The petitioners in this original proceeding in mandamus are fourteen former employees of Cabell Huntington Hospital, and their union district president, Tom Woodruff. The respondents are the Board of Trustees of Cabell Huntington Hospital; its acting president, Stephen E. Shride; and its vice-president, Walter M. Jacob.
The petitioner employees seek reinstatement after they were discharged for distributing leaflets on and near the hospital premises. This request for extraordinary relief is based upon the petitioner employees' contention that their activities were protected exercises of free speech rights guaranteed under the state and federal constitutions.
On April 16, 1984, the respondent Board of Trustees announced its decision to eliminate forty-three positions at the hospital. The union representing a substantial number of the employees at the hospital, including thirty-nine of those whose positions were to be eliminated, publicly disputed the necessity of the proposed job eliminations. The union, and its members, utilized various public forums for the expression of their views on this issue. The respondents state that any retaliatory action taken against the petitioners was not in response to these activities. On May 9-13, 1984, however, the petitioners participated in the group distribution of leaflets on and near the hospital premises. The respondents state that the petitioners were discharged for participating in this group distribution. Although the respondents complain that negative comments concerning hospital management were made by those participating in this group distribution of leaflets; that some nonunion personnel felt inconvenienced by the petitioners' activity; and that there was some littering in connection with the distribution of leaflets, there is no indication that this distribution was anything but peaceful.
Nevertheless, on May 11, 1984, respondent Jacob issued a memorandum to the union which characterized the group distribution of leaflets on and near the hospital premises as a violation of a collective bargaining agreement provision which prohibited "picketing or patrolling." On May 12, 1984, nine hospital employees, with a total of eighty-four years' experience at the hospital, were terminated for the distribution of leaflets. On May 14, 1984, five other hospital employees, with a total of forty-six
On May 14, 1984, the eight hospital employees initially discharged, along with the president of their union district, filed a petition for a writ of mandamus against the respondents. A rule to show cause was issued by this Court against the respondents on May 15, 1984, made returnable on May 22, 1984. On May 17, 1984, a supplement to the petitioners' request for a writ of mandamus was filed, requesting the addition of the five employees discharged on May 14, 1984. On May 30, 1984, this Court entered an order which reinstated these fourteen hospital employees with back pay, noting that a more comprehensive opinion supporting our order would follow. The primary issue presented in this action is whether the disciplinary actions taken by the hospital in response to the group distribution of leaflets by the fourteen hospital employees violated their free speech rights under the federal and state constitutions.
A threshold issue we must first address prior to our discussion of the free speech issue, however, is whether extraordinary relief is appropriate in this case.
The first two elements of this formula require an inquiry into the respective legal rights and duties of the parties, and therefore will be addressed in our discussion of the free speech issue. As to the third element, the respondents strongly suggest that a grievance and arbitration clause in the collective bargaining agreement does provide the sole and exclusive remedy for the petitioners to challenge their terminations. Although it is true that article XXIV of the collective bargaining agreement
We recognize, as we have in the past, that "While it is true that mandamus is not available where another specific and adequate remedy exists, if such other remedy is not equally as beneficial, convenient, and effective, mandamus will lie." Syl. pt. 4, Cooper v. Gwinn, W.Va., 298 S.E.2d 781 (1981); United Mine Workers of America v. Miller, W.Va., 291 S.E.2d 673, 677 (1982). Because of the importance of the constitutional issues raised in this case, and because it is apparent that the respondents have continued to take retaliatory action against the continued distribution of leaflets, the grievance and arbitration procedure under the collective bargaining agreement
The Cabell Huntington Hospital is a public institution, created by an act of the Legislature in 1945. See 1945 W.Va. Acts ch. 157, as amended, 1947 W.Va. Acts ch. 166. Its construction was financed through bonds approved by the voters of Cabell County and the city of Huntington. See 1953 W.Va. Acts ch. 183. Its administration and management is vested by statute in a board of trustees appointed by the county commission. West Virginia Code § 7-3-15 (1984 Replacement Vol.). Additionally, the Legislature provided in 1953 that "the title to all property constituting or belonging to the hospital shall be vested jointly in the county court and the city of Huntington." 1953 W.Va. Acts ch. 183. Finally, in 1980, the Legislature authorized the issuance of revenue bonds to finance the construction and purchase of "additions, betterments, enlargements, extensions and improvements to and equipment and furnishing for" the hospital. 1980 W.Va. Acts ch. 131. As a public institution, it is subject to the limitations imposed by free speech rights guaranteed its employees under the federal and state constitutions.
