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County of Cook v. Illinois Labor Relations Board

Court of Appeals of Illinois, First District, Third Division

February 1, 2017

COUNTY OF COOK and the SHERIFF OF COOK COUNTY, Petitioners-Appellants,
v.
ILLINOIS LABOR RELATIONS BOARD, LOCAL PANEL, ROBERT M. GIERUT, CHAIRMAN, CHARLES E. ANDERSON, MEMBER, RICHARD A. LEWIS, MEMBER, MELISSA MLYNSKI, EXECUTIVE DIRECTOR, FNTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 700, and ILLINOIS FRATERNAL ORDER OF POLICE, Respondents-Appellees.

         Petition for Review of Decision and Order of the Illinois Labor Relations Board, Local Panel September 29, 2015 No. L-CA-14-016

          PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Pucinski and Cobbs concurred in the judgment and opinion.

          OPINION

          FITZGERALD SMITH PRESIDING JUSTICE.

         ¶1 Respondent-appellee International Brotherhood of Teamsters, Local 700 (Union)[1], the representative of three bargaining units of Cook County correctional officers, deputy sheriffs, and fugitive investigators[2], filed a charge with the Illinois Labor Relations Board (Board), alleging that petitioners-appellants, County of Cook and the Sheriff of Cook County ("Sheriff or "the Employer"), committed an unfair labor practice by unilaterally changing their secondary employment policy and refusing to bargain over it when they issued a general order establishing new policies and procedures governing their employees' ability to work a second job.[3] In March 2013, the Board s administrative law judge (ALJ) conducted a hearing and issued a recommended decision and order (RDO) in which it concluded that the Employer violated certain sections of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a) (West 2014)), by unilaterally changing the criteria for obtaining approval to work a second job, establishing objective attendance and disciplinary criteria in reviewing and revoking previously authorized secondary employment, and requiring all employees to submit an annual secondary employment disclosure form. The Employer filed exceptions to that RDO. In September 2015, the Board upheld the RDO. The Employer appeals, contending the Board's decision must be reversed because the new secondary employment policy is not subject to bargaining, as it is within the Employer's inherent managerial authority; the new secondary employment policy does not change hours, wages or conditions of employment; and the new secondary employment policy does not impose new discipline on employees. The employer also contends the complaint should be dismissed because the Union was not denied the opportunity to bargain over the issue of secondary employment. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The Union and the Employer are parties to a collective bargaining agreement. That agreement provides that "each employee will operate within the department's secondary employment policy's guidelines."

         ¶ 4 On December 4, 2007, the Sheriff's Office issued Cook County Sheriff's Order General Order 07-02 (prior General Order), which established the policy and procedures related to secondary employment by all Sheriff's Office sworn and civilian employees. This prior General Order addressed various topics, including the procedures by which the head of an employee's department would review and could grant approval to work a second job, as well as the circumstances in which secondary employment was prohibited. The Union later entered into collective bargaining agreements (CBA) for the three bargaining units composed of correctional officers, deputy sheriffs, and fugitive investigators. The CBA incorporated the prior General Order, providing that employees must comply with the existing secondary employment policy.

         ¶ 5 The Collective Bargaining Agreements between the Employer and the various parties represented by the Union are included in the record on appeal. Each contains a provision, entitled "Secondary Employment, " stating that each employee will operate within the department's secondary employment guidelines.

         ¶ 6 The Deputy Sheriffs' agreement contains the following provision:

"Section 3.5 Secondary Employment:
It is understood between the parties that employment with the Cook County Sheriff's Office is the employee's primary job. In all instances, the employee will operate within the guidelines of the department General Order, regarding secondary employment in effect at the time of this Agreement.
Employees engaged in secondary employment with permission shall be allowed to work unlimited hours as long as these hours do not affect the employee's ability to perform his assignments with the employer. Once allowed, secondary employment shall not be terminated except for just cause.
A request for secondary employment shall be denied, under the following circumstances, when the secondary employment is in an establishment where the primary business is the sale of intoxicating liquor or gambling:
1. The employment includes serving as a bartender and/or dispensing intoxicating liquor.
2. The employment includes serving as a cocktail waiter/waitress.
3. The employment is security related.
4. The Sheriff's Office deems that the employment will bring discredit upon the department."

