Union issues can surface in a number of ways, even in promotional exams. That's what happened when the Village of Elk Grove, Ill., decided to conduct a promotional exam for the position of lieutenant — the case of Quinn v. Village of Elk Grove Board of Fire and Police Commissioners, U.S. District Court for the Northern District of Illinois, E. Div., No. 01 C 8504 (2003), an unpublished opinion, was born.

Kevin Quinn, Howard Hall and Bryan McVeigh were all firefighters for the Village of Elk Grove. Quinn and Hall had been employed there for 12 years, while McVeigh had worked there for 10 years. All three were active members of the Elk Grove Village Professional Firefighters Association, Local 2340. Quinn was the union president, Hall was the union vice president and McVeigh was a member of the union's bargaining committee. Their duties as union officers included filing grievances, engaging in interest arbitration and negotiating contracts on behalf of Local 2340 members.

When the three received unsatisfactory scores on a portion of the department's promotional exam, they sued the Elk Grove Village Board of Fire and Police Commissioners, as well as Elk Grove Fire Chief James MacArthur. They alleged that their unfavorable evaluations were due to retaliation against them by the village board and MacArthur for their union activities.

The promotional exam was scored on a 100-point scale, with each of six components accounting for a portion. The two most important components were the written exam and the group interview, each of which accounted for 40% of the score. The remaining 20% was divided equally among four components: the individual oral interview, seniority points, chief's points, and deputy chief's and captain's points. After the exam totals were computed, those applicants with requisite military service were eligible for up to 3.5 additional points. Those applicants with a combined total of 70 or greater became eligible for promotion to lieutenant. The village board performed evaluations of the group and individual interviews, while MacArthur allocated the chief's points.

The written examination was administered and scored by Police Consultants Inc. The examination consisted of 119 questions that were divided into three component areas: hazardous materials, company officer knowledge and firefighting essentials. The written examinations were scored anonymously by identification number. Quinn scored 73.11%, placing him 19th out of 25 applicants. Hall scored 67.23%, placing him 24th, and McVeigh scored 69.75%, placing him 23rd.

In the group interview, the commissioners interviewed firefighters in groups of five or six. They evaluated candidates on the basis of appearance, social appropriateness, verbal fluency, listening comprehension, judgment, creativity, social interconnection and leadership. During the group interviews, the commissioners didn't ask any questions pertaining to union membership or activities. Quinn, McVeigh and Hall received the three lowest scores for the group interview.

The commissioners also conducted the individual interviews. During these interviews, candidates were asked three or four questions relating to their readiness for promotion, such as “Why do you want to be a lieutenant?” and “Why are you the best candidate for the job?” In addition to these questions, Quinn and Hall were both asked questions relating to union issues during their individual interviews. Quinn was asked for his opinion about pending legislation that would change promotion policies for firefighters. Hall was asked for his opinion about the Fair Labor Standards Act. Quinn, Hall and McVeigh all received scores at the low end of the range.

MacArthur was responsible for evaluating the candidates and giving them “chief's points” on a scale of one to five, with five being the best. He evaluated all candidates on fire lieutenant candidate evaluation forms, which contained the candidate's numerical scores as well as a narrative evaluation. The narrative evaluations generally contained an introductory paragraph that described the candidate's experience and qualifications; a paragraph describing the candidate's technical certifications, such as Fire Apparatus Engineer, service on the hose committee and paramedic; and a final paragraph summarizing the candidate's potential. MacArthur's narrative evaluations of Quinn, Hall and McVeigh, as well as other candidates, indicated that he had at least an awareness of their level of involvement in and support for the union.

For instance, MacArthur's evaluation noted that Quinn is “quick tempered at times and at other times does not always maintain control of the union's more militant element in his role as president,” although he awarded him four points.

In Hall's evaluation, MacArthur noted that he “has leadership skills and abilities, which for the most part he has chosen to funnel into union-related activities in his role as vice president.” He further said that Hall “will … go to the extreme, especially as regards union-related issues, to protect [the union's] cause, whether actual or perceived.” He then awarded Hall three points.

When evaluating McVeigh, MacArthur described him as “one of the boys” who was found in the camp of the “vocal minority.” He further said that McVeigh “doesn't often take or support management's position.” McVeigh likewise received three points.

When all of the scores were totaled, Quinn was the only one of the three who qualified for the lieutenant eligibility list. His score of 70.83% was the lowest combined score of all successful applicants. All three firefighters believed that they received low scores on the subjective components of the exam — the group interview, the individual interview and the chief's points — in retaliation for their exercise of their First Amendment rights to freedom of association and freedom of speech on behalf of the union. Consequently, they filed a lawsuit against the Village of Elk Grove Board of Fire and Police Commissioners and MacArthur under 42 U.S.C. Section 1983, alleging unlawful interference with their First Amendment rights.

All defendants filed a motion for summary judgment, requesting the court to rule that the plaintiffs' claims had no basis. In order for the defendants to be successful on their motion, they had to show not only that the plaintiffs' claims weren't viable, but also demonstrate that there was no disagreement between the parties as to the facts.

To establish a Section 1983 retaliation claim under the First Amendment, a plaintiff must demonstrate that:

• His or her conduct was constitutionally protected, and

• His or her conduct was a “substantial” or “motivating factor” in the challenged actions.

As to the first consideration, the court held that unions are among the quintessential types of associations that First Amendment freedom of association protects. The court went on to note that the defendants themselves conceded that the plaintiffs' roles in the union were protected by the First Amendment. Retaliation against public employees solely for their union activities is a clear First Amendment violation. Furthermore, the plaintiffs do not need to establish that they would have been promoted but for the defendants' challenged actions. Rather, they only need to establish that the defendants evaluated them poorly because of their union activities.

The court stated that the rationale for affording relief on First Amendment retaliation claims is that the challenged conduct, if it continued, would chill the exercise of First Amendment rights. In other words, if the plaintiffs' allegations are proven, then it's likely that the defendants' behavior would discourage firefighters who desire promotions from active participation in a union. It's precisely this type of discouragement that Section 1983 was devised to prevent. The critical issue then becomes the defendants' motivation, the second of the two considerations.

The determination of the defendants' motivation is fact-based, requiring a determination of what was said and done by the various parties. In this instance, the plaintiffs and the defendants had different recollections as to what actually occurred in the interview process. In some instances, both parties agreed that certain topics that may be related to union activity were discussed, but they disagree as to the point in the interview process that the discussion took place. The defendants recalled the discussion taking place after the interview was completed and the grading was concluded, while the plaintiffs recalled the discussion taking place well before grading was completed. Since this presented an issue of material fact, the court ruled that most of the summary judgment motions couldn't be granted. A trial would be necessary to determine the facts.

Performing objective evaluations of employees for promotion when labor-management relations are strained is a difficult job. However, this makes it even more important to do so in a fashion that reduces a potential claim of retaliation as much as possible. Some thoughts to bear in mind are:

• Questions that refer to union-related activity should be avoided at all times during the process.
• To bring a retaliation claim, a plaintiff doesn't have to show that he or she would have received the promotion if the questions hadn't been asked. Only a showing that a poor evaluation was caused by union-related activities is necessary. This is a much lower burden for the plaintiff.
• Courts zealously guard union activities under the First Amendment.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500, Fire Department Occupational Safety and Health Program.