenck v. United States, 249 U.S. 47 (1919) ........ 13,14

Shapiro v. Thompson, 394 U.S. 618 (1969) ............ 19

Shelley v. Kramer, 334 U.S. 1 (1948) ..............-.. 3

Shelton v. Tucker, 364 U.S. 479 (1960) ............ 12,13

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

ee re er ae eres 19

Tassin v. Local 832, National Union of Police, 311

oF § fF 8 PO rye e ee Tere 3

(v)

Page

Tinker v. Des Moines School District, 393 U.S. 503 (1969). 13, 14, 17,

Thomas v. Collins, .23 U.S. 516 (1945) .............. 21

United States v. Classic, 313 U.S. 299 (1941) .......... 21

United States v. O’Brien, 391 U.S. 367 (1968) ........ 14,15

Virginian Railway v. System Federation No. 40, 300

PP Kins eean Gas eedenecneneceoeses 20

West Virginia State Board of Education v. Barnette,

ee ns eka hwe hen eeee aon ee en 14

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............. 21

Statutes:

Internal Revenue Code of 1954, 26 U.S.C. 501(c)(3)....... 2

National Industrial Recovery Act of 1933, 48 Stat. 213..... 7

National Labor Relations Act, 49 Stat. 449 as

amended, 29 U.S.C. §§ 141 ef seq ........2e2eees 7

Wisconsin Municipal-Employment Act, Wis. Stat.,

Ct hiss he on ees ae eo we oe eee ee 8 22

Wisconsin Statutes, 1971, §14.90 (1) and (2) .......... 25

Wisconsin Constitution, Article I, section 4 ............ 25

Miscellaneous:

Attorney General of Massachusetts, Letter to Com’r

of Education, September 12, 1967 ..............- 26

Comment, “Public School as Public Forum,” 54

ee ee ee, OTT PEPE T CTT 15

Hearings before the Committee on Education and

Labor on S. 1958 74th Cong., Ist Sess. (1935)

ee a re eres ane ore DitalE ad oe ga 8

Final Report, The Rockefeller Committee on Public

Employee Relations, March 31, 1966.............-. 9

McQuillin, Municipal Corporations (3rd Ed.) (1973) ..... 3,4

Note, “The Privilege of Exclusive Recognition and

Minority Union Rights in Public Employment,”

55 Cornell L. Rev. 1004 (1970) .........-020005- 10

(vi) IN THE

Schatzki, “Majority Rule, Exclusive Representation, — Supreme Court of the Gnited States

the Interests of the Individual Workers:

ould Exclusivity Be Abolished?” U. Pa L. October T 97

Rev. 123:897-938 (April 1975)................00. 7 srs epee

Shaw and Clark, “The Practical Differences Between

Public and Private Sector Collective Bargaining,”

19 UCLA. L. Rev. 867 (1972) ......... cee cee 16 No. 75-946

Stone, “Fora Americana: Speech in Public Places,”

1974 Supreme Court Review 233 ................ 16

Wollett and Chanin, The Law and Practice of CITY OF MADISON, JOINT SCHOOL DISTRICT

Teacher Negotiations, The Bureau of National No. 8, et al.,

Affairs, Washington, D.C., 1970 ...............-. 26 Appellants,

v.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION,

et al.,

Appellees.

ON APPEAL FROM THE SUPREME COURT

OF WISCONSIN

BRIEF AMICUS CURIAE

ON BEHALF OF THE UNITED STATES

CONFERENCE OF MAYORS,

URGING REVERSAL

Pursuant to Rule 42 of the Rules of this Court, and

with the consent of all parties, witness whereof has

been made to this Court, the United States Conference

: of Mayors files the annexed brief amicus curiae, urging

that the decision of the Supreme Court of Wisconsin be

reversed.

2

I.

THE DECISION IN THE CASE AT BAR

COULD HAVE A SUBSTANTIAL IMPACT

ON OUR NATION’S MAYORS. THE

UNITED STATES CONFERENCE OF

MAYORS IS THE ONLY ORGANIZATION

WHICH CAN EFFECTIVELY REPRESENT

THE COLLECTIVE INTERESTS OF THESE

LOCAL OFFICIALS.

A.The United £ ‘es Conference of Mayors has

been the repres.atative organization for the

Mayors of our nation’s largest cities since

1933.

The United States Conference of Mayors is an

organization of city governments represented through

their chief elected official, the Mayor. It was organized

in 1933 to promote the causes of the city, to foster

responsible and effective relationships between city halls

and the federal government, and to insure that local

governments be responsive to the needs of their citizens

and versed in municipal administration. The Conference

of Mayors is the national forum through which our

larger cities express their concerns and work to meet

the needs of urban America.

By limiting participation and membership to the 750

cities over 30,000 population, the Conference of

Mayors can focus its efforts on major urban issues and

has become a unique national spokesman.

The United, States Conference of Mayors is a

not-for-profit membership corporation organized under

the laws of the State of Illinois, and section 501(c)(3)

of the Internal Revenue Code, 26 U.S.C. 501(c)(3).

3

B. As the Chief Elected Official and as the Chief

Executive Officer of local government,

Mayors would be significantly affected in

performing the duties of these often con-

flicting roles by an affirmance of the

Wisconsin Supreme Court decision.

