Being in a Union Doesn’t Make Speech Protected 

Two recent Michigan cases show the importance of analyzing state laws on public-sector union activity separately from case law on First Amendment protection of free speech.

The president of the corrections officers’ union in Bay City, Michigan, and his friend—another union member—were upset about investigations at the jail they thought were handled improperly. They decided to take action and posted a notice advising co-workers of their union rights, and suggested co-workers demand union representation in disciplinary meetings and disregard an order to not share what was discussed during a criminal investigation of the jail administrator. They were fired as a result.

They sued in two separate lawsuits, and the U.S. District Court for the Eastern District of Michigan ruled against them in both. Gillis v. Miller (E.D. Mich. 2016); Walraven v. Miller (E.D. Mich. 2016).

The court concluded that the notice wasn’t protected speech because it was concerned with internal issues at the jail and didn’t touch on a matter of public concern. Even if there was public concern, the part of the notice encouraging disobeying a superior’s orders was not protected.

The court said the case “may raise legitimate questions” under Michigan labor law, but did “not, however, raise a question of First Amendment retaliation.” The court granted summary judgment to the county, but it allowed both officers to re-file claims under Michigan labor and whistleblower laws.