         ¶ 7 The Collective Bargaining Agreement between the Employer and the fugitive unit investigators contains the following provision:

"Section 12.8 Secondary Employment Permitted:
The employer may require advance written request for secondary employment, in accordance with existing Department policy, which may only be denied for just cause. Only employees working in the capacity of a law enforcement officer, security guard or investigator may be required to furnish proof of the secondary Employer's indemnification/liability insurance coverage. This provision shall not apply to work performed for the County of Cook or the Cook County Sheriff's Department.
There shall be no fixed limit on the number of hours an employee may work at secondary employment as long as the secondary employment does not interfere with the employee's ability to perform his job duties for the County."

         ¶ 8 The Collective Bargaining Agreement between the Employer and Correctional Officers includes the following provision:

"Section 13.15 Secondary Employment:
It is understood that employment with the Cook County Sheriff is the Employee's primary job. In all instances the employee will operate within the guidelines of the Department General Order, where the employee is assigned, regarding secondary employment. Employees working in the capacity of law enforcement officer, security guard or investigator shall furnish proof of the secondary employer's indemnification/liability insurance. Employees engaged in secondary employment with permission shall be allowed to work unlimited hours as long as these hours do not affect the employee's ability to perform his assignments with the employer. Once allowed, secondary employment shall not be terminated except for just cause.
A request for secondary employment shall be denied, under the following circumstances, when the secondary employment is an establishment where the primary business is the sale of intoxicating liquor or gambling and:
1. The employment includes serving as a bartender and/or dispensing intoxicating liquor;
2. The employment includes serving as a cocktail waiter/waitress;
3. The employment is security related and prior permission is not granted; and
4. The Sheriffs Office deems that the employment will bring discredit upon the department."

         ¶ 9 The parties began negotiating a Unit 2 (corrections officers) successor CBA in 2011, and continue to negotiate the terms of the successor agreement. During these negotiations, the Union proposed that any reference to a General Order be removed from the secondary employment provision of the existing CBA and that the secondary employment policy stem solely from the text of the successor CBA. Prior to August 2013, neither party specifically addressed the contents of any General Order applicable to secondary employment. Negotiation for a Unit 1 (deputy sheriffs) successor CBA are ongoing. The parties have not begun to negotiate a Unit 3 (fugitive officers) successor CBA.

         ¶ 10 On or about July 8, 2013, the Employer issued Sheriffs Order 11.4.55.0 (Sheriffs Order 1), a new general order setting guidelines for secondary employment. The Union-believing this Order imposed new provisions and requirements on employees, presented new opportunities for discipline, and contradicted and supplemented existing collective bargaining language-sent an email and letter demanding to bargain the change and its effects. The email was dated July 12, 2013, and the letter was dated July 11, 2013. Both dates were prior to the August 1, 2013, effective date of the new General Order. A facsimile confirmation shows that the Sheriff's office received the demand to bargain letter prior to the effective date. The Employer did not respond to the demand. The Employer did not offer to bargain, but on or about July 23, 2014, it rescinded Sheriff's Order 1 and replaced it with Sheriff's Order 11.4.55.1 (new General Order). This Order was identical to Sheriff's Order 1 except for one date change. All of the issues with which the Union took issue in Sheriff's Order 1 were still present in the new General Order. The Union again demanded to bargain. The Employer again did not respond. The new General Order became effective August 1, 2013. The secondary employment policy in the new General Order differs from the prior General Order, in part, in that: (1) all employees are required to submit annual paperwork regarding their intent to seek or not to seek secondary employment, whereas under the prior General Order, only those seeking secondary employment were required to submit secondary employment paperwork; and (2) whereas the prior General Order provided that an employee's attendance and disciplinary history would be considered in deciding whether to revoke a previously-granted approval for secondary employment, the new General Order entirely prohibits secondary employment in certain circumstances based on those factors. In this appeal, the Union argues that these guidelines were new and should have been bargained for, while the Employer argues that they were not, in fact, new and were not subject to bargaining.

