By Celeste Bott

Law360 (June 9, 2020, 7:40 PM EDT) -- A Chicago bus driver and union official says the city's transit authority is preventing drivers from discussing concerns about transporting law enforcement to potentially violent protests during a global pandemic.

Erek Slater said the Chicago Transit Authority has infringed his First Amendment rights by prohibiting him from discussing the "safety, political and moral concerns" he and other drivers share about their work amid the spread of the coronavirus and the demonstrations in Chicago over the killing of George Floyd by police in Minneapolis, according to a lawsuit filed in Illinois federal court Monday.

The buses are crowded, and not all officers wear masks, Slater said. CTA bus drivers have reasonable apprehensions that buses carrying law enforcement could be targeted by violent actors, and others also have reservations about being ordered to assist law enforcement responses to demonstrations against police brutality, as those responses have "not been uniformly reasonable and measured," he said.

"Not only are these bus operators being asked to endanger themselves and their families from COVID-19 exposure, they are also being asked to place themselves in the middle of conflict zones with potentially violent protestors, law enforcement and military personnel," Slater said. "Bus operators sought and obtained civilian employment with the defendant CTA, not conscription into military service to quell domestic demonstrations against police brutality."

Drivers are also concerned CTA may order them to transport arrested demonstrators — it hasn't yet, but drivers in other cities have been ordered to do so, Slater said.

Bus operators are attempting to reasonably discuss these risks and what their rights are relative to those risks, Slater said. He wants to hold those discussions with fellow bus drivers during nonworking time, in what are customarily nonwork areas at CTA's North Park Bus Garage in Chicago, as mass membership meetings of their union, ATU Local 241, are restricted due to the coronavirus pandemic, according to the complaint.

CTA regularly allows its bus operators to discuss union and nonunion matters when off duty in those areas if they don't disrupt CTA service, Slater said.

According to the lawsuit, a CTA supervisor intervened in three off-duty discussions Slater attempted to have with other operators about their concerns about transporting law enforcement and arrested demonstrators, on the grounds that it was a "wildcat strike" not allowed under CTA's work rules.

Several days later, Slater said, he faced retaliation when he showed up for work and was sent to see a manager, who told him he was being taken out of service due to promoting a "work stoppage." The manager issued an "interview record" with citations for behavioral violations, including insubordination, for which there would be a hearing, according to the lawsuit.

When Slater then went to discuss the disciplinary action with other bus operators, the CTA manager had the Chicago Police Department remove him from the premises, Slater said.

"By prohibiting plaintiff Slater from discussing bus operator concerns and rights related to the transportation of law enforcement and arrested demonstrators, even during nonworking time in non-work areas and in a manner that does not interfere with CTA's work or passengers, the CTA has imposed an unreasonable content-based restriction on plaintiff Slater's speech, in violation of plaintiff Slater's rights under the First Amendment as it is incorporated by the Fourteenth Amendment to apply to the State of Illinois and its instrumentalities," the complaint said.

Slater is asking an Illinois federal court to order CTA to rescind his behavioral violation and reinstate him for active service, and to enjoin CTA from disciplining him for off-duty discussions with other drivers in certain North Park Bus Garage, so long as they don't cause disruption to CTA service.

A hearing is scheduled for Thursday afternoon on Slater's motion for a temporary restraining order to block CTA's "prohibition of disfavored speech" and to allow his return to work. In the meantime, "we are still waiting for the CTA to do the right thing," said Nick Kreitman of Gainsberg Law PC, representing Slater.

Representatives of the CTA did not immediately return requests for comment Tuesday.

Slater is represented by Nicholas J. Kreitman of Gainsberg Law PC.

Counsel information for the Chicago Transit Authority could not be immediately determined Tuesday.

The case is Slater v. Chicago Transit Authority, case number 1:20-cv-03356, in the U.S. District Court for the Northern District of Illinois.

--Editing by Marygrace Murphy.

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