This article appears in the July 2021 issue of our monthly newsletter, Public Safety Labor News.
The City of Chicago and Lodge #7 of the Fraternal Order of Police were parties to a collective bargaining agreement from July 1, 2012, through June 30, 2017. By its terms, the CBA continued in force and effect past its expiration date.
In January 2015, the City instituted the first phase of its Body Worn Camera (BWC) Pilot Program, and gradually expanded the program over the next two years. The FOP challenged the implementation of the program through filing an unfair labor practice complaint. In January 2018, an administrative law judge found that the City violated its obligation to bargain when it failed and refused to bargain over the effects of the BWC Pilot Program’s 2017 expansion.
In the meantime, the FOP also filed a grievance challenging the imposition of discipline in relation to BWCs. In January 2018, an arbitrator concluded that the City did not violate the contract, noting that “officers have long been subject to at least minor discipline for equipment-related offenses, included loss of equipment.” The Arbitrator concluded that there was no evidence that the parties intended BWCs to be treated differently from other pieces of equipment.
At about the same time, the City and the FOP began negotiations for a new contract. The parties reached an agreement that they would include bargaining over BWCs in the overall negotiations. That agreement lasted only a few months, and in July 2018, the City informed the FOP that it wished to negotiate the effects of the BWCs separately from overall contract negotiations, presenting the FOP with a draft memorandum of understanding (MOU) on BWCs. Between August and October 2018, the parties bargained over the BWCs’ effects and exchanged proposed modifications to the City’s draft MOU but held no further bargaining sessions until January 2019.
On January 14, 2019, the parties met again to bargain. The City provided the FOP with a document entitled “Last, Best and Final Offer to FOP for MOU Re: Body Worn Cameras/Effects Bargaining.” When the FOP did not agree to the MOU, the City unilaterally implemented it in July 2019. The FOP promptly responded by filing a second unfair labor practice complaint claiming that the City had breached its bargaining obligations.
An ALJ for the Illinois Labor Relations Board found that as the City was obligated to bargain the effects of the BWC program, the City committed an unfair labor practice by unilaterally implementing its “last, best and final offer.” The ALJ held that “an employer of strike ineligible employees violates the law when it unilaterally implements its last, best, final offer in midterm negotiations and fails to proceed through statutory impasse resolution proceedings. Similarly, an employer of strike ineligible employees violates the law when it unilaterally changes employees’ terms and conditions of employment during the pendency of interest arbitration proceedings for an initial or successor contract.
“Here, the City violated the Act when it implemented its last, best, final offer on the BWCs effects because its bargaining partner, the FOP, 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.”
By way of remedy, the ALJ ruled that “the City must rescind implementation of its final offer because the City was not entitled to unilaterally implement it. Next, at the FOP’s request, the City must rescind any discipline it issued to officers for the loss of BWCs under the newly established disciplinary standards set forth in its final offer and reconsider such discipline under the standards previously in existence. Similarly, at the FOP’s request, the City must also rescind the discipline it issued officers for BWC misuse, apart from their loss, but it may likewise reconsider that discipline under pre-existing standards.”
The ALJ also specifically found the City’s implementation of an increase of the “buffering” of BWC videos from 30 seconds to two minutes to be unlawful. The ALJ found that “the City’s decision to increase the BWC buffering time is a permissive subject of bargaining. However, the City is nevertheless required to bargain the effects of that decision. Here, the increase in buffering time significantly impacts employees’ privacy because it has the potential to expand the scope of video surveillance into employees’ personal time, e.g., when on break, in the bathroom, or at lunch. If an officer activates his BWC within two minutes of a personal, off-duty activity, the BWC will record the officer’s private non-law-enforcement related activities. Furthermore, the length of the potential privacy intrusion is four times greater than it was prior to the change.
“The City’s increase in the buffering time also impacts employee discipline. An employer changes the status quo of employees’ terms and conditions of employment when it substantially alters the method by which it investigates employee misconduct and the character of proof upon which it relies to impose discipline. Here, the City’s increase in the buffering time on BWCs substantially changed both its method of investigation into employee misconduct and the character of proof on which it could rely for disciplinary purposes. Indeed, that was the City’s goal.
“Admittedly, the scope of effects bargaining over the increased buffering time may be narrower than the scope of bargaining over the effects of the BWC program. However, once a management decision is deemed to have effects, it is not the Board’s function to weigh the extent of each effect. Rather, the extent and burdensomeness of the impact upon employees is for the parties to explore through the bargaining process.”
Fraternal Order of Police, Lodge #7 and City of Chicago, Case No. L-CA-20-024 (Ill. LRB ALJ 2021).
Also in the July 2021 issue:
- Deputies’ Union Wins $7.8 Million Judgment Against Former Officers
- Fire Department’s Tattoo Policy Upheld
- Mass. Civil Service Has No Authority To Review Leave Forfeiture
- Reinstatement Ordered For Fire Association President
- Civil Service Referee Upholds Firefighter’s CBD-Based Termination
- Arbitrator Finds CBA Implicitly Bars Subcontracting
- Weingarten and Supervisor-Subordinate Conversations
- When Does A ULP Charge Block An Election?
- Sleeping Dispatcher Allowed Trial On Retaliation Claims