As the Chief Elected Official of a municipality, the

Mayor is the embodiment of local government. Tassin v.

Local 832, National Union of Police, 311 So. 2d 591

(La. App., 1975). In performing this role the Mayor is

necessarily required to meet with members of the

public on all matters concerning the affairs of

government. For example, in the submission of a

petition to local government, it is in most cases

sufficient in law to deliver the petition to the Mayor.

Id., and see E. McQuillin, Municipal Corporations (3rd

Ed) § 12.43 (1973) [hereinafter cited as McQuillin] .

In addition to the uSua! ministerial and administrative

tasks of the Mayor, as the Chief Elected Official, like

other public officials, he is bound to respect and

protect the constitutional rights of citizens. Pickering v.

Board of Education, 391 U.S. 563 (1968); Gregory vy.

-Chicago, 394 U.S. 111 (1969). The actions of a Mayor

are deemed to be State actions thereby requiring that

the exercise of the power of the office of the Mayor be

without bias, guaranteeing equal protection of the law

for all citizens. Borreca v. Fasi, 369 F. Supp. 906

(U.S.D.C., D.Hla.) (1974); Shelley v. Kramer, 334 US. 1

(1948); Burton v. Wilmington Parking Authority, 365

U.S. 715 (1961).

The Mayor is also the Chief Executive Officer of the

community. While the powers of the Mayor vary in the

many jurisdictions of the several states and within the

4

states, recent charters place great responsibility and

power in the office of the Mayor. “This conforms to

modern legislative policy relating to the administration

of municipal concerns, whereby large authority is

reposed in the Mayor who on this account may be held

to a high degree of personal responsibility in the

administration of the affairs of the city.” McQuéillin,

§ 12.43. The gradual increase of the powers of the

Mayor has proceeded with the development of the

concentration of municipal authority in as few officers

as possible, to get efficient and quick action.

As the Chief Executive Officer of the city, the Mayor

is vested by Charter with the power and authority to

exercise all the executive powers of the municipality.

These charters make the Mayor the responsible official

in employment relationships between city employees

and the city government. Under many of these charters

the Mayor may also be the chief labor negotiator for

the city government and is thereby charged with

maintaining the integrity of the collective bargaining

process. Finally, the Mayor may be responsible for the

continuing operation of the city government including

the delivery of municipal services during strikes by

municipal employees.

Even a cursory examination of this governmental

framework illustrates the potential for conflict between

the Mayor, as the Chief Elected Official, a political role,

and the Mayor, as the Chief Executive Officer, a

proprietary role. The conflict arises because in each of

the delineated roles a different standard of conduct is

applied, and a different obligation exists. These

standards and obligations are not necessarily mutually

consistent.

5

Nowhere is the potential conflict more apparent than

in the application of private sector labor law principles

to public employment. At the same instant that the

Mayor may be required to respect the constitutional

rights of citizens, some of whom are public employees,

he may also be required to comply with obligations

imposed by statute to bargain only with the exclusive

representative of public employees. If it could be

assured that all public employees would support their

union, no conflict would exist. But, public employees,

just as any other citizens, disagree, and often, they

disagree with the policies of their union. The dilemma

for Mayors arises when the public employee wishes to

express his dissenting view, both as citizen and

employee.

The easy solution, of course, would be to hold that

all discussions and presentations regarding matters

subject to collective bargaining regardless of the forum

fall within the scope of a “compelling state interest”’,

and thus justify silencing of comment. However, the

easy solution fails to recognize the importance of the

concept of Mayor as the embodiment of local

government. The Mayor is the focal point of the

community — its image. As such, Mayors represent the

community at large, must be available to perform

ceremonial dutipes and to hear citizens’ grievances, as

well as to implement administrative directives. The city

is the unit of government closest to the citizen, and

must be the first to respond to his needs. The Mayor’s

obligations to respect and support comment on matters

of public importance is the primary corollary to his

other responsibilities. Failure to carry out this responsi-

bility would certainly cause dissension and can only

serve to foment disruption. Cox v. Louisiana, 379 U.S.

536 (1965); Gregory v. Chicago, 394 U.S. 111 (1969).

6

In this case, the United States Conference of Mayors

seeks to represent the interests of its membership, the

nation’s Mayors, by clarifying the responsibilities of

Mayors and other public officials given the conflicting

duties outlined above. In addition, it wishes to impress

upon the Court the imprudence of a decision affirming

the Wisconsin Supreme Court. In the analysis of the

various standards to be applied, the Conference of

Mayors will seek to expose the implications of imposing

private sector labor relations principles on _ public

employment without consideration of the serious

constitutional consequences for Mayors.

il.

PRIVATE SECTOR LABOR LAW CON-

CEPTS OF EXCLUSIVITY CANNOT BE

PROPERLY INTERPRETED TO PROHIBIT

COMMENT FROM INDIVIDUAL

TEACHERS AND MINORITY - UNIONS

DURING PUBLIC SCHOOL BOARD MEET-

INGS.

A.The history of the “Exclusivity” principle in

the private sector relies upon the need for

peace in the collective bargaining process and

the need to protect the right to organize

collectively.

