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Bush's NLRB Legacy: #4 of 12
January 07, 2008 by Ross Runkel at LawMemo

Employee misconduct discovered through employer's unlawful conduct. #4 in a series of 12 significant actions by the Bush Board.

Anheuser-Busch, Inc., 351 NLRB No. 40 (September 29, 2007).

The Board reaffirmed its 2004 holding that the NLRA prohibits the Board from granting a make-whole remedy to employees disciplined or discharged for misconduct discovered as a result of unlawful conduct by their employer.

The employer uncovered evidence that employees were engaging in misconduct, including possible use of illegal drugs, in informal break areas on the roof of a building, so the employer installed a hidden surveillance camera on the roof and another camera inside an elevator motor room. The use of hidden surveillance cameras was a change in the employer's operations, and the employer did not notify the Union of its decision to install the cameras.

The cameras observed 16 employees engaging in misconduct. After discontinuing the surveillance, the employer notified the Union that it had been using the cameras. The Union protested the failure to provide notice and an opportunity to bargain over the installation of the cameras.

The employer interviewed each of the 16 employees. Before each interview, the Union advised the employee that the Respondent had videotaped the employee’s conduct; each employee then admitted engaging in the observed misconduct.

The employer discharged 5 of the 16 employees. Each of the discharged employees had violated the Respondent’s rules by using illegal drugs (marijuana) at work. The employer suspended the remaining 11 employees, and issued “last chance” agreements to 7 of them. All of the suspended employees had violated Respondent’s rules by entering a restricted area and by being away from an assigned work location for an extended time period. Some of the suspended employees had also violated the Respondent’s rules by sleeping on duty or by urinating on the roof.

The Board found that the employer violated Section 8(a)(5) by failing to give the Union notice and an opportunity to bargain before installing the hidden surveillance cameras.

The Board rejected the argument that the employees, who were disciplined based solely on the employer's unquestionably unlawful use of hidden surveillance cameras, are entitled to make-whole relief (reinstatement and back pay).

The NLRB majority relied primarily on Section 10(c), which provides:

"No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause."

My view: This decision carries forward earlier decisions in which the NLRB found liability and granted a remedy for unlawful employer conduct, but refused to overturn discipline when the evidence against the employee was derived from that unlawful conduct. The decision is, however, an extension of the earlier cases.

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