This article originally appeared in a previous issue of “Public Safety Labor News” and is reprinted courtesy of Labor Relations Information System.

September 1st, 2008 David Davignon and four other employees of the Bristol County, Massachusetts Sheriff’s Department were involved in a variety of union activities. By the summer of 2000, negotiations had grown tense between the County and the Massachusetts Correctional Officers Federated Union. During one negotiation session, the Sheriff cursed at a Union representative, slammed his hand on a table, and said, “I’m the Sheriff. If you have to wait, you’ll wait for me.”

The Union decided to hold a picket at a busy intersection near a correctional facility to express dissatisfaction with the contract negotiations and to criticize the Sheriff’s treatment of correctional officers and their families. Three of the Union representatives spoke with individual corrections officers at work about the planned picket, with the conversations taking no longer than 45 seconds.

The Sheriff ordered an investigation into these encounters to determine whether officers had been pressured or coerced to participate in the picket. The Sheriff addressed three roll calls. In one or more of them, he referred to the Supreme Court’s decision in Garrity v. New Jersey, telling officers he could terminate those who failed to be completely truthful during internal affairs investigations. The Sheriff told the roll calls that he knew there were “troublemakers” in the Department whom he would not hesitate to remove. He stressed that if they were terminated, they might file a grievance and get their jobs back, but they would be making five or six dollars an hour in the interim. Two of the Union representatives later testified that the Sheriff stared directly at them when making the “troublemakers” comment.

Eventually, the Sheriff sustained the internal affairs complaints against the five Union representatives, and suspended them without pay for between ten and 30 days. The officers sued the Sheriff, claiming that the suspensions were retaliation for protected free speech.

A jury found that the County had violated the representatives’ free speech rights, and awarded them their lost wages. The Sheriff appealed, arguing that the First Amendment did not protect the speech of the Union representatives.
A federal appeals court rejected the Sheriff’s arguments. The Court found that the speech was a matter of “public concern” warranting First Amendment protection: “Other courts have weighed union-related speech heavily in the public concern calculus. Here, not only did the representatives’ speech involve union activity in general, but one of the pickets’ stated purposes was to allow Union members to publicly express criticism of management. Moreover, the speech at least touched on newsworthy subjects. The speech contained information about a picket specifically intended to alert the public to the behavior of the Sheriff, a politically elected official.”

The Sheriff argued that because the Union representatives benefitted personally in many ways from the picketing, their speech encouraging other officers to participate in the picketing was not protected. The Court was unpersuaded, finding that while it was “true that the representatives stood to benefit in many ways from persuading co-workers, the record also supports a conclusion that the representatives wanted to improve the collective bargaining process as a whole and attempted to do so through the time-tested method of drawing the public’s attention to what they considered unfair behavior on the part of the Sheriff.”

The Court was also unconvinced by the Sheriff’s argument that he suspended the representatives because their speech compromised the safety of the correctional facility. The Court observed that “there is ample evidence that the Sheriff suspended the representatives not out of a legitimate concern that their speech compromised safety, but because of their pro-union activity. First, the timing of the suspensions is suspect. When the Sheriff suspended the five active Union members, he had already demonstrated significant frustration with the Union, indulging in an outburst during one negotiation session in particular. The Sheriff’s own actions and pattern of enforcement further undermine his claim of legitimate motives.”

The Sheriff also argued that the trial court’s award of attorney’s fees in the amount of $172, 248 was excessive, given that the representatives’ aggregate back pay was only $17, 980. The Court rejected the argument, concluding that in civil rights cases, attorney fee awards do not necessarily need to be proportionate to the amount a civil rights plaintiff actually recovers.

Davignon v. Hodgson, 524 F.3d 91 (1st Cir. 2008).

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