MADISON SCH. DIST. v. WISCONSIN EMP. REL. COMM'N

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Argument of Gerald C. Kops

Chief Justice Warren E. Burger: We?ll hear arguments next in 75-946, City of Madison against Wisconsin Employment Relations Commission.

Mr. Kops, you may proceed when you are ready.

Mr. Gerald C. Kops: Mr. Chief Justice, may it please the court.

I appear here on behalf of the City of Madison, Joint School District No. 8 and the City of Madison Board of Education, the Appellants in this action.

This case is on appeal from a judgment of the Wisconsin Supreme Court.

The appellants drew into question for the validity of a State statute as applied and interpreted, and the Wisconsin Supreme Court upheld the statute after specifically considering the appellant?s constitutional challenge.

Thus, this Court?s jurisdiction is invoked under Title 28, Section 1257 (2) of the United States Code.

This case presents the question of whether a State labor statute, as interpreted and applied, may constitutionally mandate that certain individuals be excluded from speaking in a public form and solely on the basis of the content of a proposed speech.

The facts may be briefly stated as follows: The City of Madison Board of Education is a public do elected public body charged with a possession, care and control of the school affairs of the City of Madison School District.

The Board holds regular meetings on the first and third Monday of every month.

The Board has determined that each report at a portion of each of its regular meetings will be devoted to the receipt of public comment.

This portion of the agenda is denoted in the agenda as public appearances.

At its regular meeting of December 6th 1971, a number of people were allowed to address the Board.

Among those was the President of Madison Teachers Incorporated, the teacher union.

The President spoke and presented a petition to the Board, asking for a quick resolution in the current bargaining talks that were occurring.

After the president of the teachers? union spoke, Albert Holmquist, another teacher, was allowed to address the Board.

He spoke about an item that was being negotiated between the Board and MTI and presented the results of a survey of the teaching staff and then circulated within the schools.

After completion of its regular meeting, the Board retired into executive session and discussed the status of their then current negotiations with the exclusive bargaining representative of the teachers.

At that executive session, they prepared directions for their negotiators, the superintendent, and adjourned.

The following day a negotiation session occurred.

Assistant Superintendent and Superintendent gave the directions or proposals of the Board to the teachers? representatives and discussion ensued.

Discussion concluded with tentative agreement when the teachers accepted the Board?s proposal.

Formal agreement was finally ratified between the parties about a week later on December 14th, 1971.

Approximately one month later, Madison Teachers Incorporated filed a complaint with the Wisconsin Employment Relations Commission.

It alleged that the Board of Education committed an unfair labor practice when it allowed Albert Holmquist to speak at his public meeting.

The Wisconsin Employment Relations Commission concluded that the Board?s activity at its public meeting constituted prohibited labor practice and issue the following order.

The Board shall immediately cease and desist permitting employees other than representatives of Madison Teachers Incorporated to appear and speak at meetings of the Board of Education on matters subject to collective bargaining between it and Madison Teachers Incorporated.

The Commission decision and order were affirmed by the Circuit Court in Wisconsin.

On appeal to the Wisconsin Supreme Court, just stayed writing the majority decision and noting specifically that all the parties involved in this case had conceded that speaking in the form of negotiating or bargaining could be constitutionally restricted to the exclusive representative of the teachers.

Unknown Speaker: In that connection then Mr. Kops, the Board here is not asserting any claim of its own.

Is it simply asserting the rights of Mr. Holmquist?

Mr. Gerald C. Kops: I believe that the Board is able to assert the claim not only on behalf of Mr. Holmquist but also on its own behalf.

Unknown Speaker: If any of our cases ever sustained any constitutional claim that was asserted by a political sub-division of a State against the State.

Mr. Gerald C. Kops: I am not aware of any decision like that, however, Your Honor.

In this particular case, the order itself runs against the members of the Board of Education as a sub-division of a State.

I do not know of any other where that has occurred.

Unknown Speaker: That is the constitution and this problem arises from the plaintiff?s side.

Mr. Gerald C. Kops: Yes, that is correct.

This case is unusual in that the Board of Education, as the public body, is asserting its right to listen and envied its obligation to listen to not only its employees, but other citizens.

That was the primary reason for adopting the public appearance section of its own agenda that it could ensure that it would receive or provide?

Unknown Speaker: Therefore rather you were saying...

Mr. Gerald C. Kops: The Federal Right of free speech, First Amendment.

Unknown Speaker: Of the School Board?

You?re a representing School Board.

Mr. Gerald C. Kops: That is correct.

Unknown Speaker: The School Board is Prerogative here, on what federal right does the School Board assert?

Mr. Gerald C. Kops: We are asserting the right of Mr. Holmquist to speak and our right also to receive the information regarding a matter of public policy from the citizenry.

In that sense, it is the individual right of Mr. Holmquist.

Unknown Speaker: In which amendment is this you're talking about?

Mr. Gerald C. Kops: That?s the First Amendment.

Unknown Speaker: First Amendment, you have a right to listen.

Mr. Gerald C. Kops: That is correct.

Unknown Speaker: You have right to hear.

Mr. Gerald C. Kops: That is correct.

In fact, the public body, under these circumstances, almost has an obligation to listen.

They have created a public forum by the creation of a public hearing section.

Unknown Speaker: Who made the public forum, the State of Wisconsin?

