                                    2017 IL App (1st) 153015

                                         No. 1-15-3015

                                  Opinion filed February 1, 2017 


                                                                              THIRD Division

                                           IN THE

                           APPELLATE COURT OF ILLINOIS

                                      FIRST DISTRICT


COUNTY OF COOK and the SHERIFF OF COOK                           )   Petition for Review
COUNTY,                                                          )   of Decision and
                                                                 )   Order of the Illinois
        Petitioners-Appellants,                                  )   Labor Relations
                                                                 )   Board, Local Panel
v.                                                               )   September 29, 2015
                                                                 )
ILLINOIS LABOR RELATIONS BOARD, LOCAL                            )
PANEL, ROBERT M. GIERUT, CHAIRMAN,                               )   No. L-CA-14-016
CHARLES E. ANDERSON, MEMBER, RICHARD A.                          )
LEWIS, MEMBER, MELISSA MLYNSKI,                                  )
EXECUTIVE DIRECTOR, INTERNATIONAL                                )
BROTHERHOOD OF TEAMSTERS, LOCAL 700, and                         )
ILLINOIS FRATERNAL ORDER OF POLICE,                              )
                                                                 )
         Respondents-Appellees.                                  )


_____________________________________________________________________________


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


¶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,


             1
                The Illinois Fraternal Order of Police Labor Council (IFOPLC) is now the exclusive bargaining
     representative of all full-time employees of the County of Cook and Sheriff of Cook County, merit board
     classification of Deputy Sheriff (Court Services, Unit I). This bargaining unit was Board certified on
     August 29, 2014, is an appellee here, and filed an appeal brief with this court. The unfair labor practice
     charge in this case was filed by the previous bargaining unit, the International Brotherhood of Teamsters,
     Local 700, when it was the bargaining representative for deputy sheriffs, corrections officers, and fugitive
     officers. The Teamsters were the exclusive bargaining representative for these groups at the time of the
     filing of the charge and at the time of the hearing. The Teamsters, Local 700, continue to represent the
     bargaining units of corrections officers and fugitive officers. For clarity, we refer to the IFOPLC and the
     Teamsters, Local 700, collectively, as “Union” herein.
              2
                There are approximately 3,000 Correctional Officers, 800 Court Services Deputies, and 20
     Fugitive Investigators.
              3
                In May 2015, the IFOPLC filed a motion with the Board to intervene in this matter. The motion
     was granted.

                                                        -2­
     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,

                                                -3­
     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.”




                                               -4­
¶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



                                                 -5­
               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 Sheriff’s 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 Sheriff’s Order 11.4.55.0 (Sheriff’s 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

                                                  -6­
       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:


                                                  -7­
              “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

                                                 -8­
              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

                                                  -9­
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

                                   - 10 ­
                   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. Sheriff’s 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 10(a)(1) and 10(a)(4) of the Act.”

        After the charge was investigated, the Board’s Executive Director issued a complaint.

¶ 14           The Administrative Law Judge (ALJ) held a three-day hearing on the matter, spanning

           June 4, 5, and July 22, 2014.

¶ 15           At the hearing, Cook County Sheriff’s Office Special Counsel for Labor Affairs Peter

           Kramer testified that he oversees all contract negotiations, grievances, and arbitrations at the

           office. At the time of the hearing, there were current negotiations taking place, he had met

           with the represented groups in contract negotiations on numerous occasions, and the new

           secondary employment had “come up as issues of negotiation,” although nothing had yet

           been determined. According to Kramer, the Sheriff did not refuse to bargain over new

           secondary employment regulations. Kramer testified the various represented groups had not

           agreed on what proposal would be reasonable.

¶ 16	          Kramer explained that the new General Order, Section XI, requires that all employees

           sign a form regarding whether they had secondary employment and that there is a central

           depositor and therefore a control on everybody signing and having a form. He explained that

           subparagraph E requires all employees to fill out the form, and if the form is not filled out

                                                      - 11 ­
       after the employee is warned three times, then the employee can be disciplined. Both the

       previous General Order and the new General Order have specific restrictions and limitations

       on secondary employment, and the new General Order contains clarification on instances in

       which secondary employment can be denied.

¶ 17      Kramer testified he did not see any differences in practice with respect to the old General

       Order and the new one. He did not believe that the new General Order increases the chances

       an employee might be disciplined as opposed to the old General Order, saying, “it’s just as

       probable there could be less discipline.” He agreed that, “according to the [old] GO,” the

       practice of the Sheriff prior to July 2013 was that only those who worked secondary

       employment had to fill out a form, and that, also prior to July 2013, an employee would not

       have been subject to discipline for not submitting documentation regarding secondary

       employment if he did not work secondary employment. Under the new policy, however,

       regardless of whether an officer had secondary employment, he would be subject to

       discipline if he failed to complete the secondary employment form.

¶ 18      Kramer testified that the new General Order increases the Sheriff’s ability to enforce

       secondary employment regulations. He explained that there have been problems when, for

       example, an employee “was doing something they were not supposed to be doing, working

       somewhere they weren’t supposed to be working or working there when they were supposed

       to be at work at our [the Cook County Sheriff’s] job, which is the primary place of

       employment.” These situations would result in the Sheriff’s Office reviewing the employee’s

       file to determine whether the employee had approval to work secondary employment.

       Frequently, however, the employee would allege that he had submitted the paperwork to a

       supervisor, and the employee would not “know what [the supervisor] did with [the


                                                - 12 ­
       paperwork] after that.” This would then result in an investigation as to whether the employee

       did in fact submit the required documentation for approval, bogging down the Sheriff’s

       ability to enforce the Order and requiring the employee to prove he did not fail to obtain

       approval from the supervisor.

¶ 19       Kramer confirmed he did not respond to Union emails about negotiating over the new

       policies.

