International Brotherhood of Teamsters v. Illinois Labor Relations Board , 2017 IL App (1st) 152993 ( 2017 )

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Appellate Court Date: 2017.04.27
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International Brotherhood of Teamsters, Local 700 v. Illinois Labor Relations Board,
Local Panel, 2017 IL App (1st) 152993Appellate Court INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL
Caption 700, Petitioner-Appellant, v. THE ILLINOIS LABOR RELATIONS
BOARD, LOCAL PANEL, THE COUNTY OF COOK, and
SHERIFF OF COOK COUNTY, as Joint Employers, and ILLINOIS
FRATERNAL ORDER OF POLICE LABOR COUNCIL,
Respondents (Illinois Labor Relations Board, Local Panel, County of
Cook, and Sheriff of Cook County, as Joint Employers,
Respondents-Appellees).
District & No. First District, First Division
Docket No. 1-15-2993
Filed February 21, 2017
Modified upon denial
of rehearing March 31, 2017
Decision Under Petition for review of order of Illinois Labor Relations Board, Local
Review Panel, No. L-CA-13-055.
Judgment Reversed in part; affirmed in part.
Counsel on Cass T. Casper and Nicole L. Chaney, of Teamsters Local 700, of Park
Appeal Ridge, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Kimberly M.
Foxx, State’s Attorney, of Chicago (David L. Franklin, Solicitor
General, and Aaron T. Dozeman, Assistant Attorney General, and
Donald J. Pechous, Patricia M. Fallon, and Andrew J. Creighton,
Assistant State’s Attorneys, of counsel), for appellees.
Panel PRESIDING JUSTICE CONNORS delivered the judgment of the
court, with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 Petitioner, the International Brotherhood of Teamsters, Local 700 (Union), appeals from a
decision and order of the Illinois Labor Relations Board, Local Panel (Board), that upheld two
general orders issued by respondents, the County of Cook and the Sheriff of Cook County. In
relevant part, the first general order—known as the Gang Order—prohibits employees from
associating with anyone the employee knew or should have known is or was in a gang and
requires employees to complete a disclosure form about gang affiliations. The second general
order—known as the Rules of Conduct Order—provides in part that the rules for on- and
off-duty conduct extend to social media and networking sites. On appeal, the Union contends
that the Gang Order was a subject of mandatory bargaining and the social media policy in the
Rules of Conduct Order is overbroad under section 10(a)(1) of the Illinois Public Labor
Relations Act (Act) (5 ILCS 315/10(a)(1) (West 2012)). We reverse the Board’s decision as to
the Gang Order and affirm the Board’s decision as to the Rules of Conduct Order.
¶2 I. BACKGROUND
¶3 During the relevant time period, the Union was the exclusive representative of the correctional
officers, deputy sheriffs, and fugitive investigators bargaining units. 1 The Gang Order and
Rules of Conduct Order, which applied to employees of the Cook County sheriff’s office
(CCSO), were issued on January 18, 2013, and had effective dates of January 25, 2013. The
Gang Order (order No. 11.2.21.0) has eight sections that are marked with roman numerals.
Sections I-IV are not directly at issue, but parts of those sections provide helpful background.
In relevant part, section II states that “[c]riminal organizations and street gangs pose a
substantial threat to the public and directly impede the efforts of the CCSO to provide for
public safety.” Section III provides in part that “[a]ny violation of this order may result in
denial of access to the CCSO; disciplinary action up to and including termination; and/or
criminal charges where applicable.” Beginning with section V, the Gang Order states:
“V. DEFINITIONS
A. Known Criminal Organization—A group of persons (such as a street gang) who
form an allegiance for a common purpose, who engage in criminal activity, and who
conform to one or more of the following traits:
1. Share a common group name.
2. Share common symbols, tattoos, or graffiti.
3. Share a common style of dress.
4. Frequently congregate upon, or lay claim to, a geographic
location.
1
Before the Board issued its decision, the Illinois Fraternal Order of Police Labor Council was
allowed to intervene as the exclusive representative of the Deputy Sheriffs.
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5. Associate together on a regular or continuous basis.
B. Known Criminal Organization Member—Any person who has adopted,
connected, associated, participated, affiliated with, or been a member of any known
criminal organization.
C. Family Relationship—For the purpose of this order, Family Relationship shall
include: spouse, parents, children, stepchildren, siblings; other persons related by blood
or by present or prior marriage; legal guardians/wards; persons who share or formerly
shared a common dwelling; persons who have or allegedly have a child in common;
persons who share or allegedly share a blood relationship through a child; persons who
have or have had a dating or engagement relationship; relationships with personal
assistants and/or caregivers, personally or for any other family member or relationship.
D. Association—A coming together and social interaction between individuals.
VI. PROHIBITIONS
The following activities are specifically prohibited by this order:
A. Membership in any Known Criminal Organization identified by the Sheriff’s
Office Intelligence Center (SOIC) as a criminal organization.
B. Association with any member of a Known Criminal Organization provided that:
1. The employee knew or should have known that the person with whom the
employee associates is or was a member of a Known Criminal Organization; or
2. The employee has previous been ordered by the CCSO to cease associating
with a person(s) identified by SOIC as a member of a Known Criminal
Organization.
VII. RESPONSIBILITIES
A. CCSO employees shall:
1. Not be members of Known Criminal Organizations.
2. Not associate with Known Criminal Organization Members.
***
VIII. KNOWN CRIMINAL ORGANIZATION/GANG MEMBERSHIP DISCLOSURE
A. All CCSO employees and any individuals allowed access to CCSO facilities ***
must fully complete the Known Criminal Organization/Gang Membership Disclosure
Form and disclose:
1. Any and all current or past membership; and/or
2. Family Relationships or Associations with any Known Criminal
Organizations or Members.
B. Refusal to complete or falsifying information on the Disclosure shall result in:
1. Disciplinary action up to and including termination of CCSO employees.
2. Revocation of access to CCSO facilities. ***
3. Notification to the Chief Financial Officer regarding contracted employees.
4. Notification to the Executive Director of the Cook County Department of
Facilities Management regarding CCDFM or CCDFM contracted employees in
violation.
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C. Employees shall disclose any and all relevant memberships and associations,
even where such is not a violation of CCSO policy (e.g., Family Relationship). Failure
to disclose a relevant membership or association is a violation of CCSO policy.
D. Responsibility of Department Head/designee:
1. Ensure all Known Criminal Organization/Gang Membership Disclosures are
distributed to and completed by all CCSO employees under his/her supervision
bi-annually (to begin January 2013).” (Emphasis in original.)
