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.
Cook County Sheriff Tom Dart
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.
“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
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
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
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
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
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.”