Mr. Gerald C. Kops: No, the Board of Education created the public forum here by setting aside a part of its meeting to receive public comment, setting up a public hearing at each of its regular meetings.

Unknown Speaker: Would you question that the State of Wisconsin to its legislature could have said to every Board of Education in the State, you will have no public hearing section of your meeting?

Mr. Gerald C. Kops: I think that the Board of Education can close its meetings.

Unknown Speaker: What if the members of the Board wanted to open up but the State legislature has said, ?You will not have this particular type of agenda on your meeting.?

Mr. Gerald C. Kops: I think that the State legislature could mandate that but they haven?t done that in this case.

Unknown Speaker: But the Supreme Court of Wisconsin has in effect construed the Wisconsin labor relations statute to that affect in this case, haven?t they?

Mr. Gerald C. Kops: Well, yes but without real as we suggest without real substance or backing to the rationale of their decision.

Unknown Speaker: I am assuming that the highest Court of Wisconsin has indeed construed the law in that way, they cannot construe their own State law in conflict with the Federal Constitution.

Mr. Gerald C. Kops: That is correct, Your Honor.

Unknown Speaker: The Board is subject to the limitations of the First Amendment.

Mr. Gerald C. Kops: They are subject to the limitations of the First Amendment?

Unknown Speaker: They are bound to?

Mr. Gerald C. Kops: Yes, of course they are, as public officials they take an oath.

Unknown Speaker: Has your opposition raised the question of standing here?

Mr. Gerald C. Kops: They raised the question of standing when we sought jurisdiction of this Court.

However, this Court has not noted probable jurisdiction and did not reserve the issue of standing for consideration.

Unknown Speaker: Is it argued here now, do you know?

Mr. Gerald C. Kops: It is not argued in the briefs of the Respondent.

On appeal, the Wisconsin Supreme Court just stayed writing a majority opinion noted that the parties had conceded but negotiation or bargaining for a labor agreement could be constitutionally restricted to the majority representative of the teachers and indicated that the basic question was whether the activities of the Board at its public meeting constituted bargaining with a minority group of employees.

Unknown Speaker: Mr. Kops, could I ask you one more question?

Suppose the Board had refused permission to Mr. Holmquist to address it.

Would it have been subject to 1983 claim?

Mr. Gerald C. Kops: That is one of the suggestions I think that can be drawn and we?ve drawn that or concluded that on the basis of your decision and would be strictly that that possibility does arise, although these are not the exact facts.

In that case, the Court suggested that if the Board of Education knowingly violated the constitutional rights of its students, it may be subject to a personal liability action.

Unknown Speaker: You don?t think that Moore v. (Inaudible) County would cut across and against the...

Mr. Gerald C. Kops: I am not certain of that, Your Honor.

Unknown Speaker: Suppose, there?s no question what the Board can regulate the time, manner and place of presentation of these things, and if the Board can do it, there is no question would the State legislature can tell the Board that it has to do it.

Mr. Gerald C. Kops: Well, this is not a regulation of time, place and manner, your Honor.

This is a total and complete prohibition of the exercise of a particular forum on a selected basis.

Unknown Speaker: Well, so your answer to Mr. Justice Blackmun?s question is that on these particular facts the Board might have been subject to a 1983 action given the fact that this agenda had then set aside for public description.

Mr. Gerald C. Kops: Yes, not just this agenda though, each and every Board meeting.

This was part of its regular meetings.

Unknown Speaker: Monthly meeting?

Mr. Gerald C. Kops: They were twice monthly.

Unknown Speaker: Twice monthly.

Unknown Speaker: But would you think the Board will be subject to a 1983 to a claim of constitutional deprivation, if it said we?re simply not going to have this as a part of a meeting in the future?

Mr. Gerald C. Kops: No.

But let me suggest in response to that, sir.

In those circumstances, it would be something similar to this.

The example of somebody shouting fire in a theatre, and then passing a restriction, closing the theatre instead of punishing the conduct.

In other words, I am suggesting that if the public forum is going to be closed, it must be closed to everybody and the Wisconsin Supreme Court has not said that.

It is only close to a particular group based on content of what they might say.

Unknown Speaker: Well, yeah, the School Board has two meetings, one is public, one is private?

Mr. Gerald C. Kops: No.

Unknown Speaker: Well, in this case, they had a public meeting and they heard both sides on this question involving employment conditions.

Mr. Gerald C. Kops: That is correct.

Unknown Speaker: They may hold the private meeting in which everybody was barred.

Mr. Gerald C. Kops: A private meeting at which nobody was barred.

Unknown Speaker: I said everybody was barred.

Mr. Gerald C. Kops: At part of the executive session the following day, they held a negotiation session, representatives of the teachers and the Board.

Unknown Speaker: I thought you said that they left, they went into executive session the same night, laid down the ground rules where they barred from that meeting, did not they?

Mr. Gerald C. Kops: That is correct.

They barred everybody from that meeting.

Unknown Speaker: So they?re going to bar and permit other one.

Mr. Gerald C. Kops: Well, I am not saying that they could not have, sir.

Unknown Speaker: You mean to say that the open meeting was the negotiating meeting?

Mr. Gerald C. Kops: The open meeting was not a negotiation session.

Unknown Speaker: Why did they hear from both sides?