¶4 The Gang Order includes an accompanying disclosure form. The form asks employees
whether they were members of a Known Criminal Organization/Gang, if they had ever been
members of a Known Criminal Organization/Gang, and for corresponding details. The form
additionally asks, “Has any Family Relationship (as defined in the policy) or Associate ever
been in a Known Criminal Organization/Gang Member or an Associate of a Known Criminal
Organization within the past ten years?” The form again asks for corresponding details. At the
bottom of the form is a space for the employee’s signature and the date, above which is written,
“By signing below, I certify that the above information has been completed to the best of my
knowledge.”
¶5 The second order at issue is the Rules of Conduct Order (No. 11.2.20.0), which has seven
sections that are marked with roman numerals. The Rules of Conduct Order states in part in
section II that employees “shall conduct themselves in a professional and ethical manner both
on and off duty.” Section VI of the order, which is the only section directly at issue, states in
relevant part:
“VI. RULES AND REGULATIONS FOR ALL SWORN AND CIVILIAN CCSO
EMPLOYEES
***
B. Conduct on and off duty.
CCSO employees shall:
1. Maintain a professional demeanor while on duty and will not engage in
off-duty behavior that would reflect negatively on the CCSO.
2. Conduct themselves on and off-duty in such a manner to reflect favorably on
the CCSO. Employees, whether on or off-duty, will 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. Such actions shall constitute conduct
unbecoming of an officer or employee of the CCSO.
3. Be aware that conduct on and off duty extends to electronic social media and
networking sites and that all rules of conduct apply when engaging in any Internet
activity.
4. Maintain a level of conduct in their personal and business affairs that is in
keeping with the highest standards of the law enforcement profession. Employees
will not participate in any incident that:
a. Involves moral turpitude or impairs their ability to perform as law
enforcement officers; or
b. Causes the CCSO to be brought into disrepute.
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5. Not use their official position, official identification cards, stars or hat shields
for:
a. Personal or financial gain for themselves or others.
b. Obtaining privileges not otherwise available to them except
in the performance of duty.
c. Avoiding consequences of illegal acts.
6. Respect and be courteous to others and the public. Employees will be tactful
in the performance of their duties, will control their tempers and exercise the
utmost patience and discretion and will not engage in argumentative discussions
even in the face of extreme provocation.
7. If sworn, carry CCSO credentials (e.g., Sheriff’s Photo Identification,
County Identification, Firearm Owners Identification Card) on their person at all
times except when impractical or dangerous to their safety or to an investigation;
and make every effort to ensure the security and safekeeping of all identification,
including star and hat shield.
8. Furnish their names and star numbers where applicable to any person
requesting that information while on duty, unless withholding such information is
necessary for the performance of police duties (e.g., undercover work).
9. Not use threats and coercion, or abusive, coarse, violent, profane, harassing,
or insolent language or gestures.
10. Ensure that relationships with colleagues promote mutual respect within the
profession and improve quality of service.
11. Utilize CCSO equipment only for its intended purpose and in accordance
with the established procedures; shall not abuse or willfully damage CCSO
equipment; shall use reasonable care to avoid loss of CCSO equipment; and shall
maintain CCSO equipment in accordance with established procedures.
12. Not engage in any conduct that constitutes discrimination or harassment as
defined in CCSO directives regarding discrimination, harassment, sexual
harassment, and hostile work environment.”
¶6 The record contains email correspondence between Union representatives and respondents
about the orders. On January 25, 2013, the Union’s attorney wrote an email to respondents
with the subject line, “Sheriff Rules of conduct, 11.2.20.0 and 11.2.21.0.” The Union’s
attorney demanded to bargain “over this proposed General Order” because it might affect
wages, hours, and terms and conditions of employment. The Union’s attorney asked to advise
when “such a meeting may be scheduled” and suggested that the meeting be held with “the
pending request(s) for a DOC labor/management meeting.” Approximately 30 minutes later,
an attorney for respondents replied, “Please see the newly issued Order referenced in your last
email. If there is a particular area that you are concerned about that is in conflict with or departs
from the predecessor to this Order ***, please let me know.” On February 12, 2013, the
Union’s attorney sent respondents a letter that demanded to bargain over both orders.
¶7 On April 4, 2013, the Union filed a charge with the Board that respondents engaged in
unfair labor practices related to the orders. The Union initially contended that both orders were
unlawful unilateral changes to terms and conditions of employment without notice or the
opportunity to bargain, though it later amended its position to maintain that only the Gang
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Order was a subject of mandatory bargaining. The Union additionally asserted in its charge
that the Rules of Conduct Order contained overbroad restrictions on employee use of social
media and networking sites.
¶8 On September 18, 2013, a hearing began before an administrative law judge (ALJ). Dennis
Andrews, a Union business agent for the Cook County department of corrections, testified
about the state of bargaining between the parties. Andrews stated that the Union did not receive
a response to its email demand to bargain. Andrews further stated that he was involved in
collective bargaining negotiations for the current department of corrections contracts, which
began in January 2013. Andrews had attended each of the eight or nine bargaining sessions.
According to Andrews, the orders were implemented before the first collective bargaining
session, and neither the Sheriff nor the Union had raised either of the orders as a proposal at the
bargaining table. Andrews stated that the Union had not raised the orders because it had
demanded to bargain and the Sheriff had not responded with a proposal or meeting to discuss
the orders. Andrews’s position was that if the Union demanded to bargain, it was up to the
employer to respond. Andrews acknowledged that he did not have anything in writing from
respondents that stated they would not bargain over the orders.
¶9 Andrews also testified about his interpretation of the Gang Order. He stated that before the
Gang Order, neither he nor other officers had ever been required to complete a disclosure form
for gang affiliations. Andrews described the paperwork as cumbersome and stated that the
order required employees to investigate their family members and close associates. Andrews
further stated that it was a lot of work for employees “to determine if their cousin that they
haven’t seen in five years that lives in Iowa, or their sister who lives out in California,” fell into
one of the named categories. According to Andrews, the disclosure requirement imposed a
disciplinary burden, in that “if you are not sure, you don’t know and you don’t disclose it, then
the Department comes to find out that maybe your brother-in-law was in a gang or is in a gang
that you might not have knowledge of, you could be disciplined for not documenting that and
giving them that information.” Andrews also stated that the Union found problematic the
language that prohibits associating with anyone the employee “knew or should have known” is
or was in a gang. Andrews asked, “What if it is your father, or your mother, sister?”
