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Amalgamated Transit Union Local 1015 v. Spokane Transit Authority

United States District Court, E.D. Washington

September 28, 2017




         I. Introduction

         On February 6, 2017, Plaintiff, Amalgamated Transit Union - Local 1015 (“Plaintiff” or “ATU”) filed the Complaint alleging the Defendant, Spokane Transit Authority (“Defendant” or “STA”) violated ATU's constitutional rights by refusing to allow it to run an advertisement stating drivers of various entities have the right to organize. (ECF No. 1). On May 16, 2017, the court denied STA's Motion to Dismiss. (ECF No. 28). On May 25, 2017, the court granted the parties' joint request for a bench trial on an expedited basis due to the minimally disputed facts. (ECF No. 31).

         On June 27, 2017, the court held the bench trial in this matter. Plaintiff was represented by Steven Crumb and Sean Morales-Doyle. James McPhee and John Drake appeared on behalf of the Defendant. At the conclusion of the bench trial, the court ed the parties to submit briefing to address the issues raised at trial. On July 21, 2017, the parties submitted briefs and on August 4, 2017, submitted reply briefs. See (ECF No. 42); (ECF No. 44); (ECF No. 46); (ECF No. 47). The parties also submitted proposed Findings of Fact and Conclusions of Law. See (ECF No. 43); (ECF No. 45). This Order memorializes the court's Findings of Fact and Conclusions of Law in this matter.

         II. Findings of Fact[1]

         ATU is a nonprofit union representing all transit operators, maintenance, clerical, and customer service employees at STA, as well as drivers for STA's para-transit program. (ECF No. 41 at 43:8-15, 22-25). ATU provides collective bargaining services, contract enforcement, and assistance in organizing new members. (ECF No. 41 at 43:17-18).

         STA provides public bus transportation to the Spokane region. (ECF No. 41 at 112:7-8). STA had an advertising program to generate non-tax revenue. (ECF No. 41 at 112:13-14). To implement the advertising program, STA, at all relevant times, had a “Commercial Advertising Policy” (“Policy”) setting forth the criteria by which advertising would be approved for display on STA buses. (ECF No. 41 at 112:20-21); (Ex. 1). The Policy delegated daily administration of the policy to an “Advertising Contractor.” (Ex. 1 at §III.A). Until November 7, 2016, the Advertising Contractor was Ooh Media LLC. (ECF No. 41 at 166:22-25).

         The Policy permitted two types of advertising content for display on STA buses: (1) “Commercial and Promotional Advertising”; and (2) “Public Service Announcements.” (Ex. 1 at ¶9); (Ex. 1 at § II.A). “Commercial and Promotional Advertising” is defined by the Policy as advertising that “promotes or solicits the sale, rental, distribution or availability of goods, services, food, entertainment, events, programs, transaction, donations, products or property for commercial purposes or more generally promotes an entity that engages in such activity.” (Ex. 1 at § II.A.1).

         To qualify as a “Public Service Announcements” (“PSA”), proposed advertisements were required to meet three criteria: (1) the sponsor “must be a government entity or a nonprofit corporation that is exempt from taxation under § 501(c)(3) of the Internal Revenue Code”; (2) the “PSA must be directed to the general public or a significant segment of the public and relate to: i. Prevention or treatment of illness; ii. Promotion of safety, health or personal well-being; iii. Provision of family or child social services; iv. Solicitation by broad-based employee contribution campaigns which provide funds to multiple charitable organizations (e.g. United Way); or v. Provision of services and programs that support low income citizens or persons of disability”; and (3) “may not include a commercial message or mention a festival, show, sporting event, concert, lecture, or event for which an admission fee is charged.” (Ex. 1 at § II.A.2.c).

         The Policy also listed categories of “Prohibited Advertising Content” including ads containing deceptive commercial speech, political speech, the promotion of unlawful goods or services, or “expressing or advocating an opinion, position, or viewpoint on matters of public debate about economic, political, religious or social issues.” (Ex. 1 at § II.B(13)). The “Prohibited Advertising Content” applied equally to both “Commercial and Promotional Advertising” and “Public Service Announcements.” (ECF No. 41 at 178:14-22).

         If the Advertising Contractor was unable to make a determination whether a proposed advertisement complied with the Policy, the Director of Communications reviewed the advertisement. (ECF No. 41 at 113:23-114:2). If the Director of Communications could not make a decision, the STA CEO made the final decision on a proposed advertisement. (ECF No. 41 at 113:23-114:2). When proposed advertisements came to the CEO, she consulted at times with legal counsel before rendering a decision. (ECF No. 41 at 116:5-8).