In its barest terms, the concept of exclusive

recognition means that the union designated by a

majority of the relevant employees negotiates collective

bargaining contracts on behalf of all employees. In

addition to the right granted by exclusive recognition,

there is imposed upon the employer a corelative duty

7

not to negotiate on any matters subject to collective

bargaining with any other organization, minority union

or individual employee. Medo Photo Supply Corp. vy.

NLRB, 321 U.S. 678 (1944); But see George Schatzki,

“Majority Rule, Exclusive Representation, and the

Interests of Individual Workers’: Should Exclusivity Be

Abolished?” 123 U. Pa. L. Rev. 897-938, Apr. 1975.

The principle of exclusivity became a popular notion

during the years between enactment of the National

Industria! Recovery Act of 1933 (48 Stat. 213) and

adoption of the National Labor Relations Act of 1935,

49 Stat. 449 as amended, 29 U.S.C. §§141 ef

seq. when it became increasingly apparent that

employers were exploiting employee fragmentation to

their benefit in the collective bargaining process. To

alleviate this problern, and to insure some relative

strength for employee organizations, exclusive

recognition was incorporated into Section 9(a) of the

National Labor Relations Act. This addition was also

necessary in order to resolve disagreements which arose

under Section 7(a) of the National Industrial Recovery

Act respecting the manner in which the political

representation of employees would be achieved. Section

7(a) itself guaranteed collective bargaining without

specifying how representatives would be chosen or

whom they should represent. This ambiguity led to

disputes not only between employers and unions, but

also between various governmental officials as to

whether section 7(a) intended plural, proportional, or

majority representation.’ As Francis Biddle, then

‘Generally, there are three ways in which union repre-

sentation may be described: plural, proportional or exclusive.

Plural recognition means that the organization is the negotiating

agent for its members only. Proportionate representation, on the

other hand, involves the creation of a negotiating council as the

representative with each of the organizations having membership

on the council proportionate to the percentage of the employees

who support that organization.

8

Chairman of the old National Labor Board under Public

Resolution No. 44 testified in hearings preceding

enactment of the National Labor Relations Act:

The experience of this Board in the cases before it

has indicated that the insistence of the employer

on individual bargaining has been for the purpose

of interfering with collective bargaining and not

for the purpose of preserving the individual liberty

of contract of the American workman. Hearings

before Committee on Education and Labor on S.

1958, 74th Cong., Ist Sess. (1935) Pt. 2, p. 151.

The application of exclusive recognition in the

private sector afforded employees through their exclu-

sive agent the opportunity to present a united front to

employers during the bargaining process. In addition, a

union cloaked in the mantel of exclusivity carried with

it the authority and power to leverage negotiations. The

exclusivity principle diminished the employer’s ability

to play various organizations or individual employees

off against one another, thus enhancing the relative

strength of employee unions.

In the private sector, therefore, the concept of

exclusivity was proven successful in minimizing organi-

zational disputes, maximizing /the efficiency of the

collective’ bargaining process, and _ solidifying the

position of labor unions vis a vis management.

B. Blind application of private sector concepts

of exclusivity to public sector labor relations,

without adequate consideration of the dif-

ferent obligations imposed in each, is im-

proper, and may result in the imposition of

significant burdens on the exercise of First

Amendment rights by public employees.

9

A conclusion drawn by the Rockefeller Committee

on Public Employee Relations (The Taylor Committee)

in March, 1966 reflects the enthusiastic, but ill-

considered, application of private sector labor law

principles to the public sector without adequate review

of the constitutional implications of such a transplant:

We find a number of advantages in the use of the

principle of recognizing a majority organization as

exclusive representative for all employees in the

unit. There are advantages in the elimination of

the possibility that the executives of an agency

will play one group of employees or one employee

organization off against another. There are ad-

vantages in the elimination, for a period, of

inter-organizational rivalries. There are advantages

in discouraging the ‘splitting off of functional

groups in the employee organization in order to go

it on their own. There are advantages in

simplifying and systematizing the administration of

employee and personnel relations. These are

advantages in an organization’s ability to serve all

the employees in the unit. Final Report 29 (March

31, 1966).

Certainly, no one can contest that when considered

from the perspective of labor peace, efficient collective

bargaining, and union status, exclusive recognition

makes as much sense in the public sector as it does in

the private sector. But from the perspective of

individual rights and protected constitutional conduct,

exclusivity in public employment can be resisted as

undemocratic. Supporters of the principle will un-

doubtedly argue that in the political arena, the Senator,

Congressperson or other official selected by the

majority represents all members of the particular voting

district. However, this analogy cannot be drawn too far,

for similarly in the political sphere, minority groups and

individuals retain certain rights — to petition, to

10

protest, to assemble peaceably, to criticize, and to

campaign for a replacement. To the extent that the

exclusive recognition is adopted in public employment,

there is a commensurate diminution in the freedom of

individual employees in a governmental unit. Because,

upon adoption of an exclusive recognition policy, the

state will be acting not only in its traditional regulatory

role, but also in the role of employer, a zone of

protection for the organizational, representational, and

individual rights of members of a minority organization

should be scrupulously formulated. “The alternative

could be the unnecessary, unjust and perhaps unconsti-

tutional subversion of individual employee and minority

union rights in public employment.” “The Privilege of

Exclusive Recognition and Minority Union Rights in

Public Employment,” 55 Corneil L. Rev. 1004,

1005-1006 (1970).