¶ 20       Additionally, Kramer explained that “proof status” is a term of art regarding employees

       who have attendance-related issues, such as using unauthorized time or taking sick days in a

       discernible pattern. He agreed that the prior General Order did not state as a possible

       condition for denial or revocation of secondary employment that an officer “[h]as been on

       proof status within the previous 12 months.” Additionally, Kramer agreed that the new

       General Order states that a suspension of a total of three or more days for a single infraction

       that occurred within the prior 12 months could be a basis for denial or revocation of

       secondary employment, while the prior General Order did not.

¶ 21       Kevin Camden, general counsel for Teamsters Local 700, testified that he is the lead

       bargainer for the Department of Corrections [DOC], and is personally involved in

       negotiations for the Court Service Unit and Fugitive Units. According to Camden, who

       attended all of the local bargaining sessions of the DOC, the Sheriff’s office never presented

       an updated General Order regarding secondary employment in any of the bargaining

       sessions. He also agreed that the Sheriff’s office never “verbalized during those negotiations

       that they would be updating the secondary employment General Order and would be

       negotiating over that with us.” He testified that, around July 2013, the union steward

       forwarded him an email indicating that the new General Order might be issued soon. When


                                                 - 13 ­
       asked whether, after reviewing the proposed General Order, he determined that it contained

       any changes to the previously existing General Order, Camden responded:

                  “[WITNESS CAMDEN:] A. Yes. The most critical change would be the annual

              requirement, and then subordinate to that, filing a form that says you don’t have

              secondary employment. That was a radical change from the prior policy, as well as

              the application.”

¶ 22      Camden was also concerned about an increase in discipline stemming from the new

       policy. He explained that his office had “had a fair number of cases for allegations of

       secondary employment violations since we became the bargaining agent in 2009.” He

       described a “change historically in the way secondary employment was handled” when the

       Sheriff changed from the Sheahan administration to the Dart administration. He said:

                  “[WITNESS CAMDEN:] A: *** I’m rather familiar with [the way secondary

              employment was handled when the administration changed] because I tried several

              grievances, including the Albert Stubenvoll grievance, where there was record

              evidence to indicate under the [Sheahan] administration, your secondary

              employment—you would not get approval if it was employed [sic], you would only

              get a denial.

                  When Tom Dart was elected Sheriff, that policy started to change, but there was

              still a fair number of officers, for example, that had been working secondary, assumed

              that it had been approved under the Sheehan [sic] administration and then discipline

              came down from Sheriff Dart alleging that they didn’t have the appropriate approval.

                  The Stubenvoll case involved a 15-year [correctional officer], now a sergeant ***

              that had been disciplined for working secondary employment, even though his

                                                - 14 ­
             secondary employment was denied but there was a 90 or 120-day *** gap between

             the time he submitted his application and when he received his denial.

                Based on the record evidence, as well as the fact that he had no discipline, the

             Arbitrator rescinded his 3-day suspension that he was given.

                But the issue that came out of that case was the change in the practice not even

             regarding this proposed General Order, 11.4.55.0, but the prior version with respect to

             approval or denial.”

¶ 23      Counsel then asked Camden:

                “[UNION COUNSEL CASPER:] Q. Okay. So are you stating that based upon the

             change in secondary employment policy between the Sheahan administration and the

             Dart administration, based upon your experience and the increased discipline during

             that change, you expected discipline to increase[] under a new proposed July 13th

             change?”

       Camden answered:
                “[WITNESS CAMDEN:] A. I was confident that there would have been increased

             discipline because there was now the additional requirement that officers were going

             to be required to submit forms stating that they did not have secondary employment.

                I’m not a particularly sophisticated person, but this seemed like a make-work

             project to me. And at the time that this would have come down, the Office of

             Professional Review or whatever it may have been called at the time, was ridiculously

             backlogged in dealing with disciplinary cases.




                                                - 15 ­
                  The last thing I thought we needed to deal with on the compound in the midst of a

              staffing issue, for lack of sufficient staff at the DOC, was forms to indicate you did

              not have secondary employment. I found it to be an utter waste of time.”

¶ 24      In Camden’s opinion, the secondary employment portion of the new General Order had

       the potential to both increase discipline and increase the number of officers subject to Office

       of Professional Review investigation. Camden testified he thought it was “poor form” for the

       Sheriff to implement a new policy without dialogue with the Union. He testified there were

       no discussions with the Employer between July 1, 2013, and August 1, 2013, regarding the

       new policy. Camden does not recall Kramer ever contacting him after Kramer received the

       Union’s demand to bargain letter. It is Camden’s opinion that “[i]f the Sheriff is proposing a

       change in [the] General Order and that somehow impacts the wages, hours or terms and

       conditions of employment for this bargaining unit ***, the Sheriff has an obligation, if

       requested by the Union *** to engage in impact or effects bargaining.”

¶ 25      Jonathan Myslinski, the assistant director of the Investigations Unit of the Cook County

       Sheriff’s Department Office of Professional Review (OPR) also testified. The OPR

       investigates misconduct complaints regarding its employees. Myslinski agreed that the new

       General Order created a new requirement for employees, whether or not they are working

       secondary employment, stating:

                  “[TEAMSTERS ATTORNEY CASPER:] Q. You would agree with me that this

              General Order *** created a new requirement that Sheriff’s Office employees

              disclose if they’re not working secondary employment by October 1st of each year;

              correct?

                  [WITNESS MYSLINSKI:] A. Correct.

                                                 - 16 ­
                    Q. That had never been a policy before; correct?

                    A. Correct.”

¶ 26        Myslinski also agreed that an employee who fails to submit the required form stating

        whether or not he is working secondary employment could be disciplined on a number of

        levels, stating:

                    “[TEAMSTERS ATTORNEY CASPER:] Q. All right. And you would agree with

                me that if an employee fails to complete that form, he could possibly be subject to

                investigation by OPR; is that correct?


                    [WITNESS MYSLINSKI:] A. Correct.


