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Union Slams FDNY No Opinion Rule

The Uniformed Firefighters Association of New York has taken the unusual (if not unprecedented) step of ordering its membership to disregard a directive issued by the Fire Department that seeks to limit the posting of “opinions” in fire stations… Yes… no “opinions”… posted in fire stations…. anywhere in the city of New York…

The order in question, identified as DO 89, instructs members to comply with an already existing regulation (Section 19.2.2, 5th Paragraph). The language at the heart of the controversy reads as follows:

“Bulletin boards in facilities shall be used only for official Department business or important information relating to approved Departmental organizations. In addition to applicable EEO restrictions, material presenting opinions or viewpoints is not permitted anywhere in quarters. It does not matter whether such opinions or views concern Department matters or non-Department matters. NO articles/material may be posted from any publications, internet or other sources.”

Here is the Original DO 89: FDNYOrder89

Here is the union’s memo: UFA Memo

The Fire department subsequently released a new policy, but the controversy seems only to have grown. new-fdny-posting

The situation raises some significant First Amendment issues, as well as collective bargaining issues (concerted activities, unilateral changes to working conditions, etc.). Here’s a link to a video on the story, including some interesting comments by the union’s First Amendment lawyer.

What do you think. Will the no posting of opinion rule fly? Or how soon before the rule is overturned? 

Comments - Add Yours

  • http://www.meritmattersusa.blogspot.com Bob T.

    Just to be sure, this crack down was brought on by the EEO lawyers who couldn’t stand to see articles and editorials from http://www.meritmattersusa.blogspot.com calling for equal opportunity & no race/gender patronage/quota appointments or promotions.

    Apparently Equal Opportunity means favored treatment for some, and oppression of speech/ideas for others.

    • http://firelawblog.com Curt Varone

      Thanks Bob

      From my perspective it doesn’t matter why they did it – the “no opinion” order is either legal or illegal. The city cannot violate the Constitution or the collective bargaining rights of employees simply because they think they have a good reason to do it. In fact – you rarely find people who violate other peoples rights who think they aren’t somehow justified in doing so.

      By the way, will the UAF be taking the case to Federal court??? Perhaps they will get Judge Garaufis… sorry, couldn’t resist that one.

  • http://www.backwardsandstupid.com Chris Sterricker

    Curt, can you extrapolate this out to 1st Ammendment issues relating to social media sites, private blogs etc. that are prohibited by departmental orders or R&R’s? Or are the two really separate issues?

    • http://firelawblog.com Curt Varone

      Chris

      Good question. There are two separate and distinct issues – 1st Amendment and collective bargaining – and both are implicated here. The issues are very close to those associated with social media – with the major difference being the employer clearly has a stronger right to control the workplace than the internet.

      Without turning this into a dissertation on 1st Amendment law – an employer has a right to control the workplace, but not to the point where it violates the employees’ rights. That being said the issue comes down to whether the “no opinion” regulation infringes on employees 1st Amendment and collective bargaining rights.

      A common theme in both 1st Amendment cases and collective bargaining cases(infringing on employees right to engage in concerted activities) – is that overly broad restrictions on speech will be struck down.

      There are alot of moving parts to cases like this, any of which can become the major point of contention: If a court concludes that the department can achieve the same goals with a less restrictive regulation, a court will likley invalidate the regulation. If the court concludes that DO 89 was issued in retaliation for the exercise of 1st Amendment rights, it could invalidate the regulation. If the regulation is viewed as restricting employees rights to engage in concerted activities, it may be invalidated. Then again the court may conclude that an employer has a duty to protect employees from harassment, and this was a reasonable way to accomplish that end. Note – I am not suggesting any one of these is right or wrong, valid or invalid, only that those are some of the moving parts in this complicated case.

  • http://www.meritmattersusa.blogspot.com Bob T.

    Curt,

    Funny joke…I’m sure the Corp counsel will do everything to avoid that!

