City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission
City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission
Concurring Opinion
concurring in the judgment.
By stating that “the extent to which true contract negotiations . . . may be regulated [is] an issue we need not consider at this time,” ante, at 175, the Court’s opinion treats as open a question the answer to which I think is abundantly
But the First Amendment plays a crucially different role when, as here, a government body has either by its own decision or under statutory command, determined to open
I therefore agree that the judgment of the Wisconsin Supreme Court be reversed.
See discussion and authorities collected in Brief for the AFL-CIO as Amicus Curiae 20-24.
Concurring Opinion
concurring in the judgment.
The school board of the city of Madison, acting in accordance with state law, invited all members of the public to attend an open meeting whose agenda included discussion of the desirability of an agency-shop arrangement. The board was entirely willing to hear Holmquist, speaking simply as a member of the community, express his views on this subject. Holmquist did not seek, at the meeting or at any other time, to reach agreement or to bargain with the board. The mere expression of an opinion about a matter subject to collective bargaining, whether or not the speaker is a member of the bargaining unit, poses no genuine threat to the policy of exclusive representation that Wisconsin has adopted. I therefore agree that the order entered by the Wisconsin Employment Relations Commission unconstitutionally restricts freedom of speech.
Mr. Justice Brennan’s concurring opinion reaffirms Mr. Justice Holmes’ observation that “[t]he Constitution does not require all public acts to be done in town meeting or an assembly of the whole.” Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 445. A public body that may make decisions in private has broad authority to structure the discussion of matters that it chooses to open to the public. Such a body surely is not prohibited from limiting discussion at public meetings to those subjects that it believes will be illuminated by the views of others. And in trying to best serve its informational needs while rationing its time, I should suppose a public body has broad authority to permit only selected individuals — for example, those who are recognized experts on a matter under consideration — to express their opinions. I write simply to emphasize that we are not called upon in this case to consider what constitutional limitations there may be upon a governmental body’s authority to structure discussion at public meetings.
Opinion of the Court
delivered the opinion of the Court.
The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings, at which public participation is permitted, if such speech is addressed to the subject of pending collective-bargaining negotiations.
The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collective-bargaining agreement during the calendar year of 1971.
During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit, but not members of the union, mailed a letter to all teachers in the district
Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union’s position.. During a portion of the meeting devoted to expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300-1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented “an informal committee of 72 teachers in 49 schools” and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the “fair share” clause. He then read the petition which had been circulated to the teachers in the district that morning and stated that in the 31 schools from which reports had been received, 53% of the teachers had already signed the petition.
Later that evening, the board met in executive session and voted a proposal acceding to all of the union’s demands with the exception of “fair share.” During a negotiating session the following morning, MTI accepted the proposal and a contract was signed on December 14, 1971.
(1)
In January 1972, MTI filed a complaint with the Wisconsin Employment Relations Commission (WERC) claiming that the board had committed a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting. MTI claimed that in so doing the board had engaged in negotiations with a member of the bargaining unit other than the exclusive collective-bargaining representative, in violation of Wis. Stat. §§ 111.70 (3)(a)l, 4 (1973).
The Supreme Court of Wisconsin affirmed. 69 Wis. 2d 200, 231 N. W. 2d 206. The court recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged in the face of “ ‘a clear and present danger that [the speech] will bring about the substantive evils that [the legislature] has a right to prevent.’ ” Id., at 211, 231 N. W. 2d, at 212, citing Schenck v. United States, 249 U. S. 47 (1919). The court held that abridgment of the speech in this case was justified in order “to avoid the dangers attendant upon relative chaos in labor management relations.” 69 Wis. 2d, at 212, 231 N. W. 2d, at 213.
(2)
The Wisconsin court perceived “clear and present danger” based upon its conclusion that Holmquist’s speech before the school board constituted “negotiation” with the board. Permitting such “negotiation,” the court reasoned, would undermine the bargaining exclusivity guaranteed the majority union under Wis. Stat. § 111.70 (3)(a)4 (1973). From that
The Wisconsin Supreme Court’s conclusion that Holmquist’s terse statement during the public meeting constituted negotiation with the board was based upon its adoption of the lower court’s determination that, “‘[e]ven though Holmquist’s statement superficially appears to be merely a “position statement,” the court deems from the total circumstances that it constituted “negotiating.” ’ ” This cryptic conclusion seems to ignore the ancient wisdom that calling a thing by a name does not make it so.
Moreover the school board meeting at which Holmquist was permitted to speak was open to the public.
Regardless of the extent to which true contract negotiations between a public body and its employees may be regulated— an issue we need not consider at this time — the participation in public discussion of public business cannot be confined to one category of interested individuals.
(3)'
The WERC’s order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from “permitting employes ... to appear and speak at meetings of the Board of Education” the order constitutes an indirect, but effective, prohibition on persons such as Holmquist from communicating with their government. The order would have a substantial impact upon virtually all communication between teachers and the school board. The order prohibits speech by teachers “on matters subject to collective bargaining.”
The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
MTI had been certified on June 7, 1966, as majority collective-bargaining representative of the teachers in the district by the Wisconsin Employment Relations Commission.