¶ 10 Andrews acknowledged that an October 1998 general order for the Cook County
department of corrections contained a provision stating, “No employee will frequent any
establishment or knowingly associate with persons having known criminal records that would
bring discredit to the department, except when properly authorized to do so.” Andrews also
acknowledged that the October 1998 general order contained a provision stating, “Employees
will not visit any correctional institution for the purpose of visiting a detainee, inmate, or
person incarcerated, not in their immediate family, without first submitting written notification
to the divisional Superintendent/Unit Head. Immediate family includes: Father, Mother,
Siblings and legal children (of the employee).” Andrews was also directed to a March 2001
general order for the court services department that directed employees to “avoid regular or
continuous associations or dealings with persons whom they know, or should know, are
persons under criminal investigation or indictment, or who have a reputation in the community
or the department for present or past involvement in felonious or criminal behavior.” Andrews
stated that the March 2001 order did not apply to the department of corrections and maintained
that the Gang Order was the first time the “should have known” language was applied to
department of corrections employees.
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¶ 11 Asked to explain the benefits that the Union could bring to bargaining over the Gang
Order, Andrews stated that the Union would raise its concerns about the possibility of
discipline and the cumbersome paperwork and would ask respondents to “expound more upon
what they really want in this and why they want it.” Andrews added that he would explain that
the burden was on officers to investigate family members. Andrews further stated that the
order was vague and did not inform employees of the ultimate goal.
¶ 12 Andrews also testified about the Union’s opposition to the social media provision in the
Rules of Conduct Order. Andrews stated that there had not been any previous written work
rules governing conduct on social media platforms. According to Andrews, the Union’s
concern was that “you are constantly getting friended” on social media without knowing “how
[a person] [conducts] themselves,” and an employee could be disciplined if that person was
determined to be a known criminal, gang member, or former or released felon. Andrews
further stated that the correctional officers have their own Facebook page “[s]o they can vent to
each other” and “pass out information.” Andrews had seen complaints on the page about
staffing levels. Andrews did not know of any employees who had been disciplined for
statements made on the Facebook page. However, the administration monitored the page, and
the Union was concerned that an employee could be disciplined “if somebody says the wrong
thing on there or has a bad day at work *** and gets on the computer to vent.” Andrews further
stated that the Rules of Conduct Order did not indicate exactly what employees could and
could not do on social media.
¶ 13 John Figueroa, who was assigned to the Union as the chief steward for the court services
division, testified that the Union had demanded to bargain over the orders almost immediately
after they were implemented, “if not the same day or the day after.” Meanwhile, collective
bargaining negotiations for the court services department were ongoing. Figueroa also stated
that in his 25-year career with the Sheriff’s office, he had not been previously required to
complete a disclosure form related to gang or criminal organization affiliations. Additionally,
Figueroa testified that members of the court services department engaged in criticism of
workplace conditions on Facebook, such as complaining about inadequate elevators or
criticizing staffing levels.
¶ 14 Kim Vargas, a department of corrections employee, testified that she was first required to
complete a gang affiliation disclosure form in January 2013. Vargas further stated that she had
been subjected to an office of professional review interrogation related to the disclosure form.
Vargas stated that she was “called in for the Sheriff’s Order that we were all supposed to fill
out” and was notified that she did not properly complete it. Vargas completed an additional
form and then was told to report for an accused investigation. Vargas believed that she could
be suspended or lose her job, but had not yet been disciplined.
¶ 15 Respondents presented the testimony of Heather Bock, who worked in the Sheriff’s office
of policy and accountability and drafted the Gang Order. Bock stated that the Gang Order itself
was new, but was not a new policy, as the provisions—apart from the signature on the
form—could be found in previous orders. These older provisions stated that “[n]o employee
will frequent any establishment or knowingly associate with persons having known criminal
records that would bring discredit to the department, except when properly authorized to do
so,” and “[e]xcept in the performance of official duties, or where unavoidable because of other
family relationships, members will avoid regular or continuous associations or dealings with
persons whom they know, or should know, are persons under criminal investigation or
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indictment, or who have a reputation in the community or the department for present or past
involvement in felonious or criminal behavior.” However, Bock agreed that the Gang Order’s
disclosure form was a new requirement.
¶ 16 As for the Rules of Conduct Order, Bock agreed that the statement, “Be aware that conduct
on and off-duty extends to electronic social media” was new, but maintained that the basic rule
was not really new. Bock asserted that the social media provision was a specific situation of on
and off-duty conduct. Bock also stated that the orders did not change the kind of work that
employees perform on a daily basis and consisted of “[j]ust filling out a form,” which
employees do every day.
¶ 17 Peter Kramer, an attorney in the Sheriff’s office that handled labor matters, testified that
the Sheriff had not refused to bargain over the two orders. Kramer asserted that “[e]verything
is on the table” and that the Sheriff would be willing to bargain over the orders. Kramer was
asked to recall instances where officers received corrective action because of gang or criminal
affiliation. Kramer stated, “That happens all the time. Most frequently it involves officers
bringing contraband into the facility, but there have been sporadic incidents.” Kramer noted an
incident the previous month where a lieutenant traded inappropriate letters with a detainee and
recalled that earlier in the year, an officer with a gang affiliation was shot. Kramer further
stated that two or three months earlier, an officer was alleged to have “some gang affiliations,
got in a bunch of trouble over like three different things.”
¶ 18 After the hearing, the parties submitted posthearing briefs. In its brief, the Union clarified
that its challenges to the Gang Order were the heightened opportunities for discipline from the
disclosure form and the requirement that employees disclose all family and associates who
may have been involved in criminal organizations, regardless of whether employees were
aware of that involvement when they completed the form. The Union contended that the
increased possibility for discipline made the new disclosure requirement a mandatory subject
of bargaining. The Union further stated that respondents did not articulate any burdens to
bargaining. Additionally, the Union asserted that respondents instituted the Gang Order
without providing advance notice and an opportunity to bargain, despite the Union’s repeated
and timely requests to do so. The Union further contended that the social media provision was
overly broad, vague, and violated employees’ rights under section 10(a)(1) of the Act (5 ILCS
315/10(a)(1) (West 2012)).