Mr. Gerald C. Kops: Your Honor, they heard from a number of people.

They heard from about six or seven people that evening; talk to them on public affairs.

This wasn?t just a matter of open meeting for the purpose of?

Unknown Speaker: Was this meeting called in part for negotiation?

Mr. Gerald C. Kops: Absolutely not, sir.

It was a regular...

Unknown Speaker: What did happened that the President of Union was there?

Mr. Gerald C. Kops: The President of the Union was there because of the exigencies in the current bargaining situation.

There were about 300 or 400 other teachers in the meeting too.

Unknown Speaker: So they made the negotiation of bargaining.

Mr. Gerald C. Kops: No, they were not there to bargain.

Unknown Speaker: Well, what about the interested in bargaining?

You just said there was a bargaining atmosphere, weren?t that your words.

Mr. Gerald C. Kops: No, I didn?t say there was a bargaining atmosphere at that meeting.

Unknown Speaker: Then bargaining what?

Mr. Gerald C. Kops: The teachers and the Board have been negotiating since about January of 1971.

This was December and a contract had not been reached.

In passing these private bargaining sessions had occurred.

These private bargaining sessions, where the Boards sits down with the teachers? representatives, was not this particular meeting.

This particular meeting was a regular Board meeting and in each meeting, whether it was in 1970 or 1971, there was a part of the meeting set aside for public appearances.

Unknown Speaker: Was it barred at the meeting and any other public meeting was the contract discussed?

Mr. Gerald C. Kops: I do not recall if prior to that year anybody discussed this.

Unknown Speaker: The interesting thing to me is that you say this is not negotiating, but you admit that right immediately after the public meeting, there was an executive meeting, followed the next day by a negotiating meeting.

Mr. Gerald C. Kops: That is correct.

Unknown Speaker: The public meeting had no connection with it at all.

Mr. Gerald C. Kops: No, it didn?t, in fact, the bargaining session with the teachers was scheduled before the public meeting.

It was a regularly scheduled bargaining session that was to occur the following day with the representatives of the teachers.

I think the public meeting and the executive session and then immediately following a private negotiation session with the exclusive representative, indicates the difference between the forms we had.

In the public meeting, everybody was allowed to speak, and the Board was allowed to listen and did, in fact, in this case, merely listen.

The following day of the negotiation session, the Board did not allow Mr. Holmquist there.

The teachers were there with Board representatives and were dealing with the matter where we?re trying to get to an agreement on a collective bargaining contract.

So, there was a difference in the forms.

What the Supreme Court has said is that in a public regular meeting, a Board of Education may only selectively listen to certain people solely based on content, not even based on their reaction because they had no reaction, whatsoever, during the public appearance portion that Mr. Holmquist talked.

Unknown Speaker: The Counsel, don?t you concede that if the talk constitutes bargaining or negotiation that it may be prohibited?

Mr. Gerald C. Kops: Yes, I do.

Unknown Speaker: And wouldn?t that be a prohibition based on the content and what you said?

Mr. Gerald C. Kops: Yes, but not a unilateral discussion is the chairman?

Unknown Speaker: But if it were, you would then agree that some regulation of speech based on its content is permissible?

Mr. Gerald C. Kops: That is correct.

Regulation in a negotiating setting, but what occurred here and what?s extremely important is that an individual provided information to a public decision, public body, and simply by listening, he has been found to have negotiated with that individual, doing nothing more. I think since the Wisconsin...

Unknown Speaker: Mr. Kops, could Mr. Holmquist have done the same thing by letter to the Board?

Mr. Gerald C. Kops: Absolutely, that was one of the strange things about the memorandum that a company, the Wisconsin Employment Relations Commission decision suggested in that once the Board found out that Mr. Holmquist was going to talk on a matter subject to collective bargaining, it required him to submit that matter to them in writing.

Now, it seems to me that if you receive information in writing or if you receive it face-to-face, if you take no other action, all you are doing is receiving information and listening, not engaging in a prohibited bargaining conduct.

Justice Thurgood Marshall: Does the Labor Board of Wisconsin prevent you from reading it, from reading, from a minority group of the union?

Mr. Gerald C. Kops: No, that is one of the strange things.

They do not prevent us from receiving it.

Justice Thurgood Marshall: I do not say do not, I say could not, couldn?t they.

Mr. Gerald C. Kops: I do not see how they could practically do it, sir.

Justice Thurgood Marshall: You do not see how the State could stop you from listening the two sides in the labor union dispute when you have one union recognized?

Mr. Gerald C. Kops: Well, this is not really a labor union dispute.

I think that Mr. Holmquist could have printed exactly what he said in the newspaper and for the Board to have read that.

Justice Thurgood Marshall: Well, I thought you said we were not discussing his right; we were discussing your right.

Mr. Gerald C. Kops: No, we are discussing his right and our ability to raise that right.

Mr. Holmquist?s right of free speeches...

Justice Thurgood Marshall: I have never understood how an employer can raise the right of an employee.

You are talking about employee and employer.

Mr. Gerald C. Kops: Yes I am, and the rights of the employee are completely intertwined with the obligations of the employer at the public meeting because it is a public party.

Justice Thurgood Marshall: I should think that the rights of a minority union would be possibly be tied in with the employer, but not the union itself.

