Jim v. Fisher v. Grant R. Walker , 464 F.2d 1147 ( 1972 )

WINNER, District Judge.

Fisher was a Salt Lake City fireman, and Walker was the city’s fire chief. Before 1969, the Salt Lake City Fire Department had two functioning organizations, the Firemen’s Relief Association and the International Association of Fire Fighters, Local Union No. 1645 (herein called the union). The Relief Association had responsibility for insurance and welfare benefits, while the union was charged with responsibility for negotiation of wages and terms of employment. The union was composed of both firemen and officers, but in July, 1969, the officers formed a separate organization, the Salt Lake City Fire Officers’ Association to handle their own individualized problems as officers. The formation of the Officers’ Association met with extreme disfavor on the part of some union members, and Fisher, who was the union president, wrote “a letter from the president” in the September, 1969 issue of the local union publication, the Fire Flyer, and it is this letter which forms the nub of the controversy.

The letter in its entirety said:

“LETTER FROM THE PRESIDENT

“As we have informed you before, a separate officer’s organization is not a legitimate part of the IAFF and the intentions of those who fostered the birth of this illegitimate organization are highly suspect. We call it an illegitimate birth because Lynn Marsh or Mayor Lee would deny having had any part in such conception, though we know those officers who instigated this organization met with them prior to its being conceived.

“We do not believe in the virgin birth of this organization since it has all of the characteristics of the parent (like its twins in other cities) of city managers trying to break the union. “Those unfaithful fire fighters who crawl into bed with city officials, feeling no moral regress for their infidelity (and even boast about) their adulterous ways should be condemned by every firefighter. Their child is named Divide and Conquer. The parents of this child have found they could not, on their own, destroy the Union. Their mischievous child is Union destruction.

“Brothers there would not be such a push for the Union’s destruction if we hadn’t shown that by unity we had and showed a strength never before encountered and WE WERE EFFECTIVE!

“The action taken by those professing to represent the officers has taken every man on the job a big step backward because of the selfishness of a few officers who wanted everything for themselves.

“For those officers who want such an organization we ask two very important questions. 1. If there is only so much money for wages, who goes down to get it, the officers for them alone or the Union for everyone? 2. If the officers want separation at City Hall do the privates continue to support the lion’s share of the officer pension or do they separate at the State level also?

“Every officer should ask those who are at the head of this ‘officers organization’ these questions and so should every private.

“Let us now re-unite and sluff off this chain so we can once more rattle the walls of City Hall for everyones benefit and get all of the things fire fighters deserve. There is a lot of hard work left to do . . . . Let’s do it together! ”

In the same issue of. the Fire Flyer, there was a reprint of an editorial originally printed in the magazine published by the international union, and in it the international president said:

“FIRE FIGHTER EDITORIAL ATTACKS DIVIDE AND CONQUER TACTIC

“The following article is a reprint of President Wm. Howard McClennan’s editorial in your September, 1969, Fire Fighter Magazine.

‘DIVIDE AND CONQUER’ VS. THE IAFF

“A disturbing pattern of attempted ‘divide and conquer’ is emerging in the dealings of some city managers with the IAFF.

“Many city managers are attempting to demand that fire service officers drop their membership in IAFF local unions, or to ‘insist’ that they move to separate local unions.

“Except for a few of the very largest cities where separate locals for officers have an old, traditional place, the general principle of the IAFF has been to charter a single local union for each fire department. The reason is simple but compelling: In union there is strength.

“We have always known that all members of a fire service benefit when all those members join in a single voice to speak for the good of the fire service. Wages, hours, and other working conditions are interconnected, and the officers and men of a fire service each have a stake in improving the lot of all members of the service.

“Over the years, the IAFF has made enormous strides toward its goals of improved and adequate wages and working conditions, precisely because it has spoken for the vast majority of the professional fire fighters of the nation. The principle of a single local in a single fire service has proved itself time and time again. We like it and we’re ready to fight for it.

“There is no good reason to abandon that principle, despite the few historic exceptions to it in large cities. Especially, we’re not about to abandon that principle when the motives of the city managers who advocate abandonment are so obvious.

“They want to weaken the IAFF. We absolutely are not going to go along with them! ”

The next issue of the Fire Flyer printed a second letter from Fisher:

“It has come to my attention that my letter in the September Fire Flyer needs clarification. It was directed to, and only to, those officers who instigated and organized the Officers organization.