         ¶ 11 The new General order provided conditions under which secondary employment approval may be withheld or revoked:

"A. Secondary Employment may be denied or revoked when an employee:
(3) Has incurred one (1) or more instances of an unauthorized absence in the previous twelve (12) months from October 1st of the current year for annual requests or from the date of application for new requests;
(4)Has incurred four (4) or more instances of documented tardiness for duty in the previous twelve (12) months from October 1st of the current year for annual requests or from the date of application for new requests. For purposes of this Order, an instance of documented tardiness is defined as when the employee timecard has been coded "Tardy."
(5) Has been on Proof Status within the previous twelve (12) months from October 1st of the current year for annual requests or from the date of application for new requests;
(6) Has received discipline from his/her original Department or from OPR resulting in a suspension of a total of three (3) or more days for a single infraction that occurred within the previous twelve (12) months from October 1st of the current year for annual requests or from the date of application for new requests."

         ¶ 12 Additionally, the new General Order imposed an annual disclosure requirement for officers who do not intend to work secondary employment in the upcoming year:

"A. All [Cook County Sheriff's Office ("CCSO")] employees must complete and submit a Secondary Employment Disclosure Form, through his/her chain of command, indicating whether or not he/she works Secondary Employment on an annual basis pursuant to this Order beginning October 1, 2013 and each October 1st thereafter. The deadline for submittal of all Secondary Employment Disclosure Forms is October 1st."

         The previous General Order imposed a disclosure/approval requirement only for those officers who desired to work a second job in the upcoming year, rather than requiring that all employees do so, providing:

"Prior to accepting or commencing any secondary employment, permission must be obtained through the chain of command from the Department Head."

         ¶ 13 On August 15, 2013, the Union filed an unfair labor charge with the Board. By that charge, the Union alleged the Employer committed an unfair labor practice by unilaterally changing the secondary employment policy and refusing to bargain over it when it issued the new General Order establishing new policies and procedures governing employees' ability to work a second job. Specifically, the Union alleged that the Employer violated Sections 10(a)(4) and (1) of the Act when it unilaterally implemented the new General Order regarding secondary employment without bargaining with the Union, even though the new policy was a fundamental change to the hours and working conditions, making it a mandatory subject of bargaining. The charge alleged that the Union-represented workers were subject to collective bargaining agreements that "contain comprehensive negotiated language governing secondary employment" and stated, in part:

"2. All such employees [represented by the Union] must comply with Sheriff's General Orders governing secondary employment. Historically, they were to follow the directives in General Order 07-2, which was incorporated by reference into the collective bargaining agreements attached hereto. Additionally, the collective bargaining agreements contain comprehensive negotiated language governing secondary employment. Between GO 07-2 and the language in the agreements, a fully negotiated set of rules governing secondary employment existed. ***
3. On or about July 8, [2013], the Union was given notice of a new General Order, 11.4.55.0, governing secondary employment that contained much language outside of the negotiated provisions in the CBAs and the old GO 07-2. For example, the new GO requires all employees to disclose on an annual basis whether or not they are secondarily employed, subject to discipline for failing to do so. In addition, the new GO imposes new stringent limitations on the kind of secondary employment that employees may pursue. These are just a few examples. ***
4. On July 12, 2013, the Union demanded to bargain over the new General Order 11.4.55.0 by sending a letter via mail, fax and email to the Sheriff's General Counsel, Peter Kramer. To date, no response has been had to the demand to bargain. ***
5. On August 1, 2013, the Sheriff rescinded General Order 11.4.55.0 and enacted General Order 11.5.55.1, again regarding secondary employment. Both General Orders are largely the same, with only minor changes to dates and additions to protocol appearing in 11.4.55.1. ***
6. The Union again demanded to bargain over the new General Order 11.4.55.1 by sending an email so noting to the Sheriff's General Counsel, Peter Kramer. ***
7. To date, the Union has received no response to any of its demand to bargain letters, nor permitted an opportunity to bargain over the changes to the secondary employment procedures.
8. Sheriff's Order 11.4.55.1 is a material and substantial policy change regarding secondary employment. The policy substantially departs from the comprehensive contractually-negotiated limitations and procedures regarding secondary employment. The policy also rescinds General Order 07-2, which is incorporated by reference into the collective bargaining agreements, meaning the Sheriff has unilaterally rescinded part of the agreements.
9. Sheriffs Order 11.4.55.1 is a fundamental change to the hours and working conditions of the employees it covers and is a mandatory subject of bargaining. ***
10. By failing to give advance notice and an opportunity to bargain over 11.4.55.1 with the Union, the Sheriff has violated Sections ...

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