         The prior version of the Policy did not contain prohibitions on “Public Issues.” Ex. 501 at 3). Under the prior version of the Policy, the Coalition of Reason ran an advertisement on STA buses stating “Are you good without God? Millions Are.” (Ex. 513); (ECF No. 41 at 116:20-117:3). STA received complaints above and beyond normal complaints concerning this advertisement, both before and after the advertisement started appearing on STA buses. (ECF No. 41 at 117:4-6, 120:22-24, 122:15-17, 127:19-23); (Ex. 514a-b); (Ex. 515a-c). The advertisement brought attention that negatively affected STA operations in the form of concerns expressed to STA bus operators who did not want to drive buses with those advertisements and customer service representatives who dealt with the complaints and reactions. (ECF No. 41 at 193:16-24, 194:7-11).

         Also under the old Policy, an advertisement ran on STA buses stating “Fred Meyer Firing workers for one honest mistake is JUST WRONG.” (Ex. 511); (ECF No. 41 at 132:10-21). STA received complaints about the advertisement. (Ex. 512a); (ECF No. 41 at 132:23-25, 133:8-18, 194:23-195:5). The complaints raised concern with STA because the complaints suggested STA used taxpayer funded buses to promote messages from particular viewpoints. (ECF No. 41 at 134:15-22). The complaints prompted an internal discussion within STA to determine if there was anything it could do about the complained of advertisements. (Ex. 512b); (ECF No. 41 at 134:25-137:1).

         Under the former version of the Policy, another advertisement campaign ran which was critical of Albertsons and encouraged shoppers to shop at Rosauers. (Ex. 508); (ECF No. 41 at 137:15-17). STA received complaints about the advertising campaign. (Ex. 509); (ECF No. 41 at 137:18-19, 138:7-21).

         An advertisement also ran under the old policy for Busty's Top Espresso, a bikini espresso. (Ex. 516); (ECF No. 41 at 139:16-23). STA and counsel reviewed the original proposed advertisement and it was rejected. (ECF No. 41 at 141:18-21). Local media interviewed STA CEO E. Susan Meyer regarding the Busty's Top Espresso advertisements and complaints received by the local media. (Ex. 517b); (ECF No. 41 at 140:21-141:15). STA also received complaints regarding this advertisement. (Ex. 517a); (ECF No. 41 at 140:10-17).

         STA spent a significant amount of time responding to complaints under the former policy. (ECF No. 41 at 142:13-24). The complaints generated STA concerns about the impact on bus operators and possible funding problems from voter backlash. (ECF No. 41 at 144:6-19). Based on these issues, in late 2012, STA revised the Policy to its current form with review of legal counsel and the Communications Manager. (ECF No. 41 at 144:24-145:13); (Ex. 501, 503). On December 5, 2012, the Performance Monitoring and External Relations Committee, composed of the STA CEO, a labor representative, and other community members, reviewed the proposed changes, made its own changes, and passed the Policy. (ECF No. 41 at 145:14-149:10, 199:2-200:19). On December 20, 2012, the STA Board of Directors met, discussed the proposed changes to the Policy, and passed it unanimously. (Ex. 503 at 2-3); (ECF No. 41 at 149:15-151:21, 200:20-201:4).

         The Board has not issued guidance as to what constitutes a matter of public debate or how to interpret the “Public Issue” portion of the Policy. (ECF No. 41 at 186:3-5). STA interprets the “Public Issue” to constitute “subjects on buses that would create a negative impression of the organization that would be hard on our employees and hard on the organization.” (ECF No. 41 at 187:1-11). Under the current Policy, STA has not received complaints over advertisements run on its buses. (ECF No. 41 at 153:11-13).

         In January 2013, the Seventh Day Adventist Church of Spokane submitted a proposed series of advertisements for STA buses stating: “Jesus Cares About Your Future, ” “You Matter to Jesus, ” and “Jesus Head of Lost and Found.” (Ex. 520); (ECF No. 41 at 155:19-156:3, 157:10-16); (Ex. 522-A). The proposed advertisements were rejected because they promoted a religious message that was prohibited as a “Public Issue” under the revised Policy. (ECF No. 41 at 181:1-7). This prompted a public records request and letter from the Church as to why the advertisements were rejected. (Ex. 521-A); (ECF No. 41 at 156:12-23). STA's response explained the Policy had been changed, the proposed advertisements which were allowed under the old Policy were not allowed under the revised Policy, and attached a copy of the current Policy. (Ex. 522-A); (ECF No. 41 at 157:4-16, 158:3-8). STA worked with the Church on revising the proposed advertisements to comply with the Policy. (Ex. 522-C); (ECF No. 41 at 160:2-5). The advertisements accepted by STA stated “YOU MATTER TO SOMEONE, ” “SOMEONE CARES ABOUT YOUR FUTURE, ” and “WE CARE ABOUT YOU.” (Ex. 522-C at 1); (ECF No. 41 at 180:8-25). Another advertisement only stated the Church's website. (Ex. 522-C at 1). STA found the advertisements, which promoted the Seventh Day Adventist Church generally, did not take a position on a “Public Issue.” (ECF No. 41 at 181:8-16).