                    Q. And OPR, if they found that the employee failed to meet that requirement, they

                could recommend discipline; correct?

                    A. Correct.

                    Q. And OPR is not the only potential investigatory body in the Cook County

                Sheriff’s Office, the employee’s chain of command can also investigate an employee

                for misconduct; correct?

                    A. Correct.

                    Q. And if an employee’s chain of command found that the employee failed to

                complete the disclosure form by October 1st of each year, the chain of command can

                recommend discipline, correct?

                    A. Correct.”

¶ 27	       Myslinski agreed that an employee could have his secondary employment revoked or

        denied based on one or more unauthorized absences, such as a “no vacation day,” a “no sick


                                                   - 17 ­
       day,” an unauthorized leave day, or a “no personal time” day. He testified that “to the best of

       [his] knowledge,” this was a new condition of revocation or denial under the new General

       Order. In addition, under the new General Order, an employee who incurs 4 or more

       instances of documented tardiness for duty in the previous 12 months can have his secondary

       employment denied or revoked. Myslinski testified that this, too, was a new requirement

       under the new General Order. Another new requirement under the new General Order,

       according to Myslinski, is that an employee suspended three or more days can have his

       secondary employment denied or revoked.

¶ 28      Cook County Corrections Officer Mark Robinson testified he was the Chief Union

       Steward at the Department of Corrections (DOC). His main duties as steward are

       maintenance of grievances, arbitrations, distributing information, and dealing with Union

       arbitrations. Robinson testified that, prior to the new General Order, an officer who was

       caught working secondary employment who had not notified the Employer about the

       employment could be disciplined. Also prior to the new General Order, an officer in the

       Department of Corrections who did not work secondary employment and did not fill out any

       paperwork to that effect would not be disciplined. The disclosure requirement changed with

       the new General Order, however, and all employees are now required to notify the DOC of

       their intention to work or not to work secondary employment. Employees can be subject to

       discipline for failure to complete the annual paperwork. In Robinson’s opinion, the new

       General Order presents new opportunities where employees could be disciplined. He

       explained that this is particularly true simply because employees are now required to fill out

       the additional annual disclosure paperwork, which could potentially get lost in the system.

       According to Robinson, the Union was involved in the instant litigation because the


                                                 - 18 ­
       employer unilaterally issued a new policy changing secondary employment, implemented it,

       and never bargained with the Union prior to that implementation, and, after it was

       implemented, employees could immediately be disciplined under the new policy.

¶ 29      Cook County Sheriff’s Office Deputy Sheriff Michael Harrington testified he was

       currently detailed as the Teamsters Local 700 Assistant Chief Union Steward. In this

       capacity, Harrington argues grievances, handles scheduling for OPR cases when individuals

       are summoned to the Sheriff’s office for professional review, and other duties. Harrington

       testified that, prior to the new General Order, an employee could get approval for secondary

       employment by submitting a one-page application. At that time, there was no paperwork

       necessary if an employee did not want to work secondary employment. With the new

       General Order, however, every employee must submit secondary employment information,

       whether they intend to engage in secondary employment or not. To Harrington’s knowledge,

       no one from the Employer agreed to sit down with the Union to bargain over the new

       General Order. Under the new General Order, one occurrence of any type of unauthorized

       absence within the previous 12 months automatically disqualifies an employee from approval

       for secondary employment. Harrington noted that, under the prior General Order, there had to

       be a causal relationship between the employee’s secondary employment and the unauthorized

       absence infraction, but no causal relationship is necessary under the new General Order.

¶ 30      Michael Schassburger, Jr. testified that he is employed in the Cook County Sheriff’s

       Office in the Office of Policy and Accountability. His responsibilities include writing

       policies and rules for the Sheriff, and he was involved in drafting the secondary employment

       policy. In his opinion, the new General Order merely clarifies the old Order. According to

       Schassburger, there were no Union members involved in developing the new General Order.


                                                 - 19 ­
       Schassburger testified that he has worked secondary employment since 2006. Prior to July

       2013 and the new General Order, he would not have had to fill out any paperwork if he were

       not intending to work secondary employment. He testified that, after July 2013, a person who

       did not want to work secondary would have to fill out paperwork to that effect, and stated,

       “[t]hat would be a new function with the order.”

¶ 31      Michael Vendafreddo testified he is a business representative employed by the Union,

       representing bargaining units including the Cook County Court Services Deputies. His work

       duties include negotiating contracts, handling grievances, and conducting labor management

       meetings. He was the chief negotiator during the bargaining sessions between October 2012

       and July 2013, and he attended all eight sessions that were held. He testified that the Sheriff’s

       Office never raised the issue of secondary employment during those bargaining sessions.

¶ 32      On March 9, 2015, the ALJ issued a recommended decision and order (RDO), finding in

       favor of the Union. The ALJ concluded that the new secondary employment policy was a

       mandatory subject of bargaining, that the Employer violated the Act by failing or refusing to

       bargain it prior to implementation, and that the Employer violated the Act 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. It made the following specific conclusions of law:

              “1. [The Employer] violated Section 10(a)(4) and (1) of the Act when, [it] unilaterally

              changed their secondary employment policy to require that the approval of secondary

              employment to be based upon previously unconsidered attendance and discipline

              criteria.


                                                  - 20 ­
                 2. [The Employer] violated Section 10(a)(4) and (1) of the Act when, [it] unilaterally

                 changed their secondary employment policy to require that the review and revocation

                 of previously authorized secondary employment were to be based on newly

                 established objective attendance and disciplinary criteria.

                 3. [The Employer] violated Section 10(a)(4) of the Act when, [it] unilaterally changed

                 their secondary employment policy to require that all employees complete annual

                 Secondary Employment Disclosure Forms.”