Because of the dual role the state plays in public

sector labor relations — that of regulator and employer,

the wholesale application of the exclusivity principle

may not be applicable or proper. As regulator, that is

the constitutionally constructed authority to serve the

needs and will of the people, the state is obligated to

preserve and equally protect the constitutional rights of

its citizens, including public employees, Keyishian vy.

Board of Regents, 385 U.S. 589 (1967); Pickering v.

Board of Education, 391 U.S. 563 (1968), and, does

“not constitutionally have the complete freedom of

action enjoyed by a private employer.” Cafeteria &

Restaurant Workers, Local 473 v. McElroy, 367 U.S.

886, 897-98 (1961). Employers in the private sector

have no corresponding duty, and may, therefore, place

the goal of successful labor negotiations above all

others, including restraints on individual conduct. The

11

affirmative obligation to protect the individual’s right to

speak, assemble and petition is not imposed upon

private employers.

As employer, on the other hand, the state is

obligated by statute to participate in the collective

bargaining process as management ffor the state

administrative and political framework, and to extract

the most efficient and financially sound agreement.

These obligations are not always mutually consistent,

as the case at bar demonstrates, and the public official

is placed in the unenviable position of reconciling

responsibilities under constitutional and labor law.

Thus, unlike the private sector, where the primary

motivation and rationale for labor law principles is

successful collective bargaining, application of the

exclusive recognition concept in the public sector

requires a balancing of substantial constitutional

interests and duties against compelling state interests in

achieving efficient and peaceful labor relations.

C.The facts of the present case accurately

illustrate the problems of balancing these

rights and obligations at the interface of

constitutional and labor relations principles.

1. While the state has a legitimate interest in stable labor

relations in the public sector, the “clear and present

danger” cases are not the appropriate cases for

defining the extent to which that state interest may

be invoked to infringe on constitutional rights.

In the case at bar, the Madison School Board was

found guilty of committing an unfair labor practice

when it allowed a non-union teacher to speak at an

open, public meeting of the Board. The teacher also

12

sought to present a petition to the Board. The

Wisconsin courts reached this conclusion by finding that

the presentation by the teacher constituted

“negotiating” with persons other than the representative

of the exclusive bargaining unit.

It is undisputed that public employees, including

teachers, retain their First Amendment rights. Pickering,

391 U.S. at 568; Shelton vy. Tucker, 364 U.S. 479

(1960); Keyishian v. Board of Regents, 385 U.S. 589

(1967); Garrity v. New Jersey, 385 U.S. 493 (1967).

At the same time it cannot be gainsaid that the

State has interests as an employer in regulating the

speech of its employees that differ significantly

from those it possesses in connection with the

regulation of the speech of the citizenry in general.

The problem in any case is to arrive at a balance

between the interests of the teacher, as a citizen,

in commenting upon matters of public concern

and the interests of the State, as an employer, in

promoting the efficiency of the public services it

performs through its employees. Pickering v. Board

of Education, 391 U.S. at 568.

_ It is necessary to examine whether the Wisconsin

Supreme Court properly balanced the interests of the

teacher in commenting upon matters of public concern,

and the interests of the state in stable public employee

labor relations, particularly where it is clearly estab-

lished that the burden lies on the state to justify

regulation of substantial freedoms, such as_ those

protected by the First Amendment.

The Wisconsin Court reached this decision by use of

an expansive definition of “negotiating”, a definition

which could reach all public comment on any matters

subject to collective bargaining by any member of the

bargaining unit.

—_——- > -

~~?

———

13

The constitutional rights at issue in this litigation are

those of Free Speech, the Right of Petition, the Right of

Association and the Right to Equal Protection of the

Law.

The Court’s imposition on free speech and petition

was premised on the content of that speech, matters

subject to collective bargaining. It has long been

established that restrictions premised on content are

precisely what the First Amendment forbids. Tinker v.

Des Moines School District, 393 U.S. 503 (1969). The

rule, as promulgated by the Wisconsin courts, has the

effect of silencing differing perspectives on issues of

public importance. This goal, the encouragement of

comment on public issues, was the basis of this Court’s

decision in Pickering.

There is no doubt that the state has a legitimate

interest in regulating speech, and speech related

activities. Again, the question arises whether the state’s

interest can reach so far as to reach the result in the

case at bar. Regardless of the proffered state interest,

action which is aimed directly or which results in a

restraint on protected freedoms or conduct bound to

those freedoms must be stricken as unconstitutional per

se, and should never be justified by a balancing

approach. NAACP y. Alabama ex rel. Patterson, 357

U.S. 449 (1958); Shelton v. Tucker, 364 U.S. 479

(1960).

The Wisconsin Court’s use of constitutional “clear

and present danger” cases is wholly inappropriate to the

facts of this case. Legitimate comment on public issues

is not shouting “fire” in a crowded theater, (Schenck y.

