NLRB Refuses To Adopt An Exclusionary Rule Where An Employer Illegally Videotapes Misconduct

http://www.mondaq.com/article.asp?articleid=58640

31 March 2008
Article by Bill Trumpeter

When an employer has a collective bargaining obligation with a Union, it may not unilaterally change a term and condition of employment without bargaining with the Union unless the Union has expressly waived its right to bargain about the particular subject. The National Labor Relations Board ("NLRB") has held that an employer’s installation and use of video surveillance cameras is a mandatory subject of bargaining and that an employer violates its duty to bargain when it installs video surveillance cameras in the workplace without bargaining with the Union.

Despite this relatively clear NLRB decision, some employers still do not bargain before installing surveillance equipment. The usual argument is that if the employer tells the Union it is going to install surveillance equipment, it will not be able to catch the perpetrators in the act. Therefore, when the employer installs surveillance equipment, without bargaining, and catches employees engaging in conduct warranting discipline, it is caught in a conundrum. If it acts on the evidence it obtained through the use of surveillance equipment, the Union will know it unilaterally installed such equipment without bargaining. If it does not rely on the evidence, it may not have a provable basis for disciplining the offenders.

Anheuser-Busch ("AB") installed video surveillance cameras in its workplace in St. Louis. It did not engage in bargaining with its Union before doing so. As a result of the videotaping, AB caught its employees engaged in various acts of misconduct for which discipline issued.

Predictably, the Union filed an unfair labor practice charge alleging that AB failed to bargain about the use of cameras, a violation of Section 8(a)(5) and (1) of the National Labor Relations Act ("the Act"). Since AB violated the Act by installing the cameras, the Union asked the NLRB to order that the disciplined employees be made whole and that the discipline be expunged from their records.

In Anheuser-Busch, Inc., 342 NLRB 560, 560 (2004), the NLRB held that AB violated the Act by failing to give notice to and bargain with the Union prior to installing hidden surveillance cameras. Id. at 561. It refused, however, to order make whole relief for the employees who were detected violating work rules through the use of the cameras. On appeal, the D.C. Circuit affirmed the refusal to bargain finding against AB, but remanded the case to the NLRB to explain why a make-whole remedy was not appropriate. Brewers & Maltsters Local 6 v. NLRB, 414 F.3d 36, 49 (D.C. Cir. 2005).

On remand, Anheuser-Busch, Inc., 351 NLRB No. 40 (2007), the NLRB reaffirmed its prior decision that make-whole relief was inappropriate in this case. It relied primarily upon section 10(c) of the Act, which provides in pertinent part: "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." Id. at *4.

FULL story at link.