Monday, April 28, 2008

Union Activities and First Amendment Public Concern Speech

Scalesred I never can resist commenting on a First Amendment free speech cases, especially ones where the plaintiffs win! However, lest you think this bodes something good for plaintiffs, the case did not involve an analysis of Garcetti, as it was decided before that bane of my existence.

Nevertheless, Davignon v. Hodgson (1st Cir. Apr. 24, 2008) does have some interesting discussions about the relationship between the public concern test of Connick and the participation of public employees in union activities as union officers.

Davignon and four other employees were union negotiators who were suspended without pay by a contention Sheriff in the state corrections environment during negotiations for a new union contract. The First Circuit found that although speech related to union activities was not a matter of inherent public concern sufficient by itself to dispense with a full analysis of whether the speech involved a matter of public concern; nevertheless, such evidence is a strong indication that public concern speech is involved.  And,as it turns out, the court concluded that informing the public of what Davignon and his fellow union negotiators considered to be unfair behavior on the part of the employer was a matter of public concern.

Also of interest is that although employers are usually very successful in security occupations win the Pickering balancing of interests case because of the security interests involved, the employees won here because it was pretty clear that the Sheriff was really just out to get employees he considered troublemakers.

So, interesting case, but one that does not do anything to ease my mind on the impact of Garcetti.

Hat Tip: MM


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