THINGS TO KNOW ABOUT YOUR UNION FREE SPEECH RIGHTS

Thankfully, the instances of union members being blackballed, beaten or even murdered for opposing the union’s leadership or its policies are few and very far in between today.  But that does not mean that we have seen the last of autocratic or despotic union leaders who do need to be criticized and called out.  And the primary way to do that is for members to vigorously exercise the special statutory rights union members have to free speech about union affairs. This post highlights the most important things to know about that right. 

The Right – Title 5 USC 7120 grants federal employee union members a bundle of rights along with a freedom of speech entitlement. These rights are detailed in Dep’t. of Labor regulations known as the Standards of Conduct, which are found  at 29 CFR 458. The Freedom of Speech right at 29 CFR 458.2 states:

Freedom of speech and assembly. Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments or opinions; and to express at meetings of the labor organization his views upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.

This right is not limited to a union “election, union meeting, or any particular forum….”[1] It includes the right to make “public statements” outside union meetings. [2] Nor is the right limited to vocal speech.[3]  Handbills and written communications are protected.[4]  We are unaware of any case addressing whether members can use social media to criticize their union, but we also see no reason why they would not be protected so long as the content of the speech is protected. See more on the content element below.

The union member’s speech can have “harsh or even intemperate” tones.[5] Some courts have even protected libelous and malicious speech.[6]  However, this is not the law of the land and therefore members should avoid libel or slander if possible. The same goes for maliciously untrue statements or attacks based on a union leader’s personal life outside union matters.  A person damaged by libel or slander could sue in civil court, irrespective of these free speech rights. Underscoring how vital free speech is to union democracy, courts have gone so far as to  impose an affirmative obligation to foster dissidents’ speech:  “…the LMRDA requires the union to give dissidents some means of reaching union members with their views, those means need not invariably include access to a union newspaper.”[7]

Critically important to being protected by the free speech entitlement is the content of the speech. Case law distinguishes between speech critical of a union, which is protected,  and “conduct designed to impair the union’s ability to function” — which is not protected.[8]  For example, a member advocating his co-workers join another union or to decertify the union is not protected.  Similarly, courts have not protected speech that interferes with the ability of the union to represent and bargain on behalf of employees. One court wrote, “The officers’ conduct was not free speech; it was “part of a pattern of conduct designed to destroy the union and to interfere with the performance of its legal obligations.” Id. at 1174. The conduct was not protected….”[9]

The freedom of speech protection is violated if a union fines, suspend, terminates or otherwise discipline a member for his speech. That would include anything that adversely impacts or diminishes his rights as a member, e.g., prohibiting someone from attending a union meeting. It also includes attempts to “chill”[10] a member’s exercise of it, engages in conduct that “inhibits or threatens” dissenting speech,[11] or participates in “a scheme to suppress dissent.” [12]  “The right to speak one’s views freely is so fundamental that the specter of punishment, or the uncertainty created by a vaguely worded prohibition of speech, is injurious as well.[13]

An important detail is that while the law is there to protect one’s membership rights, it does not bar a union leader from removing a staff person. The right to hold a staff position is not a right of membership. The same goes for being removed from office based on one’s speech. However, there is an exception to that where the discipline of a staffer or elected officer is part of an effort by the union’s leadership to suppress dissent through a “‘series of oppressive acts” that include removal of political opponents and that “‘directly threaten the freedom of members to speak out.’” See Maddalone v. Local 17, United Bhd. of Carpenters and Joiners of Am., 152 F.3d 178, 184 (2d Cir.1998)(quoting Cotter v. Owens, 753 F.2d 223, 229 (2d Cir.1985)); see also Sheet Metal Workers’ Int’l Ass’n v. Lynn, 488 U.S. 347, 354–55 (1989)

Examples – Here are some examples from private sector court cases that highlight how the right to free speech was violated:

• Morrissey v. NMU, 544 F.2d 19 (2^nd Cir.1976) – Member was prohibited from distributing printed material in the union hiring hall. The union leader alleged there was a policy against distributing any material in the hall, but could not show that the members adopted that policy or that it was consistent with the union constitution.
• Daniel P. Quinn v. Joseph L. Digiulian, Jr., et al., 739 F.2d 637 (D.C. Cir. 1984) – Member punished for announcing  his intention to run against an incumbent officer.
• Kinslow v. American Postal Workers Union, Chicago Local, 222 F.3d 269 (7th Cir. 2000) – Member punished for persistent criticism of the union leadership.  See also Guidry 882 F.2d 929 , 907 F.2d 1491 (5^th  Ci. 1989)
• Charles Argentine, John Gooch; et al v. USWA, 287 F.3d 476 (6th Cir. 2002) – Members punished for opposing ratification of a contract and a subsequent trusteeship imposed on the union.
• Murray 55 F.3d 1445 (9^th Cir. 1998) – Member punished for challenging at union meeting the accuracy of the minutes of a prior meeting.
• Serafinn v. Local 722, International Brotherhood of Teamsters, – 597 F.3d 908 (7^th Cir. 2010)- Member fined or ordered to pay damages to union done allegedly via a newsletter the member published.
• Petramale V. Local No. 17, LIUNA, 847 F.2d 1009 (2^nd Cir. 1988) – Member disciplined by union for “allegedly slanderous accusations against union officials and for disrupting a union meeting.”
• Tusino v. International Brotherhood of Teamsters,169 F. App’x 39 (2^nd Cir. 2006) – The union launched a  elaborate scheme to suppress dissent in the union.
• Shimman v. Frank, et al. 625 F.2d 80 (6^th Cir. 1980) – Disciplined threatened against members for taking notes at union meeting; threat of physical violence against dissenters.
• Guzman v. Bevona, 90 F.3f 641 (2^nd Cir. 1996) – The union leader hired people to surveil a member opposed to his policies.

