By Jim Cline and Jordan Jones
In Booth v. Pasco Cnty., the Eleventh Circuit held that a Florida Fire Union and the County were liable for their retaliation against two firefighter union members. The Court rejected the Union’s claims that its communications warning their members that an EEOC complaint the firefighters brought against the Union and its members would cause their dues to increase when a jury had determined the primary purpose of the communication was retaliations, not a genuine notice of a dues increase. The Court also upheld the jury verdict, holding that the County had unlawfully retaliated when it ordered the firefighters to submit to a fitness for duty process, a process initiated after it alleged that the content of their EEOC complaint revealed they were “paranoid” and raised a fitness question.
The firefighters were transferred after making a complaint against a Captain. They then filed charges against the Union for retaliation with the Equal Employment Opportunity Council (EEOC). At the request of the County, the Union released a memo that advised its membership that the firefighters were suing them and that additional fees to fight the litigation might have to be assessed against the members. The memo allegedly caused coworkers to shun them. For example “. . . one coworker [allegedly stated to one of the firefighters] ‘somebody needed to shut [his] f’ing mouth before their dues went up.’ and that another tried to provoke him into a fight.”
Following the complaint, the employer claimed that the firefighters’ declarations were “preposterous” and indicated they were “paranoid.” Using that claim, they ordered the firefighters to submit to a fitness for duty examination and then ordered them to engage in six follow up counseling sessions, even though the County’s own counselor found no basis for the examination.
The claims were ultimately submitted to a jury for trial. The jury found both the County and the Union had retaliated against the firefighters. The County was found liable for $10,500 for one firefighter and $12,500 for the other. The Union was found liable for $95,500 for each firefighter which included punitive damages.
On appeal, the Union argued that they were protected from liability by the First Amendment and that the jury’s finding should be set aside.
The Eleventh Circuit found that the Union’s memo was not protected by the First Amendment. The Eleventh Circuit stated (1) “preventing discrimination in the workplace . . . is not only a legitimate, but a compelling government interest”; (2) “that the [m]emo contained both an implicit “call for reprisal” and also a threat of further retaliation”; and (3) “that the Union’s speech is about a matter of little or no public concern.”
‘Hostile environment cases should be understood as consistent with First Amendment standards because the speech in such cases is not a matter of public concern, and does more than cause mere emotional distress – it invades a legally cognizable interest of the employee that arises from the employment setting.’
The Eleventh Circuit rejected the Union’s First Amendment defense and held that the firefighters had been retaliated against. It also determined that the County was not privileged to order a fitness examination when it was motivated by retaliation. The Court noted that the County’s own counselor indicated there was no basis for the examination. The Court acknowledged that some of the of the firefighters’ statements may have raised some concerns about their fitness, however the County had failed to conduct a sufficient investigation to determine whether a bona fide issue existed before it ordered the examinations.
This case stands as a warning to employers and unions alike. The current buzz words circulating encourage “collaborative labor relations.” In this case, the Union and employer worked closely together to violate the rights of the union members. Cooperation has its place, but the union’s first obligation is to its members, not management.
Verdicts against unions are uncommon, but this case also serves as a reminder that unions that unlawfully discriminate against their own members may be liable under state and federal discrimination laws. The facts here were somewhat egregious, which is what led to the large verdicts. This union board appeared to need better training and advice. It is rarely a good idea of go after your own members.
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