U.S., 249 U.S. 47 (1919)), nor do the facts of this case

indicate that Holmquist used “fighting words.’ Chap-

linsky v. New Hampshire, 315 U.S. 568 (1942). The

14

cases cited by the Court are themselves instructive of

the inadequacy of the imposition of this rule on this

activity. In Schenck vy. U.S., 249 U.S. 47 (1919), this

Court considered the use of restriction on free speech

in connection with espionage and conspiracy in

wartime. In Dennis v. United States, 341 U.S. 494

(1951), this Court considered restrictions on advocacy

in a national security setting. Finally, this Court refused

to uphold a state requirement that students salute the

flag in West Virginia State Board of Education y.

Barnette, 319 U.S. 624 (1943). The facts of the case at

bar relate to grave interests of the state, but those

interests are not as grave as national security and

espionage. The “clear and present danger” cases cited

by the Wisconsin Court simply do not establish a

principle for limiting First Amendment rights in this

case.

This Court has, in a variety of cases, established

other principles, more applicable to the case at bar,

relating to governmental infringement on First Amend-

ment rights in light of an existing, legitimate state

interest. Tinker v. DesMoines School District, 393 U.S.

503 (1969); United States v. O’Brien, 391 U.S. 367

(1968), Adderly yv. Florida, 385 U.S. 39 (1966);

Pickering v. Board of Education, 391 U.S. 563 (1968).

In the cited cases, and others, this Court has looked

variously at a “balancing” test, an “‘overbreadth” test,

and a “‘least drastic means” test. These cases are also

important for they discuss the role of governmental

infringement of free speech in settings where the

regulation has some valid purpose completely in-

dependent of the regulation of speech. Most important-

ly, these cases discuss the regulation in relation to a

presumption that the regulation should not reach First

15

Amendment rights except to the extent absolutely

necessary to fulfill the legitimate state purpose.

On the facts of this case, the regulatory interest,

while sufficient in theory, must still fall “because the

communication... integral to the conduct is itself

thought to be harmful.” United States v. O'Brien, 391

U.S. at 382. Such a Bootstrapping theory cannot be

heard to justify infringement on important consti-

tutional protections.

2. The significance of the public forum and the need for

vigorous comment on issues of public importance

require that the solution to the case at bar include the

most extensive protections available for First Amend-

ment rights.

This case arose from occurences at an open, public

school board meeting. If nothing else, such a meeting

constitutes a “public forum.” This Court, on numerous

occasions, has faced issues relating to public fora. In a

number of those cases, this Court was called upon to

decide whether a given setting was a “public forum,”

where constitutional protections are fully available to

those wishing to engage in public expression. Marsh vy.

Alabama, 326 U.S. 501 (1946); Amalgamated Food

Employees Union v. Logan Valley Plaza, 391 U.S. 308

(1968). The present case presents no such problem.

The notion that individuals have an absolute right to

use some public area for speech and assembly, the

“public forum right,” has been delineated by this Court

in several cases beginning with Hague v. C/O, 307 U.S.

496 (1939). See also, Lehman vy. City of Shaker

Heights, 418 U.S. 298 (1974); Comment, “‘Public School

as Public Forum,’ 54 Tex. L. Rev. 90 (1975):

16

Stone, “Fora Americana: Speech in Public Places,”

1974 Sup. Ct. Rev. 233.

This Court has found that reasonable regulation of

the “time, place and manner” of the exercise of free

speech rights is permissible so long as the regulation is

not designed to, or has the effect of, discriminating on

the content of any given speech or on the identity of

the speaker. Cox v. New Hampshire, 312 U.S. 569

(1941); Cox v. Louisiana, 379 U.S. 559 (1965). As the

School Board meeting was a public meeting, and

Holmquist spoke during the time reserved for public

comment on matters of public interest, it appears that

no restrictions regarding “time, place and manner” of

speech would be appropriate if applied to the facts of

this case. In fact, a public meeting of a public body,

convened to discuss issues of public importance

represents the quintessential public forum. It is difficult

to think of any other gathering where protections for

the right to speak and petition are more appropriate or

more consistent with the doctrine of the public forum.

Similarly, this Court has affirmed the need for

uninhibited, robust and wide open debate on issues of

public importance and recognized the significance of

the “citizen-critic,” in democratic government. New

York Times v. Sullivan, 376 U.S. 254 (1964); and see

Pickering v. Board of Education, 391 U.S. 563 (1968),

where these principles were discussed in relation to

public employment; Shaw and Clark, “The Practical

Differences Bet *en Public and Private Sector Col-

lective Bargaining,” 19 UCLA L. Rev. 867 at 999

(1972). The “‘citizen-critic,” whether a private citizen or

a public employee, holds an esteemed position in our

governmental structure. “It is as much his duty to

criticize as it is the officials duty to administer.” New

17

York Times v. Sullivan, at 282. Certainly Holmquist

was discussing issues of public importance, issues on

which debate should be wide open. His appearance at

the meeting was not even in the role of a critic, but,

rather, as a conciliator, seeking deferral of the fair share

proposal pending a. impartial, public study of the issue.

- This is precisely the type of activity this Court has

sought to protect, and is in the best First Amendment

. tradition.