Several courts have ruled that, “To establish a prima facie case of retaliatory discipline in violation of the LMRDA, a plaintiff must prove that: (1) his conduct constituted ‘free speech’ under the LMRDA; (2) that the speech was a cause for the Union taking action against him; and (3) damages.” [14]

Reasonable Rules – As noted in the law, unions can establish reasonable rules around a member’s right to free speech. The Supreme Court has held that a rule can only be reasonable if it promotes democracy.[15] To do so it must promote the interests of the union as an institution, not the interests of the leadership, e.g., protect its collective bargaining role, right to exclusive recognition, etc. For example, ruling that one may not speak out against the results of a certified union election would not be reasonable, but placing a limit on how long a member can speak at a meeting while others are waiting to speak would likely be reasonable. Hylla v. TCIU, 536 F.3d 911 (8^th Cir. 2008) has a more recent discussion of the reasonableness of rules.

Moreover, regulations provide that–

Any provision of the constitution and bylaws of any labor organization which is inconsistent with the provisions of this section shall not be a defense to any proceeding instituted against the labor organization under this part or under the CSRA or FSA. (29 CFR §458.2(b))

Waivers of the Right – Some unions have argued that members can waive the right to free speech in return for money, a job, an appointment as a steward or bargaining team member. However, it is clear that the rights contained in 29 CFR 458.2 cannot be waived because they are rights established not just to protect the member, but also the public. In International Brotherhood of Boilermakers v. Rafferty, 348 F.2d 307, 315 (9th Cir.1965) the court wrote about just such an agreement to waive saying, “The agreement was the acceptance by appellees of a penalty for conduct protected by the Bill of Rights of the Landrum-Griffin Act, for which appellees, as a matter of law, could not be penalized.…The enactment of such provisions by the Congress is an expression of general public policy creating rights in members of labor organizations which cannot be waived or contracted away.” (See also . DeCampli v. Greeley, 293 F. Supp 746 (D.N.J. 1968), Tincher v. Piasecki, 520 F.2d 815 (7^th Cir. 1975), and Landry v. Sabine’s Independent Seamen’s Ass’n, 623 F.2d 347 (5^th Cir. 1980). A Department of Labor ALJ followed that precedent in a 2025 federal sector case holding waivers of those rights are unenforceable. Ferris v. NTEU, DoL/OALJ 2024-SOC-00002 (2025)

Remedies – But what can members get as a remedy if their rights are violated. The court or other authority could enjoin the union from violating that member’s rights again, order the union to notify all members of its violation of law, and impose monetary penalties. In some of the examples of violations reviewed above, courts ordered the unions, and at times individual officers of the union, to pay the harmed member tens of thousands of dollars in damages. Some exceeding $100,000.

The Department of Labor, which administers the complaint process for federal employees, has not yet issued a decision imposing monetary damages.  However, Labor’s Appeals Review Board has decided that like a court there are no limits on its power to issue remedies.[16]  This includes compensatory and punitive damages as well as attorney fees.

Courts have also ordered the union officials who used union funds to violate member free speech or other rights to personally reimburse the union treasury for the union’s money spent to do and legally defend the right to do that. For example,

“As a general proposition we think funds of a union are not available to defend officers charged with wrongdoing which, if the charges were true, would be seriously detrimental to the union and its membership…. The treasury of a union is not at the disposal of its officers to bear the cost of their defense against charges of fraudulently depriving the members of their rights as members…For similar reasons, union officials charged as defendants in suits of this nature should retain independent counsel and bear the financial burden of their defense. Then, if they prevail, they may properly be reimbursed by the union for the costs of their legal defense. Milone v. English,  306 F.2d 814 (D.C.Cir., 1962).