¶ 33      The ALJ also determined that, even if the Employer had established that the changes

       involved a matter of inherent managerial policy, the new General Order was still a mandatory

       subject of bargaining because the benefits of bargaining over the policy outweighed any

       burdens bargaining would have imposed on the Employer’s ability to perform their statutory

       duties. The ALJ also determined that the changes to the criteria for maintaining approval to

       work a second job and the new annual reporting requirement altered the status quo, and the

       Employer had refused to bargain over the new General Order when Kramer refused to

       respond to the Union’s demand to bargain over the new policy prior to its implementation,

       noting:

                    “On July 12, 2013, the Union demanded to bargain over [the Employer’s]

                 proposed changes to its secondary employment policy. On August 1, 2013, the

                 [Employer] implemented [the new General Order], containing such changes. At no

                 point between the date the Union demanded to bargain and the date the [Employer]

                 implemented [the new General Order] did the parties reach either an agreement or

                 impasse regarding the changes contained in [the new General Order]. Since the at-

                 issue changes are mandatory bargaining subjects, the [Employer] breached [its] duty


                                                    - 21 ­
              to bargain in good faith when [it] implemented [the new General Order]. Therefore,

              by implementing the changes to the secondary employment policy without

              negotiating with the Charging Party to impasse, or agreement [the Employer] failed

              and refused to bargain in violation of Section 10(a)(4) and (1) of the Act.”

¶ 34      The Employer filed exceptions to the RDO on April 24, 2015. On September 29, 2015,

       the Labor Board dismissed the Employer’s exceptions and issued its order, adopting and

       upholding the decision of the ALJ “for the reasons set forth by the Administrative Law

       Judge.”

¶ 35      The Employer appeals.

¶ 36                                       II. ANALYSIS

¶ 37      On appeal, the Employer contends the Board’s decision is clearly erroneous. In support, it

       argues the new General Order 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 it 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 new General Order.

¶ 38      Judicial review of a decision of the Labor Relations Board is governed by the

       Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014); see also AMF

       Messenger Service, Inc., v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001);

       Northwest Mosquito Abatement District v. Illinois State Labor Relations Board, 303 Ill. App.

       3d 735, 741 (1999). Under the Administrative Review Law, the scope of judicial review

       extends to all questions of law and fact presented by the record before the court. 735 ILCS

       5/3-110 (West 2014); see also AMF Messenger Service, Inc., 198 Ill. 2d at 395.

                                                 - 22 ­
¶ 39      The applicable standard of review, which determines the degree of deference afforded to

       an agency’s decision, depends upon whether the question presented is one of fact, one of law,

       or a mixed question of law and fact. AMF Messenger Services, Inc., 198 Ill. 2d at 395; see

       also City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998)

       (“[t]he standard of review applicable to the agency’s decision depends upon whether the

       question presented is one of fact or law”). An administrative agency’s findings on questions

       of fact are deemed to be prima facie true (735 ILCS 5/3-110 (West 2014)), and a reviewing

       court will reverse the Board’s factual determinations only if it concludes that they were

       contrary to the manifest weight of the evidence. Sudzus v. Department of Employment

       Security, 393 Ill. App. 3d 814, 819 (2009); see also Illinois Fraternal Order of Police Labor

       Council v. Illinois Local Labor Relations Board, 319 Ill. App. 3d 729, 736 (2001) (“[T]he

       decision is against the manifest weight of the evidence only if the opposite conclusion is

       clearly evident.”). The Board’s conclusions of law, however, are not entitled to the same

       deference, and we review them de novo. Sudzus, 393 Ill. App. 3d at 819. If the question

       presented for review is one of mixed law and fact, then a third standard of review applies,

       and we review the Board’s decision to determine if it was clearly erroneous. AMF Messenger

       Service, Inc., 198 Ill. 2d at 395. An agency’s decision is clearly erroneous when the entire

       record leaves the reviewing court with the definite and firm conviction that a mistake has

       been made. AMF Messenger Service, Inc., 198 Ill. 2d at 395; see also Hurst v. Department of

       Employment Security, 393 Ill. App. 3d 323, 327 (2009); Department of Central Management

       Services v. Illinois Labor Relations Board, State Panel, 2011 IL App (4th) 090966, ¶ 129

       (under the clearly erroneous standard, if there are two reasonable but opposing views of




                                                - 23 ­
       whether the facts satisfy the statutory standard, “the Board cannot have committed clear error

       by choosing between those views”).

¶ 40      In the present case, the Employer argues that all of the issues on appeal are mixed

       questions of law and fact and, therefore, should be addressed under the clearly erroneous

       standard of review. We disagree. While two of the issues before us contain mixed question of

       law, two others are purely factual questions. We therefore review the questions of whether

       the Board’s decision must be reversed because the Employer’s secondary employment policy

       is not subject to bargaining because it is within its inherent managerial authority, as well as

       the question of whether the complaint should be dismissed because the Employer has not

       refused to bargain the issue of secondary employment, both of which are mixed question of

       law and fact, under the clearly erroneous standard. See AMF Messenger Service, Inc., 198 Ill.

       2d at 395. The remaining questions before us, that is, whether the Board’s decision must be

       reversed because the secondary employment policy is not a new policy and does not change

       wages, hours, or other conditions of employment, as well as whether the secondary

       employment policy increases the opportunity for new employee discipline, are questions of

       fact and, therefore, reviewed under the manifest weight of the evidence standard. See Sudzus,

       393 Ill. App. 3d at 819.

¶ 41                              i. Mandatory Subject of Bargaining

¶ 42      The Act imposes a duty on the Employer, as a public employer, to engage in good-faith

       collective bargaining with its employees’ representative when circumstances mandate

       bargaining. 5 ILCS 315/10(a)(4) (West 2012); Forest Preserve District of Cook County v.

       Illinois Labor Relations Board, 369 Ill. App. 3d 733, 754 (2006) (an employer’s refusal to

       negotiate over a mandatory subject of bargaining constitutes an unfair labor practice). A


                                                 - 24 ­
       public employer commits an unfair labor practice and violates section 10(a)(4) of the Act

       when it refuses to bargain in good faith with a labor organization that is the exclusive

       representative of a bargaining unit of public employees. 5 ILCS 315/10(a)(4) (West 2012).