Article XXV, § 1 of the collective bargaining agreement between the union and the hospital provides, in pertinent part, that:
Section 4 of article XXV further provides that "The Hospital shall have the right to... discharge any employee who violates Section 1 of this Article." The termination actions taken by the hospital were made pursuant to these two contract provisions.
The United States Supreme Court has long held that public employees may not "be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public [institutions] in which they work." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968). See also Connick v. Myers, 461 U.S. 138, ___, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708, 716 (1983); Branti v. Finkel, 445 U.S. 507, 515-16, 100 S.Ct. 1287, 1293, 63 L.Ed.2d 574, 582-83 (1980); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570, 577 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S.Ct. 675, 684-85, 17 L.Ed.2d 629 (1967). Similarly, in Gooden v. Board of Appeals of the West Virginia Department of Public Safety, 160 W.Va. 318, 324, 234 S.E.2d 893, 897 (1977), this Court stated that:
Unquestionably, the distribution of leaflets is an activity protected under constitutional free speech guarantees. In Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 83 L.Ed. 949, 954 (1938), Chief Justice Hughes, writing for a unanimous Court, observed, "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history attest." Since Lovell, the United States Supreme Court has continued its staunch protection of the right of citizens to distribute leaflets and other printed matter. See United
Similarly, the group distribution of leaflets is an activity protected under constitutional free speech guarantees. Article III, § 16 of the West Virginia Constitution provides that "The right of people to assemble in a peaceable manner, to consult for the common good, to instruct their representatives, or to apply for redress of grievances, shall be held inviolate." The protections inherent and explicit in this state constitutional provision parallel associational, assemblage, and petition protections found under the first amendment. Under the federal constitution, the United States Supreme Court has consistently held that as long as an assemblage for expressive activity is peaceful, and no violence is advocated, it is protected under the first amendment. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915-20, 102 S.Ct. 3409, 3427-30, 73 L.Ed.2d 1215, 1237-41 (1982); Coates v. Cincinnati, 402 U.S. 611, 615-16, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214, 218 (1971); Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 1314, 25 L.Ed.2d 570, 573-74 (1970); Shuttlesworth v. Birmingham, 394 U.S. 147, 152-53, 89 S.Ct. 935, 939-40, 22 L.Ed.2d 162, 168 (1969); Gregory v. Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 947, 22 L.Ed.2d 134, 136 (1969); Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637, 645 (1966); Cox v. Louisiana, 379 U.S. 536, 551-52, 85 S.Ct. 453, 462-63, 13 L.Ed.2d 471, 482 (1965); Henry v. City of Rock Hill, 376 U.S. 776, 777-78, 84 S.Ct. 1042, 1043, 12 L.Ed.2d 79, 81 (1964); Edwards v. South Carolina, 372 U.S. 229, 235-36, 83 S.Ct. 680, 683-84, 9 L.Ed.2d 697, 702 (1963); Thomas v. Collins, 323 U.S. 516, 530-32, 65 S.Ct. 315, 327, 89 L.Ed. 430, 440 (1945); Hague v. CIO, 307 U.S. 496, 513, 59 S.Ct. 954, 963, 83 L.Ed. 1423, 1435 (1939); DeJonge v. Oregon, 299 U.S. 353, 364-65, 57 S.Ct. 255, 260, 81 L.Ed. 278, 283-84 (1937); United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, 591 (1876). Furthermore, when expressive activity is directed toward a public employer by public employees, the right to petition government for a redress of grievances is implicated. This right, as we stated in Webb v. Fury, W.Va., 282 S.E.2d 28, 34 (1981), quoting Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1342 (7th Cir.1977), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467, is "`among the most precious of the liberties of safeguarded by the Bill of Rights.' United Mine Workers of America, District 12 v. Illinois State Bar Association, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967)."