See also Holdeman v. Sheldon, 204 F. Supp. 890 (S.D.N.Y. 1962);  John Stelling, et al. v. IBEW Local Union Number 1547, and the IBEW, et al., 587 F.2d 1379 (3^rd Cir 1978); Urichuck v. Clark, 689 F.2d 40 (3rd Cir. 1982); Mulligan v. Parker, 805 F. Supp. 592 (1992); Morrissey v. Segal, 526 F.2d 121, 127 (2d Cir.1975); and Doe 1 v. AFGE (2021).

Enforcement – How federal employees enforce their rights can be tricky.  In most cases they are required to exhaust any internal charge procedures in the union constitution. But if that exceeds more than four months to conclude or winds up rejecting the members’ charge, they can appeal to outside authorities. There are other exceptions to this.[17]

If the union only represents federal employees, the appeal is file with the Office of Labor-Management Services of the U.S. Department of Labor. However, if the union represents a mix of federal and non-federal employees, members may be required to go directly to court if their charges are against the overall union. If the charges only target a union local and that local only represents federal employees, the member can go to the Department of Labor.

Final Note – There is a lingering question in the law about whether all members of a union, whether still employed or retired but still members, have the right to free speech, among others. 5 USC 7120 obligates unions to grant these rights to members, e.g. “…the right of individual members….” (5 USC 7120(a)(1)). Similarly, the regulations elaborating these rights gives them to “every member.” (29 CFR 458.2). (See 29 USC 401.15 for a more detailed definition of a member.)  However, this obligation is imposed via the Civil Service Reform Act which only applies to active federal employees (5 USC 7103(a)(2)). Does this mean that retired (or not currently employed) federal employees are not protected by the Standards of Conduct?  This question was present in the case Ferris v. NTEU, supra because Ferris was a retired/former federal employee at the time of the violations of his rights and the hearing.  Despite the fact that NTEU was represented by the law firm of Bredhoff Kaiser, which is very experienced in union member rights issues, NTEU’s legal counsel chose not to raise that as a defense. We have no idea why it avoided this defense and anything we suggest would only be speculation, which we will not do.

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As always, we want to note that FEDSMILL does not provide, nor should it be considered, legal advice on how you should proceed.  If you are going to take action, you should contact an attorney. Unfortunately, experience has shown that it is very, very difficult to find an attorney to represent a member against a union. Very few lawyers, even labor lawyers, know much about this area of law.  And those that do, often only represent the unions accused because those organizations can pay the legal bills, which can be steep. Individual members can rarely shoulder that cost up front. That is why we see so many members representing themselves in these proceedings.

[1]   Barger v. United Bhd. of Carpenters & Joiners of Am., 3 F.4th 254, 271 (6th Cir. 2021)

[2]  Salzhandler v. Caputo, 316 F.2d 445, 446 (2d Cir.); cert. den. 375 U.S. 946 (1963)

[3]  Wood v. Dennis, 489 F.2d 849, 855 (7th Cir. 1973)

[4]   International Brotherhood of Boilermakers v. Rafferty, 348 F.2d 307, 315 (9th Cir.1965)

[5]   Gilvin, Ron v. Fire, Edward, et al, No. 00-7221 (D.C. Cir. 2001)

[6]   Rodonich v. House Wreckers Union Local of Laborers’ International Union,  817 F. 2d 967  (2^nd Cir. 1987). See also Mallick v. IBEW, 644 F.2d 228 (3^rd Cir. 1981); Salzhandler v. Caputo, 316 F.2d 445, 450 n. 7 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963))

[7]   Murphy v. Intern. Union of Operating Engineers, 774 F.2d 114, 132 (6th Cir. 1985)

[8]    Ferguson v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 854 F.2d 1169, 1174 (9th Cir.1988).

^[9]    SEIU v NUHW, 711 F.3d 970 (9^th Cir. 2013)

[10]   Wood v. Dennis, 489 F.2d 849, 855 (7th Cir. 1973)

[11]   Ackley v. Western Conference of Teamsters, 958 F.2d 1463, 1475 (9th Cir. 1992)

[12]  Franza v. International Broth. of Teamsters, Local 671, 869 F.2d 41, 45 (2d Cir.1989).

[13]   Dombrowski v. Pfister, 380 U.S. 479 (1965). Mallick v. IBEW, 644 F.2d 228 (3d Cir. 1981)

[14]  Hussein v. Hotel Employees and Restaurant Union,108 F. Supp.2d 360, 366 (S.D.N.Y. 2000) (citing Black v. Ryder/P.I.E. Nationwide, Inc., 970 F.2d 1461, 1469 (6th Cir. 1992)); accord Commer v. McEntee, 121 F. Supp.2d 388, 396 (S.D.N.Y. 2000).

[15]   Steelworkers v. Sadlowski, 457 U.S. 102 (1982) “Congress adopted the freedom of speech and assembly provision in order to promote union democracy.

[16]   In the Matter of Cassandra McMillan v AFGE,  ARB CASE NOS. 2024-0044 (2025)

[17]  Maddalone v. Local 17, 152 F.3d 178 (2d Cir. 1998)