Mr. Gerald C. Kops: Perhaps, I didn?t understand your question, Justice Marshall.

Justice Thurgood Marshall: Well, I am worried about an employer being interested in where the minority position is in a negotiation with a union.

Mr. Gerald C. Kops: A public employer, as a public body, would be always interested in anything that would have any information that would help him develop his position as a public body in negotiations with the exclusive representative of its employees.

Here, he merely received information and that is all.

Private sector labor relations, in the case, that an employer may receive information from its employees without violating the Labor Relations Acts.

In fact, the statutes of Wisconsin and the United States regarding labor relations specifically allow employees to present grievances to their employer and preserve that right.

That kind of communication preserved by statute certainly cannot be forbidden from a public employer to receive at a public meeting during a portion of meeting devoted to public hearing.

Unknown Speaker: But it?s been denied by the State listening?

Mr. Gerald C. Kops: Well, the State law, has interpreted and apply, once they follow the First Amendment of this constitution, and I think of the United States constitution.

Unknown Speaker: If I understand the dissenting opinion under Wisconsin Supreme Court correctly, it may entrust as that the action of the majority and the action of the law of Wisconsin denies the right of the School Board to hear all points of view if that is the thrust of the First Amendment plan.

Mr. Gerald C. Kops: Yes, that is one of the arguments we put forward, Your Honor.

Unknown Speaker: But you?re also relying on your ability to assert the third party claim of Mr. Holmquist as I take it.

Mr. Gerald C. Kops: That is correct.

Unknown Speaker: He was not named as a Respondent in the employment commission proceedings.

Mr. Gerald C. Kops: He was not named as a Respondent.

Unknown Speaker: So, if anybody was to raise his right in this proceeding I take would have to be your client.

Mr. Gerald C. Kops: Absolutely.

Unknown Speaker: So far as this question goes, your case is quite like Kleindienst v. Mandel, you remember that case?

Mr. Gerald C. Kops: No, I don?t.

I believe that this case is probably better in line with this Court?s decision in Mosley and Grannett(ph) and.

Unknown Speaker: Well, that?s so far as the substantive constitutional issue.

Mr. Gerald C. Kops: Yes.

Because it was my feeling that the Wisconsin Supreme Court decision in this case was wrapped up in speech, in the speech of an employee at a public hearing of a pubic body.

I felt it would be essential to tell us or read to the Court exactly what the employee said.

It only took about two-and-a-half minute.

I do not think it is important now, but a review of those remarks I submit, indicates that Mr. Holmquist when he spoke to the Board was speaking as a citizen and in a citizenship capacity as opposed to an employee?s capacity.

He was providing information to both parties regarding the negotiation process suggesting that there was an impasse that had occurred and a way to provide a catalyst to get over that particular impasse.

The peculiar and obnoxious part of the definition that the Wisconsin Supreme Court applies to negotiation is the premise that you negotiate with somebody when you listen to somebody.

This definition we submit in our brief has been rejected as a proper definition in private sector labor relations, and we have cited a number of cases where the private employers have indeed listened or received petitions from their employees.

It is also contrary to the statutory rights in both Wisconsin and the Federal Labor Statutes, which preserve the right of employers to present grievances.

Finally, the cases cited by the Appellee, Meadow and the Wisconsin Supreme Court, Meadow and Emporium, these cases suggest that the character of the underlying conduct in order to find negotiation is more than merely listening.

The definition, as I suggested of negotiation, as meaning merely listening is particularly obnoxious in the public sector because what it does is, it forecloses in this case a public hearing to a particular individual simply on the basis of the content of the speech he wishes to make, nothing more, just the speech.

This undercuts the core value of the First Amendment to free interchange, unfettered interchange of ideas, ideas only.

If indeed, the Wisconsin Supreme Court was to appropriately define negotiation, we wouldn?t run into this constitutional collision that we have in this case.

I think this Court has been emphatic in relationship to the kinds of rights that individuals have in public forum.

This was a classic public forum, a School Board meeting, an open public hearing at a School Board meeting.

In this classic public forum, certainly, speech should not be selectively on a basis of content and the status, supposed status of an individual be abridged.

We submit that, in conclusion, that the definition of negotiation adopted by the Wisconsin Supreme Court must be rejected as inherently unconstitutional, since it does indeed undercut our commitment to free and open debate on public questions, since it rejects this Court?s holding that teachers have certain constitutional rights and public employers must be responsive to these rights.

Finally, because it prohibits expression in a public forum in the absence of a substantive much less a weighty reason as required in public forum matters.

Unknown Speaker: That we should hold Mr. Kops that you have not standing, the Board has no standing to assert the rights of Holmquist.

It would then fall back to you on the First Amendment right of the members of the School Board herein anyone, they want to hear?

Mr. Gerald C. Kops: Yes, Your Honor, and as much as, as public officials, they are charged and have obligated themselves taking an oath, both to respect and obligate themselves to implementing the rights of the First Amendment.

I would like to reserve the rest of my time.

Chief Justice Warren E. Burger: Mr. Kelly.

Argument of Robert C. Kelly

Mr. Robert C. Kelly: Mr. Chief Justice, may it please the Court.

This case involves the concept of exclusivity in the public sector of our economy.