         In the summer of 2016, Ooh Media approved advertisements by the United Food and Commercial Workers' Union Local 1439 that ran on 11 buses. (ECF No. 41 at 168:1-17, 169:6-12); (Ex. 525). The advertisements all stated “GET UNITED!” with other messages such as “Get the wages, healthcare, and safe working conditions you deserve, for a happier home life, ” “Stand up & have a voice in your workplace... for better wages, healthcare, and a happier home life!”, and “Union workers banding together have better healthcare, wages, working conditions, & a happier home life.” (Ex. 525). Each advertisement had the Union's logo, website, and phone number. (Ex. 525). Upon seeing the advertisements on STA buses, CEO Meyer had the advertisements removed because she believed they did not comply with the Policy. (ECF No. 41 at 168:4-169:4). STA had received no complaints about these advertisements. (ECF No. 41 at 176:18-177:3, 206:22-207:4).

         On August 8, 2016, ATU President/Business Agent Thomas Leighty contacted Ooh Media about running bus advertisements “promoting our union and getting others organized.” (Ex. 3 at 1). On August 9, 2016, Ooh Media responded by including a copy of STA's Policy. (Ex. 3 at 2). Leighty responded, stating he believed ATU could run advertisements promoting ATU, highlighting the Policy's allowance of advertisements promoting the availability of services. (Ex. 3 at 4). On August 10, 2016, Ooh Media responded, stating “[t]he ads you wish to post are simply solicitation to join a union or organizing. This is not a commercial purpose, nor does it promote an entity that engages in such activity. Your union would be a 501(c)(5) and as such your message is not for commercial purposes.” (Ex. 3 at 6).

         At some point after this email exchange, ATU's attorney sent a letter to STA threatening legal action if STA did not allow ATU to advertise. (ECF No. 41 at 154:11-13).[2] After exchanging emails with ATU's attorney, counsel for STA sent an email stating she reviewed the emails between Ooh Media and ATU, and stated “[i]t appears to me that ooh [sic] Media probably read the request from ATU Local 1015 as seeking to place ads that would violate its policy and STA's policy, but that the messaging was muddied by a reference to the tax status of Local 1015.” (Ex. 5 at 1). Counsel further stated advertisements “promoting our union and getting others organized” “does not appear to me to be commercial advertising promoting a commercial service or product and Ooh Media apparently interpreted the request in the same way (although I haven't spoken with ooh [sic] Media specifically about their thought process and I don't represent the company).” (Ex. 5 at 1). Counsel for STA also stated “I think I would have come to the same conclusion.” (Ex. 5 at 1). STA counsel ended the email by suggesting the parties meet to “get the miscommunication [from Ooh Media] cleared up and to allow a chance of ATU Local 1015 to present [an] ad copy ... to be fully evaluated by ooh [sic] Media to determine if it is indeed Commercial or Promotional Advertising, or contains Prohibited Advertising Content.” (Ex. 5 at 1).

         On September 15, 2016, ATU and STA representatives and counsel met to discuss ATU potentially running an advertisement on STA buses. (ECF No. 41 at 98:13-15, 154:17-155:4). At the meeting, STA requested ATU submit an advertisement for its consideration. (ECF No. 41 at 98:16-18, 154:25-155:1).

         Thereafter, ATU submitted a proposed advertisement to Ooh Media. The advertisement stated: “Do you drive: Uber? Lyft? Charter Bus? School Bus? You have the Right to Organize! Contact ATU 1015 Today at 509-325-2955.” (Ex. 2). The advertisement also had ATU's logo. (Ex. 2). At some point after the advertisement was submitted to Ooh Media, CEO Meyer contacted Ooh Media to get a status report. (ECF No. 41 at 170:17-22). On October 7, 2016, Ooh Media informed Leighty it was “meeting with my content reviewer today to go over the ad. I will let you know later today how things look so we can move forward with the next step.” (Ex. 4 at 1). On October 10, 2016, at 10:31 a.m., Ooh Media informed Leighty “Ooh Media is ready to move forward with your ad creative proposed recently.” (Ex. 4 at 2). At 6:55 p.m., Ooh Media informed Leighty “[t]hough I believe we were at a point to approve your content, I actually have a delay in final approval as I must meet with STA for their input.” (Ex. 4 at 3).

         On November 6, 2016, STA terminated its contract with Ooh Media. (ECF No. 41 at 166:21-25). STA made its decision based on “[r]epeated errors in applying the [STA] board's policy to advertisements.” (ECF No. 41 at 167:1-5). STA asserted Ooh Media “continued to be unable to ...

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