Friday, February 1, 2019

Fourth Circuit Dings Union President's First Amendment Retaliation Claim

The Fourth Circuit ruled in McClure v. Ports that the Maryland Transit Authority didn't retaliate against a local union president in violation of the First Amendment when it revoked his access privileges to MTA property in reprisal for his protected speech. The court also dismissed the plaintiff's Fourth Amendment claim.

The case arose when David McClure, President of the Amalgamated Transit Union Local 1300, led a public advocacy campaign against unsafe MTA policies and operations. He later represented a worker in a disciplinary hearing, where the MTA claimed that he verbally harassed an MTA hearing officer.

Citing the harassment, the MTA required McClure to get permission before entering MTA's offices, and revoked his keycard access to its facilities. After McClure several times re-entered MTA properties without permission (in order to represent union workers), the MTA had him escorted out by police (the basis of his Fourth Amendment claim).

McClure sued, arguing that the MTA retaliated against him in violation of the First Amendment by requiring permission to enter its properties and by revoking his keycard access.

The Fourth Circuit disagreed. The court assumed that McClure engaged in protected speech, and that the MTA retaliated against him because of that speech. But it held that the MTA's retaliatory actions didn't amount to unconstitutionally adverse behavior. According to the court, that's because McClure's interest in maintaining access to MTA property was "slight when compared to the government's interest in regulating such access."

On the one side of the scale, the court said that McClure was never entitled to enter MTA property: the collective bargaining agreement permitted union representatives' access only on permission of the MTA; McClure could have represented union members at grievance hearings at off-site locations (an option that the MTA offered); and McClure's keycard access was extended simply by grace of the MTA. On the other side, the MTA's interest in restricting access to its property, including private offices and garages with heavy machinery, was "weighty."

https://lawprofessors.typepad.com/conlaw/2019/02/fourth-circuit-dings-union-presidents-first-amendment-retaliation-claim.html

Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink

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