That concept plies at the core of labor relations in the private sector of the economy and that concept simply stated is the right of the majority of the employees in appropriate bargaining unit to select an exclusive representative to deal with their employer as concerns matters of wages and hours and working conditions, not only for the majority, but for the entire collective bargaining unit.

Unknown Speaker: Suppose Holmquist had not been a teacher, just another taxpayer, steamfitter or a carpenter or whatever and he had walked into the meeting having heard that there was a meeting, and said all of the same things that Holmquist said.

Do you think the State of Wisconsin can forbid the Board of Education to hear him?

Mr. Robert C. Kelly: No sir, I don?t.

Let me say that was not the circumstance here.

By a long shot, Mr. Holmquist appeared and announced in specific words when he did appear that he did not appear as a citizen, indeed, that he did not appear as a private employee or an employee of the Board, but that he employed as a representative of an informal committee of 72 teachers in 49 schools.

In group of teacher, sir, he had organized into an informal minority called ecology.

He appeared as the representative and agent of a dissident minority union.

Unknown Speaker: Would there be a constitutional difference between minority of 1972 and the minority of 1971, is that your point?

Mr. Robert C. Kelly: Yes sir.

Well, if he as the dissident employee speaking as a dissident employee or a citizen, sir, I assume this case would not be here.

The fact is that if we approach this from the totality of Mr. Holmquist conduct, he, for one month ahead of this particular school boarding, the School Board meeting organized a minority?

Unknown Speaker: Well just so you understand, it is critical to your position that he was speaking for persons other than himself.

You would concede that if he was speaking just for himself that he had a constitutional right to do what he did.

Mr. Robert C. Kelly: That is right, sir.

Unknown Speaker: You also agree that the Board is a proper party to raise Holmquist?s constitutional right?

Mr. Robert C. Kelly: They major that sir, we raised the question of the Board standing in their application to this Court for jurisdiction and when this Court took jurisdiction; frankly, we didn?t proceed with that any further.

Unknown Speaker: Sure, because session we have to even if you win, we have to limit the order, don?t we?

Mr. Robert C. Kelly: Yes sir.

Let me again speak to that.

Unknown Speaker: That order, to me, is unbelievable.

Mr. Robert C. Kelly: That is right, sir.

Let me say that our complaint before the Wisconsin Employment Relations Commission appears in the record, and the relief we sought in that complaint was as follows, ?That an order to issue requiring a Respondent?s decision desist from negotiating now and in the future, request concerns questions of wages, hours and conditions of employment with individual employees or groups of employees.

It is our contention, sir, if this Court finds that Holmquist and the Board were negotiating in a prohibited sense that the case should be remanded for a proper order based on negotiating.?

Unknown Speaker: I have a great difficulty in finding negotiation and on one side of statement of two-and-a-half minutes.

Mr. Robert C. Kelly: I assert.

Let me say what happened here.

Unknown Speaker: Do you see the problem?

Mr. Robert C. Kelly: Yes sir.

What happened here was the legislature of Wisconsin saw fit in November, sir, to permit a fair share amendment or a fair share proposal in Collective Bargaining Agreement.

So at that time Madison teachers submitted its third proposal at collective bargaining and it have been 11 long months of collective bargaining, sir.

At that same time was the time when Mr. Holmquist organized his campaign to despoil or mar the collective bargaining position of the majority that was to incorporate a Collective Bargaining Agreement.

He prepared some letters and circulated those letters to all of the teachers in Madison Public Schools.

He prepared anti-fair share and anti-union literature.

He requested from the school district the permission to circulate that material to the bargain union teachers through the school mail, even though the Collective Bargaining Agreement then in existence between the Board and the schools prohibited that.

He asked for and received permission to circulate his anti-fair share material in the schools without regard to working or non-working areas.

He furnished the administration or the principals of those buildings copies of his material.

They were aware of the material that he had.

As a matter of fact, the officers of the union spoke to the assistant superintendent of schools and asked that they not cooperate in the fair share amendment.

Unknown Speaker: They bring me to the point that what in his two-and-a-half minutes different from what he had been saying all along?

Mr. Robert C. Kelly: Well, his position was that he wanted fair share deferred for another year and that is what he asked the Board to do and that is what they did, sir.

They went from immediately from?

Unknown Speaker: My point is, hadn?t the Board been told that was his position?

Didn?t they read this material?

Mr. Robert C. Kelly: No, he stated it to them, sir.

In a very charged atmosphere?

Unknown Speaker: I can say, I have cover all of this time he said he wanted to circulate it now?

Mr. Robert C. Kelly: Well, he circulated.

I do not know were they read, who read or what I know that it was given to principals, sir.

For a month, during this month period going up, I know that?

Unknown Speaker: Well you couldn?t stop that, could you?

Mr. Robert C. Kelly: No.

Unknown Speaker: All you want to do is stop this two-and-a-half minute talk.

Mr. Robert C. Kelly: Well, we asked that he not be permitted to use the school mails, which would had been done explicitly to the majority union.

Unknown Speaker: That was in this case?

Mr. Robert C. Kelly: Yes sir.

Unknown Speaker: You may relief on that and you didn?t appeal.

Mr. Robert C. Kelly: No, we didn?t ask for it.

That was part of the totality of conduct that the Board looked at.

Unknown Speaker: I still have example with this two-and-a-half minute being negotiating.

Mr. Robert C. Kelly: Well, I think sir that listening negotiations is I suppose synonymous?