As the primary purpose of the public meeting was to

discuss matters of public importance, it is difficult to

say that Holmquist’s speech was disruptive of the

primary purpose of the meeting. The mere fact that

Holmquist’s speech touched on labor relations is not, of

itself, sufficient to restrict his right to speak absent a

showing of disruption of the primary purpose of the

meeting. Compare Police Department of the City of

Chicago v. Mosley, 408 U.S. 92 (1972), with Grayned

vy. City of Rockford, 408 U.S. 104 (1972); and see

Tinker v. DesMoines School District, 393 U.S. 503

(1969).

To the extent that there was disruption of the

activities of the meeting, that disruption is wholly

attributable to the activities of the exclusive bargaining

agent, Madison Teachers, Inc. The Supreme Court

determined that this meeting, an open, public meeting

of the Madison School Board, became a “part of the

negotiation process,” thus, the Court reasoned, the

statement by Holmquist constituted “negotiating,” in

violation of the exclusivity principles of the Wisconsin

Statutes. City of Madison, Joint School District No. 8,

et al, v. WERC, et al., 69 Wis.2d 200, at 213, 231

N.W.2d 206, at 213 (1975).

18

In reaching the determination that the meeting was a

“part of the negotiation process,” the Court cited four

facts: 1) that an impasse had been reached; 2) that the

majority union had several members present; 3) that the

majority union had pickets present; and 4) that

representatives of the majority union addressed the

board on subjects of the collective bargaining negotia-

tions. 69 Wis.2d at 213, 231 N.W.2d at 213. Each of

these conditions, with the possible exception of the

impasse, was completely within the control of the

majority union, the exclusive bargaining agent.

It is incongruous that the majority union, which

alone had the right and the power to meet behind

closed doors and negotiate with the Board on all

matters subject to collective bargaining, could convert

an otherwise open, public meeting into a “negotiation

session,” thereby, under the ruling of the Wisconsin

Supreme Court, depriving non-union members of

constitutional rights as well as possibly putting the

Board in the position of violating the .State’s “‘sun-

shine,” open meeting law. In similar situations, this

Court has held that, to the extent possible, it is the

duty of government to restrain the disruptors in

protecting the free speech rights of citizens. Gregory v.

Chicago, 394 U.S. 111 (1969); Edwards v. South

Carolina, 372 U.S. 229 (1963).

The principles relating to the public forum and the

need for wide open debate on public issues require

reversal of the decision of the Wisconsin Supreme Court

in this case.

19

3. As an agent of the State, the Madison School Board is

obligated to treat all citizens, who participate in a

public meeting, regardless of the employment status

or their union status, equally. The decision of the

Wisconsin Supreme Court in this case would require

school boards to violate this responsibility.

As school boards are creatures of the State, and

board members are public officers, the equal protection

mandate of the Fourteenth Amendment is fully

applicable to their activities. Ex parte Virginia, 100 U.S.

339 (1880).

While public officials may have the discretion to

discriminate in the performance of certain functions,

they must first demonstrate a rational and necessary

relationship between the discrimination and a com-

pelling state interest. Particularly, where fundamental

constitutional rights are at issue, this Court is obligated

to exercise “strict scrutiny,” holding the State to a

standard of “high need.” Shapiro v. Thompson, 394

U.S. 618, 638 (1969); Skinner v. Oklahoma ex rel.

Williamson, 316 U.S. 535, 541 (1942).

In the case at bar, no “high degree of need” exists,

and the standard which the Wisconsin Supreme Court

decision would impose exceeds permissible discrimina-

tory conduct. Affirmance of that decision would have

the effect of ignoring the differences between the

exclusive bargaining role of the recognized union and

the role of that union as a rival to a minority

competitor. It would subject minority unions and

individual employees to the unequal treatment pro-

scribed by the Fourteenth Amendment. The concept of

exclusivity and the benefits derived from such

recognition must be reasonably related to the attain-

ment of permissible objectives. Railway Employes’

20

D. partment v. Hanson, 351 U.S. 225, 233, 235 (1956);

c.f. Virginian Railway v. System Federation No. 40,

300 U.S. 515, 558-59 (1937). The deprivation of

constitutionally protected speech and petition — rights

fundamental to the operation of our political process —

is not a permissible objective. The Wisconsin Supreme

Court itself recently noted this distinction:

Those rights or benefits which are granted

exclusively to the majority representative, and thus

denied to minority organizations, must in some

rational manner be related to the functions of the

majority organization in its representative capacity,

and must not be granted to entrench such

organization as the bargaining representative.

Board of School Directors v. Wisconsin E mployment

Relations Commission, 42 Wis. 2d 637, 649, 168

N.W.2d 92, 97 (1969).

In the same matter, the Court noted that while the

exclusive use of school bulletin boards and teacher

mailboxes was not on appeal before it, the Wisconsin

Employment Relations Commission had détermined and

the circuit court had affirmed that, insofar as the use of

the physical facilities of the school was related to

normal union activities, the privileges had to be

extended to the minority union if granted to the

majority. Board of School Directors, 42 Wis. 2d at 642

n. 3, 168 N.W. 2d at 94 n. 3. See also Avondale School

District Board of Education, 1968 Mich. L.M.B. Ops.