“I have been told that some officers took exceptions to my letter because they thought it referred to them and they have always been faithful Union members; and have never taken action against the Union. To those officers, the vast majority of officers, they need not be offended because no offense was intended. My letter did not infer that all officers took part in organizing this officers group.

“The organization of officers, away from the rest of the fire fighters, does not and did not originate (as I pointed out in my September letter) with Salt Lake City. It is a well organized move across the country, on the part of city management, to stop the effectiveness of the IAFF because other public employees were ‘catching on’ and wanting to organize the same way.

“City management could see the hand writing on the wall. Already the police have organized as the fire fighters have. City management does not want Unions. They are afraid of them. City fathers cry great howls of anguish and indignation when employees unionize. They use the scare of a ‘strike’ threat against the public and a ‘job’ scare against the employee. We have had both. What in truth city management is afraid of is that the unions destroy the spoils system for political payoffs. When a union is told there is no money for wages it looks around to see where the money is being spent. This can be political death for elected officials.

“It is as simple, yet as complicated, as that. This is what it is all about.

“A separate officers organization, no matter how many times it is said contrarywise, is a NATION WIDE UNION BREAKING DEVICE, aimed at making the largest, most effective public union, the IAFF, less effective and thus discourage more militant unionism of other public employees.

“WE HAVE GAINED SO MUCH IN THE IAFF UNION HERE THAT SALT LAKE IS USED AS AN EXAMPLE IN OTHER PARTS OF THE COUNTRY ON HOW TO USE UNIONISM. Is it any wonder that city hall wants to try and split apart our Union in hopes of less gain for unionism? Other city employees are not blind to what is going on in our union.

“We have been warned against a separate officer organization movement by the IAFF (which is another proof that it is a nationally organized union breaking move — and let’s call it what it is) and have been told to fight it because it brings no good to the fire fighter. It does end up doing, among other things, the following:

“1. The officers lose because they are no longer members of a union and become a minority group. They become subject to management with no recourse of action and lose many Union gained benefits, viz.: bid rights.

“2. The privates lose because they must now fight the number of officer positions as being too high and thus diminish their chance for advancement.

“3. Both officers and privates lose because a divided department causes morale problems.

“4. EVERYONE LOSES BECAUSE A DIVIDED DEPARTMENT IS NOT AND CANNOT BE AS STRONG AND EFFECTIVE AT CITY HALL OR THE STATE CAPITOL WHEN ONE GROUP CAN BE PLAYED AGAINST THE OTHER. SO, IN THE END, LITTLE IS GAINED FOR THE FIRE FIGHTER.

“If there is still any doubt of why and what will happen, who is behind a separate officers organization and its results, then let’s get together and get all of the points out in the open.

“I pleaded for unity in our Union in my Fire Flyer letter of September, I do so again at this time.”

Believing that their loyalty to their men was being questioned and that they were being accused of being scabs, officers of the department took umbrage at the letters and the editorial, and they asked Walker to discipline Fisher. The chief asked Fisher to meet with him and representatives of the Officer’s Association to smooth things over and to apologize. This Fisher refused to do. Thereafter, on January 23, 1970, Walker suspended Fisher for five days without pay, and in his notification of the suspension, Walker said:

“This action is initiated as a result of your impugning the character of the organizers and officers of the Salt Lake City Fire Officer’s Association in your article that appeared in the September 1969 issue of the ‘Fire Fly-er’ and by your unwillingness to meet with me and the officers of this Association in an effort to resolve this problem.”

The suspension was purportedly under a civil service rule which said that action could be taken for violation of a departmental rule, and Rule 51 of the Fire Department said:

“Members shall not wantonly or maliciously make any false report concerning any member or business of the department. Members are solicited to offer constructive suggestions by way of written reports. Any criticism to be offered of other members or of matters pertaining to the department shall be reported to the Chief. Members shall not engage in altercations. Violation of this rule may be considered grounds for suspension or dismissal.”

Two months after the suspension, this suit was filed, and in it Fisher asks injunctive relief, $164.80 damages for his lost pay during the 5-day suspension plus damages for mental suffering and punitive damages. Trial was to the court, and the trial judge made and later signed the transcript of his oral findings of fact which under Pickering v. Board of Education (1968) 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, are all important in the resolution of the First Amendment question here involved. The most important of the trial judge’s findings [and all findings based on testimony in the case are fully supported by the record] are these:

1. “At the time of said publication, for various reasons involving primarily the question of pay and representation, relations within the fire department were sensitive and somewhat volatile.”