    I imagine Fed dist court would be an option…Considering the politics(very liberal town, ACLU hero on the case…etc.) and the department has already walked this back some I’d say this wont go much farther than the poltical theater involved. But I’m sure because of the PC zelots in EEO this will surface again.

    What role would the Johnson v. LACoFD play in this if any?

    I believe Mr. Kuby was one of the Plaintiffs attorneys but I could be wrong…it was the ACLU either way. Might be his angle on this as well.

    Seems NYC might be straying into “content” based censorship.

    • http://firelawblog.com Curt Varone

      Bob

      I am not thinking Johnson will play a major role here. In that case the Captain had a right to keep certain reading material in his private possession in the station. The court made a point of saying that the department could place restrictions on the type of material that was present in the workplace that others may inadvertantly view. The city could not limit his private reading material of books/magazines he kept in his locker.

      mmmm… content based censorship…. you can make that argument by connecting the Merit Matters issue with DO 89 (retaliation). However, seems like the city is trying to avoid an allegation of content based censorship by banning all opinion. That in turn creates the issue of overbroad restrictions… which is just as bad.

      As for Judge Garaufis – I would suspect the city may actually want him to hear this case because they may feel he will be more sympathetic to their reasoning for the “no opinion” regulation. Is that crazy?

      • http://www.meritmattersusa.blogspot.com Bob T.

        I’d suggest the vigor that the city is persuing this topic stems from concern over the special monitor and the optics or appearances of not doing something. All theater in my view so applellate level sees they are more than willing to address issues and don’t need supervision as suggested.

        I’m think they want nothing to do with him if it only means more dragged out litgation that doesn’t have any real value to them outside of rules imposed by that same Judge. He’s a loose cannon & if I were corp counsel I wouldn’t like my chances with anything before him while Bloomberg in office.

        But I can see where your argument has merit as well.

        As for Jo.v LA I was thinking of some of the 9th Cir. findings in regards to the firehouse dual role of workplace/home issues which have some parellels to this.

        Further issues of Access to speech especially in regards to workplace issues which these most certainly are. Job wants to apporove what fraternal groups are ok…but based on what objective measures? How can they contemplate approving a new AsianFDNY org but refuse a mult-cultural org that supports EEO and is supported by 99% of other FDNY fraternal orgs.

        Aware of differences though, not apples/apples. Lots of interelated issues here and I’m not sure who will prevail or back down first.

        • http://firelawblog.com Curt Varone

          Bob – these are all valid points and this is truly a multi-headed issue. It will make for an excellent leadership case study – because the department had to do “something” – without over-reacting or under-reacting.

  • http://emtmedicalstudent.wordpress.com/ Joe Paczkowski

    How would something like this apply to an “opinion” paper that is distinctly work related? Could a paramedic or firefighter get into trouble by, say, posting an academic journal article or a work related opinion article (e.g. how to handle ____)?

    Next, at what point does the Government as a social contract become diverged from Government as an employer? Would, say, the fire suppression division of Rural Metro be unable to place a similar restriction on their employees based on a 1st Amendment basis (the organized labor argument being a separate discussion entirely, but one equally applicable on its face)? Should an employee have the right to, say, post political campaign posters or political cartoons? The government saying I can’t post something politically offensive in the window of my house is distinctly different than the government, as an employer, saying I can’t do likewise in a government workplace.

    I think that, regardless of the legal challenges, the first time a paramedic gets nailed for posting an article out of the Journal of Emergency Medicine, the negative media attention alone would require its repeal.

    • http://firelawblog.com Curt Varone

      Joe

      As written the order prohibits opinions that are work and non-work related. That is pretty broad – and arguably broad enough to include an academic article, research, or similar information that could be considered to constitute an “opinion”.

      I am shaking my head as I write this because – what could possibly be written, printed, or posted that could not – in some way – be construed as constituting an opinion? Even posting the Constitution – could be construed as giving an opinion – because the very act of posting it makes a statement… This is gonna be bad. …