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July 06, 2005
Secret surveillance
An employer installed secret surveillance cameras to monitor employees, but didn't bother to tell the union or offer to bargain about it. The cameras caught employees doing drugs, and the employer discharged them.
This created two questions for the NLRB and the DC Circuit:
- Is installing a secret camera a mandatory subject of collective bargaining? That is, must the employer first notify the union and offer to bargain about it? The NLRB said yes (2-1), and the DC Circuit agreed. This was a unilateral change in the terms and conditions of employment in violation of Section 8(a)(5).
- If the employer must offer to bargain but did not, can the employer use the information gathered by the cameras to discharge employees? The NLRB said yes (2-1), relying on Section 10(c):
No order of the Board shall require reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was discharged or suspended for cause.
The Board distinguished two of its prior decisions: Taracorp Industries, 273 NLRB 221 (1984) and Great Western Produce, 299 NLRB 1004 (1990).
The DC Circuit was not impressed, saying (2-1) that the Board failed to "adequately" distinguish its prior cases. So the Circuit Court sent the case back to the Board to take another look at the remedy. A dissenting judge thought the case was a slam-dunk due to the plain and unambiguous language of Section 10(c).
The decisions: Anheuser-Busch, Inc., 342 NLRB No. 49 (2004); Brewers and Maltsters Local 6 v. NLRB (DC Cir 07/05/2005).
My view:
- It's within the Board's discretion to decide that installing cameras is a mandatory subject of bargaining, so a circuit court is required to uphold that part of the decision.
- The remedy question is much more doubtful.
- The Board did distinguish its prior cases, but simply not to the satisfaction of the court. I think the court is asking too much, and trying to micromanage the NLRB's policy-making.
- Now the Board must once again distinguish its prior cases or overrule them. With only three Members, the Board won't do any overruling soon because of its unwritten rule that it takes three Members to do that, and we can be sure that the Democrat Member will not go along.
- Sadly, the facts in this case arose in 1998, an ALJ rendered a decision in 1999, and here we are another six years later with only a dim light at the end of the long tunnel.
More commentary by Michael Fox at Jottings By An Employer's Lawyer.
Posted July 06, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
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