2. The letter must be read to be (and the officers read it as) “a charge that if not all, at least a substantial part of the officers concerned with the organization, which the evidence indicates included a majority of the officers of the department, many of whom were also members of the union, were unfaithful firefighters who improperly connived with the city officials against the interest of lower rated men and in dishonorable opposition to them, and yet were so callous as to have no moral regrets for their infidelity, even boasting about it, that their dishonorable ways should be condemned by every firefighter, that the action taken by the officers identified by the union had damaged every man on the job through a few selfish officers wanting everything for themselves.”

3. “These statements were not justified by the facts, bordered on the libelous, were highly detrimental to the relationship between officers and firefighters, and were disruptive in fact of the good order and discipline of the department.”

4. “There was reasonable ground for the belief and conviction of defendant that such charges were disruptive and divisive and unless corrected would be to the grave detriment of his command.”

5. The chief attempted to effect a meeting between plaintiff and the Officer’s Association to ameliorate the effect of the disruptive letter, but, although plaintiff would meet with the chief, he refused to meet with representatives of the Officers’ Association.

6. The chief was faced “with not only the deterioration of the relationship between officers and men . but the deterioration of his own position.”

7. Fisher’s second published letter was “a reaffirmation, in effect, of the charges made . . . this letter standing alone is perfectly all right, but by its reiteration it certainly doesn’t correct the situation; and simply as to the officers covered, which in the original publication covered the majority of the officers who did participate in the organization, I can’t see that it does anything but exacerbate the situation.”

8. The five day suspension was within the chief’s authority, and, although Rule 51 was violated, even without such a rule, “one cannot use that sort of language and divisively set officers against men, with no just reason . . . and not run the reasonable risk of moderate suspension.”

In Pickering v. Board of Education, supra, plaintiff, a teacher, wrote a letter to the editor of the local newspaper critical of the school board’s fiscal policies concerning expenditures for athletics as compared with spending for academic purposes. In an appendix to its opinion, the Court compared the letter with the record and found that some of plaintiff’s statements were correct and some were incorrect. The Court held that “in a case such as this, absent proof of false statements knowingly or recklesly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” In reversing the decision of the Supreme Court of Illinois, the Court emphasized:

“To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Wieman v. Updegraff, 344 U.S. 183, [73 S.Ct. 215, 97 L.Ed. 216] (1952); Shelton v. Tucker, 364 U.S. 479, [81 S.Ct. 247, 5 L.Ed.2d 231] (1960); Keyishian v. Board of Regents, 385 U.S. 589, [87 S.Ct. 675, 17 L.Ed.2d 629] (1967). ‘[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.’ Keyishian v. Board of Regents, supra, at 605-606, [87 S.Ct. at 685].”

However, the Court refused to equate restrictions on a right to dismiss a public employee to the immunity granted an ordinary citizen from responding in damages for a false but non-malicious statement concerning a public official or public figure. See, New York Times v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; St. Amant v. Thompson (1968) 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262; Time, Inc. v. Hill (1967) 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456.

Justice Marshall noted that in dealing with a dismissal of a public employee, the problem “is to arrive at a balance between the interests of the (public employee), as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” In Pickering, the teacher’s criticism was of a widely publicized and openly debated school board policy concerning expenditure of public funds, and the Court noted that Pickering’s statements were not directed towards anyone with whom he normally would be in contact during the course of his work. Here, of course, Fisher’s criticisms were aimed squarely at his immediate supervisors and at the immediate supervisors of most union members, and, as has been noted, the trial judge found that the situation was volatile; that the statements were false; that defendant believed that the statements were and they were in fact divisive, disruptive and detrimental to the department’s discipline. Thus, we do not have a Pickering situation; rather, we have the case described in footnote 3 of the Pickering opinion:

“Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would ser- ■ iously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases.”

Understandably, the Pickering Court said, “Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed to furnish grounds for dismissal we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.”

