Chicago Required To Bargain Effects of Bodycam Program

This article appears in the October 2021 issue of our monthly newsletter, Public Safety Labor News.

In January 2015, the City of Chicago and Lodge #7 of the Fraternal Order of Police agreed to a letter of understanding that facilitated a pilot program for bodycams. In December 2016, the City announced an expedited expansion of the bodycam program. Although the parties engaged in several bargaining sessions over the pilot program, the negotiations failed to produce an agreement.

The FOP eventually filed two unfair labor practice charges against the City. The first alleged that the City failed to bargain over the expansion of the bodycam program. The second alleged that the City failed to bargain in good faith by unilaterally implementing its “last, best and final offer” regarding a permanent bodycam program and by unilaterally increasing BWC buffering times without first engaging in effects bargaining.

The Illinois Labor Board upheld both charges. The Board adopted the recommendations of a hearing officer who wrote, “Here, 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.

“Contrary to the City’s contention, the Law Enforcement Officer-Worn Body Camera Act (WBC Act) does not preempt the field of effects bargaining. 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.’ It further provides that parties may enter into agreements that ‘that supplement, implement, or relate to the effect of such provisions in other laws.’

“Here, Lodge #7 is entitled to bargain greater protections for its members than those conferred by the WBC Act. For example, the WBC Act limits the circumstances under which an employer may use the recordings from the BWCs to discipline law enforcement officers, but Lodge #7 may bargain additional limitations on the City’s disciplinary use of the recordings. In addition, Lodge #7 may bargain over those disciplinary impacts that the WBC 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.

“Moreover, the City also impeded good faith bargaining by failing to timely respond to the Union’s information requests. An employer’s failure to provide a union with information relevant and necessary to bargaining may preclude a finding that the City gave Lodge #7 an adequate opportunity to engage in meaningful bargaining. Here, the City waited to provide Lodge #7 with certain requested, relevant, and necessary information until after it implemented the 2017 BWC Pilot Program’s expansion, including specifics concerning discipline it had imposed against officers arising from their use of the BWCs. Although the City had provided Lodge #7 an excel spreadsheet that offered some information concerning these Summary Punishment Action Reports, the information contained in the spreadsheet was incomplete and did not contain a full narrative of the remarks included in the Reports. Lodge #7 could have used this information to obtain a more complete understanding of the types of officer conduct that could trigger disciplinary action and/or the circumstances which may have warranted the City’s conclusion, in some cases, that no discipline would issue.

“The City also violated the Act when it implemented its last, best, final offer on the BWCs effects because its bargaining partner, Lodge #7, represents employees who lack the right to strike, and the City was therefore not entitled to implement its final offer. As both the Board and the Court have noted, when an employer negotiates with unions representing protective service employees, ‘good faith bargaining, within the meaning of the Act, does not end at impasse; it continues through interest arbitration and the ultimate issuance of an award.’ Thus, the appropriate avenue for resolving the parties’ impasse on the BWCs’ effects was impasse resolution proceedings, not unilateral implementation.”

City of Chicago, 2021 WL 3674245 (Ill. LRB 2021).

Also in the October 2021 issue:

  • Comments In Union Election Protected By Labor Law
  • Denying Union President Right To ‘Ride A Rig’ Deemed Unlawful
  • Probation Officer Loses Free Speech Claim By Not Showing ‘But For’
  • Court Rejects Chief’s Claim That Judges And/Or Law Clerks Viewed Pornographic Emails
  • Prevention Of ‘Prisoner Abuse’ Not Basis To Overturn Arbitrator’s Opinion
  • Court Upholds Firefighter Wage Parity Ballot Measure
  • Officer Fired For ‘Delusional Disorder’ Entitled To Unemployment Benefits
  • No Workers’ Comp For Off-Duty Unsupervised Lifting Injury
  • Firefighter Arbitration Award Upheld As ‘Reasonably Debatable’
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