CSSA Magazine Article- Union Activity First Amendment Rights


July, 2008

By:  Martin J. Mayer

On April 24, 2008, the First Circuit U.S. Court of Appeals issued a ruling in the case ofDavignon, et al. vs. Hodgson involving the plaintiffs’ claim that the sheriff suspended them from duty in retaliation for their First Amendment protected activity.  A trial jury found Bristol County Massachusetts’s Sheriff Thomas Hodgson liable, in his official capacity, on the claims filed pursuant to 42 U.S.C. §1983, in addition to some state of Massachusetts’s claims.  The First Circuit U.S. Court of Appeal rejected each of Sheriff Hodgson’s claims of error and affirmed the judgment from the lower court.


The plaintiffs were all members of the Massachusetts’s Correctional Officers Federated Union and were active in Union affairs.  In 2000, the Union and the Sheriff’s Department  began negotiating a new contract which, in a short time, grew tense and acrimonious.  Subsequently, the Union requested mediation and following the first mediation session, one of the plaintiffs (Presby) “requested and received permission from superior officers to address fellow officers at role call.”  During those presentations Presby informed his fellow officers that the negotiations had not been going well.

His presentations at roll call “became the subject of an internal investigation ordered by Hodgson, to determine whether Presby had left his post in order to give the report.”  Subsequent to Presby’s presentation and while the internal investigation was underway, the Sheriff issued a directive prohibiting Union representatives from discussing Union business during roll call.

The Union thereafter decided to hold a picket at a busy intersection “to express dissatisfaction with the contract negotiations and to criticize Hodgson’s treatment of correctional officers and their families.”  The Union communicated this information to it’s members by letter and also spoke with individual correctional officers at work about the planned picket.  The evidence was indisputable that the conversations with individual officers lasted no more than ten to forty-five seconds.  The Sheriff then ordered an internal investigation be conducted into these contacts with correctional offices “to determine whether officers had been pressured or coerced to participate in the picket.”

While this was occurring the Sheriff addressed roll calls and discussed, among other things, the Union negotiations in some detail.  “Explaining at trial why he (the Sheriff) could discuss Union matters at roll call even though his earlier directive had explicitly banned such discussion, Hodgson asserted that different rules apply to him as Sheriff.”

Based on the results of the internal investigations, the Sheriff suspended the plaintiffs without pay, transferred them to other facilities, stripped them of their seniority rights and changed their days off from weekends to weekdays.  He charged them with soliciting correctional officers to participate in a Union picket and stated that “the plaintiffs’ wrongful conduct interfered with other correctional officers’  performance of their duties and that adversely affected the efficient operation of the department and potentially the health and safety of all employees.”

As a result, the plaintiffs sued the Sheriff claiming violation of their First Amendment rights of speech and association.  The case was tried before a jury with the results noted above.

Freedom of Speech and Retaliation

It is generally accepted law that government employees retain their First Amendment rights and are free “to speak as a citizen addressing matters of public concern.”  The Court recognizes, however, that this right is not absolute and that “a governmental employer may impose certain restraints on the speech of it’s employees, restraints that would be unconstitutional if applied to the general public.”  In determining whether speech by a public employee is protected, there is a two part process which must be utilized.

First, it is to be determined whether the speech involves matters of public concern.  That is a case specific, fact dependent, inquiry which involves looking at the “content, form, and context of a given statement as revealed by the whole record.”  Although private speech to co-workers regarding union activities is not necessarily considered matters of public concern, union related speech is generally reviewed as being protected.  In the instant case, the Court stated that “not only did the plaintiffs’ speech involve union activity in general, but one of the pickets stated purposes was to allow union members to publically express criticism of management.”  The Court further noted that “the speech was… intended to alert the public to the behavior of Hodgson, a politically elected official.”

Balancing the Interests

Second, after determining that the public employee’s speech is a matter of public concern, the Court must then analyze “the value of an employee’s speech… against the employer’s legitimate government interest in preventing unnecessary disruptions and inefficiencies in carrying out it’s public service mission.”

Factors to be considered in this balancing test include, “…(1) the time, place, and   manner of the employee’s speech,… and (2) the employer’s motivation in making the adverse employment decision.”  The Court points out that “balancing, like the public concern analysis, is highly fact specific.”

The Court acknowledges that maintaining discipline and harmony in the workplace, as well as the importance of safety within correctional facilities, are valid governmental interests.  However, stated the Court, “the defendant has not in our view demonstrated how the plaintiffs’ speech here created harm or increased risks.  There was no evidence of actual disruption… (and) statements to fellow employees were brief, generally lasting a matter of seconds.”

The Court, in analyzing all of the factors, reached the conclusion that it could not find any evidence that the plaintiffs’ speech would create any harm in terms of discipline, harmony, or safety within the correctional facilities.  “In this case, there is ample evidence that Hodgson suspended the plaintiffs not out of a legitimate concern that their speech compromised safety at the correctional facilities but because of their pro – union activity.”


The issue of whether or not public employees are protected when engaging in public speaking and/or expression, in almost all cases, must be analyzed as set forth above. One notable exception involves the public employee who is considered a “policy maker;” – for example, a member of the management and/or command staff of an organization.  In that situation, based upon decisions from both the United States and California Supreme Courts, the “policy maker” may speak out as much as he or she wishes but that person’s speech will not be protected by the First Amendment.

Generally, the analysis involves determining whether the speech is a matter of public concern and, if so, whether the individual employees need to speak out, versus the public employers need to efficiently and effectively perform his or her public function through the public employee.

Determining whether or not speech is protected under the First Amendment, when dealing with public sector employees, is a process very different from that involving private sector employees.  As such, in each and every case where the issue arises, it is imperative that the public sector employer receive advice and guidance from its legal counsel before taking any adverse action based on speech.

Martin J. Mayer has served as General Counsel to the California State Sheriffs’  Association for approximately twenty-five years.  The firm of Jones & Mayer, located in Fullerton, California, is a public sector law firm which focuses its attention on representing the interests of law enforcement in cities and counties throughout the State of California.