Supervisory Personnel Membership in Union Representing Employees

Subject:

Requested By: E. Murray Tate, Jr., Esquire City Attorney Hickory, North Carolina

Question: May a city terminate the employment of a Fire Department Officer with supervisory duties solely on account of his membership in a labor union which counts non-supervisory fire department personnel among its members?

Conclusion: A city has a legitimate interest in maintaining a disciplined and efficient fire department. That interest is significantly compromised by the conflicting loyalties which unavoidably arise when fire department supervisors join unions which represent fire department employees. Therefore, the city may legally prohibit supervisory personnel from joining unions which include in their membership non-supervisory fire department employees.

It has long since been decided that the freedom of association attendant to and protected by the First and Fourteenth Amendments of the United States Constitution encompasses economic associations such as labor unions, Thomas v. Collins, 323 U.S. 516 (1945); Atkins v. City of Charlotte, 296 F. Supp. 1078 (W.D.N.C. 1969). Moreover, one may no longer seriously question whether public employees have the same associational rights as their privately employed counterparts, Elrod v. Burns, 427 U.S. 347 (1976); McLaughlin v. Tilendis 398 F.2d 287 (7 Cir. 1968); AFSCME v. Woodward, 406 F.2d 137 (8 Cir. 1969). Nevertheless, a public employee’s First Amendment rights are not without limit. See Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413 U.S. 601 (1973); Elk Grove Fire Fighters Local 2340 v. Willis, 400 F.Supp. 1097 (N.D. Ill. 1975), affirmed, 539 F.2d 714 (7 Cir. 1976); York County Fire Fighters Association, Local 2498 v. York County, 589 F.2d 775 (4 Cir. 1978).

Contemporary First Amendment analysis requires that the constitutionality of a state action be determined only after the public interest which the state’s action purports to protect is balanced against the individual interests of the person or persons affected by the action. Following this analysis, the United States Supreme Court has held that a state may not limit First Amendment freedoms unless it first establishes: (1) the existence of a substantial, legitimate state interest; (2) a direct relationship between that interest to be served and the proposed state action; and (3) the action is the least drastic restriction of constitutional rights which will accomplish the state’s purpose, Shelton v. Tucker, 364 U.S. 479 (1960).

Several federal courts have recently had an occasion to apply this three-prong test to state laws which prohibit publicly employed supervisors from joining unions which include in their membership employees under those supervisors’ authority. In three cases dealing specifically with fire department personnel, these courts have upheld a state’s right to impose this limit upon their supervisors’ union membership.

In Elk Grove Fire Fighters Local 2340 v. Willis, supra, Local 2263, International Association of Fire Fighters v. City of Tupelo, Mississippi, 439 F. Supp. 1224 (N.D. Miss., Ed 1977), and York County Fire Fighters v. Yorktown, supra, federal courts were asked to determine whether a municipality might constitutionally prohibit fire department supervisory personnel from joining unions which counted non-supervisory fire department employees among its members. Following the analysis and guidelines established by the United States Supreme Court, these courts first found that the state has a legitimate and substantial interest in the efficiency of its fire departments.

The courts next found supervisor membership in unions to be inimical to fire department efficiency, Elk Grove , supra, at 1100. In reaching this conclusion, the judges relied heavily upon the congressional judgment embodied in Section 14(a) of the Labor Management Relations Act (29 U.S.C. § 169 (a)). That section of the Taft-Hartley Amendments freed employers to discharge supervisors who joined unions and reflected a legislative determination that management, like labor, must be assured a contingent of loyal agents, See Beasley v. Food Fair of North Carolina, 416 U.S. 653 (1974). Though noting that the NLRA is limited to private employers, the courts pointed out the parallels between the private and public sector which make that determination equally applicable to government employers.

Legislation aside, the courts found support for their holding in the adversarial labor-managemetn relation. In times of labor unrest (strikes, picketing, slowdowns) unionized supervisors’ loyalties would naturally be divided. Moreover, a more pervasive and potentially more disruptive conflict of interest would necessarily arise out of the cities’ use of unionized officers to implement municipal policies which the union might oppose.

"Practically the only circumstances in which a conflict of interest would fail to arise would be if there were no conflict between (city) officials and the firefighters union over any aspect of working conditions, a rather unlikely eventuality." Elk Grove, supra at 1103.

Thus the courts found that supervisor membership in unions would retard department efficiency and interfere with a substantial state interest.

Finally, the courts found the regulations in question to be the least restrictive means of accomplishing the state’s objectives. They emphasized that the regulations did not prohibit supervisors from joining any union, but only enjoined their membership in unions which counted fire department employees among their members. The courts held such a limitation to be clearly and precisely drawn to achieve the state’s legitimate objectives while avoiding undue restriction of the supervisors’ rights.

In sum it has been determined that the state’s interest in maintaining an effective fire fighting force outweighs the supervisors’ limited interest in belonging to a union which represents their subordinates. Therefore, a city may constitutionally prohibit a fire department officer from joining a labor union which includes non-supervisory fire department employees among its members.

Rufus L. Edmisten Attorney General

Thomas J. Ziko Associate Attorney