Unknown Speaker: Well, do you say the school Board can?t listen to him?

Mr. Robert C. Kelly: Well, not to the extent that they allow themselves to be influenced to change their bargaining position, sir.

Unknown Speaker: What if the stranger has made the same remarks that Holmquist did it, see on Madison taxpayer, so I just do not believe in this fair share proposition.

Now, you concede the Board could have changed its posture and reliance on that service.

Mr. Robert C. Kelly: Yes, sir and I doubt they would, sir.

I doubt -- what happened here was we had a?

Unknown Speaker: Justice Rehnquist says could this taxpayer as I tried to get you discussed before, just any other person come in and say these things and could any law of Wisconsin stop that utterances, stop the right of the Board to listen to it?

Mr. Robert C. Kelly: No, sir.

They could not.

If the Board heard that at a public meeting and they?re interested in that, they can hear.

Unknown Speaker: What is the Board complaining about?

Are they not complaining that they have been forbidden to hear?

Mr. Robert C. Kelly: No.

We take the position sir that they did more than hear that they negotiated.

Unknown Speaker: Mr. Kelly, doesn?t that paragraph one of the order prohibit more than negotiation?

The order of the commission does sir and that is unfortunate in our complaint we requested.

Unknown Speaker: Do you concede it?s too broad to be constitutional?

Mr. Robert C. Kelly: Yes sir, I do and that is why we ask that and I am asking now that if this Court finds that there was indeed negotiating and that Holmquist?s conduct therefore it was negotiating and it was not entitled to the full First Amendment protection that the remedy be to remand the case with the instructions to enter an order to assist in, for example, with what we asked for in our complaint that the Board not negotiate with the minority, sir.

Unknown Speaker: But, in your brief, you?ve asked that the judgment of the Wisconsin Supreme Court be affirmed?

You?re retracting from that.

Mr. Robert C. Kelly: Yes sir.

To that extent if the Court would find that there was indeed bargaining then that be the remedy, sir.

Unknown Speaker: Well, does your position now mean that terms such as ?bargaining clause? and ?negotiation clause? become issues of Federal Constitutional Law that this Court must find that either there was or was not bargaining?

Mr. Robert C. Kelly: Yes sir, it is my understanding of the exclusivity doctrine limits speech in the least in the negotiating and bargaining areas, I understand it, sir.

Unknown Speaker: Well, Mr. Kelly, may be I don?t correctly understand what your Supreme Court held, what as I read, the opinion of the majority.

The majority found that there was indeed an invasion of First Amendment rights here.

They found it was but they said that this order was justified -- perhaps it is over broad issue now you can see, on the ground that under the ?clear and present danger test?, there was involved a State interest namely that bargaining should be limited to the majority representative, and that to that extent this order was justified to prevent that invasion of a State interest.

Mr. Robert C. Kelly: That is right sir.

Unknown Speaker: Was that it?

Mr. Robert C. Kelly: Yes sir.

Unknown Speaker: Finally ?clear and present danger test.?

Mr. Robert C. Kelly: Yes sir, the Dennis v. United States test.

Unknown Speaker: In ordinary taxpayer and walked in there and said I don?t like, as Mr. Justice Rehnquist was suggesting to you, I don?t like these kinds of contracts and I am speaking for myself and 142 or 232 other citizens who signed this petition and we?re just telling you, the Board, you shouldn?t make this kind of a contract.

Do you regard that as negotiating?

Mr. Robert C. Kelly: No sir.

I do regard this negotiating sir when a minority is organized just as any minority union would be, but the purpose of upsetting or disturbing the majority?s position, which they successfully did here, as I have said or would say.

What happened here was that Mr. Holmquist asked.

Let me say this that after 11 months of negotiating here, sir, there were 13 issues left unresolved, there were just 11 hard months of negotiating.

One of the issues was a major issue was fair share and the second major issue was the binding arbitration of teacher dismissals and non-renewals.

They were both key issues and the Board had been firm on both of those for 11 months.

The Board, at one time, had unofficially indicated that they would consider granting ?fair share? but that they would in no way grant binding arbitration.

Mr. Holmquist specifically asked in his remarks that the ?fair share? be deferred for a year.

Immediately after hearing him in public session and asking to receive his petitions, the Board went into executive session and in that executive session, they discussed ongoing negotiations with the Madison teachers that which have been going on for 11 months and during that discussion, they passed a resolution and that resolution was that we will now grant, for the first time, binding arbitration but we will not grant ?fair share?.

It?s our position that listening in that extent, allowing themselves to be influenced by the minority those people interested in wages, hours and conditions in that school district was indeed bargaining.

Unknown Speaker: What if the Wisconsin legislature, instead of passing a little NLRB in effect for public workers, have passed a law saying that we think stability in labor relations in public sector will best be produced by having absolutely no unions and no school board is free to even discuss the matter of a union with any of its employees and Mr. Holmquist or his counterpart had gotten up at a meeting like this and said, I think we ought to have a union in this school and then the action was taken against him for making this sort of a speech.

Do you think the Supreme Court of Wisconsin would be upheld here if it said that through there was an infringement on his First Amendment right, but the public policy of the State is that there aren?t going to be any unions.

His speech had a tendency to -- it was an imminent danger of producing a countervalence of that policy and therefore will sanction his punishment.

