Appeals panel: Cook Sheriff must bargain with union on rules governing association with gang members

By Jonathan Bilyk | Feb 24, 2017

The Cook County Sheriff’s Office can’t unilaterally impose a rule forbidding sheriff’s deputies, correctional officers and other employees from associating with current or former gang members, a state appeals court has ruled, declaring the sheriff needed to first negotiate the rule with the sheriff’s office’s workers union.

The appeals court, however, said the law doesn’t present a similar requirement on a sheriff’s office rule applying standards of conduct to employees’ social media pages.

On Feb. 21, a three-justice panel of the Illinois First District Appellate Court overturned the decision of the Illinois Labor Relations Board, which had sided with the sheriff’s office on the so-called “Gang Order” and social media order, over the objections of the Teamsters Local 700, which represents many of the sheriff’s office’s workers.

Justice Maureen E. Connors authored the court’s opinion, with justices Sheldon A. Harris and Mary L. Mikva concurring.

Cook County Sheriff Tom Dart  

“Though we do not doubt … that gang affiliation among employees is a problem, the record does not indicate that this problem was so urgent that bargaining was not a possibility,” the justices wrote. “The evidence suggests that gang affiliations among employees have been an ongoing problem, but not that the problem had increased to the point where there was no time to bargain.”

The case landed before the panel as a review of the ILRB’s order in favor of the sheriff’s office.

The dispute centered on two orders the sheriff’s office imposed on its employees in January 2013.

Under the Gang Order, the sheriff ordered workers to disclose whether they have been or are affiliated with a street gang, and prohibits employees from “associating with anyone the employee knew or should have known is or was in a gang.” The order requires employees to complete disclosure forms, which include a number of related questions, such as: “Has any Family Relationship …. or Associate ever been in a Known Criminal Organization/Gang Member or an Associate of a Known Criminal Organization within the past 10 years?”

Language within the order specifies violating the order could “result in denial of access to the Cook County Sheriff’s Office; disciplinary action up to and including termination; and/or criminal charges where applicable.”

A few days after issuing the Gang Order, the sheriff’s office issued its rule on social media conduct, extending its “rules for on- and off-duty conduct” to employees’ social media and online networking activity, requiring sheriff’s office employees to “conduct themselves in a professional ethical manner both on and off duty.”

Specifically, this requirement mandated employees, among other guidelines, “not use threats or coercion, or abusive, coarse, violent, profane, harassing or insolent language or gestures,” “not engage in any conduct that constitutes discrimination or harassment,” and “not engage in conduct which discredits the integrity of the CCSO, its employees, the employee him/herself, or which impairs the operations of the CCSO.”

After the orders were issued, representatives of Teamsters Local 700, which represents the sheriff’s office’s deputies, correctional officers and investigators, demanded the sheriff submit both orders to collective bargaining. In April 2013, the union filed a complaint with the ILRB, alleging the unilateral imposition of the orders was an unfair labor practice under labor laws.

The union argued the Gang Order placed too great of a burden on CCSO employees, who would be held accountable for the actions of people they know, even of family members, both near and distant, who they may or may not see or speak to on even an occasional basis.

And the union argued the social media rules would create an “overbroad chilling effect on employee workplace-based speech.”

At the ILRB, an administrative law judge initially sided with the union, declaring both orders essentially threatened the jobs and careers of CCSO employees, and, as such, should be subjected to bargaining.

The sheriff appealed to the full ILRB, where the ILRB rejected the ALJ’s findings. In its September 2015 ruling, the ILRB “asserted that there was a self-evident connection between ‘dealing with the widespread gang problem, in order to address (the sheriff’s office’s) mandate to provide safety and keep the peace’ and ‘having current and accurate information about and/or proscribing the gang membership and related associations with persons having gang affiliations.’”

And the ILRB further declared the social media conduct rules should be allowed to stand because the order merely applied longstanding conduct rules “to conduct carried out by contemporary means of communication.”

The union then appealed the ILRB’s decision to the First District Appellate Court in Chicago, where justices delivered a split decision for both sides.

On the Gang Order, appellate justices sided with the union, finding the threat of discipline, potentially up to termination or even criminal charges, make the order a threat to CCSO employees’ jobs and livelihood. And that, the justices said, make the order a subject of “mandatory bargaining” under labor law.

“Simply being willing to hear particular areas of concern was insufficient – respondents should have communicated a willingness to bargain in response to the Union’s demand,” justices wrote. “The Gang Order was presented as an impermissible fait accompli.”

On the social media policy, justices, however, sided with the sheriff, saying the law was much more “mixed” on questions over such policies.

While the union stressed employees could read the policy to indicate their jobs were at risk for violating the rule, the justices backed the ILRB in concluding the possibility that the rule could be construed in such a way was not enough to toss out the rule or order it into bargaining.

“We are faced with a challenge to a rule’s existence, rather than a challenge to an employer’s enforcement of a rule,” the justices wrote.

Rather, the justices said, the sheriff was within his managerial rights to impose such a rule, extending already existing rules of conduct to a new medium of public communication and interaction.

“In context, the social media policy provides that all of the other, more specific rules of conduct - none of which are challenged here - apply to the Internet,” the justices wrote. “The Union has not shown that applying the rules of conduct to Internet activity means that employees would construe the rules of conduct as prohibiting protected activity.”

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Cook County Sheriff's Department Illinois First District Appellate Court Illinois Labor Relations Board Teamsters Local 700

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