Winter 2006-05 Hidden cameras in an unionized workplace

Number 62
Winter 2006

Hidden cameras in an unionized workplace

The U.S. Court of Appeals for the District of Columbia Circuit recently enforced a National Labor Relations Board decision holding that an employer violated the National Labor Relations Act by installing and using hidden surveillance cameras in the workplace without first bargaining with its employees’ union. Brewers & Maltsters, Local No.6 v. NLRB, 414 F.3d 36 (D.C. Cir., 2005).

Urinating and smoking grass

The employer (Anheuser-Busch) suspected employee misconduct in an elevator motor room on the roof of its facility. Thus the company installed hidden video cameras that indeed revealed a number of acts that constituted improper conduct, such as urinating, smoking marijuana, sleeping and taking long breaks (not necessarily at the same time). As a result, the employer promptly discharged the five potheads, and imposed disciplinary sanctions on those who urinated, slept on the job and took long breaks.

Section 8(a)(5)

The union representing the employees requested information on the use of the cameras and the investigation, which the company refused to provide for security reasons. The union then filed an unfair labor practice charge for failure to bargain in good faith.

The National Labor Relations Board held that the use of hidden cameras in the workplace is a mandatory subject of bargaining, 342 NLRB No.49 (2004). As a result, the employer violated Section 8(a)(5) of the NLRA by failing to bargain with the union before installing and using them. The Board ordered Anheuser-Busch to cease and desist from refusing to bargain before installing the hidden cameras, but refused to reinstate the discharged employees or rescind the disciplinary measures, because such relief would be “contrary to the specific remedial construction contained in Section 10(c)” of the NLRA.

Appeals

The company appealed and the union cross-petitioned; the latter arguing that the Board erred in refusing to reinstate the discharged employees.

The Court of Appeals affirmed the Board’s decision. The court unanimously agreed that the employer unlawfully refused to bargain. Also, a majority of the panel held that the Board failed to explain adequately why it refused Anheuser-Busch to reinstate the discharged employees. The rationale was based on the conclusion that Section 10(c) “does not prevent the Board from insisting that the employer prove cause without using fruit of the violation . . . Section 10(c) does not speak of the burdens of persuasion, fruits of violations, exclusionary rules, and other paraphernalia of trial inferences.” Consequently, the case was remanded to the Board to articulate a compelling rationale for its remedial order.

‡‡ Note:

This issue of law was not addressed by the Puerto Rico Supreme Court in its landmark secret camera decision in the case of Vega Rodríguez v. PRTC, 2002 TSPR 50, reported in the Summer, 2002, edition of Puerto Rico Business Law Developments.

© 2006 Goldman Antonetti