       When a public employer breaches its obligation to collectively bargain in good faith pursuant

       to section 10(a)(4) of the Act, it also violates section 10(a)(1) of the Act, which prohibits an

       employer from interfering with employees in the exercise of their rights under the Act. 5

       ILCS 315/10(a)(1) (West 2012). The duty to collectively bargain in good faith under the Act

       extends to issues that arise during the term of a collective bargaining agreement. Mt. Vernon

       Educational Ass’n, IEA-NEA v. Illinois Education Labor Relations Board, 278 Ill. App. 3d

       814, 816 (1996).

¶ 43      The duty to bargain collectively is defined, in relevant part, by section 7 of the Act, as

       follows:

              “the performance of the mutual obligation of the public employer or his designated

              representative and the representative of the public employees to meet at reasonable

              times, including meetings in advance of the budget-making process, and to negotiate

              in good faith with respect to wages, hours, and other conditions of employment, not

              excluded by Section 4 of this Act, or the negotiation of an agreement, or any question

              arising thereunder and the execution of a written contract incorporating any

              agreement reached if requested by either party, but such obligation does not compel

              either party to agree to a proposal or require the making of a concession.” 5 ILCS

              315/7 (West 2012).




                                                  - 25 ­
       Section 7 of the Act requires parties to bargain with respect to employees’ wages, hours and

       other conditions of employment, that is, with mandatory subjects of bargaining. Forest

       Preserve District of Cook County, 369 Ill. App. 3d at 751-52.

¶ 44       Mandatory subjects of bargaining are matters over which parties are required to negotiate

       in good faith, but on which they are not required to reach agreement or make concessions.

       Board of Trustees of the University of Illinois v. Illinois Education Labor Relations Board,

       244 Ill. App. 3d 945, 949 (1993). Pursuant to section 7 of the Act, an employer has a duty to

       bargain over issues that affect “wages, hours, and other conditions of employment.” 5 ILCS

       315/7 (West 2012).

¶ 45       In general, courts apply the test set forth by our supreme court in Central City Education

       Ass’n v. Illinois Labor Relations Board, 149 Ill. 2d 496, 523 (1992), to determine whether a

       matter is a mandatory subject of bargaining. County of Cook v. Illinois Labor Relations

       Board, Local Panel, 347 Ill. App. 3d 538, 545 (2004). Step one requires the Board to answer

       whether the issue concerns “one of wages, hours and terms and conditions of employment,” a

       question “the [governing Board is] uniquely qualified to answer.” Central City Education

       Ass’n, 149 Ill. 2d at 523. With an affirmative answer, the second step requires the Board to

       determine whether the question impinges upon the “inherent managerial authority” of the

       employer. Central City Education Ass’n, 149 Ill. 2d at 523. If the answer to this second

       question is in the negative, then the matter is a mandatory subject of bargaining, but if the

       answer is in the affirmative, the Board advances to the third prong, which requires it to

       “balance the benefits that bargaining will have on the decisionmaking process with the

       burden that bargaining imposes on the employer’s authority.” Central City Education Ass’n,

       149 Ill. 2d at 523.


                                                 - 26 ­
¶ 46      Here, in accord with the Board, we find that the secondary employment policy in the new

       General Order was a mandatory subject of bargaining. To determine whether the first prong

       of the Central City inquiry has been fulfilled, e.g., whether the issue concerns “wages, hours

       and terms and conditions of employment” (Central City Education Ass’n, 149 Ill. 2d at 523),

       we must determine whether the Employer’s change in the criteria for denying and revoking

       secondary employment and its addition of a mandatory annual disclosure to the secondary

       employment policy in the new General Order “(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 bargaining unit.” Chicago Park District v.

       Illinois Labor Relations Board, Local Panel, 354 Ill. App. 3d 595, 602 (2004).

¶ 47      As noted above, there were several changes between the new General Order and the prior

       General Order regarding secondary employment. First, the new General order included new

       conditions under which secondary employment approval may be withheld or revoked. For

       example, the new General Order provided :

                  “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,

                                                 - 27 ­
               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.”

        When asked about these changes at the hearing, the Employer’s Special Counsel for Labor

        Affairs Kramer, explaining that “proof status” is a term of art regarding employees who have

        attendance-related issues, agreed that the prior General Order did not state as a possible

        condition for denial or revocation of secondary employment that an officer “[h]as been on

        proof status within the previous 12 months.” Additionally, Kramer agreed that the new

        General Order states that a suspension of a total of three or more days for a single infraction

        that occurred within the prior 12 months could be a basis for denial or revocation of

        secondary employment, while the old General Order did not.

¶ 48	      Additionally, Chief Union Steward Deputy Sheriff Harrington testified that under the

        new General Order, one occurrence of any type of unauthorized absence within the previous

        12 months automatically disqualifies an employee from approval for secondary employment.

        Harrington noted that, under the prior General Order, there had to be a causal relationship

        between the employee’s secondary employment and the unauthorized absence infraction, but

        no causal relationship is necessary under the new General Order. Assistant Director of the

                                                  - 28 ­
       Investigations Unit of the OPR Myslinski also agreed that an employee could have his

       secondary employment revoked or denied based on one or more unauthorized absences, such

       as a “no vacation day,” a “no sick day,” an unauthorized leave day, or a “no personal time”

       day. He testified that “to the best of [his] knowledge,” this was a new condition of revocation

       or denial under the new General Order. In addition, under the new General Order, an

       employee who incurs 4 or more instances of documented tardiness for duty in the previous

       12 months can have his secondary employment denied or revoked. Myslinski testified that

       this, too, was a new requirement under the new General Order. Another new requirement

       under the new General Order, according to Myslinski, is that an employee suspended three or

       more days can have his secondary employment denied or revoked.