The text of the letter was as follows:
“Dear Fellow Madisonian Educator,
“E. C. — 0. L. 0. G. Y.
“Educator’s Choice — Obligatory Leadership Or Cover[n]anee by Fou
“SAVE FREEDOM OF CHOICE
“A Closed Shop (agency shop) Removes This Freedom
“1. Does an organization which represents the best interests of teachers and pupils NEED mandatory membership deductions?
“2. Need relationships between administrators and teachers be further strained by LEGALLY providing for mandatory adversary camps? “3. Should minority voices be mandatorily SILENCED?
“4. Could elimination of outside dissent produce NON-RESPONSIVENESS to change?
“5. And . . .
isn’t this lack of FREEDOM OF CHOICE undemocratic? “SUPPORT FREEDOM OF CHOICE— OPPOSE AGENCY SHOP
“I wish to maintain freedom of choice:
“I oppose agency shop on principle -
“I oppose agency shop and would sign a petition stating so -
“I oppose agency shop and would work actively to maintain freedom of choice -
“Let us hear from YOU.
“A1 Holmquist /s/ E. C.1 — O. L. 0. G. Y.
“A1 Holmquist P. 0. Box 5184
“Ralph Reed /s/ Madison, WI 53705
“Ralph Reed
“Teacher co-chairmen”
The text of the petition was as follows:
“To: Madison Board of Education December 6, 1971
Madison Teachers, Incorporated
“We the undersigned ask that the fair-share proposal (agency shop)*171 being negotiated by Madison Teachers, Incorporated and the Madison Board of Education be deferred this year. We propose the following:
“1) The fair-share concept being negotiated be thoroughly studied by an impartial committee composed of representatives from all concerned groups.
“2) The findings of this study be made public.
“3) This impartial committee will ballot (written) all persons affected by the contract agreement for their opinion on the fair-share proposal.
“4) The results of this written ballot be made public.”
The statute provides in relevant part:
"(3) PROHIBITED PRACTICES AND THEIR PREVENTION, (a) It is a prohibited practice for a municipal employer individually or in concert with others:
“1. To. interfere with, restrain or coerce municipal employes in the exercise of their rights guaranteed in sub. (2).
“4. To refuse to bargain collectively with a representative of a ma*173 jority of its employes in an appropriate collective bargaining unit. Such refusal shall include action by the employer to issue or seek to obtain contracts, including those provided for by statute, with individuals in the collective bargaining unit while collective bargaining, mediation or fact-finding concerning the terms and conditions of a new collective bargaining agreement is in progress, unless such individual contracts contain express language providing that the contract is subject to amendment by a subsequent collective bargaining agreement.”
The detennination of the state courts that certain conduct constituted “negotiating” under state law, standing alone, would not ordinarily be open to our review; only its use as a predicate for restraining speech opens it to review here.
This meeting was open to the public pursuant to a Wisconsin statute which requires certain governmental decisionmaking bodies to hold open meetings. Wis. Stat. § 66.77 (1) (1973), now § 19.81 (1) (1976). There are exceptions to the statute, and one of these has been interpreted to cover labor negotiations between a municipality and a labor organization. 54 Op. Atty. Gen. of Wis. vi (1965), cited with approval, Board of School Directors v. Wisconsin Employment Relations Comm’n, 42 Wis. 2d 637, 653, 168 N. W. 2d 92, 99-100 (1969). Thus, in contrast to the open session where the public was invited, the true bargaining sessions between the union and the board were conducted in private.
We need not decide whether a municipal corporation as an employer has First Amendment rights to hear the views of its citizens and employees. It is enough that Holmquist and other teachers and citizens have a protected right to communicate with the board. Since the board’s ability to hear them is “inextricably meshed” with the teachers’ right to speak, the board may assert those rights on behalf of Holmquist. Procunier v. Martinez, 416 U. S. 396, 409 (1974).
Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business. See n. 6, supra.
The WERC order does not prohibit all speech to the board on the subject of collective bargaining. Union representatives would continue to be entitled to come before the board at its public meetings and make their views known. The impact of such a rule is underscored by the fact that the union need not rely upon public meetings to make its position known to the school board; it can also do so at closed negotiating sessions. See n. 6, supra.
Surely no one would question the absolute right of the nonunion teachers to consult among themselves, hold meetings, reduce their views to writing, and communicate those views to the public generally in pamphlets, letters, or expressions carried by the news media. It would strain First Amendment concepts extraordinarily to hold that dissident teachers could not communicate those views directly to the very decisionmaking body charged by law with making the choices raised by the contract renewal demands.
Counsel for the union conceded at oral argument that the WERC order was constitutionally overbroad, but asked the Court to narrow it
On the other hand, it is not the case that Holmquist was speaking “simply as a member of the community.” On the contrary, as noted, supra, at 171, Holmquist opened his remarks to the board by stating that he represented “an informal committee of 72 teachers in 49 schools.” Thus, he appeared and spoke both as an employee and a citizen exercising First Amendment rights.
Reference
- Full Case Name
- CITY OF MADISON JOINT SCHOOL DISTRICT NO. 8 Et Al. v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION Et Al.
- Cited By
- 364 cases
- Status
- Published