518, 525. It is difficult to draw a distinction between

the disparate treatment prohibited in the cases cited

above, and the effect the Wisconsin Supreme Court

decision would have in public meetings where matters

of collective bargaining are on the agenda. The effect is

to permit the exclusive representative to speak at open

public meetings, and to exclude comment from

21

employees in the bargaining unit if it does not conform

to the policies espoused by the majority union. This is

nothing less than arbitrarily denying individual teachers

who choose to dissent from the union position the

conveniences, advantages and fora in exercising speech

and association rights. The fact that the Wisconsin

statute itself did not authorize such discrimination is

irrelevant, if, in its implementation it is applied so. Yick

Wo v. Hopkins, 118 U.S. 356 (1886); Ex parte Virginia,

100 U.S. 339 (1880); Lombard v. Louisiana, 373 U.S.

267 (1963); United States v. Classic, 313 U.S. 299

(1941).

In the instant matter, the distinction drawn is not

justified by a compelling state interest.

iil.

BOTH IN TERMS OF VIOLATING FIRST

AMENDMENT RIGHTS OF FREE SPEECH,

PETITION AND ASSOCIATION, AND IN

TERMS OF THE PRACTICAL APPLICA-

TION OF LABOR LAW PRINCIPLES TO

THE PUBLIC SECTOR, THE DECISION OF

THE WISCONSIN SUPREME COURT MUST

BE REVERSED.

As the discussions thus far have indicated, the rights

of a minority union and individual employees should

initially be measured against the First Amendment rights

to speak freely, to assemble peaceably, to petition, and

to associate, guaranteed against infringement by either

the federal or state governments. See Joseph Burstyn,

Inc. v. Wilson, 343 U.S. 495 (1952). In Thomas y.

Collins, 323 U.S. 516 (1945), the Court held that the

22

“grievances for redress of which the right of petition

was insured” are not contined to religious or political

causes, but include other fields of human interest

including business or economic activity. It has also been

demonstrated that the freedom of individual employees

organized into a minority union to speak out on

subjects concerning the employment relationship is

constitutionally protected. Pickering v. Board of

Education, 391 U.S. 568 (1968).

The conclusion we draw in this matter on the basis

of these arguments is that the Wisconsin Employment

Relations Commission and Wisconsin court’s interpre-

tation of the facts in this case infringes upon an

individual public employee in the exercise of First

Amendment rights beyond permissible constitutional

limits, regardless of the test applied; and further, this

infringement is not required by a reasonable application

of labor law principles. The legitimate and compelling

state interest served by the exclusivity provision of the

Wisconsin Statutes is outweighed by the manner and

degree that First Amendment rights are infringed.

Resolution of the case at bar may be assisted by a

scrupulous assessment of Wisconsin case law preceding

this litigation. The dispositive issue in those cases as in

the case before the Court is what constitutes and limits

collective bargaining for the purpose of reaching an

agreement between an employer and the recognized

exclusive representative.

The scope of the exclusivity provision of the

Wisconsin Statutes, Sec. 111.70 was also at issue in

Milwaukee Teachers Union, Dec. No. 6995-A at 12-13

(WERB, March 24, 1966)., rev’d in part sub nom Board

of School Directors v. W.E.R.C., 42 Wis. 2d 637, 168

N.W. 2d 92 (1969). Milwaukee Teachers Educational

23

Association [hereinafter MTEA] was designated ex-

clusive collective bargaining agent by the Wisconsin

Employment Relations Board [hereinafter WERB].

After the Board of School Directors for Milwaukee had

entered into contract negotiations with MTEA, a

teacher, acting as a representative of the minority,

Milwaukee Teachers Union [hereinafter MTU], was

denied an opportunity to speak on negotiable matters

at a public meeting of a committee of the school board.

Because representatives of groups other than the MTU

had been permitted to speak on such matters at that

meeting, MTU filed a complaint against the school

directors with WERB. The Board determined that the

denial of the right to speak was unlawful and ordered

the school directors to cease and desist from depriving

any member or representative of an employee organiza-

tion of the opportunity to be heard “at any public

meeting held for any purpose.” Milwaukee Teachers

Union, Dec. No. 6995-A ‘at 8. In support of its

decision, the Board adopted the rationale that a public

hearing is not a forum for collective bargaining in

public employment. Milwaukee Teachers Union, Dec.

No. 6995-A at 17. The Board concluded that an

appearance by a minority union at a public hearing

could not be equated with an attempt at collective

bargaining even though the hearing agenda involved

negotiable subjects. The concept of collective bargaining

in public employment, as elsewhere, must be restricted

to a give and take relationship between the public

employer and the exclusive representative “‘across the

‘bargaining table’.” Milwaukee Teachers Union, Dec.

No. 6995-A at 17.

The decision of the WERB was reversed on appeal by

a circuit court (Board of School Directors v. WERC, 42

24

Wis.2d 637, 643-44, 651, 168 N.W.2d 92, 95, 98-99

(1969), and the Wisconsin Supreme Court affirmed the

reversal, 42 Wis.2d at 654, 168 N.W.2d at 100 (1969)).