¶ 19 In their brief, respondents asserted that the Sheriff is statutorily tasked with providing
safety and security to employees and detainees and that gang affiliation with people detained in
custody poses serious safety concerns. Respondents further stated that the issues of public
safety, crime prevention, and correctional and courthouse security were within the inherent
management authority and not subject to bargaining. Respondents contended that even if the
orders affected wages, hours, and terms and conditions of employment, the public policies of
preventing crime, citizen safety, and the security of jails and courthouses outweighed the
Union’s interest in bargaining. Respondents also asserted that there had been problems with
officers brought up on charges because of contact with felons or gang members, as well as
incidents of officers bringing contraband into the jail. Respondents further stated that the
Union’s complaint should be dismissed because bargaining was ongoing. Additionally,
respondents contended that the social media provision did not impose new requirements on
employees’ off-duty conduct.
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¶ 20 The ALJ issued her decision on March 6, 2015, and agreed with the Union as to both
orders. Applying the test for whether a matter is subject to mandatory bargaining that was
outlined in Central City Education Ass’n v. Illinois Educational Labor Relations Board, 149
Ill. 2d 496 (1992), the ALJ found that the Gang Order was a term and condition of employment
because it subjected employees to potential discipline and employees could be barred from the
premises for violating the order. The ALJ also found that the Gang Order involved a matter of
inherent managerial policy, stating that that the Sheriff had a statutory duty to maintain safety
and security within the county and the facilities under its control. After balancing the
competing interests, the ALJ asserted that the benefits of bargaining over the Gang Order
outweighed the burdens on respondents’ inherent managerial authority. The ALJ stated that the
examples of problems given by respondents at the hearing were extremely vague and that
respondents had not sufficiently demonstrated how bargaining over the Gang Order would
significantly impact their ability to carry out their statutory duties. The ALJ stated that, in
contrast, employees had a strong interest in bargaining over the Gang Order, noting that
employees could be disciplined and barred from the premises under the order. The ALJ
additionally found that respondents unilaterally imposed the Gang Order without bargaining to
impasse. The ALJ stated that, at a minimum, respondents were required to give the Union
adequate notice and a meaningful opportunity to bargain before implementing the policy,
which they did not do.
¶ 21 Turning to the Rules of Conduct order, the ALJ found that the social media provision was
unlawfully overbroad in violation of section 10(a)(1) of the Act (5 ILCS 315/10(a)(1) (West
2012)). The ALJ asserted that the Board had not addressed whether a work rule that does not
explicitly restrict protected activity could be unlawful, but the National Labor Relations Board
(NLRB) had frequently addressed that issue. The ALJ further stated that the social media
provision on its own did not prohibit any conduct and was instead a clarification that the
conduct described in the conduct unbecoming provision applied to social media. As a result,
according to the ALJ, the social media provision was overly broad if the conduct unbecoming
provision was overly broad. Relying on NLRB decisions, the ALJ found that the conduct
unbecoming provision was unlawful because it was not limited to unprotected activity and did
not contain limiting language or any description of what was meant by conduct that would
discredit respondents’ integrity. The ALJ stated that a reasonable employee could believe that
the rule prohibits publicly criticizing the employer and its employment practices. The ALJ
further stated that because the conduct unbecoming provision was overly broad, any
application of the social media provision to the conduct unbecoming provision was also overly
broad.
¶ 22 Subsequently, respondents filed exceptions in opposition to the ALJ’s recommended
decision and order. In part, respondents contended that the issues of public safety, crime
prevention, and correctional and court facility security were within their inherent authority and
not subject to bargaining. Respondents cited several statutes that described their obligations
and asserted that the legislature’s intent was to impose serious penalties to prevent interference
with penal institutions such as the Cook County department of corrections. Respondents also
contended that the Union did not present any rebuttal evidence that having officers with gang
and criminal affiliation was not a serious problem. Additionally, respondents stated that the
Rules of Conduct Order language at issue had been used by the Sheriff and numerous Illinois
municipal agencies for decades and had become well-defined practice. Respondents further
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asserted that there was no evidence that the language had ever been used as the basis to
discourage or discipline employees from engaging in protected activity. Lastly, respondents
contended that the Sheriff had not refused to bargain and the Union had not raised the orders at
the bargaining table.
¶ 23 On September 28, 2015, the Board issued a written decision that reversed the ALJ’s
recommended decision and order. The Board found that respondents did not violate the Act
“when they unilaterally implemented the Gang Order” because the Gang Order was not a
mandatory subject of bargaining. The Board asserted that there was a self-evident connection
between “dealing with the widespread gang problem, in order to address [respondents’]
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.” The Board also referred to section 5 of the Illinois Streetgang Terrorism
Omnibus Prevention Act (740 ILCS 147/5 (West 2012)), which stated that areas throughout
Illinois were being “terrorized and plundered by streetgangs” and that streetgangs’ activities
“present a clear and present danger to public order and safety and are not constitutionally
protected.” The Board added that it was aware of the “well-publicized and staggering number
of violent crimes” in and around Chicago, as well as “the ongoing and inextricable connection
between violent crime and gang activity.” The Board further stated that it recognized that the
threat of gang violence, gang activity, and gang influence was magnified in an environment
such as the Cook County jail and other places where respondents are mandated to provide
safety and keep the peace. The Board found that the Gang Order was “clearly a matter of
inherent managerial authority” and the balance weighed significantly in favor of respondents’
managerial rights.
¶ 24 Turning to the Rules of Conduct Order, the Board found that the conduct unbecoming rule
had existed in predecessor general orders since at least 1998 and that its substantive essence
had not been changed simply because respondents advised employees that the same
proscription applied to conduct carried out by contemporary means of communication. The
Board asserted that the ALJ’s analysis “overlooks the critical fact that the conduct proscribed,
has been proscribed, in essentially the same ‘conduct unbecoming’ terms since at least 1998.”
The Board could not find any evidence in the record to suggest that the Union had previously
challenged the conduct unbecoming rule and stated that the Union could not point to any
instance in the long life of the conduct unbecoming rule when the employer had punished an
employee for exercising protected rights. The Board stated that under these circumstances, a
reasonable employee would not be justified in the belief that the rule morphed into a
prohibition on publicly criticizing the employer and its employment practices or that the rule
otherwise tended to interfere with or coerce employees in the exercise of the right to engage in
protected activity.
¶ 25 One Board member dissented as to the Gang Order, disagreeing with the Board’s finding
that the burden of bargaining outweighed its benefits. The dissenting Board member
recognized respondents’ need to limit employees’ association with gang members, but found
that the evidence was insufficient to establish that requiring respondents to bargain over the
Gang Order would impair their ability to carry out their statutory mission. According to the
dissenting Board member, respondents introduced little evidence to show that employees’
associations with gangs had suddenly become urgent to the point that bargaining would be a
significant burden on respondents’ inherent managerial rights. The dissenting Board member
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stated that the Gang Order imposed significant new responsibilities and that bargaining might
have increased the chances that those responsibilities would have been more clearly defined
and reasonable.
