Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division.
No. 1:96 CV 0137 William C. Lee, Chief Judge.
Before POSNER, Chief Judge, and BAUER and EVANS, Circuit Judges.
SUBMITTED NOVEMBER 20, 1997 *fn1
Seven City of Fort Wayne firefighters brought this suit under 42 U.S.C. sec. 1983, challenging a provision in a collective bargaining agreement (CBA) between the City and the Firefighters Union that prohibits city firefighters from participating in other firefighting organizations. The firefighters also challenge a provision of the Union's constitution that prohibits advocacy of, or membership in, other firefighting organizations. The firefighters, who want to serve as volunteers in other fire departments while off duty, alleged that the CBA and the Union's constitution violate their First Amendment rights to freedom of speech and association.
The CBA, ratified on September 15, 1995, and effective on January 1, 1996, contains the following provision in Article 20, Section 7: Other than provided in Article 29, Section 1(f), active members of the Fort Wayne Fire Department shall not be restricted in off-duty employment, except that they may not work for, or volunteer for, any other paid or volunteer fire department within Allen County, or with any fire department outside Allen County which has a mutual aid agreement with the City of Fort Wayne.
Article XI, Section 1E, of the Union's constitution provides that "advocating or encouraging any labor or other rival organization or acquiring membership in any such organization, including volunteer fire departments or associations" is misconduct subject to reprimand, fine, suspension from office or membership, and expulsion from the Union. Additionally, another portion of the CBA is important, for reasons that will become clear; city firefighters are entitled to up to a year of paid sick leave if an injury necessitating a leave of absence occurs when a firefighter is off duty.
The firefighters sued the City and the Union alleging that the CBA and the constitution "effectively bar Plaintiffs both from participating in volunteer firefighting service and from verbally advocating, defending, or even mentioning such service." The firefighters assert that the City and the Union "conspired to deprive Plaintiffs' exercise of their [First] Amendment rights of free association and their First Amendment rights of free speech." The parties filed cross-motions for summary judgment and the firefighters lost. In granting summary judgment for the City and the Union, the district judge determined that the firefighters failed to establish that their speech and expressive association touched on matters of public concern and, in the alternative, that the City's interest in promoting the efficiency of the fire department far outweighed any minimal interest the firefighters might have in providing their services to others on a volunteer basis.
On appeal, the firefighters challenge the district court's conclusion that their participation in other firefighting organizations does not touch on issues of public concern and, further, argue that the district court judge botched the often cited Pickering/Connick balancing test when he concluded that the City's interest in the prohibition outweighed their First Amendment interests.
As a preliminary matter, the Union argues that it is home free on at least half the case because it is not a "state actor" for purposes of the First Amendment or sec. 1983. In general, a union is not a state actor. See Wegscheid v. Local Union 2911, 117 F.3d 986, 988 (7th Cir. 1997). Therefore, a union's internal governing rules usually are not subject to First Amendment prohibitions. *fn2 Leahy v. Board of Trustees of Community College Dist. No. 508, 912 F.2d 917, 921 (7th Cir. 1990) (Under sec. 1983, the plaintiff "must allege facts which . . . would show that the Union, a private entity, was acting under color of state law . . . ."); see also Korzen v. Local Union 705, 75 F.3d 285, 288 (7th Cir. 1996) ("The constitution of a local union . . . is a contract between the union and its members . . ."; therefore, federal question jurisdiction is absent); United States v. International Bhd. of Teamsters, 941 F.2d 1292, 1296 (2nd Cir. 1991) (actions taken pursuant to a union's constitution are not "state actions").
The firefighters, relying on Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974), argue that the Union is a state actor for purposes of its constitutional provision: Article 20, Section 7 (of the CBA), they contend, is "inextricably intertwined" with Article XI, Section 1E (of the constitution), because the two provisions "encourage and enforce" each other. The firefighters also assert that the Union and the City conspired to deprive them of their First Amendment rights for the purpose of promoting the City's goal of annexing surrounding communities. Essentially, the firefighters maintain that the City and the Union colluded to deprive surrounding communities of their firefighting services--thereby gutting the independent firefighting capability of those communities--in order to coerce them into joining annexation agreements. In the process the defendants allegedly deprived the firefighters of First Amendment freedoms.
The mere fact that the constitution encourages and reinforces the CBA is insufficient, however, to bring the Union's enactment of the constitutional provision under the rubric of "state action." See Jackson, 419 U.S. at 351 ("[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the [private] entity so that the action of the latter may be fairly treated as that of the State itself."). That the Union and Fort Wayne have complementary rules simply does not establish joint action or a nexus between Fort Wayne's contract with its firefighters and the Union's adoption of Article XI, Section 1E, of its constitution. Cf. International Bhd. of Teamsters, 941 F.2d at 1297 ("[G]overnmental oversight of a private institution does not convert the institution's decisions into those of the State, as long as the decision in question is based on the institution's independent assessment of its own policies and needs.").
Moreover, a bare allegation of a conspiracy between private and state entities is insufficient to bring the private entity within the scope of sec. 1983. Leahy, 912 F.2d at 922. Despite evidence that the City intended to coerce annexation, the firefighters point to no evidence that the Union shared this goal, much less enacted its questioned constitutional provision in collusion with the City for the purpose of coercing annexation. See Cunningham v. Southlake Ctr. for Mental Health, Inc., 924 F.2d 106, 107 (7th Cir. 1991) ("A requirement of [a conspiracy] charge therefore is that both public and private actors share a common, unconstitutional goal."). We are especially skeptical of this conspiracy theory because the Union's constitutional provision was enacted at least four years ...