                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-4171
                                     ___________

International Association of          *
Firefighters, Local No. 3808;         *
John Tvedten,                         *
                                      *
            Appellees,                * Appeal from the United States
                                      * District Court for the
      v.                              * Western District of Missouri.
                                      *
City of Kansas City, a Municipal      *
Corporation; Robert L. Collins,       *
                                      *
            Appellants.               *
                                 ___________

                                Submitted: June 12, 2000
                                    Filed: August 8, 2000
                                     ___________

Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      PANNER,1 District Judge.
                               ___________

BOWMAN, Circuit Judge.

      Local 3808 of the International Association of Firefighters and its president, John
Tvedten, (collectively "the union") brought suit against the City of Kansas City and its
city manager, Robert L. Collins, (collectively "Kansas City"). The union claims that


      1
       The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.
Kansas City has unconstitutionally infringed the union members' First Amendment
freedom of association. The union represents management-level employees of the
Kansas City Fire Department. A different Local, number 42, also affiliated with the
International Association of Firefighters, represents rank and file firefighters in Kansas
City. Kansas City, pursuant to its Ordinance No. 46749, sought to prohibit the
members of Local 3808 from organizing in a union affiliated with a national
organization that is also affiliated with Local 42.

       The District Court,2 on the union's motion for summary judgment, granted the
union's request for a declaratory judgment that Ordinance No. 46749 was
unconstitutional as applied. The District Court also entered a permanent injunction
barring continued enforcement of the ordinance "insofar as it has been applied to
prohibit supervisory employees of the Kansas City Fire Department from joining,
maintaining membership in, or engaging in the activities of IAFF Local 3808 and
insofar as it has been applied to support the refusal of the defendants to meet and
confer with members of Local 3808." Officers' Local No. 3808 v. City of Kansas City,
Mo., No. 98-0797-CV-W-BC, at 1-2 (W.D. Mo. Oct. 19, 1999).

      Kansas City appeals, and we affirm.

                                            I.

     The relevant facts are uncontroverted. Prior to 1976, all firefighters employed
by Kansas City, except the Fire Chief, were members of Local 42. Between 1966 and
1975, Local 42 engaged in several job actions, ultimately including an illegal strike in
October 1975. This strike effectively left Kansas City without fire protection. Local


      2
       The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri, presiding by consent of the parties pursuant to 28 U.S.C.
§ 636(c) (1994).
                                           -2-
42 and Kansas City settled their differences and entered into a memorandum of
understanding whereby the firefighters received additional pay, but certain supervisory-
level employees were prohibited from belonging to the same labor organization as the
employees they supervised. In July 1976, Kansas City adopted Ordinance No. 46749
to implement the agreement with Local 42.

      The relevant text of the Ordinance reads as follows:

      Any supervisor, as defined in this section, is forbidden to join or maintain
      membership or engage in activities of any labor organization which admits
      to membership, or is affiliated directly or indirectly with an organization
      which admits to membership, nonsupervisory employees who work under
      the direction of such supervisors, or otherwise are engaged in the type of
      work performed by such nonsupervisory employees.

Kansas City, Mo., Code of Ordinances § 2-1072(C).

       After the passage of the Ordinance, Local 42 and its then-president, John
Germann, brought suit against Kansas City, claiming that the Ordinance was
unconstitutional because it prohibited supervisory employees from joining the same
union as rank and file employees. The Missouri Court of Appeals held that the
Ordinance was constitutional as applied. See Germann v. City of Kansas City, 577
S.W.2d 54, 56 (Mo. Ct. App. 1978). The court reasoned that if supervisory-level
firefighters were members of the same union as the rank and file, then the supervisors
would face an "irreconcilable conflict of interest" by virtue of their competing duties
to the fire department and their union cohorts. Id.

       Shortly thereafter, the supervisory firefighters formed an organization called the
Chief Officers Association. The Association acted somewhat like a labor union, as it
attempted to protect the common interests of its members by addressing concerns to
the Fire Chief and the City Manager. Kansas City officials met with representatives of

                                           -3-
the Association to discuss such matters as pay, working conditions, and fire department
operations, but the Association was not recognized as an official "meet and confer"
representative of its members.