¶ 26 The Union subsequently appealed.
¶ 27 II. ANALYSIS
¶ 28 A. Gang Order
¶ 29 On appeal, the Union first contends that respondents violated sections 10(a)(1) and
10(a)(4) of the Act (5 ILCS 315/10(a)(1), (a)(4) (West 2012)) by failing and refusing to
bargain over the Gang Order. The Union argues that the “should have known” language and
disclosure requirement constitute changes to the terms and conditions of employment. The
Union further asserts that the Gang Order involves heightened opportunities for discipline. The
Union also maintains that the Gang Order does not involve inherent managerial authority, but
that if it does, the benefits of bargaining outweigh the burdens. The Union contends that
through bargaining, the Union could help formulate and clarify the Gang Order, as well as
assist respondents in meeting their objectives. The Union also states that respondents did not
articulate any burdens to bargaining.
¶ 30 “The issue of whether a public employer is required to bargain over a specific subject
generally involves a mixed question of law and fact,” which warrants a clearly erroneous
standard of review. Forest Preserve District v. Illinois Labor Relations Board, 369 Ill. App. 3d
733, 751 (2006). We will reverse the Board’s decision only where, on the entire record, we are
“left with the definite and firm conviction that a mistake has been committed.” (Internal
quotation marks omitted.) Id. at 752. This standard provides some deference to an
administrative agency’s experience and expertise. County of Cook v. Illinois Labor Relations
Board, Local Panel, 347 Ill. App. 3d 538, 551 (2004). Meanwhile, the Board’s findings and
conclusions on questions of fact are considered to be prima facie true and correct. Chicago
Transit Authority v. Amalgamated Transit Union, 299 Ill. App. 3d 934, 940-41 (1998). We
defer to the Board’s factual conclusions and reverse them only if they are against the manifest
weight of the evidence. Id. at 941. Additionally, we review questions of law de novo. Id.
¶ 31 Turning to the applicable statutes, sections 10(a)(1) and 10(a)(4) of the Act state in part:
“(a) It shall be an unfair labor practice for an employer or its agents:
(1) to interfere with, restrain or coerce public employees in the exercise of the rights
guaranteed in this Act or to dominate or interfere with the formation, existence or
administration of any labor organization or contribute financial or other support to it
*** [or]
***
(4) to refuse to bargain collectively in good faith with a labor organization which is
the exclusive representative of public employees in an appropriate unit, including, but
not limited to, the discussing of grievances with the exclusive representative[.]” 5 ILCS
315/10(a)(1), (a)(4) (West 2012).
¶ 32 Section 7 of the Act states that a public employer and the exclusive representative of the
public employees have the duty to bargain collectively “over any matter with respect to wages,
hours and other conditions of employment.” 5 ILCS 315/7 (West 2012). However, employers
are not required to bargain over matters of “inherent managerial policy,” which include “such
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areas of discretion or policy as the functions of the employer, standards of services, its overall
budget, the organizational structure and selection of new employees, examination techniques
and direction of employees.” 5 ILCS 315/4 (West 2012). It is possible for a matter to be both
one of wages, hours, and other conditions of employment and within an employer’s inherent
managerial authority. Central City, 149 Ill. 2d at 523. Faced with these scenarios, Central City
set out a test to determine whether a matter is a subject of mandatory bargaining. Id. See also
City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 206 (1998) (applying
the Central City test to cases arising under the Act). Under the Central City test, a matter is a
mandatory subject of bargaining if it (1) involves wages, hours, and terms and conditions of
employment and (2) is either not a matter of inherent managerial authority or (3) is a matter of
inherent managerial authority but the benefits of bargaining outweigh the burdens bargaining
imposes on the employer’s authority. Central City, 149 Ill. 2d at 523; Forest Preserve District,
369 Ill. App. 3d at 752.
¶ 33 A matter concerns wages, hours, and terms and conditions of employment if it (1) involved
a departure from previously established operating practices, (2) effected a change in the
conditions of employment, or (3) resulted in a significant impairment of job tenure,
employment security, or reasonably anticipated work opportunities for those in the Union.
Chicago Park District v. Illinois Labor Relations Board, 354 Ill. App. 3d 595, 602 (2004).
Further, a rule that subjects employees to potential discipline concerns the terms and
conditions of employment. See County of Cook, 347 Ill. App. 3d at 552 (because residency
requirement subjected employees to potential discipline, requirement affected employees’
terms and conditions of employment).
¶ 34 The Gang Order has two components at issue—the “should have known” requirement and
the disclosure requirement. We consider whether each component concerns the terms and
conditions of employment. The Sheriff maintains that the “should have known” language is
not new, and points to a previous court services order that stated that employees were to “avoid
regular or continuous associations or dealings with persons whom they know, or should know,
are persons under criminal investigation or indictment, or who have a reputation in the
community or the department for present or past involvement in felonious or criminal
behavior.” The Sheriff also refers to a previous general order that stated, “No employee will
*** knowingly associate with persons having known criminal records that would bring
discredit to the department, except when properly authorized to do so.”
¶ 35 The Sheriff overlooks key differences between previous orders and the Gang Order. The
Gang Order states that an employee may not associate with anyone who the employee “knew
or should have known *** is or was a member of a Known Criminal Organization.” Even if the
“should have known” language was in a previous order, the Gang Order redefined the category
of people with whom an employee may not associate. While the previous orders prohibited
associating with people who had criminal records, were under criminal investigation or
indictment, or had a particular reputation, the Gang Order prohibits associating with people
who are members of a group with certain traits—namely, the group forms an allegiance for a
common purpose, engages in criminal activity, and does one or more of the following: shares a
common group name, shares common symbols, tattoos, or graffiti, shares a common style of
dress, frequently congregates upon, or lays claim to, a geographic location, and associates
together on a regular or continuous basis. Moreover, the Gang Order has a broader sweep.
Now, to be someone with whom the employee may not associate, a person need not have
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personally engaged in criminal activity or have a reputation for doing so, but need only to have
been part of a group that does. Further, the Gang Order states that “[a]ny violation of this order
may result in denial of access to the CCSO; disciplinary action up to and including termination;
and/or criminal charges where applicable.” Because employees are subject to potential
discipline for associating with a new category of people, the “should have known” requirement
concerns the terms and conditions of employment.