¶ 49      While we recognize that the rationale behind these changes appears to have been that the

       employees’ attendance issues may be caused by the secondary employment itself, that does

       not change the fact that establishing attendance as a basis for denying or revoking secondary

       employment constitutes a significant impairment to obtaining such reasonably anticipated

       secondary employment and involves a departure from previous operating practices. See, e.g.,

       Chicago Park District, 354 Ill. App. 3d at 602.

¶ 50      Additionally, the new General Order imposed an annual disclosure requirement for

       officers who do not intend to work secondary employment in the upcoming year, providing:

                  “A. All *** 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.”


                                                 - 29 ­
The prior General Order only imposed a disclosure/approval requirement for those officers

who desired to work a second job in the upcoming year, rather than requiring that all

employees do so. It provided:

             “Prior to accepting or commencing any secondary employment, permission must

        be obtained through the chain of command from the Department Head.”

Under the new General Order, however, all employees now have the responsibility to submit

secondary employment paperwork on an annual basis, regardless of their intention to work

secondary employment. As testified to by Kramer, prior to the new General Order, an

employee who did not submit a secondary employment application and had no intention of

working secondary employment would not have been subject to discipline. Under the new

General Order, however, that same employee who had no intention of working secondary

employment would now be subject to discipline. Assistant Director of the Investigations Unit

of the OPR Myslinski also agreed that the new General Order created a new requirement for

employees, regardless of whether or not they were working secondary employment. He

testified:

             “[TEAMSTERS ATTORNEY CASPER:] Q. You would agree with me that this

        General Order *** created a new requirement that Sheriff’s Office employees

        disclose if they’re not working secondary employment by October 1st of each year;

        correct?

             [WITNESS MYSLINSKI:] A. Correct.

             Q. That had never been a policy before; correct?

             A. Correct.”



                                           - 30 ­
¶ 51       Myslinski also agreed that an employee who fails to submit the required form stating

       whether or not he is working secondary employment could be disciplined on a number of

       levels, stating:

                   “[TEAMSTERS ATTORNEY CASPER:] Q. All right. And you would agree with

               me that if an employee fails to complete that form, he could possibly be subject to

               investigation by OPR; is that correct?

                   [WITNESS MYSLINSKI:] A. Correct.

                   Q. And OPR, if they found that the employee failed to meet that requirement, they

               could recommend discipline; correct?

                   A. Correct.

                   Q. And OPR is not the only potential investigatory body in the Cook County

               Sheriff’s Office, the employee’s chain of command can also investigate an employee

               for misconduct; correct?

                   A. Correct.

                   Q. And if an employee’s chain of command found that the employee failed to

               complete the disclosure form by October 1st of each year, the chain of command can

               recommend discipline, correct?

                   A. Correct.”

¶ 52       Michael Schassburger, who works in the Office of Policy and Accountability, opined that

       the new General Order merely clarifies the prior General Order. Nonetheless, he agreed that

       no Union members were involved in developing the new General Order, and he agreed that,

       prior to the new General Order, an employee would not have had to fill out any secondary



                                                  - 31 ­
          employment paperwork if the employee did not intend to work secondary employment.

          Under the new General Order, however, that same employee would have to fill out that

          paperwork. Schassburger agreed that “[t]hat would be a new function with the order[.]”

¶ 53          The annual disclosure requirement in the new General Order imposes a new obligation on

          employees, and an employee who does not comply with the reporting requirement may be

          subject to discipline. We agree with the Board, 4 which said, “Creating new criteria for

          denying secondary employment and establishing objective threshold standards for revoking

          secondary employment authorization constitute significant impairments of reasonably

          anticipated work opportunities for the employees at issue, and involve departures from the

          previous operating practices.” We also agree with the determination of the Board that the

          annual mandatory disclosure requirement set forth in the new General Order is a departure

          from the previous practices under the prior General Order and that, because an employee is

          subject to discipline for failing to complete and submit the annual disclosure form, this also

          effects a change in the conditions of employment. See, e.g., Chicago Park District, 354 Ill.

          App. 3d at 602.

¶ 54          The Board did not err in determining that the new General Order satisfied the first prong

          of Central City where, by changing the criteria for obtaining approval to work a second job

          and imposing a new annual disclosure requirement, the policy departed from the previously

          established practices and implemented a material change to the existing policy that impaired

          an employee’s ability to maintain a second job. Where the changes in the denial and

          revocation criteria for secondary employment, as well as the mandatory annual secondary

              4
               In this Order, for purposes of continuity, when we quote the lengthy and thoughtful RDO issued
       by the ALJ, which was thereafter upheld and adopted by the Board “for the reasons set forth by the
       Administrative Law Judge,” we attribute the quote to the Board.

                                                       - 32 ­
           employment disclosures concern wages, hours, and terms and conditions of employment, the

           record establishes that the first prong of the Central City test is satisfied. Central City

           Education Ass’n, 149 Ill. 2d at 523; Chicago Park District, 354 Ill. App. 3d at 602.

¶ 55           Next, the Employer maintains that it has satisfied the second prong of the Central City

           test, arguing that the “issue of secondary employment is not subject to bargaining due to the

           strong connection between the operational costs and liability involved in secondary

           employment and the employer’s statutory responsibilities of law enforcement and employee

           conduct.” This “strong connection” exists, it argues, because the Sheriff and his agents have

           custody and care of the courthouse and jail 5 and are required to prevent crime and maintain

           the safety of the County’s citizens, 6 and because the Sheriff, by statute, is liable for his

           subordinates’ neglect or omission of duties. 7 We disagree.