In its opinion, the Supreme Court concluded that the

public employer engages in prohibited collective bar-

gaining whenever it permits a representative of a

minority union to speak on negotiable subjects during a

private or public negotiating session, (emphasis

supplied). Board of School Directors v. WERC, 42

Wis.2d at 651-54, 168 N.W.2d at 99-100. Contrary to

the decision of the WERB, the Court held that the

collective bargaining process included the open hearing

required by -the anti-secrecy law, at which the

governmental! body acts on an agreement negotiated

between its agent and the exclusive representative. The

Court’s rationale was that permitting a minority union

to express its views on negotiable subjects during what

amounts to a negotiating session would defeat the

purpose of designating the majority union as exclusive

bargaining representative. ;

We would argue, however, that the Court went too

far in imposing the exclusivity principle on an area of

free speech and petition protected by First Amendment

guarantees. An appearance at a mandatory public

meeting is hardly the negotiation of wages and

conditions of employment, see Section II. C. 2. above.

Particularly, in the case at bar, the negotiation of the

agreement was continuing to take place in private

sessions without the interference of any minority

unions or individual employees. It would be purposeless

for a minority union, individual employee or interested

citizen to address a public body without the intent to

influence its thinking, but the public employer is under

no obligation to reply to or treat with that interested

party.

25

The privileges afforded a minority union or individual

teacher under these circumstances is no stronger than

that expressed in the basic right “to assemble, and to

petition the Government” guaranteed by the First

Amendment of the Federal Constitution and article I,

section 4 of the Wisconsin Constitution.

To deny only a minority union or non-union teacher

the right to appear and to speak before a public

meeting of the governmental body as the Wisconsin

Superme Court did in the Milwaukee Teachers case, and

as it would do in the instant matter precludes public

comment by an organization or individual with a real

and immediate stake in the outcome of the delibera-

tions. Furthermore, it defeats the policy of anti-secrecy

laws — of public access “to the fullest and most

complete information regarding the affairs of govern-

ment” during public meetings “open to all citizens at

all times.”” Wis. Stat. Ann., Sec. 14.90(1) and (2) (Supp.

1969).

It is doubtful that the exclusivity concept was

intended to protect majority unions from _ public

comment of the nature described in this case. It is also

speculative to think that the collective bargaining

process will be undermined by permitting speech or

petition as undertaken in this matter. Moreover, denial

of the right to speak and petition violated not only First

Amendment guarantees absent a compelling state

interest, but also may violate under the facts of this

case statutory provisions protecting the public employ-

ee’s equal right and access to channels of communica-

tion made available freely to the majority union or

other organizations. Healy v. James, 408 U.S. 169

(1972); Michigan City Federation of Teachers, Local

399 vy. Michigan City Area Schools, Civ. No. 72594

(N.D. Ind.), Jan. 24, 1973. See Section II.C.3. supra.

26

In addition to the pure constitutional arguments,

common sense and practical definitions of “negotia-

tion” weigh heavily against its application to the

exchange taking place in this case. As contained in

Wollett and Chanin, The Law and Practice of Teacher

Negotiations, The Bureau of National Affairs, Washing-

ton, D.C. at p. 1:5:

The process [of negotiation] is one of proposal

and counierproposal, of action and reaction, of

give and take — resulting finally in a ‘deal’ or ‘no

deal’, in mutual agreement or stalemate...

Bilateral determination of the terms and conditions

of employment through the process of negotiations

means that neither party has the ability to impose

its will on the other and that each is able, in law

and in fact, to veto the proposals of the other.

A letter from the Attorney General of Massachusetts

to the Commissioner of Education supports this narrow

interpretation of “negotiation”:

A collective bargaining session...is a meeting at

which the employer and employees are engaged in

a process of an interchange and analysis of each

. Other’s proposals and counterproposals. Att’y Gen.

of Mass. — Letter to Com’r of Education, Owen

Kiernan, Sep. 12, 1967.

This case presents the precise circumstances in which

the Supreme Court of Wisconsin drew the following

conclusion:

If this case involved solely the giving of a position

statement at an ordinary meeting of a public body,

we would have some difficulty in labelling the

conduct ‘negotiating.’ Board of School Directors

v. WERC, 42 Wis. 2d at 651, 168 N.W. 2d at 99.

The case at bar was a regular public meeting at which

the only exchange between members of the school

27

board and the minority teacher was the presentation by

the teacher of the position statement. As such, anyone

would “‘have some difficulty in labelling the conduct

‘negotiating’.” The fact that the majority union had

pickets present outside the meeting hall, and that one

of its spokesmen was permitted to address the school

board does not operate to convert a scheduled public

meeting mandated under state anti-secrecy laws into a

collective bargaining session. If anything, the conduct of

the majority union in monopolizing the atmosphere and

platform of such a session should militate in favor of

permitting speech from varying perspectives.

Constitutional and practical dictates favor a reversal

of the Wisconsin Supreme Court decision.

CONCLUSION

For the reasons stated above, the decision of the

Wisconsin Supreme Court should be reversed.

Respectfully submitted,

UNITED STATES CONFERENCE

OF MAYORS

JOHN J. GUNTHER

United States Conference

of Mayors

1620 Eye Street, N.W.

Washington, D.C. 20006

Tel. (202) 293-7330

Executive Director and

Member of the Bar of the

Supreme Court of the

United States