2017 IL App (1st) 152993 

No. 1-15-2993 

FIRST DIVISION

February 21, 2017 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

INTERNATIONAL BROTHERHOOD OF ) 

TEAMSTERS, LOCAL 700, ) Petition for Review of an Order of 

 ) the Illinois Labor Relations Board 

Petitioner-Appellant, ) Local Panel. 

 ) 

v. ) 

 ) 

THE ILLINOIS LABOR RELATIONS BOARD, ) 

LOCAL PANEL, THE COUNTY OF COOK, and ) 

SHERIFF OF COOK COUNTY, as Joint ) Case No. L-CA-13-055 

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). ) 

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, that upheld two general 

orders issued by respondents, the County of Cook and the Sheriff of Cook County. In relevant 
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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 number 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:

 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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“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. 

 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.
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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: 
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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. 

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.)
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¶ 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 (number 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.
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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. 

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.
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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 
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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 Order 

was a subject of mandatory bargaining. The Union additionally asserted in its charge that the 
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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 
No. 1-15-2993 

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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. 

¶ 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 
No. 1-15-2993 

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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, 
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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 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. 
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¶ 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 post-hearing 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 
No. 1-15-2993 

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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. 

¶ 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 
No. 1-15-2993 

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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 
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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 language at issue had been used by the Sheriff and numerous Illinois municipal 

agencies for decades and had become well-defined practice. Respondents further 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 
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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 
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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 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), 10(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 
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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 of Cook County 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]

* * * 
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 (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 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 of Cook County, 

369 Ill. App. 3d at 752. 
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¶ 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 re-defined the category 

of people with whom an employee may not associate. While the previous orders prohibited 
No. 1-15-2993 

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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 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 
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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 
No. 1-15-2993 

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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 

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, AFL-CIO 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 
No. 1-15-2993 

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survey revealed that 18% of trainees were involved with illegal drugs). See also Forest Preserve 

District of Cook County, 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 
No. 1-15-2993 

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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. 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 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 
No. 1-15-2993 

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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:
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“(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; 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 
No. 1-15-2993 

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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 of Central California 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 
No. 1-15-2993 

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appropriate inquiry is whether the [rule] would reasonably tend to chill employees in the 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. 
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¶ 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 
No. 1-15-2993 

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coerce employees in the exercise of activity protected under the Act. Yet, the Board’s support 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 
No. 1-15-2993 

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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 

authority regarding investigations into unfair labor practices and prosecution of complaints 
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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.