Mr. Robert C. Kelly: No sir.

I guess what I see in this case and have seen sir is?

Unknown Speaker: Actually, the issue before us is whether this was a proper case for the application of the ?clear and present danger test?.

Mr. Robert C. Kelly: That?s right, sir.

Unknown Speaker: That?s already.

Mr. Robert C. Kelly: That is right sir.

Unknown Speaker: Was not that the issue that would be presented by the hypothetical, my brother Rehnquist has just posed you.

Mr. Robert C. Kelly: Not as I understood him but it may be I did not understand.

Unknown Speaker: Well, I had intended the way Mr. Justice Brennan understood it.

Supposing the ?clear and present danger? to stability of labor relation and Mr. Holmquist?s remarks arose not from the fact that he was negating the idea of only majority representative bargaining, but that was coming as a different point of view.

He was urging unions where the State has said there will be no unions.

Do you think that kind of a decision suppressing him for that reason could be upheld?

In the balance, I don?t think that that would be a violation of the ?clear and present danger test?.

In other words, what I am saying is sir that exclusivity has recognized the right in the majority and the reason that it?s permitted an invasion of free speech at all is to prevent the dangers of relevant chaos in labor relations and it?s my feeling and it?s our position that when there is a majority union present -- and in this kind of circumstances, a minority union or a minority group is allowed to organize and to work against its position and to undermine its position that would lead to chaos in the labor relations sectors.

Unknown Speaker: Suppose that Mr. Holmquist rather than appearing before the Board had published an advertisement in the morning paper, the same day of the Board meeting.

The advertisement being specifically addressed to the Board and consisting precisely what was said in the two-and-a-half minute statement to the Board?

Could your commission have moved against Mr. Holmquist or it have a joined Phil advertising or would this be analogous to the State before the Board itself?

Mr. Robert C. Kelly: No sir, there again, I think it is in the balance.

The fact is that...

Unknown Speaker: No sir, what?

Mr. Robert C. Kelly: No sir, they could not move against Mr. Holmquist.

Unknown Speaker: Otherwise, he could advertise all they wanted.

Mr. Robert C. Kelly: Yes sir.

Unknown Speaker: Even on behalf of a group or minorities.

Mr. Robert C. Kelly: That is correct, sir.

Unknown Speaker: Mr. Kelly, I have some difficulty understanding what you?re saying when we talked about ?clear and present danger?.

Speech may be prohibited if there?s a ?clear and present danger? of what and is it the ?clear and present danger? that the Board might not accept the union?s demand or the ?clear and present danger? that the union may no longer be in a position to speak for the majority.

Mr. Robert C. Kelly: That is one, sir.

The other thing I can see, for instance...

Unknown Speaker: Well, which is it here and I don?t see a lot of examples.

What is your position here?

Mr. Robert C. Kelly: The (Inaudible) speech has justified because there was a ?clear and present danger? of something.

Unknown Speaker: Of chaos in labor relations in Madison Wisconsin because in the collective bargaining process, the majority union was not going to obtain a Collective Bargaining Agreement.

Unknown Speaker: By chaos, you mean that the Board will not accept the union?s demands.

So any time that speech might persuade the Board to not to accept a demand that, that could be prohibited?

Mr. Robert C. Kelly: Well, sir, I think, not from the citizenry but probably from a dissident union group, yes sir.

Unknown Speaker: What difference will make the dissident union if any individual creates a ?clear and present danger? of the evil that you describe like anti-speech be prohibited.

Mr. Robert C. Kelly: Well, I expect sir that in a practical sense, it?s the minority union that creates a ?clear and present danger? rather than some individual citizen.

It?s the minority union working within the majority that has the clout to do that, sir.

Unknown Speaker: By clout, now, you simply mean that they may persuade the Board not to go along with the majority?s request?

Mr. Robert C. Kelly: Whatever that clause is by undermining the relationship that that minority has with the majority and the inability to have peaceful labor relations in that community, sir.

Unknown Speaker: It Seems to me you?re saying that any argument can be prohibited if it has to be successful?

Mr. Robert C. Kelly: No sir, I am not.

Yes, I am saying that I feel that the conduct of these folks in their totality was bargaining, but that collective bargaining is restricted to the majority representative.

Unknown Speaker: That one man you see these people, you only have conduct with one man.

Mr. Robert C. Kelly: Well, he isn?t a representative of?

Unknown Speaker: He said he was.

No proof in his record that he represented anybody.

Mr. Robert C. Kelly: Well, he proposed to file a petition and now he had 417 signatures on that.

Unknown Speaker: That is just too many.

Unknown Speaker: But as a matter of law, he could not speak for these people if there was another (Inaudible) representative, isn?t that perfectly clear?

He could not bind anyone in the union.

Mr. Robert C. Kelly: No sir, he couldn?t bind them, but he could spoil a union?s position, anymore than in the private sector have an already union working with the employer can undermine and upset the union?s collective bargaining position.

Unknown Speaker: But he can do anything except speaking at the Board meeting.

Mr. Robert C. Kelly: No sir, I think he can do anything but collectively bargain in the labor relation sense for that Board.

Unknown Speaker: It was sanctioned around and against the employer though did not it, not against him and there is always hypothetical question about what could you do to Mr. Holmquist...