       Some supervisory firefighters grew dissatisfied with the Association's progress
in meeting its intended goals. In 1997, the supervisory firefighters formed a labor
organization for the purpose, among other things, of meeting and conferring with
Kansas City officials about terms and conditions of employment. The organization
applied for and obtained a temporary charter from the International Association of
Firefighters. The organization began operating under the name Officers' Local No.
3808 and ultimately received a permanent charter from the International in February
1988.

       In late 1997, Tvedten, on behalf of Local 3808, wrote to City Manager Collins
and requested that a "meet and confer" session between Local 3808 and city officials
begin in 1998, with the goal of formulating mutually agreeable terms and conditions of
employment for the members of Local 3808. Collins replied that Ordinance No. 46749
prohibited the formation of Local 3808 because it was affiliated with the same
international as Local 42, and in light of the Ordinance, "the City must decline to enter
into meet and confer sessions" with those supervisory employees of Local 3808 as long
as they supervise firefighters who are members of the same international. Letter from
Robert L. Collins, City Manager, to John Tvedten, Battalion Chief 1 (Dec. 1, 1997).

       The union filed suit, and the District Court concluded that the Ordinance was
unconstitutional as applied. After noting that the right of association includes private
and public employees' union membership, the District Court, relying on Cousins v.
Wigoda, 419 U.S. 477 (1975), and Shelton v. Tucker, 364 U.S. 479 (1960), applied
a three-part test to determine whether Kansas City's infringement of that freedom was
permissible. First, the District Court asked whether Kansas City had articulated a
sufficiently important state interest. It concluded that the government's interest in the

                                           -4-
efficient and effective functioning of the fire department was such an interest. Second,
the District Court inquired whether the interest was served by the Ordinance and
concluded it was not. Third, the District Court questioned whether the ordinance was
the least restrictive means of furthering the governmental interest. The District Court,
reasoning that the Ordinance restricted more associational activity than necessary,
decided that the Ordinance, as applied, was not the least restrictive means available to
serve the city's interest.

                                          II.

       We review de novo. The union is entitled to summary judgment if there is no
genuine dispute of material fact and the undisputed facts establish its entitlement to
judgment as a matter of law. See Cuffley v. Mickes, 208 F.3d 702, 705 (8th Cir.
2000).

                                          A.

        We begin by identifying the proper legal standard for determining whether
Kansas City's action is permissible. The First Amendment freedom of association,
applied to the states by the Fourteenth Amendment, provides Tvedten and other union
members with a constitutionally protected right to organize a labor union, even though
they are public employees. See Smith v. Arkansas State Highway Employees, Local
1315, 441 U.S. 463, 464-66 (1979) (per curiam). But the freedom to associate, like
others, is not absolute. See Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam). It
is settled law that when the government deals with its employees in its role as
employer, it has broader latitude in First Amendment matters than when it deals with
its citizens in its role as a sovereign. See, e.g., Board of Comm'rs, Wabaunsee County
v. Umbehr, 518 U.S. 668, 674-76 (1996). Determining when and how a public
employer can limit its employees' freedom to associate is the central difficulty in this
case.

                                          -5-
       We disagree with the union's argument that the strictest First Amendment
scrutiny is applicable because to accept that argument would ignore the distinction
between Kansas City's role as a sovereign and the government's role as an employer.
We believe an intermediate level of scrutiny is appropriate, and that the proper question
is whether the government's determination that the union members must not associate
with the International Association of Firefighters is reasonable. The Supreme Court has
applied this test to a highly analogous situation also involving associational rights,
namely where the government has conditioned work on the basis of political affiliation.
See O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S 712, 719 (1996); see also
Branti v. Finkel, 445 U.S 507, 518 (1980) ("[T]he question is whether the hiring
authority can demonstrate that party affiliation is an appropriate requirement for the
effective performance of the public office involved."). The government must
demonstrate more than that its policy is merely rational because important First
Amendment rights are at stake, but the government is not held to the exacting level of
proof required in other First Amendment contexts. Cf. Nixon v. Shrink Missouri
Government PAC, 120 S. Ct. 897, 904 & n.3 (2000) (articulating intermediate scrutiny
standard applicable in reviewing campaign contribution limits and contrasting
traditional strict scrutiny standard).

