Held: The Arkansas State Highway Commission's refusal
to consider employee grievances when filed by the union, rather
than directly by an employee of the State Highway Department, does
not violate the First Amendment. Even assuming that the
Commission's procedure would constitute an unfair labor practice if
the Commission were subject to the same labor laws applicable to
private employers, and that its procedure tends to impair the
effectiveness of the union in representing the economic interests
of its members, nevertheless, this type of "impairment" is not one
that the Constitution forbids, the Commission not having prohibited
its employees from joining together in a union, from persuading
others to do so, or from advocating any particular ideas.
Certiorari granted; 585 F.2d 876, reversed.
PER CURIAM.
In grievance proceedings initiated by employees of the Arkansas
State Highway Department, the State Highway Commission will not
consider a grievance unless the employee submits his written
complaint directly to the designated employer representative. The
District Court for the Eastern District of Arkansas found that this
procedure denied the union representing the employees the ability
to submit effective grievances on their behalf, and therefore
violated the First Amendment. 459 F Supp. 452 (1978). The United
States Court of Appeals for the Eighth Circuit affirmed. [
Footnote 1] 585 F.2d
Page 441 U. S. 464
876 (1978). We disagree with these holdings; finding no
constitutional violation in the actions of the Commission or its
individual members, we grant certiorari and reverse the judgment of
the Court of Appeals.
The First Amendment protects the right of an individual to speak
freely, to advocate ideas, to associate with others, and to
petition his government for redress of grievances. And it protects
the right of associations to engage in advocacy on behalf of their
members.
NAACP v. Button, 371 U.
S. 415 (1963);
Eastern Railroad Presidents Conf. v.
Noerr Motor Freight, Inc., 365 U. S. 127
(1961). The government is prohibited from infringing upon these
guarantees either by a general prohibition against certain forms of
advocacy,
NAACP v. Button, supra, or by imposing sanctions
for the expression of particular views it opposes,
e.g.,
Brandenburg v. Ohio, 395 U. S. 444
(1969);
Garrison v. Louisiana, 379 U. S.
64 (1964).
But the First Amendment is not a substitute for the national
labor relations laws. As the Court of Appeals for the Seventh
Circuit recognized in
Hanover Township Federation of Teachers
v. Hanover Community School Corp., 457 F.2d 456 (1972), the
fact that procedures followed by a public employer in bypassing the
union and dealing directly with its members might well be unfair
labor practices were federal statutory law applicable hardly
establishes that such procedures violate the Constitution. The
First Amendment right
Page 441 U. S. 465
to associate and to advocate "provides no guarantee that a
speech will persuade or that advocacy will be effective."
Id. at 461. The public employee surely can associate and
speak freely and petition openly, and he is protected by the First
Amendment from retaliation for doing so.
See Pickering v. Board
of Eduction, 391 U. S. 563,
391 U. S.
574-575 (1968);
Shelton v. Tucker, 364 U.
S. 479 (1960). But the First Amendment does not impose
any affirmative obligation on the government to listen, to respond
or, in this context, to recognize the association and bargain with
it. [
Footnote 2]
In the case before us, there is no claim that the Highway
Commission has prohibited its employees from joining together in a
union, or from persuading others to do so, or from advocating any
particular ideas. There is, in short, no claim of retaliation or
discrimination proscribed by the First Amendment. Rather, the
complaint of the union and its members is simply that the
Commission refuses to consider or act upon grievances when filed by
the union, rather than by the employee directly.
Were public employers such as the Commission subject to the same
labor laws applicable to private employers, this refusal might well
constitute an unfair labor practice. We may assume that it would
and, further, that it tends to impair or undermine -- if only
slightly [
Footnote 3] -- the
effectiveness of the union
Page 441 U. S. 466
in representing the economic interests of its members.
Cf.
Hanover Township, supra.
But this type of "impairment" is not one that the Constitution
prohibits. Far from taking steps to prohibit or discourage union
membership or association, all that the Commission has done in its
challenged conduct is simply to ignore the union. That it is free
to do.
The judgment of the Court of Appeals is therefore reversed.
It is so ordered.
MR. JUSTICE POWELL took no part in the consideration or decision
of this case.
[
Footnote 1]
This suit was brought by the Arkansas State Highway Employees,
Local 1315, and eight of its individual members, after the
Commission refused to consider grievances submitted by the union on
behalf of two of its members. The facts in these two cases are not
in dispute:
"[E]ach employee sent a letter to Local 1315, explaining the
nature of their grievance and requesting the union to process the
grievances on their behalf. In each case, the union forwarded the
employee's letter to the designated employer's representative and
included its own letter stating that it represented the employees
and desired to set up a meeting. The employer's representative did
not respond to the union's letter. Thereafter, each employee filed
a written complaint directly with the employer representative.
Local 1315 represented each employee at subsequent meetings with
the employer representative."
585 F.2d at 877.
The individual Commissioners of the Arkansas State Highway
Commission and the Director of the State Highway Department were
named as defendants, and are the petitioners in this Court.
[
Footnote 2]
See Hanover Township Federation of Teachers v. Hanover
Community School Corp., 457 F.2d 456, 461 (CA7 1972), quoting
Indianapolis Education Assn. v. Lewallen, 72 LRRM 2071,
2072 (CA7 1969) ("there is no constitutional duty to bargain
collectively with an exclusive bargaining agent").
[
Footnote 3]
The union does represent its members at all meetings with
employer representatives subsequent to the filing of a written
grievance.
See n 1,
supra. The "impairment" is thus limited to the requirement
that written complaints, to be considered, must initially be
submitted directly to the employer representative by the employee.
There appears to be no bar, however, on the employee's securing any
form of advice from his union, or from anyone else.
Cf. Mine
Workers v. Illinois State Bar Assn., 389 U.
S. 217 (1967);
Railroad Trainmen v. Virginia ex rel.
Virginia State Bar, 377 U. S. 1
(1964).
MR. JUSTICE MARSHALL, dissenting.
Now this Court is deciding vital constitutional questions
without even a plenary hearing. I dissent.
This Court has long held that the First Amendment protects the
right of unions to secure legal representation for their members.
Mine Workers v. Illinois State Bar Assn., 389 U.
S. 217,
389 U. S.
221-222 (1967);
Railroad Trainmen v. Virginia ex
rel. Virginia State Bar, 377 U. S. 1,
377 U. S. 8
(1964);
see Transportation Union v. State Bar of Michigan,
401 U. S. 576
(1971);
NAACP v. Button, 371 U. S. 415
(1963);
Eastern Railroad Presidents Conf. v. Noerr Motor
Freight, Inc., 365 U. S. 127
(1961). Based on this precedent and on Arkansas' recognition of
public employees' right to organize and join a union,
Potts v.
Hay, 229 Ark. 830,
315 S.W.2d
826 (1958), the Court of Appeals concluded that the First
Amendment also encompasses respondent union's right to file
grievances on behalf of its members. If, under
Mine
Workers and
Railroad Trainmen, a public employer may
not refuse to entertain a grievance submitted by a union-salaried
attorney, it is not immediately
Page 441 U. S. 467
apparent why the employer in this case should be entitled to
reject a grievance asserted by the union itself.
I decline to join a summary reversal that so cavalierly disposes
of substantial First Amendment issue.
*
* Moreover, summary reversal seems to me an especially
inappropriate means of resolving conflicts between the United
States Courts of Appeals.
Compare Arkansas State Highway
Employees Local 115 v. Smith, 585 F.2d 876 (CA8 1978),
with Hanover Township Federation of Teachers v. Hanover
Community School Corp., 457 F.2d 456 (CA7 1972).