¶ 56           The second step in the Central City analysis requires determination of whether the

           question impinges upon the “inherent managerial authority” of the employer. Central City

           Education Ass’n, 149 Ill. 2d at 523; City of Belvidere, 181 Ill. 2d at 206 (“The second prong

           considers whether the matter, in addition to affecting wages, hours and terms and conditions

           of employment, is also one of inherent managerial authority.”). To satisfy this second prong

           of the analysis, the employer has the burden to link the objective of the challenged policy


               5
                  “55 ILCS 5/3-6017. Sheriff custodian of courthouse and jail. § 3-6017. Sheriff custodian of
       courthouse and jail. He or she shall have the custody and care of the courthouse and jail of his or her
       county.”
                6
                  “55 ILCS 5/3-6021. Conservator of the peace. § 3-6021. Conservator of the peace. Each sheriff
       shall be conservator of the peace in his or her county, and shall prevent crime and maintain the safety and
       order of the citizens of that county; and may arrest offenders on view, and cause them to be brought
       before the proper court for trial or examination.”
                7
                  “55ILCS 5/3-6016. Sheriff liable for acts of deputy and auxiliary deputy. § 3-6016. Sheriff liable
       for acts of deputy and auxiliary deputy. The sheriff shall be liable for any neglect or omission of the
       duties of his or her office, when occasioned by a deputy or auxiliary deputy, in the same manner as for his
       or her own personal neglect or omission.”

                                                          - 33 ­
       with a core managerial right. County of Cook, 347 Ill. App. 3d at 552. Here, the Employer

       argues that its inherent managerial authority is impinged upon, but it fails to draw a

       connection between the new conditions regarding the denial and revocation of secondary

       employment, as well as the new annual disclosure requirement, and its managerial

       responsibilities of operating a safe courthouse and jail, preventing crime, or maintaining

       citizens’ safety. There is no evidence in the record before us that the disputed changes to the

       secondary employment policy interfere with any such matters. Although the Employer

       generally claims that the new General Order will improve the quality of the public services it

       is statutorily required to provide, it has not presented an explanation or evidence about how

       the new policy is connected to that goal. We find no clear error in the Board’s determination

       that the new secondary employment policy in the new General Order was not part of the

       Employer’s inherent managerial authority.

¶ 57      Because then, pursuant to Central City Education Ass’n, we have found that the issue is

       “one of wages, hours and terms and conditions of employment,” we moved on to the second

       prong of the Central City test. Because we then determined, pursuant to the second Central

       City prong, that the issue of the new secondary employment policy under the new General

       Order is not one of inherent managerial authority, the issue is a mandatory subject of

       bargaining and our inquiry in this matter ends. Board of Trustees of the University of Illinois

       v. Illinois Labor Relations Board, 224 Ill. 2d 88, 97 (2007) (“If the issue does not involve the

       employer’s inherent managerial authority, then it is subject to mandatory bargaining.”); City

       of Belvidere, 181 Ill. 2d at 206 (“The second prong considers whether the matter, in addition

       to affecting wages, hours and terms and conditions of employment, is also one of inherent

       managerial authority. [Citation.] If the answer to this question is no, the analysis ends and the


                                                  - 34 ­
       matter is considered a mandatory subject of collective bargaining.”). The new secondary

       employment policy under the new General Order, then, is a mandatory subject of collective

       bargaining.

¶ 58      Even if the changes to the secondary employment policy did satisfy the second prong of

       the Central City test and we were to proceed to prong three of the Central City analysis,

       however, the result would not change, as we would find that the benefits of bargaining

       outweigh the burdens of bargaining. The third prong of the Central City test requires a

       “balancing of the benefits to the decisionmaking process against the burdens that bargaining

       would impose” upon the Employer’s authority. See Chicago Park District, 354 Ill. App. 3d at

       602 (citing Central City Education Ass’n, 149 Ill. 2d at 523). Because this step is “very fact-

       specific,” the Board is “eminently qualified to resolve” this balancing test. (Internal quotation

       marks omitted.) Board of Trustees of the University of Illinois, 224 Ill. 2d at 97.

¶ 59      Again citing sections 3-6021 and 3-6017 of the Counties Code, the Employer argues that

       the “public policies regarding crime, citizen safety, and security of correctional and court

       facilities weigh in favor of the Sheriff and outweigh the union’s interest in bargaining.” As

       quoted above, these statutory sections deal with the Sheriff’s responsibility as “conservator

       of the peace” and “custodian of the courthouse and jail.” 55 ILCS 5/3-6021, 3-6017 (West

       2012). The crux of the Employer’s argument in this regard is: “The Board reasoned that the

       Sheriff’s Office did not ‘intimately connect’ the secondary employment policy with its

       mission. The Board’s analysis completely ignored the intent of the legislature, setting forth

       the obligations placed in the Sheriff, regarding the mandatory duties of police officers.”

       However, as noted previously, the Employer failed to establish how the change in the

       secondary employment requirements was necessary to effectuate its purpose; it has not


                                                   - 35 ­
       provided any evidence that bargaining over the changes to the secondary employment policy

       would diminish its ability to effectively perform its statutory duties as custodian of the jail

       and keeper of the peace. Rather, the Employer seems to argue that, if required to bargain, it

       will be unable to effectuate its mission. However, bargaining does not require such an

       extreme result. See 5 ILCS 315/7 (West 2012) (“A public employer and the exclusive

       representative have the authority and the duty to bargain collectively” but “such obligation

       does not compel either party to agree to a proposal or require the making of a concession.”).

¶ 60       Here, the Union members have a significant interest in under what circumstances they are

       allowed to work in secondary employment during the time when they are not on duty with

       the Employer. The Union argues that bargaining could have resulted in a solution that

       satisfied both parties. It argues:

                   “The benefits both parties would derive from bargaining are great. The employees

               have a keen interest in restrictions on how they spend their time away from work.

               This includes how they can plan and budget for secondary employment and how they

               can secure approval for it, as well as guard against that approval being taken away.