¶ 36 The disclosure requirement also amounts to a change that affects the terms and conditions
of employment. Under the Gang Order, employees must disclose “any and all memberships
and associations” and states that “[f]ailure to disclose a relevant membership or association is a
violation of CCSO policy.” Refusal to complete information or falsifying information on the
disclosure form results in “[d]isciplinary action up to and including termination.” The Sheriff
refers to the testimony of Heather Bock, who stated that the orders did not change the kind of
work that employees perform on a daily basis and consisted of “[j]ust filling out a form,”
which employees do every day. At the same time, Bock stated that the disclosure form was a
new requirement, and Union witnesses testified that they had never had to disclose gang
affiliations before. As with the “should have known” rule, the disclosure form requirement is a
change that subjects employees to potential discipline, and therefore involves a change to the
terms and conditions of employment. See id.
¶ 37 The next question is whether the Gang Order is also a matter of inherent managerial
authority, which has been defined as those matters residing “at the core of entrepreneurial
control.” (Internal quotation marks omitted.) Board of Trustees of the University of Illinois v.
Illinois Labor Relations Board, 224 Ill. 2d 88, 97 (2007) (quoting Ford Motor Co. v. National
Labor Relations Board, 441 U.S. 488, 498 (1979)). As noted above, section 4 of the Act states
that matters of inherent managerial policy include “such areas of discretion or policy as the
functions of the employer, standards of services, its overall budget, the organizational structure
and selection of new employees, examination techniques and direction of employees.” 5 ILCS
315/4 (West 2012). It was not clearly erroneous to conclude that the Gang Order is a matter of
the employer’s inherent managerial authority. The legislature has designated each sheriff as
“conservator of the peace” in his county, who “shall prevent crime and maintain the safety and
order of the citizens of that county.” 55 ILCS 5/3-6021 (West 2012). The Gang Order relates to
preventing crime and maintaining safety—a function of the employer—and so is a matter at
the core of respondents’ entrepreneurial control.
¶ 38 Moving to the next part of the Central City test, we must balance the benefits of bargaining
against the burdens of bargaining on respondents. Relevant to this analysis, respondents
presented testimony at the hearing about the extent of the gang problems among employees.
Peter Kramer, a Sheriff’s office attorney, stated that officers receive corrective action because
of gang or criminal affiliation “all the time,” but also stated that “there have been sporadic
incidents.” Kramer recalled three incidents in the past year where employees’ gang affiliations
had caused problems. For the Union’s part, Dennis Andrews testified that if the Gang Order
were bargained, the Union would raise concerns about the paperwork and the possibility of
discipline and would ask respondents to “expound more upon what they really want in this and
why they want it.” Andrews expressed concern that employees could be disciplined for not
disclosing gang affiliations of family members of which employees were not aware. Andrews
was also concerned that employees would have to investigate their family members and close
associates, and noted that it would be a lot of work for an employee to determine if his “cousin
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that [he] hasn’t seen in five years that lives in Iowa” or “[his] sister who lives out in
California,” falls into one of the relevant categories.
¶ 39 Though we do not doubt Kramer’s testimony 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. Kramer noted three incidents in the past year and characterized the problems as
“sporadic.” Further, the statute the Board relied on to reach its conclusion—the Illinois
Streetgang Terrorism Omnibus Prevention Act (740 ILCS 147/5 (West 2012))—was made
effective in 1993 and has not been amended since then. 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. Moreover, the parties were about to
begin collective bargaining negotiations anyway when the new order was issued. But cf.
American Federation of State, County & Municipal Employees v. Illinois State Labor
Relations Board, 190 Ill. App. 3d 259, 263, 268 (1989) (in finding the burdens outweighed the
benefits of bargaining a new drug testing policy, the court noted that the employer continued to
find drugs in prison and drug use despite numerous measures, that as of spring 1988, officials
were investigating 217 employees for possible drug dealing at the prison facilities, and that a
survey revealed that 18% of trainees were involved with illegal drugs). See also Forest
Preserve District, 369 Ill. App. 3d at 753-54 (matter was subject of mandatory bargaining
where the ALJ determined that the employer had time to bargain and that the employer’s
asserted problems “were not so immediate that bargaining could not have occurred”). Further,
and contrary to the Board’s assertion at oral argument, the Union indeed presented the benefits
of bargaining, as well as highlighted areas of concern that bargaining could address.
Andrews’s testimony indicates that bargaining could clarify the requirements of the disclosure
form and what employees are actually tasked with, which would tailor the Gang Order to better
meet respondents’ needs. Additionally, Union members have a significant interest avoiding the
prohibited associations and completing the disclosure form correctly, as they could lose their
jobs otherwise. See Town of Cicero v. Illinois Ass’n of Firefighters, IAFF Local 717, 338 Ill.
App. 3d 364, 371 (2003) (union members’ significant interest in the matter at stake was a
consideration in the balancing analysis). We acknowledge that which matters are subject to
mandatory bargaining and which are not are very fact-specific questions that the Board, given
its experience, is eminently qualified to decide. Chicago Park District, 354 Ill. App. 3d at 602.
At the same time, the clearly erroneous standard of review does not “relegate judicial review to
mere blind deference of an agency’s order.” Board of Trustees of the University of Illinois, 224
Ill. 2d at 98. Under these circumstances, the Board’s conclusion was clearly erroneous, and the
benefits of bargaining the Gang Order outweigh the burdens.
¶ 40 Having determined that the Gang Order was a subject of mandatory bargaining, we next
consider whether respondents refused to bargain. The Union contends that it timely demanded
to bargain the Gang Order, but no opportunity to bargain occurred. Meanwhile, the Sheriff
asserts that he has not refused to bargain and that the Union has not raised the orders at the
bargaining table. The Sheriff notes that the record does not contain evidence that the Sheriff
ever stated in writing that he would not bargain. In its written decision, the Board appeared to
agree that respondents unilaterally implemented the orders, having stated that respondents did
not violate the Act “when they unilaterally implemented the Gang Order.”
¶ 41 When an employer has the duty to bargain, it must provide notice of its willingness to
bargain before the time its plans are fixed. Service Employees International Local Union No.
