In 2017, the Teamsters were conducting an organizing campaign among the commanders in the Cook County Department of Corrections, a subdivision of the Cook County Sheriff’s Office. The Sheriff’s Office opposed the inclusion of commanders, who they viewed as managerial employees. In August of that year, an administrative law judge recommended that the Illinois Labor Relations Board (ILRB) permit the Teamsters to represent the commanders in collective bargaining.
During the commanders’ organizing campaign, certain Sheriff’s Office leaders made negative comments about unions and collective-bargaining agreements. On separate occasions in 2015, the Department’s Executive Director Nneka Jones-Tapia said that the commanders “have the audacity to want a union; called the Teamsters Union ignorant and disrespectful; and did not want the Teamsters Union to attend a meeting about manpower.” In October 2016, Michael Miller, a Department Assistant Executive Director, said “you commanders are a bunch of lazy [expletive], and now you are trying to get a union too.”
Before the ILRB could review the ALJ’s determination, the Cook County Board of Commissioners provided the Sheriff’s Office with a budget well below what the latter had expected. The Sheriff had believed that an initial proposal – $625 million – was $50 million light. Shortly thereafter, the County Board revised the Sheriff’s Office budget to $553 million. Throughout the Sheriff’s Office, various cost-cutting options were discussed, including various layoff schemes across departments. Ultimately, all 25 commanders, a well-paid rank, were marked for layoffs. In early 2018, the ILRB held that they had been supervisors, anyway, and had lacked entitlement to engage in collective bargaining.
A group of the laid-off commanders brought a § 1983 claim against the Sheriff of Cook County, alleging retaliation against protected First Amendment speech and activities, including unionization efforts. The federal district court granted summary judgment on that claim, concluding that the Sheriff’s Office had demonstrated legitimate non-discriminatory reasons for taking the adverse employment action against the commanders. The commanders appealed to the Seventh Circuit Court of Appeals.
Circuit Judge Frank Easterbrook, writing for the Court, affirmed the ruling of the district court: “The ILRB held that the Sheriff was entitled to prohibit the commanders from collective bargaining, because they were supervisors who were supposed to be on management’s team. Even so, letting the commanders go was not the Sheriff’s preferred course. Until the budget problem struck, the Sheriff had not laid off or fired even a single commander, although the unionization drive began in 2013. The commanders depict the layoffs as hot on the heels of the ALJ’s recommendation, but the right focus is on the commanders’ speech, which began years earlier. The Sheriff did not fire any commander or take other adverse action during the organizing campaign, including the proceedings before the ALJ.
“The commanders stress, and we acknowledge, that the Sheriff’s opposition to the commanders’ proposal for a union, plus the ALJ’s recent decision, supplies a plausible basis in theory for inferring a causal connection between the commanders’ speech and the loss of their jobs. But the facts do not support that theory. Most of the workforce was and remains unionized, and the portion represented by unions rose after the commanders (who were not part of a bargaining unit) were laid off. A personnel decision that increases the unionized fraction of the labor force is hard to depict as an anti-union-speech maneuver. All commanders were let go, without regard to any opinions they had expressed (pro, con, or neutral) on the organization campaign. Again, that is hard to understand as a penalty for pro-union speech. In sum, although the record shows that the Sheriff opposed the formation of a commanders’ union, the record would not permit a jury to infer that the commanders’ speech from 2013 through 2017 led to the layoffs in 2017.”
The dissent advanced the position that the issue of whether the non-discriminatory reason proffered by the Sheriff’s Office was still pretextual should have been sent to a jury. The dissent noted the changing rationale for the layoffs offered by the Sheriff, the long history of animus toward unionization by management, and the suspicious timing of the layoffs.
Consolino v. Dart, 2024 U.S. App. LEXIS 28097 (7th Cir. 2024).