The following article written by Raymond M. Baldino was published in the May 2020 issues of New Jersey Labor and Employment Law Quarterly, which is distributed to members of the Labor and Employment Law Section. For information about joining an NJSBA section, email us at [email protected]
Courts have long struggled with how to strike the proper balance between protecting employer’s rights and protecting employee free speech. Over time that conflict has generally evolved to narrow the field of protected employee speech. However, two recent Third Circuit decisions, Palardy v. Township of Millburn1 and Baloga v. Pittston Area School District, et al.2 , have articulated the principle that First Amendment associational claims based on union membership automatically satisfy the “public concern” prong of the Pickering3 balancing test that determines whether public employee speech is protected. As these cases have held, “membership in a public union is ‘always a matter of public concern.’” The decisions are significant because more recent United States Supreme Court jurisprudence has narrowed the scope of protected employee speech that is of “public concern” since the Pickering test was first articulated in 1968. The Third Circuit’s Palardy doctrine of protected association appears to provide a new opening that expands First Amendment protection for union members.
As is well known, the Pickering case concerned the free speech rights of a public school teacher who had been disciplined for writing an opinionated letter regarding the policies of his employing Board of Education.4 The case established that such speech enjoys First Amendment protection so long as it is of “public concern.”5 Once this prong of the analysis is demonstrated, the employee’s free speech rights are balanced against the employer’s interest in controlling employee speech.6 A few years later in Connick v. Myers, the court added the further limitation that the public employee’s rights to speech must not impinge on the employer’s prerogative to control internal work matters, i.e., the speech must essentially be made in the employee’s capacity as a private citizen.7 Finally, Garcetti v. Ceballos narrowed the range of protected speech by holding that all communications made pursuant to an employee’s official responsibilities are not protected.8 As employment law practitioners appreciate, the Pickering doctrine as it has evolved in its progeny does not leave a great deal of room for protected employee speech and may be considered somewhat cramped in its real world applications.
The Palardy case creates a new category of protection. It involves a member of a police union who claimed he had been passed over for promotion due to his union activity. Michael Palardy claimed that his town’s business administrator, who had the authority to hire the chief of police, made comments expressing disapproval of his union membership, including telling an officer that Palardy would never become chief “because of his union affiliation and being a thorn in my side for all these years.”9 After retirement, Palardy brought free speech and association retaliation claims under the First Amendment.10 Notably, he did not identify any specific union-related speech in connection with his claims.
The district court granted summary judgment on both the free speech and free association theories. Analyzing the claims under traditional free speech doctrine, the district court held that the plaintiff “neither acted as a private citizen nor spoke out on a matter of public concern….” 11
The Third Circuit reversed. Noting that there is a Circuit split on whether the Connick and Garcetti framework applies to pure associational claims, even when those claims are tied to closely related speech claims, the Third Circuit determined in Palardy that it would follow the minority position set forth by the Fifth and Eleventh Circuits, holding that union membership is “inevitably of public concern,”12 and accordingly bypassing the traditional Connick-Garcetti analysis on this prong of the inquiry. As the Third Circuit noted in adopting this doctrine, it presented the only justiciable method of evaluating pure union-based associational claims, which otherwise do not fit well into the speech framework.13 Put simply, there is no other appropriate framework “to separate the wheat from the chaff”–either an individual is a union member, or they are not, but determining whether their membership is of public concern does not logically fit on the sliding scale of speech-based claims.14 Neither do the concerns articulated by Connick and Garcetti, whether the employee is speaking as a private citizen and whether the speech is made pursuant to official duties, square with the status of union membership.15 The Palardy Court also held that such associational claims must be analyzed separately from speech based claims. The Third Circuit affirmed the grant of summary judgment on plaintiff’s free speech claim, concluding that plaintiff failed to “allege that [the business administrator] retaliated against him because of his speech or advocacy on any particular issue.”16
In Baloga, decided shortly after Palardy, the Third Circuit reinforced the developing doctrine. In that case, a school custodial employee who served as Vice President of the custodial union claimed he was retaliated against for his union activity by being transferred to a position in another school.17 As his manager asserted at deposition, he considered Baloga’s activities to be “bringing the morale” of his co-workers down by “whining,”18 strongly suggesting Baloga’s union activity was a motivating factor in the transfer. The Third Circuit applied Palardy to find that his union activity met the “public concern” test, and also added that “the public concern inherent in union membership applies with particular force to union leaders, for the right of union membership ‘would be meaningless unless an employee’s right to participate in union activities were also recognized.’”19 Based on these considerations, the Third Circuit held that summary judgment should not have been granted on the basis that public concern was lacking.20
The Baloga court rejected the argument that defendants were nevertheless entitled to summary judgment based on the alleged disruptiveness of plaintiff’s exercise of his First Amendment rights. Importantly, the court expressly declined to decide whether the Pickering balancing test in fact even applies to association claims based on union membership.21 However, the court held that, even assuming the test applied, there was no evidence in the record that plaintiff had been disruptive.22 The Third Circuit also rejected the argument raised by the defendant district that it had an unfettered managerial prerogative to transfer employees, noting that such claim would only serve as a defense if the district could articulate a non-discriminatory motive to exercise its prerogative (which it had not).23
In sum, the Third Circuit’s recently evolving doctrine concerning union-based associational claims may potentially represent a great expansion of employee speech rights in the workplace (although to be clear, the cases on their face concern union association, not speech). Both cases involved associational claims that were closely tied to speech-based claims stemming from union activity, and both held that associational claims can survive, even where related speech-based claims might not otherwise withstand scrutiny under the Connick and Garcetti tests. This evolution in First Amendment association law suggests a powerful new tool in the public union employee’s arsenal.
Raymond M. Baldino is an associate at Zazzali, Fagella, Nowak, Kleinbaum & Friedman, P.C. in Newark.
1. 906 F.3d 76, 80-81, 83 (3d Cir. 2018).
2. 927 F.3d 742, 748-49 (3d Cir. 2019).
3. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
4. Id. at 564.
5. Id. at 568.
7. 461 U.S. 138, 147-49 (1983).
8. 547 U.S. 410, 424 (2006).
9. Palardy, supra n.1, at 79.
10. Id. at 80.
12. Id. at 82-83 (quoting Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir. 1993) (emphasis in original) and citing Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir. 1987)).
13. Id. at 83.
16. Id. at 84.
17. Baloga, supra n.2, at 748, 750.
18. Id. at 750.
19. Id. at 754.
20. Id. at 755.
21. Id. at 755-56.
22. Id. at 757.