The fact that the leaflets distributed by the petitioners in this mandamus action may have touched upon issues concerning the relationship between the hospital and the union is insignificant. As the United States Supreme Court stated in United Mine Workers of America v. Illinois State Bar Association, 389 U.S. at 223, 88 S.Ct. at 356, 19 L.Ed.2d at 431 (1967), quoting Thomas v. Collins, supra, "the First Amendment does not protect speech and assembly only to the extent it can be characterized as political. `Great secular causes, with small ones, are guarded.' " Additionally, as the Court stated in Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093, 1102 (1940), "the dissemination of information concerning the facts of a labor dispute must be regarded as within the area of free discussion that is guaranteed by the Constitution." See also City of Fairmont v. Retail, Wholesale, and Department Store Union, AFL-CIO, 283 S.E.2d at 593; Syl. pt. 2, United Maintenance and Manufacturing Co. v. United Steelworkers of America, supra; Ohio Valley Advertising Corp. v. Union Local 207, Sign Painting,
Because the collective bargaining agreement in question contains a provision prohibiting picketing and patrolling by hospital union members, the issue of waiver of free speech rights is raised. First, waiver of free speech, assembly, association, and petition rights under the West Virginia Constitution will be addressed. Second, waiver of first amendment rights under the federal constitution will be examined.
Article III, § 1 of the West Virginia Constitution provides that:
These inherent rights, of which members of society may not by contract divest themselves, include the freedoms of speech and press under article III, § 7 of the West Virginia Constitution, and the rights to assemble, associate, and petition under article III, § 16 of the West Virginia Constitution. No parallel provision to this section of our state constitution appears in the United States Constitution. Therefore, with respect to the waiver of fundamental constitutional rights, our state constitution is more stringent in its limitation on waiver than is the federal constitution. We therefore hold that, under article III, §§ 1, 7, and 16 of the West Virginia Constitution, collective bargaining agreements in the public sector may not contain provisions abrogating employees' fundamental constitutional rights, including rights of expression, assembly, association, and petition. The petitioner employees' activities in the present case were unquestionably exercises of all four of these fundamental constitutional rights. We therefore conclude that the respondents' termination of the petitioner employees violated their fundamental constitutional rights under article III, §§ 1, 7, and 16 of the West Virginia Constitution.
In addition to the violation of the petitioner employees' fundamental constitutional rights under the state constitution, we also conclude that their termination violated their first amendment rights under the federal constitution. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the United States Supreme Court set forth an approach for evaluating claims of waiver of free speech rights. After noting that the right of free speech is the "`matrix, the indispensable condition, of nearly every other form of freedom,'" the Court stated,
As previously noted, the collective bargaining agreement between the hospital and the union in this case prohibited "picketing or patrolling." There is no mention in the agreement of either "leafletting" or "handbilling." In Thornhill v. Alabama, 310 U.S. at 100-01, 60 S.Ct. at 743, 84 L.Ed. at 1101, the United States Supreme Court recognized the "vague contours of the term `picket.'" We also recognize the equally vague contours of the term "patrol." The terms "picketing" and "patrolling" are not defined anywhere in the agreement, nor do the respondents indicate any authoritative definitions of these terms as used in the labor relations context.
