Chicago Required To Bargain Over Body Camera Implementation

When the Chicago Police Department expanded a pilot body-worn camera (BWC) policy, Lodge 7 of the Fraternal Order of Police, which represents the City’s police officers, filed an unfair labor practice (ULP) complaint with the Illinois Labor Relations Board. The ULP complaint alleged that the City failed to bargain over the expanded policy, and that the issue of bodycams was a mandatory topic for collective bargaining. The City responded that it had no obligation to bargain over the effects of its decision to expand the pilot program, and that a bodycam program did not effect a material change from the existing in-car camera program and suggests that there are no effects to bargain.

An administrative law judge (ALJ) for the Board held that the City was obligated to bargain over the program before implementing any changes. The ALJ ruled that the City “made a material change to employees’ terms and conditions of employment when it instituted the BWC Pilot Program because the BWCs impact employee discipline, safety, and privacy. Moreover, that impact is significantly different from the impact of the existing in-car camera program and is not simply a de minimis change, as the City contends.

“First, the BWCs create greater opportunities for employee discipline than the in-car cameras. The BWCs have the potential to record more of an employee’s work time, and the review of BWC footage could subject employees to discipline for conduct that was not subject to capture by the in-car cameras. In addition, officers have broader custodial responsibilities for the BWCs than for the in-car cameras because they must wear the BWCs at all times and can be disciplined for losing them. Likewise, the BWCs impose new and different camera activation requirements, which may likewise present opportunities for discipline if an officer fails to comply with them.

“Second, the BWCs have features that present new safety-related concerns which are different from the concerns presented by the in-car cameras. For example, the BWCs placed officers in danger when their stealth mode feature failed and the indicator light remained active when officers sought to engage in covert operations. The City identified no comparable safety risk arising from the use of in-car cameras.

“Third, the BWCs raise concerns over employee privacy because they have the potential to record employees in the restroom, whereas the in-car cameras do not. If an officer must unexpectedly activate the BWC within 30 seconds of restroom activity, the BWC will capture audio of that activity even though the officer could not have anticipated that the restroom activity would be recorded.”

The City argued that the Illinois Law Enforcement Officer-Worn Body Camera Act, a statute which addresses numerous bodycam issues, preempted any right to bargain over bodycam policies that complied with the Act. The ALJ disagreed, noting that the Illinois Public Labor Relations Act specifies that other laws that pertain, in part, to matters that impact terms and conditions of employment “shall not be construed as limiting the duty to bargain collectively.” The ALJ observed that the Act “further provides that parties may enter into agreements that supplement, implement, or relate to the effect of such provisions in other laws. Here, the Union is entitled to bargain greater protections for its members than those conferred by the Act. For example, the Act limits the circumstances under which an employer may use the recordings from the BWCs to discipline law enforcement officers, but the Union may bargain additional limitations on the City’s disciplinary use of the recordings. In addition, the Union may bargain over those disciplinary impacts that the Act does not address, including the discipline that the City may impose for an officer’s loss of a camera, damage to a BWC, misuse of a BWC, or failure to upload its footage.”

The ALJ also held that “the City did not give the Union an adequate opportunity to bargain over the expansion’s effects. The City’s agents made clear in advance of the parties’ first meeting that it was not a bargaining session and that the City had no obligation to bargain effects. An employer cannot satisfy its statutory duty to bargain by expressing a willingness to discuss a bargainable subject while maintaining that it has no duty to bargain.”

The ALJ’s ruling on the proper remedy was far more constrained. The ALJ conceded that “the standard remedy for an employer’s unlawful failure to engage in effects bargaining is to order the parties to return to the status quo ante and to make whole any affected employees. As applied in this case, that remedy would require the City to recall the cameras distributed in the 2017 expansion, to rescind any discipline imposed as a result of their use, and to make employees whole. It would also bar the City from redistributing those BWCs until the parties reached agreement on effects or resolved their impasse through interest arbitration.

“However, the Board has sometimes limited its standard remedy, and such a limitation is warranted in this case. First, the parties reached a ‘letter of agreement’ that specifies that the Department will bargain over the impact of effect of the BWC Pilot Program, but specifies that the obligation extends simply to effects related to a Police Officer’s safety and/or discipline.” Requiring the City to rescind the entire expansion would prevent the City from collecting valuable footage, even though the parties agreed that the City had no obligation to bargain the methods of collection.

“Second, the Act already provides the Union with significant protections against the disciplinary use of footage from the BWCs. It specifies that BWC recordings can be used to discipline law enforcement officers only if a formal or informal complaint of misconduct has been made, a use of force incident has occurred, the encounter on the recording could result in a formal investigation under the Uniform Peace Officers’ Disciplinary Act, or if there is already some evidence of misconduct and the recording is used to corroborate that evidence. The parties’ interests are therefore adequately balanced by requiring the City rescind only the discipline arising from the BWCs’ misuse/loss but permitting the City to continue the limited disciplinary use of footage while the parties’ complete effects bargaining.”

Fraternal Order of Police, Lodge #7, Case No. L-CA-17-037 (Ill. LRB ALJ 2017).