City of Fairmont v. Retail, Wholesale, & Department Store Union

McGraw, Justice,

concurring:

I concur with the majority in its conclusion that a peaceful strike by public employees is legal in West Virginia. My concern grows from the implication in syllabus point 2 that public employees’ First Amendment rights are something less than the rights of other citizens, and that public officers have no duty to respond to the grievances of public employees.

In syllabus point 2, the majority seems to confuse the rights of public employees with the duties of public employers. It says “[wjhile some constitutional protection is extended under the First Amendment to public *17employees, [public employers have no duty to recognize or bargain with a public employee union].” The implication is that public employers not only do not have to bargain with public employees, but that public employees have only an ill-defined, but somehow limited First Amendment protection.

Both public and private employees derive their organizational rights from the First Amendment. For example, in defense of the constitutionality of the collective bargaining provisions of the National Labor Relations Act, 29 USC § 151 et seq., the United States Supreme Court in NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 81 L.Ed. 893, 57 S.Ct. 615 (1937), stated: “the statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining and other mutual protection without restraint or coercion. That is a fundamental right.” 301 U.S. at 33, 81 L.Ed. at 909, 56 S.Ct. at 622.

The rights to which the Court here alludes are in no sense “created” by federal labor legislation, but predate the NLRA proceeding from the Constitution itself. United States v. Bailes, 120 F. Supp. 614 (S.D. W.Va. 1954). Thus, in NLRB v. Jones & Laughlin, supra, the Court concluded that Congress had previously recognized the legality of collective action and was constitutionally empowered to safeguard it. In Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 84 L.Ed. 738, 60 S.Ct. 561 (1940), the Court likewise stated:

Neither [§ 7 of the NLRA], nor any other provision of the Act can properly be said to have “created” the right of self-organization or of collective bargaining through representatives of the employees own choosing. In NLRB v. Jones and Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, we observed that this right is a fundamental one, that employees have as clear a right to organize and select their representatives for lawful purposes as the employer has to organize its business and select its own officers and agents. 309 U.S. at 263, 84 L.Ed. at 741, 60 S.Ct. at 562-63.

*18Our United States Supreme Court has noted that Congress also recognized the strike to be an expression of the fundamental right to organize and engage in concerted activities for mutual aid and protection. Amalgamated Association of Street, Elec. Ry & Motor C. Employees v. Wisc. Empl. Relations Bd., Ftn. 8; 340 U.S. 383, 389; 71 S.Ct. 359, 363, 95 L.Ed.2d 364, 373 (1951).

Moreover, as our United States Supreme Court has held, public employment may not be “conditioned upon the surrender of constitutional rights which could not be abridged by direct government action”. Keyishian v. The Board of Regents of the University of the State of New York, 385 U.S. 589, 605, 17 L.Ed.2d 629, 642, 87 S.Ct. 675, 685 (1967). See also, Garrity v. New Jersey, 385 U.S. 493, 17 L.Ed.2d 562, 87 S.Ct. 616 (1967). The Keyishian analysis was subsequently supported in Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694 (1972), where the government was prevented from denying a benefit to a person on a basis that infringes his constitutionally protected interests— especially his interests in freedom of speech.

For if the government could deny a benefit to a person because of his constitutionally protected speech, or associations, his exercises of those freedoms would in effect be penalized and prohibited. This would allow the government to produce a result which [it] could not command directly.... Such interference with constitutional rights is impermissible. (Citations omitted), 408 U.S. at 597, 33 L.Ed.2d at 577, 92 S.Ct. at 2697.

Reputable courts have clearly recognized that public employees, as a class, have a constitutionally protected right under the First, Amendment to the United States Constitution, as do other first class citizens, to associate with others in a labor organization whose purpose is to attempt to negotiate terms and conditions of employment with their employer. Lontine v. Van Cleave, 483 F.2d 966 (10th Cir. 1973); Orr v. Thorpe, 427 F.2d 1129 (5th Cir. 1970); American Federation of State, County and Municipal Employees, AFL-CIO v. Woodward, 406 F.2d 137 (8th Cir. *191969); McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968); Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1978); Hanover Township Federation of Teachers v. Hanover Community School Corporation, 318 F. Supp. 757 (N.D. Ind. 1970), aff'd, 457 F.2d 456 (7th Cir. 1972); Atkins v. City of Charlotte, 296 F. Supp 1068 (W.D.N.C. 1968). The case of Atkins v. City of Charlotte, supra, is often cited as one of the first public employee cases to fully recognize the associational protections accorded to public employees. In Atkins, the court stated at page 1075; “we think there is no valid State interest in denying firemen the right to organize a labor union. It is beyond argument that a single individual can not negotiate on a equal basis with an employer who hires hundreds of people.”

The rights of speech, association and assembly intertwine in the union context. If “membership” is the aggregate expression of those rights, then membership is likewise protected. “The guarantee of the ‘right of assembly’ protects more than the right to attend a meeting, but includes the right to express one’s attitude or philosophies by membership in a group or by affiliation with it or by other lawful means.” A.F.S.C.M.E., AFL-CIO v. Woodward, 406 F.2d 137, 139 (1969).