The trial judge here found the important and controlling facts not present in Pickering are present here. The chief and officers of the Salt Lake City Fire Department testified to the disruptive impact of the letters on the morale of and relationships within the department. Their testimony was contradicted by other witnesses, but the trial judge saw and observed the witnesses, and his findings of fact will not be disturbed if supported by the record. That being true, all that remains is to determine if, based on his fact findings, the trial court was correct in concluding that the balance mentioned in Pickering weighs in favor of upholding Fisher’s suspension or whether Fisher’s First Amendment rights weight the scale against the chief’s good faith order for a five day suspension of appellant.

In Murphy v. Facendia (1969) (D.C. Colo.) 307 F.Supp. 353, no one had been fired or suspended, but plaintiffs, who were members of VISTA, were told that if they signed a “Declaration of Conscience” opposing the Viet Nam war they would be discharged from their employment. They signed the statement and brought suit seeking declaratory and injunctive relief. The court held that it had jurisdiction, but it denied relief, and one of the reasons assigned for dismissing the action was:

“Moreover, the statement in question caused a conflict between plaintiffs and their immediate superiors, and the evoking of such conflict is one of the criteria established in Pickering as a cause for limiting statements of public employees.”

Meehan v. Macy (1968) 129 U.S.App. D.C. 217, 392 F.2d 822 is apposite. Meehan was a policeman in the Canal Zone and he was also president of the police union. During 1964, there were serious civil disorders in the Canal Zone, and in an effort to lessen the tension, it was decided to hire some Panamanians on the police force. The union wanted no Panamanians on the force, and a meeting of union representatives, including Meehan, and officials of the Canal Zone was called. At that meeting the union representatives were cautioned to limit their objections to official channels. Meehan thereafter participated in an interview by the press, and he caused a biting poem and a letter to be distributed. He was discharged from the police force for, (1) conduct unbecoming a police officer of the Canal Zone government; (2) failing to obey instructions prohibiting discussion of the personnel plans for the police force and (3) failing to obtain clearance from the Governor for the release of articles pertaining to government activities in the Canal Zone. The Court held that the second and third charges were not proven in the record, but it found that the first charge was supported by the record, and the court remanded the case for further consideration by the Civil Service Commission for a determination as to whether guilt of the single charge warranted discharge or some lesser punishment. Judge Leventhal commented that, “With mounting provision of increased and increasingly indispensable services rendered by Government employees, the public weal demands administration that is effective and disciplined, and not beset by turmoil and anarchy.” He noted that although public employees certainly do not forfeit all First Amendment rights because of their public employment, they have lesser First Amendment rights when their statements and activities “are reasonably deemed inconsistent with their public status and duties.” Meehan also mentions the fact that a union president was involved, and it was said, “It (the union presidency) also gave him a stature and commensurate responsibility, both to the union and to the employer, to confine himself to channels and to exercise temperance.” Finally, the court held:

“We think it is inherent in the employment relationship as a matter of common sense if not common law that an employee in appellant’s circumstances cannot reasonably assert a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory lampoons. We believe that Meehan cannot fairly claim that discharge following an attack like that presented by this record comes as an unfair surprise or is so unexpected and uncertain as to chill his freedom to engage in appropriate speech.”

Meehan was decided before Pickering, and an en banc rehearing of the case was granted by the District of Columbia Circuit Court of Appeals. In Meehan v. Macy (1969), 138 U.S.App.D.C. 41, 425 F.2d 472, the court said that since additional evidence might be taken on remand, it would not decide whether Pickering had any impact on the case under the record then before the court, and the full court ordered that “The Commission may consider this an appropriate time to reconsider its precedents in view of Pickering and to establish general guidelines insofar as that may be feasible.”

The en bane remand of Meehan does not seem to us to imply any retreat from the court’s position in the full departmental opinion; rather it seems to be a remand to permit the taking of evidence to see if the facts inquired by Pickering could be proven. Nor do we think that Muller v. Conlisk (1970) 7 Cir., 429 F.2d 901 helps appellant. That case held no more than that the police department rule there in question was overbroad, and indeed it was, because it prohibited “Engaging in any activity, conversation, deliberation, or discussion which is derogatory to the Department or any member or policy of the Department.”

Where, as here, the published criticism is false, where it is criticism of an immediate superior; where it has a divisive effect aligning the firemen against their immediately superior officers; where it is disruptive and injurious to the morale of the department; where the author of the letter refuses to try to ameliorate the situation; where the matter discussed is of departmental rather than of general public interest and where in the exercise of restraint the chief suspended the writer for five days instead of discharging him, we think that the balance mentioned in Pickering permits the suspension, and we affirm.