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316 v. Illinois Educational Labor Relations Board, 153 Ill. App. 3d 744, 755 (1987). For its
part, “[o]nce a union has been notified of a topic of bargaining, it must pursue bargaining.” Id.¶ 42 The Board’s implied finding that respondents refused to bargain was not against the
manifest weight of the evidence. The record indicates that the Union fulfilled its obligation to
pursue bargaining, but respondents failed to notify the Union they were willing to bargain
before implementing the Gang Order. The Gang Order states that it was issued on January 18,
2013, and was effective on January 25, 2013. On January 25, 2013, the Union’s attorney sent
an email that demanded to bargain and requested that the Gang Order and Rules of Conduct
Order be held in abeyance. In their reply, respondents did not indicate that they were willing to
bargain before implementing the Gang Order. The email response to the Union advised the
Union’s attorney to “see the newly issued Order” and to let respondents’ attorney know if there
was a particular area of concern. As an aside, the record does not disclose whether the Union
was notified about the orders before January 25, but respondents do not contend that the
Union’s demand to bargain was untimely. John Figueroa, one of the Union’s witnesses,
testified that the Union demanded to bargain over the orders almost immediately after they
were implemented, “if not the same day or the day after.” Returning to the matter at hand,
despite the Union’s demand to bargain, respondents implemented the Gang Order. Kim
Vargas, a department of corrections employee, testified that she had to complete a disclosure
form in January 2013. 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. The Gang Order was presented as an impermissible fait accompli. See
Chicago Transit Authority, 299 Ill. App. 3d at 944 (where correspondence from employer
simply announced a job reclassification and changes in wage rates and stated that the employer
would address questions, employer presented matter as a fait accompli and failed to bargain in
good faith).
¶ 43 Because respondents refused to bargain the Gang Order—a subject of mandatory
bargaining—in spite of the Union’s demand, they violated the Act.
¶ 44 B. Social Media Policy
¶ 45 Next, we consider the Union’s contention that the social media policy is overbroad and
violates section 10(a)(1) of the Act (5 ILCS 315/10(a)(1) (West 2012)). The Union urges this
court to adopt the ALJ’s reasoning and relies on advice memoranda from the general counsel
of the NLRB.
¶ 46 As the Union recognizes, Illinois courts have not yet addressed the issue of whether a
social media policy—or any work rule, for that matter—violates section 10(a)(1) of the Act (5
ILCS 315/10(a)(1) (West 2012)) because it is overbroad on its face. However, in labor cases,
the rulings of the NLRB and federal courts that construe the National Labor Relations Act are
persuasive authority for similar provisions in the Illinois Act. American Federation of State,
County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State
Panel, 216 Ill. 2d 569, 579 (2005). Further, our supreme court has recognized the close parallel
between section 10(a) of the Act and section 8(a) of the National Labor Relations Act. City of
Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345 (1989).
¶ 47 Section 10(a)(1) of the Act states in part:
“(a) It shall be an unfair labor practice for an employer or its agents:
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(1) to interfere with, restrain or coerce public employees in the exercise of the rights
guaranteed in this Act or to dominate or interfere with the formation, existence or
administration of any labor organization or contribute financial or other support to it;
provided, an employer shall not be prohibited from permitting employees to confer
with him during working hours without loss of time or pay[.]” 5 ILCS 315/10(a)(1)
(West 2012).
Additionally, section 6(a) of the Act states in part that employees are protected “in the exercise
of the right of self-organization, and may form, join or assist any labor organization,” and have
the right to “engage in other concerted activities not otherwise prohibited by law for the
purpose of collective bargaining or other mutual aid or protection, free from interference,
restraint or coercion.” 5 ILCS 315/6(a) (West 2012).
¶ 48 On the federal side, section 8(a) of the National Labor Relations Act states in part:
“(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it: Provided, That subject to
rules and regulations made and published by the [NLRB] pursuant to section 156 of
this title, an employer shall not be prohibited from permitting employees to confer
with him during working hours without loss of time or pay.” 29 U.S.C. § 158(a)
(2012).
Moreover, section 7 of the National Labor Relations Act states in part that employees have the
right to “self-organization, to form, join, or assist labor organizations” and to “engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
29 U.S.C. § 157 (2012).
¶ 49 As for our standard of review, whether the social media policy violates section 10(a)(1) of
the Act is a mixed question of law and fact—a question that examines the legal effect of a
given set of facts (see Oleszczuk v. Department of Employment Security, 336 Ill. App. 3d 46,
50 (2002)). As a result, we review the Board’s decision under the clearly erroneous standard,
meaning that we will reverse the Board only when a review of the record leaves us with a
“ ‘ “definite and firm conviction that a mistake has been committed.” ’ [Citation.]” Id. Federal
courts also use a deferential standard of review for NLRB decisions. See Guardsmark, LLC v.
National Labor Relations Board, 475 F.3d 369, 374 (D.C. Cir. 2007) (stating that NLRB
determinations are entitled to considerable deference as long as they are reasonably defensible
and that the court defers to the NLRB’s interpretation of section 8(a) when the NLRB faithfully
applies the applicable standard and adequately explains the basis for its conclusion);
Community Hospitals v. National Labor Relations Board, 335 F.3d 1079, 1082-83 (D.C. Cir.
2003) (stating that the court will affirm the NLRB’s order unless the NLRB acted arbitrarily or
otherwise erred in applying established law to the facts of the case).
¶ 50 We are faced with a challenge to a rule’s existence, rather than a challenge to an
employer’s enforcement of a rule. The NLRB has stated that to determine whether the mere
maintenance of a rule violates section 8(a)(1) of the National Labor Relations Act, “the
appropriate inquiry is whether the [rule] would reasonably tend to chill employees in the
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exercise of their Section 7 rights. Where the [rule is] likely to have a chilling effect on Section
7 rights, the [NLRB] may conclude that [its] maintenance is an unfair labor practice, even
absent evidence of enforcement.” Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998).
¶ 51 Subsequently, the NLRB expanded on the test for determining whether a rule is unlawful in
Martin Luther Memorial Home, Inc., 343 N.L.R.B. 646 (2004) (Lutheran Heritage). There, the
NLRB distinguished between a rule that explicitly restricts protected activity and one that does
not. A rule that explicitly restricts activity protected by section 7 of the National Labor
Relations Act is unlawful. Id. at 646. If the rule does not explicitly restrict protected activity,
the rule is unlawful under any of the following conditions: (1) employees would reasonably
construe the language to prohibit protected activity; (2) the rule was promulgated in response
to union activity; or (3) the rule has been applied to restrict the exercise of protected rights. Id.
at 647. As additional considerations, the NLRB stated that it must give a challenged rule “a
reasonable reading,” “must refrain from reading particular phrases in isolation, and *** must
not presume improper interference with employee rights.” Id. at 646. Under the Lutheran
Heritage framework, the validity of a workplace rule does not depend on “subjective employee
understandings or actual enforcement patterns, but on an objective inquiry into how a
reasonable employee would understand the rule’s disputed language.” Quicken Loans, Inc. v.
