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John W. Smith v. Bethel Township and John L. Cairo

January 5, 2012


The opinion of the court was delivered by: Schiller, J.


Plaintiff John Smith wanted to unionize Bethel Township's part-time police force after some long-serving officers were relieved of duty. To further his efforts, Smith posted pro-union flyers throughout the Bethel Township office building. The chief of police, John Cairo, removed some of the flyers. Smith and Chief Cairo did not have the best working relationship, and after several incidents, Smith was relieved of his duties as a Bethel Township police officer. He claims he was retaliated against for trying to form a union, a charge Defendants deny. Were this the first time Smith tried to press this claim, he might be entitled to have his day in federal court. But he has already brought Bethel Township before the Pennsylvania Labor Relations Board for the same conduct he complains about here. Defendants filed a motion for summary judgment based on issue preclusion. Because the Court agrees with Defendants that Smith has already had his claims adjudicated, the Court grants the motion.


Smith was a part-time police officer in Bethel Township from 2003 to April of 2009. (Defs.' Mot. for Summ. J. Ex. B [Hr'g Officer Decision].) Bethel Township is governed by a three-member board of supervisors. (Id.) With the exception of the chief of police, the Bethel Township police force is composed entirely of part-time officers. (Id.)

In 2008, one of the Bethel Township supervisors, Michael George, held a meeting of police officers during which he saw pro-union literature. (Id.) George threatened to fire the person responsible for the literature and to disband the police department. (Id.) George became the Bethel Township manager in 2009, and he was forced to resign his supervisor position as a result. (Id.) The Bethel Township manager does not supervise the police department; rather, like the chief of police, the manager reports to the Bethel Township board of supervisors. (Id.)

The former Bethel Township chief of police died in November of 2008. (Id.) Smith was close to the former chief. (Id.) At the time of the former chief's passing, several other officers left the police force. (Id.) Smith was upset about the former chief's passing and the departure of these officers. (Id.)

Defendant John Cairo became the new chief of police in 2008. (Id.) In January of 2009, against the directive of Chief Cairo that Smith remain on patrol, Smith attended a reorganization meeting. (Id.) Also in January of 2009, Smith posted flyers from the Teamsters at the Bethel Township office building. (Id.) The flyers explained the benefits of union representation for part-time officers. (Id.) Smith posted the flyers on the front door of the building, in private offices in the building, and in the office mail boxes of all police officers. (Id.)

Chief Cairo did not work against Smith's unionizing efforts; in fact, he gave Smith the personal telephone numbers of the officers. (Id.) Chief Cairo did, however, remove the flyers from areas of public access because he deemed them a nuisance. (Id.)

On April 3, 2009, Smith failed to report for a scheduled shift. (Id.) Smith later explained to Chief Cairo that he was on vacation and had not received the schedule. (Id.) Chief Cairo telephoned Smith and requested a meeting with him to resolve any issues Smith was having. (Id.) Smith told Chief Cairo to put his request in writing and then hung up the phone; the meeting never occurred. (Id.) When Smith came to the station two days later, he discovered that his name had been taken off of the April schedule. (Id.)

On May 14, 2009, Smith filed a charge of unfair labor practices under the Pennsylvania Labor Relations Act against Bethel Township. (Defs.' Mot. for Summ. J. Ex. A [Smith's Unfair Labor Practice Charge].) The charge claimed that Smith attempted to start a union to protect workers because some long-serving officers had been fired. (Id.) He alleged that Chief Cairo took down union flyers he had posted, and a lieutenant told Smith that if he continued to post such flyers, he would lose his job. (Id). Smith reported that he "felt harassed and felt that [he] was being coerced into submission by the Bethel Police Chief as well as the Bethel Township Board of Supervisors." (Id.) The charge before the labor relations board noted that George threatened to disband the police department if those in the department tried to unionize. (Id.) Smith claimed that other officers were afraid to come forward for fear of losing their jobs. (Id.)

A hearing was held, during which Smith and Bethel Township presented evidence and cross-examined witnesses. (See Defs.' Mot. for Summ. J. Ex. C [Hr'g Tr.].) In a written decision, the hearing examiner framed Smith's claim as follows: "the Chief of Police removed [Smith] from the schedule of part-time police officers as an act of retaliation for his efforts to try to organize officers into a labor organization represented by the Teamsters." (Hr'g Officer Decision.) Ultimately, the hearing officer determined that Smith failed to prove that Chief Cairo was motivated by Smith's protected activity of trying to unionize. (Id.) The hearing examiner believed that Chief Cairo removed Smith due to concerns about Smith's recent behavior, including his failure to appear for duty, his refusal to meet with Chief Cairo, and his hanging up the phone on Chief Cairo. (Id.) Although George made an anti-union statement in 2008, his statement was not directed at Smith's attempt to form a union. (Id.) Additionally, Chief Cairo did not report to George, and George played no role in Smith's removal. (Id.) The hearing officer found no anti-union sentiment in Chief Cairo's removal of Smith's pro-union flyers because Chief Cairo permitted the flyers to remain in non-public areas and he provided Smith with the police officers' phone numbers to help him unionize the force. (Id.) The hearing officer also concluded that Bethel Township did not interfere with, restrain, or coerce employees in exercising their rights under the Pennsylvania Labor Relations Act. (Id.) Nothing Chief Cairo did could have had a tendency to coerce employees from exercising their rights. (Id.)

Smith timely filed exceptions to the hearing officer's decision. (Defs.' Statement of Facts in Supp. of Mot. for Summ. J. ¶ 5.) The decision was upheld, as "[t]he substantial evidence, credited by the Hearing Examiner, supports the finding that it was not Officer Smith's protected organizing efforts that motivated Chief Cairo to remove Smith from the schedule in April 2009, but rather Smith's recent behavior unrelated to his union activity." (Defs.' Mot. for Summ. J. Ex. D [Pa. Labor Relations Bd. Final Order].)

Smith did not appeal the Final Order; instead, he filed this lawsuit. Smith's Complaint alleges that as a result of his efforts to unionize, Bethel Township "began a deliberate course of harassment and intimidation against Plaintiff." (Defs.' Mot. for Summ. J. Ex. E [Compl.] ¶¶ 10, 32.) This course of action allegedly led to Smith's discharge without a legitimate reason. (Id. ¶¶ 11-12, 14, 22, 33-34, 36, 41.) Smith alleges that his attempts to unionize constituted free speech and that Defendants fired him in violation of his First Amendment rights. (Id. ¶¶ 23-25, 42-44.) Four counts remain from Smith's ...

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