               They also have an important interest in how and under what circumstances they will

               be disciplined and what are to be the consequences of that discipline. The Employers

               also stand to benefit from the bargaining process. By engaging in bilateral

               discussions, they will receive the benefit [of] the information received from good

               faith discussions about the implementation and operation of this General Order and

               will benefit from the opportunity to discuss and constructively resolve potential

               problems in advance.”




                                                 - 36 ­
¶ 61      We agree that, here, in balancing the benefits and the burdens of bargaining, the scale tips

       in favor of the benefits of bargaining and find no error in the Board’s decision in this regard.

¶ 62                                       ii. The Status Quo

¶ 63      For the same reasons, we also reject the Employer’s contention that the Board erred in

       finding the new secondary employment terms violated the status quo. (Employer commits

       unfair labor practice by making unilateral changes to terms or conditions of employment that

       alter the status quo. “ ‘Unilateral’ changes are those alterations implemented without prior

       negotiation to impasse. [Citation.] Such changes are prohibited so the status quo might be

       maintained until new terms and conditions of employment are arrived at through bilateral

       negotiation and by mutual agreement. [Citations.]”). See, e.g., Vienna School Dist. No. 55 v.

       Illinois Educational Labor Relations Board, 162 Ill. App. 3d 503, 507-9 (1987). Here, the

       Board determined that the new General Order altered the status quo by changing the criteria

       for denying and revoking approval to work a second job, as well as by requiring employees

       to annually disclose their secondary employment status. The employer argues on appeal that

       there was no actual change between the prior General Order and the new General Order. As

       we have determined above that the annual disclosure requirement in the new General Order

       imposed new obligations on the employees, that an employee who did not comply with the

       requirement would be subject to potential discipline, and that the new secondary employment

       policy materially changed the terms and conditions of employment by making it more

       difficult to obtain approval to work a second job, we find no error in the Board’s

       determination that the new secondary employment terms violated the status quo.

¶ 64                                     iii. Failure to Bargain




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¶ 65      Finally, the Employer contends the complaint should be dismissed because (1) the

       Employer has not refused to bargain the issue of secondary employment and (2) the

       negotiations are ongoing. We disagree.

¶ 66      A public employer has a duty to engage in good-faith collective bargaining with its

       employees’ representative when circumstances mandate bargaining. 5 ILCS 315/10(a)(4)

       (West 2012); Forest Preserve District of Cook County, 369 Ill. App. 3d at 754 (an

       employer’s refusal to negotiate over a mandatory subject of bargaining constitutes an unfair

       labor practice). A public employer commits an unfair labor practice and violates section

       10(a)(4) of the Act when it refuses to bargain in good faith with a labor organization that is

       the exclusive representative of a bargaining unit of public employees. 5 ILCS 315/10(a)(4)

       (West 2012); Service Employees International Local Union No. 316 v. Illinois Educational

       Labor Relations Board, 153 Ill. App. 3d 744, 755 (1987) (“When an employer has a duty to

       bargain about an issue which is a mandatory subject of collective bargaining and refuses to

       negotiate, it commits a per se unfair labor practice.”). When a public employer breaches its

       obligation to collectively bargain in good faith pursuant to section 10(a)(4) of the Act, it also

       violates section 10(a)(1) of the Act, which prohibits an employer from interfering with

       employees in the exercise of their rights under the Act. 5 ILCS 315/10(a)(1) (West 2012).

       “[W]hen an employer has the duty to bargain, it need only provide notice of its willingness to

       bargain prior to the time at which its plans are fixed.” Service Employees International Local

       Union No. 316, 153 Ill. App. 3d at 755. The duty to collectively bargain in good faith under

       the Act extends to issues that arise during the term of a collective bargaining agreement. Mt.

       Vernon Educational Ass’n, IEA-NEA, 278 Ill. App. 3d at 816.




                                                  - 38 ­
¶ 67      The Employer argues that this issue is not “ripe” for review because negotiations are

       ongoing. However, the Employer is charged with having failed to bargain over the new

       secondary employment policies in the new General Order, which took effect August 1, 2013.

       The ongoing negotiations over successor CBAs are irrelevant to the new General Order that

       took effect over three years ago.

¶ 68      Here, the Employer unilaterally changed the terms and conditions of employment for the

       affected bargaining unit members, and implemented these changes without giving the Union

       adequate notice and an opportunity to bargain. The Board and, now, this court, determined

       that the matter was a mandatory subject of bargaining. The Act requires the parties to bargain

       to impasse or resolution on those matters that are mandatory subjects of bargaining. See, e.g.,

       Vienna School District No. 55, 162 Ill. App. 3d at 507-09. On July 8, 2013, the Employer

       issued Sheriff’s Order 1, which rescinded the prior General Order and established a new

       secondary employment policy and procedures. On July 12, 2013, 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. The Employer did not respond to the demand

       nor offer to bargain. 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


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       August 1, 2013. At the hearing, Cook County Sheriff’s Office Special Counsel for Labor

       Affairs Kramer confirmed that he did not respond to Union emails demanding they bargain

       over the new secondary employment policy. Union General Counsel Camden also testified

       that he had attended all of the local bargaining sessions, and the Employer never negotiated

       over the new secondary employment policy. Additionally, Union business representative

       Vendafreddo, who was the chief negotiator during the bargaining sessions between October

       2012 and July 2013, testified that the Employer never raised the issue of secondary

       employment during those bargaining sessions.

¶ 69      Clearly, the Union presented repeated demands to bargain prior to the effective date of

       the new General Order. The Employer disregarded these requests and unilaterally changed

       the terms and conditions of employment without notice and an opportunity to bargain. The

       Employer had the duty to bargain in good faith, and it did not do so. We find no error in the

       Board’s finding that the Employer failed to bargain over the new General Order and its

       determination that the Employer violated the Act by failing to do so.

¶ 70                                     III. CONCLUSION

¶ 71      For all of the foregoing reasons, the decision of the Illinois Labor Relations Board is

       affirmed.

¶ 72      Affirmed.




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