3 F.4th 254
6th Cir.2021Background
- Jonathan Barger, a member of UBC Local 2/IKORCC, accused three SPI supervisors (also union members) of overbilling a client (Dynegy); he told a Dynegy manager and an IKORCC business agent (Meier).
- Meier filed internal union charges under the UBC constitution; the IKORCC trial committee found Barger guilty and imposed a $5,000 fine; the UBC later granted Barger’s appeal, vacating the verdict and fine.
- After the charge and discipline, Barger experienced work refusals and loss of some referral opportunities; he sued Local 2, IKORCC, UBC, and Dynegy under the LMRDA §101(a)(2) (free speech), alleged a §609 retaliation theory, and asserted an Ohio civil conspiracy.
- The district court granted summary judgment for all defendants; on appeal the Sixth Circuit analyzed whether Barger's speech was a "matter of union concern" under §101(a)(2) using the form‑content‑context test.
- The Sixth Circuit held Barger's speech was protected (motive and private form not dispositive, especially given rapid union retaliation), reversed summary judgment for Local 2 and IKORCC on §101(a)(2), affirmed summary judgment for the UBC on §101(a)(2), found the §609 theory forfeited, and vacated/remanded the conspiracy ruling for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barger's statements about overbilling were a "matter of union concern" under LMRDA §101(a)(2) | Barger: Allegations directly criticized union leadership/policy and are protected even if privately disclosed and partially self‑interested | Unions: Speech was private, self‑serving, not publicized—so not a matter of union concern | Held: Form‑content‑context test met; speech implicated union democracy; motive and private form not dispositive; reversed for Local 2 and IKORCC |
| Whether Pickering balancing governs the threshold protection inquiry | Barger: Pickering balancing should apply to assess protection | Unions: Form‑content‑context test is the proper threshold; Pickering applies only after protected‑speech finding | Held: Form‑content‑context is the threshold test; Pickering may apply later under the proviso but court did not decide that here |
| Whether the unions justified discipline under §101(a)(2) proviso (reasonable rules) | Barger: Unions did not invoke or meet the proviso burden | Unions: Primary defense was that speech was not of union concern | Held: Unions failed to plead/meet the proviso at summary judgment; proviso does not justify the discipline here |
| Liability of the UBC; §609 (slander) and civil conspiracy claims | Barger: UBC stonewalled appeal; §609 per se violation for disciplining for slander; UBC joined conspiracy | UBC: Not involved in initial charges, followed procedural rules, later vacated fine; §609 claim not pleaded timely; limited evidence of conspiracy | Held: Affirmed summary judgment for UBC on §101(a)(2); §609 retaliation theory forfeited; conspiracy ruling vacated and remanded as to IKORCC and UBC (Local 2 conspiracy claim previously dismissed) |
Key Cases Cited
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing public‑employee free speech interest against employer interest)
- Connick v. Myers, 461 U.S. 138 (1983) (use form‑content‑context to determine public‑concern threshold)
- United Steelworkers of America v. Sadlowski, 457 U.S. 102 (1982) (LMRDA protects union democracy; First Amendment principles informative)
- United Food & Commercial Workers Int’l Union Local 911 v. United Food & Commercial Workers Int’l Union, 301 F.3d 468 (6th Cir. 2002) (§101(a)(2) protects speech implicating union democracy)
- Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001) (Pickering applied after finding matter of public concern)
- Trail v. Local 2850 UAW United Def. Workers, 710 F.3d 541 (4th Cir. 2013) (uses form‑content‑context to assess union concern)
- Hylla v. Transp. Commc’ns Int’l Union, 536 F.3d 911 (8th Cir. 2008) (similar LMRDA analysis; speech found not of union concern)
- Kazolias v. IBEW LU 363, 806 F.3d 45 (2d Cir. 2015) (LMRDA protects speech of significant concern to membership)
- Cehaich v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers, 710 F.2d 234 (6th Cir. 1983) (Pickering not fully incorporated where speaker is a union officer)
- Black v. Ryder/P.I.E. Nationwide, Inc., 970 F.2d 1461 (6th Cir. 1992) (LMRDA §101(a)(2) framework; proviso is affirmative defense)