Freedom of speech is specifically protected. Citizens may engage in speech critical of their government employer or antagonistic to the sovereign generally. Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1969); Edwards v. South Carolina, 372 U.S. 229, 9 L.Ed.2d 697, 83 S.Ct. 680 (1963). Leafletting and picketing are constitutionally protected speech. Lovell v. City of Griffin, 303 U.S. 444, 82 L.Ed. 949, 58 S.Ct. 666 (1935); Consolidated Coal Co. v. Disabled Miners of Southern West Virginia, 442 F.2d 1262, 1266 (4th Cir. 1971); cert. denied 404 U.S. 411 (1971); Blossom Diary v. Teamsters, 125 W.Va. 165, 23 S.E.2d 645 (1942). W.Va. Const. art. 3, § 7.

The right of the people to assemble and to apply for a redress of grievances is also specifically protected. Application for redress may be made to any level or agency of government. California Motor Transport Co. v. Trucking *20Unlimited, 404 U.S. 508, 510, 30 L.Ed.2d 642, 92 S.Ct. 609 (1972). W.Va. Const. art. 3, § 16.

Thus, we see that the First Amendment rights of public employees are as great as the rights of employees in the private sector. The majority surely could not mean that public employees have only “some” First Amendment protection. More probably, they “really” mean to say that public employers have the same constitutional rights as private employees, but unlike private employers governed by the NLRA, public employers are not statutorily charged by legislative enactment with a duty to deal fairly with public workers.

In West Virginia the right to protest against the policies of government and the right to seek redress from the government without fear of reprisal are as fundamental to our law and good sense as “cornbread and beans” are to our diet.

The second part of the syllabus point is overly broad in suggesting that the public employer has no duty to listen to the grievances of its employees. The majority relies on Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 60 L.Ed.2d 361, 99 S.Ct. 1826 (1979), for the proposition that there is no duty to bargain imposed upon the state employer. In Arkansas, the Court held that the right of highway department employees to organize and petition their employer was protected by the First and Fourteenth Amendments to the United States Constitution. However, the Court noted that the employer had the right to refuse to consider or act upon the request of the employees. While pointing out that the State’s conduct in refusing to deal with the union, if done by a private employer, would likely violate federal labor law, the court stated that, “the First Amendment does not impose any affirmative obligation on the government to listen, to respond, or, in this context, to recognize the association and bargain with it.” 441 U.S. at 465 60 L.Ed.2d at 363, 99 S.Ct. at 1828. See also, Pickering v. Board of Education, 391 U.S. 563; 574-75, 20 L.Ed.2d 811, 88 S.Ct. 1731, 1737-38, *21(1969); Shelton v. Tucker, 364 U.S. 479, 5 L.Ed.2d 231, 81 S.Ct. 247 (1960).

This statement from Arkansas may be the law there, but it is not the law in West Virginia. Our Bill of Rights, memorialized in our Constitution, not only guarantees the right of redress, it imposes upon public officers a duty to respond to public grievances. W.Va. Const. art. III, §§ 1, 2 and 3. Section two reads: “All power is vested in, and consequently derived from, the people. Magistrates are their trustees and servants, and at all times amenable to them.” A dispute concerning the conditions of public employment is clearly a public grievance cognizable by the government under our Bill of Rights.

There is an even more compelling reason why the State should address the grievances of its employees: the concept of fair dealing between people. In the private sector, the government created the NLRA in an attempt to remove the coercive bargaining tactics used by employers in their pursuit of lucre. In so doing, it recognized the evils of a system based on the “take-it-or-leave it” philosphy of management-labor relations. As part of the remedy, certain rules were laid down which have the effect of balancing the parties’ positions and encouraging a free exchange between management and labor. To say that the State is exempt from fair dealing is to allow the State to practice labor tactics as unfair as the type of tactics Congress outlawed under the NLRA. The State should be an example of highest order in regard to dealing fairly with workers. Failure of the government to treat working people fairly is not only seeming and reprehensible, it is, in the religious community, held to be immoral. The church, speaking from a Biblical and theological foundation, prayerfully and thoughtfully instructs that Christians, in their duty, should support the right of public employees and employers to organize into unions and support their right to protection in doing so. See, e.g., Social Principles of the United Methodist Church, adopted by the 1976 and 1980 General Conferences of the United Methodist Church. Board of Church and Society, 100 Maryland Ave. N.E., Washington, D.C. 20002.

*22I see no reason why a public employee should be treated differently from a private employee. To say that the difference is that public employees’jobs are essential to the maintenance of the State is to ignore the fact that the State is involved in myriad proprietory functions quite like the private sector’s functions. In this jurisdiction, private enterprise manages energy and the State sells liquor. Which is more essential? The answer is obvious, but employees of one can bargain with their employer and employees of the other cannot. Reputable jurisprudence will not sanction such inequity. Finally, of course, neither will the majority.

Chief Justice Harshbarger authorizes me to say that he joins in this concurrence.