       Further, a case-by-case reasonableness analysis effectively serves the purposes
of the balancing test employed in another analogous area, i.e., where a government
employee claims to have been discharged in retaliation for protected First Amendment
expression. See O'Hare Truck, 518 U.S. at 719 (discussing the balancing test of
Pickering v. Board of Education, 391 U.S. 563 (1968)). The Pickering balance
requires that the court consider the government's interest in efficiently and effectively
providing public services, as well as the employee's interest in First Amendment
expression. See, e.g., Barnard v. Jackson County, Mo., 43 F.3d 1218, 1223-24 (8th
Cir. 1995). These same considerations should inform the analysis of whether a
government's infringement of its employees' associational rights is reasonable. Cf.
Brown v. Polk County, Iowa, 61 F.3d 650, 658 (8th Cir. 1995) (en banc) (applying

                                           -6-
principles of Pickering to public employee's First Amendment free exercise claim), cert.
denied, 516 U.S. 1158 (1996). Indeed, the Supreme Court has recently noted the close
relationship between the Pickering balancing test and the reasonableness inquiry in
political patronage cases. See O'Hare Truck, 518 U.S. at 719.

       Finally, this intermediate standard is consistent with our analysis of factually
similar cases. We upheld a school district's decision to not renew a school principal's
employment contract because he had served as the lead negotiator for the local
teachers' union. See Norbeck v. Davenport Community Sch. Dist., 545 F.2d 63 (8th
Cir. 1976), cert.denied, 431 U.S. 917 (1977). The principal brought suit, claiming that
the nonrenewal of his contract was retaliation for his exercise of First Amendment
associational rights. After noting that the school board had an interest in promoting the
efficiency of public services, we concluded that this interest was sufficiently weighty
to justify Norbeck's nonrenewal. See id. at 67-68. Specifically, we relied on the fact
that Norbeck's dual role as principal and union negotiator created a conflict of interest
because he was acting as negotiator for the very teachers he was charged with
supervising. Thus, the conflict of interest could both interfere with Norbeck's important
relationships with his superiors and impair Norbeck's ability to effectively manage the
teachers who worked for him. See id. We also noted that the school board's act was
not "overly broad, as it did not prohibit Norbeck from joining any union, particularly
one of his peers." Id. at 68.

       Similarly, when a teacher claimed she was fired for union organizing, we
recognized the First Amendment protected her right to engage in union activity. See
Roberts v. Van Buren Public Schls., 773 F.2d 949, 957 (8th Cir. 1985). However, we
also noted that "an associational right must be balanced against, and may be overridden
by, the government's interest as an employer in efficiency." Id. Ultimately, however,
Roberts presented a factual question of whether the teacher had been fired because of
her union activity or because of performance problems. See id. at 958.


                                           -7-
       Thus, to summarize, our cases consistently recognize that the government, when
acting in its role as employer, may interfere with its employees' associational rights, but
only if the government action serves a sufficiently important government interest.
When the government determines that its interests in the efficient and effective
provision of public services require infringement of its employees' associational rights,
we cannot simply defer to the government's decision. We must examine its justification
and, considering the competing interests of the employees and the government,
determine whether the government's determination is reasonable.

                                            B.

        With this framework in mind, we turn to the case at bar. The interests asserted
by the union members are purely associational. Kansas City has not alleged that any
member of Local 3808 has, in relation to union organizing or other union activity,
engaged in disruptive expressive activity. For example, Kansas City does not allege
that in organizing Local 3808, management-level firefighters have said or done anything
that has interfered with working relationships between rank-and-file firefighters,
supervisory firefighters, and city officers. To the contrary, Kansas City's actions are
based only on the fact of union membership and the consequences Kansas City fears
will flow from that fact. Thus, what we must decide is whether Kansas City has
infringed the First Amendment rights of its employees, and, if so, whether Kansas City's
policy is reasonable.3