National Labor Relations Board, 830 F.3d 542, 549 (D.C. Cir. 2016).
¶ 52 In its brief, the Board urges this court not to follow the framework set out in Lutheran
Heritage. The Board also states that it did not address Lutheran Heritage in its decision and
argues that Lutheran Heritage has been criticized, citing dissents from NLRB decisions.
¶ 53 As stated above, our own research has not revealed any Illinois cases that addressed
whether the mere maintenance of a rule violated section 10(a)(1) of the Act. It is possible that
Illinois courts have not been presented with a situation where Lutheran Heritage applies. In the
federal setting, however, Lutheran Heritage has been followed in numerous decisions. See,
e.g., Boch Imports, Inc. v. National Labor Relations Board, 826 F.3d 558, 579 (1st Cir. 2016);
Flex Frac Logistics, LLC v. National Labor Relations Board, 746 F.3d 205, 208-09 (5th Cir.
2014); International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America v. National Labor Relations Board, 520 F.3d 192, 197 (2d Cir. 2008);
Guardsmark, LLC, 475 F.3d at 374; Schwans Home Service, Inc., 364 N.L.R.B. No. 20, at *1
(2016); Valley Health System LLC, 363 N.L.R.B. No. 178, at *1 (2016); T-Mobile USA, Inc.,
363 N.L.R.B. No. 171 at *1 (2016); Hills & Dales General Hospital, 360 N.L.R.B. No. 70
(2014); Karl Knauz Motors, Inc., 358 N.L.R.B. 1754, 1754 (2012); Costco Wholesale Corp.,
358 N.L.R.B. 1100, 1101 (2012); Albertson’s, Inc., 351 N.L.R.B. 254, 259 (2007). Lutheran
Heritage has also been cited as additional authority in an Illinois Board decision, though it was
in the context of a challenge to the enforcement of a work rule. Illinois Troopers Lodge No. 41,
30 PERI ¶ 70 (ILRB State Panel 2013). Given Lutheran Heritage’s consistent application in
federal cases and NLRB decisions, Lutheran Heritage applies here.
¶ 54 Furthermore, for all of the Board’s criticism of Lutheran Heritage in its brief, it has not
provided an alternative framework for assessing where the mere maintenance of a rule is
unlawful, without evidence of enforcement. The Board only points to dissents from NLRB
decisions as instances where Lutheran Heritage has been criticized. The Board further asserts
that the standard for section 10(a)(1) violations is whether the employer’s conduct, viewed
objectively from an employee’s standpoint, reasonably tended to interfere with, restrain, or
coerce employees in the exercise of activity protected under the Act. Yet, the Board’s support
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for that standard consists of cases where a union challenges an affirmative act by an employer,
rather than the situation we are faced with here, where the Union asserts that merely
maintaining the rule is unlawful. See Amalgamated Transit Union, Local 241, 30 PERI ¶ 9
(ILRB Local Panel 2013); County of Woodford, 14 PERI ¶ 2017 (ISLRB 1998).
¶ 55 We next apply the Lutheran Heritage standard to the social media policy at issue. The
Union argues that when read with the conduct unbecoming rule, the social media policy has an
overbroad chilling effect on employee workplace-based speech on the Internet that violates
section 10(a)(1) of the Act.
¶ 56 The conduct unbecoming rule states that employees shall:
“2. Conduct themselves on and off-duty in such a manner to reflect favorably on the
CCSO. Employees, whether on or off-duty, will 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. Such actions shall constitute conduct unbecoming of an
officer or employee of the CCSO.”
Immediately following is the social media policy, which states:
“3. Be aware that conduct on and off duty extends to electronic social media and
networking sites and that all rules of conduct apply when engaging in any Internet
activity.”
¶ 57 The Union states that reading these provisions together, the social media policy prohibits
conduct on electronic social media and networking sites that discredits the integrity of the
CCSO, its employees, the employee him/herself, or which impairs the operations of the CCSO.
Acknowledging that the social media policy does not explicitly prohibit protected activity, the
Union asserts that the social media policy is unlawful under the first condition in Lutheran
Heritage: employees would reasonably construe it to prohibit protected activity. Lutheran
Heritage, 343 N.L.R.B. at 647. The Union contends that policy does not include limiting
language or examples of what behaviors are prohibited. Of note, the Union does not maintain
that the social media policy is unlawful under the other two possibilities stated in Lutheran
Heritage—that the social media policy was promulgated in response to union activity or has
been applied to restrict the exercise of protected rights. See id.
¶ 58 We find that the mere maintenance of the social media policy does not violate the Act. The
Union may be correct that employees could interpret the social media policy to prohibit
protected activity, but the possibility that employees could interpret the policy that way is not
enough. Where the rule does not refer to protected activity, “we will not conclude that a
reasonable employee would read the rule to apply to such activity simply because the rule
could be interpreted that way.” (Emphasis in original.) Id. We reiterate that we must give the
social media policy a reasonable reading and not read particular phrases in isolation.
Albertson’s, Inc., 351 N.L.R.B. at 259. The social media policy is part of a set of three
introductory rules of conduct that are followed by nine more specific rules. 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 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.
¶ 59 Further, the Union’s argument strongly relies on advice memoranda from the general
counsel of the NLRB, which are not persuasive authority. The general counsel has final
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authority regarding investigations into unfair labor practices and prosecution of complaints
before the NLRB. 29 U.S.C. § 153(d) (2012). In contrast, it is the NLRB that applies “the
[National Labor Relations Act’s] general prohibitory language in the light of the infinite
combinations of events which might be charged as violative of its terms.” Republic Aviation
Corp. v. National Labor Relations Board, 324 U.S. 793, 798 (1945). While NLRB decisions
are persuasive, the advice memoranda are not. Further, the Union did not present NLRB
decisions or federal cases that suggest the social media policy is unlawful. The mere
maintenance of the social media policy in the Rules of Conduct Order does not violate the Act.
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated above, respondents violated the Act by refusing to bargain the Gang
Order. However, the social media policy is not overbroad and does not violate the Act. We
reverse the Board’s decision as to the Gang Order and affirm the Board’s decision as to the
social media policy in the Rules of Conduct Order.
¶ 62 Reversed in part; affirmed in part.
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