Mr. Robert C. Kelly: Our position was sir that the Board in listening to him and pitting and beating was collective bargaining with the minority, yes sir.

Unknown Speaker: If you want to redraw the Board?s role, how would you redraw it?

Mr. Robert C. Kelly: Pretty much in the terms that we originally asked for that the Board cease negotiating with the minority union, sir.

Unknown Speaker: I have great difficulty in finding that they negotiate it.

Well, let me put it this way, I am not saying -- I have learned long ago, not to say it never happened.

Well, I have never heard of a negotiating session of two-and-a-half minutes.

Mr. Robert C. Kelly: No sir.

Unknown Speaker: (Inaudible) how to do.

Mr. Robert C. Kelly: Negotiating.

Unknown Speaker: Well, that?s what you call negotiating?

Mr. Robert C. Kelly: No sir, I am calling the totality of the conduct, negotiating.

I think negotiating is a very sophisticated and very subtle process that is influenced by many things - by what people see, by what they hear, as well as, by what they say, indeed by body language.

I take the position that negotiating can take place not only at the collective bargaining table, but that it can take place in the hall or on the street, wherever people see each other and particularly in negotiations, as I know them, in Madison Wisconsin to take a year to achieve a Collective Bargaining Agreement, sir.

Unknown Speaker: Well, then you say the School Board can negotiate every place except the public meeting.

That is I get all confused.

Mr. Robert C. Kelly: No sir, I say they can negotiate with the minority union at any place or time.

Unknown Speaker: Well, they can read the newspaper.

Mr. Robert C. Kelly: Well, I do not think putting that in newspaper is negotiating, sir.

Unknown Speaker: What is negotiating, that is what I am trying to say.

I got two-and-a-half minutes.

Now what are they negotiating that the School Board do with this man, the School Board do with this man.

Mr. Robert C. Kelly: The School Board, through its agents, aided and abetted him to pass his material around to the bargaining unit teachers through the teacher mailboxes.

Unknown Speaker: That could have been stopped.

But did anybody ask, would that be stopped?

Mr. Robert C. Kelly: Yes sir, they went to spoke to the Mr. Matthews.

Unknown Speaker: Well, did anybody take any proceeding in anybody did not?

Mr. Robert C. Kelly: No sir, they did not.

Unknown Speaker: The only proceeding was to stop him for making his two-and-a-half minute speech and that I submit is all that is before us.

Do you agree?

Mr. Robert C. Kelly: No sir. I feel -- what?s before you is whether that?s conduct of the parties, the Board in its totality, was collective bargaining.

If it was then we?re entitled to have it limited to the majority representative.

If it was not sir then it was First Amendment area and could not be an order prohibiting him.

Chief Justice Warren E. Burger: Mr. Kops, you have four minutes left.

Rebuttal of Gerald C. Kops

Mr. Gerald C. Kops: Mr. Chief Justice, I just have about three points.

One, I believe Mr. Justice Marshall is correct.

The totality of the conduct is not before this Court.

What is before this Court is the Wisconsin Supreme Court?s definition of ?negotiation?.

That definition of negotiation creates an unconstitutional intrusion in our view for the First Amendment rights.

Mr. Kelly, and in that sense, a mere remand of the order without instructions that such a definition creates that constitutional intrusion would be unfortunate in the appellant?s view.

Mr. Kelly apparently has retreated from the position of the order ought to be affirmed.

Let me suggest that the totality of the bargaining conduct, the totality of the conduct that Mr. Kelly suggest is bargaining, cannot be sustained.

What occurred was a circulation of a petition in non-working areas, on non-working times in the school; this was found by just stayed in the opinion.

We take a look at your decision in the NLRB v. Magnavox.

This Court has recognized that communication between employees at the workplace, in non-working areas and non-working times, is something that is permissible under federal labor statutes. That communication is important in order to prevent entrenchment of the majority representative.

So, that aspect of the totality of the conduct is inappropriate for consideration here.

Unknown Speaker: Well, but the fact that?s permissible under federal labor statutes doesn?t mean that the State of Wisconsin has to allow it under State labor statutes.

Mr. Gerald C. Kops: That is correct but to suggest that to allow it was before the Court or that issue was before the Court is not correct.

The only issue before the Wisconsin Supreme Court was the issue of negotiation.

The other way supposedly that the Board aided and abetted Mr. Holmquist was to allow the use of mailboxes.

I suggest..

Unknown Speaker: Mr. Kops, may I ask you another question even if you are wrong about whether this was bargaining or not and another way you can conclude it by that holding of your Supreme Court, does this constitute bargaining?

Doesn?t there?s dual question here whether the First Amendment would permit that kind of prohibition at a public meeting?

Mr. Gerald C. Kops: Yes and I think we...

Unknown Speaker: Are you arguing that too?

Mr. Gerald C. Kops: Yes, we are arguing that and I didn?t get a chance to devote any time in the oral argument but I believe we adequately cover it also in our brief, we are attempted.

One final word, Mr. Kelly and myself have been accorded by this Court an opportunity for now almost an hour to engage in colloquy and question and answers and I don?t believe there is any member of this Court or in the courtroom, who would believe that what Mr. Kelly and I were doing was negotiating with this Court with regard to the order or its decision.

That is essentially what Mr. Holmquist did, he talked to the Board of Education and nothing more.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.