      3
       Where workplace expression is at issue, we apply the multi-part Pickering
balancing test. See, e.g., Germann v. City of Kansas City, 776 F.2d 761, 763 (8th Cir.
1985), cert. denied, 479 U.S. 813 (1986). Germann, a union president, indeed, the
then-president of Local 42, alleged that he was not promoted in retaliation for protected
First Amendment activities. In essence, we held that the subject of his expressive and
associational First Amendment activity was protected, but the inappropriate manner,
form, and tone of his expression justified his nonpromotion. See id. at 765. Here, as
in Novak and Roberts, we do not apply the multi-part Pickering balancing test to claims
                                            -8-
      Kansas City all but concedes that the Ordinance, as applied, infringes upon the
union members' associational rights. On this point, Kansas City only argues that the
union members have no associational rights in union membership because they are
management-level employees. This argument, however, is not supported by authority.
Moreover, Norbeck stands to the contrary, for its holding, that a management-level
employee's associational interests in a union position may be overborne by sufficiently
weighty government interests, implicitly recognizes that even management-level
employees have First Amendment associational rights in union membership. See
Norbeck, 545 F.2d at 68.

       We therefore must determine whether the infringement is reasonable. Kansas
City asserts that management-level firefighter membership in Local 3808 may leave the
city without fire protection in the event of an illegal job action by Local 42 because
members of Local 3808 may sympathize with the members of Local 42 and join in any
job action. Kansas City's interest in effective fire protection is undoubtedly substantial.
Nevertheless, we conclude that, based on the record, Kansas City has not demonstrated
that the application of the Ordinance to the members of Local 3808 will serve that
interest to the extent necessary to outweigh a significant interference with the union
members' associational rights. Thus, based on the uncontested facts before us, we
conclude that the application of the Ordinance is unreasonable and cannot stand.

        Ultimately, Kansas City has no proof that the fact that Locals 42 and 3808 are
both affiliated with the International Association of Firefighters will influence the
members of Local 3808 to strike in sympathy with Local 42 or otherwise interfere with
their management duties. Kansas City relies upon the fact that all the members of
Local 3808 were once members of Local 42. But this proves too much. As the District
Court pointed out, if the management-level firefighters are inclined to support Local 42
in a strike, they would be similarly inclined regardless of their membership in Local


involving only the freedom of association.
                                            -9-
3808. There is simply no evidence that the firefighters' membership in Local 3808
significantly changes the equation. Indeed, the District Court found as an
uncontroverted fact that Locals 42 and 3808 are autonomous and independent and that
Local 42 does not control the policies or members of Local 3808. Kansas City does
not suggest that there is a genuine dispute as to these facts.

      Moreover, the record reflects that even Kansas City expects members of Local
3808 to put their management responsibilities above any sympathy for Local 42.
Indeed, when representatives of Local 42 were bargaining with Kansas City over terms
and conditions of their employment, Kansas City appointed members of Local 3808 to
represent the city across the table from the Local 42 representatives. In addition, John
Tvedten stated by affidavit that since the organization of Local 3808 he has acted
against the interests of Local 42 members because his management duties required it.
For example, he required firefighters to submit to "for cause" drug or alcohol testing,
which could lead to their termination.

       Thus, Kansas City may reasonably fear that Local 42 may undertake some illegal
job action and may also fear that management-level firefighters may join in such a job
action. But nothing in the record supports the contention that prohibiting management-
level employees from organizing in a union affiliated with the International Association
of Firefighters will lessen the risk of this occurrence in any more than a de minimis
way. Absent some evidence that the locals' affiliations with the international would
interfere with the management-level firefighters' duties, we conclude that Kansas City
has not met its burden of demonstrating that its infringement of the associational rights
of the union members is reasonable.

       The District Court also relied upon another ground, namely that the Ordinance's
application was overly broad. Because we agree with the District Court's determination
that the application of the Ordinance does not serve the interest asserted by Kansas


                                          -10-
City, and because we conclude this flaw makes the application of the Ordinance
unreasonable, we need not reach the District Court's alternative ground.



                                       III.

     For the above reasons, the judgment of the District Court is affirmed.



     A true copy.

           Attest:

              CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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