The United States Supreme Court has recognized that the practical effects of picketing versus the practical effects of the distribution of leaflets are quite different. In Hughes v. Superior Court, 339 U.S. 460, 465, 70 S.Ct. 718, 721, 94 L.Ed. 985, 992 (1950), Justice Frankfurter, writing for a unanimous Court, stated:
Similarly, in K & K Construction Co. v. NLRB, 592 F.2d 1228, 1234 n. 6 (3d Cir.1979), in the context of a secondary activities dispute, the court noted:
Ultimately, however, the issue in the present case is not whether the activities of the petitioners which resulted in their discharge were "picketing or patrolling." The issue is whether the prohibition against this activity in the collective bargaining agreement was sufficiently specific so as to constitute a waiver of the petitioners' right to distribute leaflets. The collective bargaining agreement prohibited "picketing or patrolling," which are not defined anywhere in the agreement. The terms "leafletting" or "handbilling" do not appear
We therefore hold that, under the First Amendment to the United States Constitution and under article III, §§ 1, 7, and 16 of the West Virginia Constitution, the respondents' termination of the petitioner employees violated their fundamental constitutional free speech rights. Accordingly, we order the petitioner employees' reinstatement with back pay from the date of their individual discharges.
Furthermore, our criminal laws provide a mechanism through which relief may be obtained for specific acts of violent conduct.
As noted by this Court in United Maintenance and Manufacturing Co., Inc. v. United Steelworkers of America, 157 W.Va. at 798, 204 S.E.2d at 83: "When a dispute is subject to NLRB jurisdiction, a state is preempted from acting to enforce private or public rights." The statutory definition of "employers" covered under the federal Labor Management Relations Act (LMRA) expressly excludes "any State or political subdivision." 29 U.S.C. § 152(2) (1982). As the respondents correctly note, Cabell Huntington Hospital is a public, nonprofit governmental corporation created by and existing under the authority of the West Virginia Legislature. Furthermore, its administration and management is vested by statute in a board of trustees appointed by the county commission. See West Virginia Code § 7-3-15 (1984 Replacement Vol.). It qualifies as a political subdivision exempt from application of the LMRA and the primary jurisdiction of the National Labor Relations Board. See City of Fairmont v. Retail, Wholesale, and Department Store Union, AFL-CIO, 283 S.E.2d 589, 592 n. 3 (W.Va.1980).
Similarly, under the West Virginia Labor-Management Relations Act, the definition of the term "employer," as covered under the act, expressly excludes "the State of West Virginia or any political subdivision or agency thereof." West Virginia Code § 21-1A-2(a)(2) (1981 Replacement Vol.). Additionally, "any corporation or association operating a hospital, if no past part of the net earnings inures to the benefit of any private shareholder or individual," is expressly excluded from the statute's definition of "employer." West Virginia Code § 21-1A-2(a)(2) (1981 Replacement Vol.). Under either of these definitions, Cabell Huntington Hospital is exempt from application of the West Virginia Labor-Management Relations Act. See City of Fairmont v. Retail, Wholesale, and Department Store Union, AFL-CIO, 283 S.E.2d at 592 n. 3.
While we are bound by and in agreement with the holding of the Steelworkers Trilogy [United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)] that arbitration is to be encouraged and that "doubts should be resolved in favor of coverage" in interpreting collective bargaining agreements, nevertheless we cannot disregard another statement in one of those cases holding, "... arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." [Warrior and Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. at 1353, 4 L.Ed.2d at 1417].
441 F.2d at 653. Therefore, the court held that the second clause providing that "Nothing in this agreement shall prevent ...," was "an `escape' clause which nullifies the mandatory terms of the earlier language and makes arbitration optional." 441 F.2d at 654.
Similarly, under West Virginia law, there is no duty to arbitrate in the absence of a binding arbitration clause. In Syllabus Point 1 of Board of Education v. W. Harley Miller, Inc., 160 W.Va. 473, 236 S.E.2d 439 (1977), this Court stated:
See also Syl. pt. 1, Barber v. Union Carbide Corp., W.Va., 304 S.E.2d 353 (1983); Syl. pt. 1, Barker Mine Service, Inc. v. Nutter, W.Va., 301 S.E.2d 860 (1983); Syl. pt. 1, State ex rel. Ranger v. Lilly, W.Va., 267 S.E.2d 435 (1980). Because of the "escape" clause in the collective bargaining agreement involved in this case, the grievance and arbitration procedure contained therein is merely optional, and does not preclude judicial intervention.