Use of Video Surveillance Evidence to Support Employee Discipline

When confronted with concerns of employee theft, Districts have turned to hidden surveillance cameras to obtain the proof to support a termination.  However, to assure that evidence will be considered if the termination is challenged, Districts must comply with the collective bargaining requirements reinforced by the July 2005 United States District of Columbia Circuit Court of Appeals case of Brewers & Maltsters, Local Union #6, et al. v. Anheuser-Busch, Inc.

The questions to be considered are as follows:

A.        Whether the District has an obligation to bargain with the Union prior to installing the surveillance cameras and if it fails to do so whether it commits an unfair labor practice.

Answer:          Yes

B.        Whether past Union actions where surveillance cameras have been used in the District constitutes a waiver by the Union such that the District does not have any obligation to bargain with them before the use of the surveillance cameras.

Answer:          No

C.        Whether the video surveillance tapes which reveal employee misconduct may be used by the Employer in disciplinary proceedings against the employees even though the evidence was obtained as a result of an unfair labor practice.

Answer:          Possibly.

A.        Installation and use of video surveillance cameras is a mandatory subject of collective bargaining and is an unfair labor practice if bargaining does not occur prior to their installation.

Both the Seventh Circuit and District of Columbia Circuit Courts have addressed this issue, and relying upon prior decisions rendered by the National Labor Relations Board, have consistently held that the installation and use of hidden surveillance cameras in the workplace constitutes a mandatory subject of bargaining, and in the absence of such bargaining, is an unfair labor practice.  See National Steel Corporation v. NLRB, 324 F.3d 928 (7th Cir., 2003); and Brewers and Maltsters, Local Union #6 v. Anheuser-Busch, Inc., 2005 U.S. App. LEXIS 13292 (D.C. Cir., 2005).  The Circuit Courts based their decisions on the 1997 Labor Relations Board’s decision in Colgate-Palmolive Company, where the Board equated surveillance cameras to other mandatory subjects of bargaining such as physical examinations, drug/alcohol testing requirements, and polygraph testing because of their shared purpose as “investigatory tools.”  The Board in Colgate-Palmolive, as adopted by the Circuit Courts in National Steel and Anheuser-Busch, held that “the use of hidden surveillance cameras ‘has the potential to affect the continued employment of the employees whose actions are being monitored.”  

Of course, each employer raised the question of what must be negotiated through collective bargaining prior to the installation of the surveillance cameras.  In the National Steel case, National Steel argued that bargaining over hidden surveillance cameras, especially their location, prevents an employer from meaningfully using such devices because the bargaining process would compromise the secrecy that is required for them to be effective as well as being so cumbersome that it would not be able to deploy hidden cameras when the need arose.  The Seventh Circuit rejected this argument and made the following observations regarding the Labor Board’s Order in the National Steel case:  (1)  The Board’s Order preserves managerial interest and secrecy in the use of hidden surveillance cameras while honoring the Union’s collective bargaining rights; (2)  It only requires negotiation over the company’s installation and use of hidden surveillance cameras; (3) It does not dictate how the interests of the parties are to be accommodated in the negotiation process; (4) It does not address the employer’s ability to establish practices on the subject matter subsequent to having bargained to impasse, thereby inferring that if an impasse is reached the employer could nevertheless install the cameras upon proper notification to the Union; (5) It does not mandate an outcome to the negotiation; (6) It does not make any suggestion that National Steel must yield any prerogatives; (7) It  simply directs National Steel to initiate an accommodation process and to provide confidential information as per a negotiated confidentiality agreement or protective order; and, (8) It does not eliminate National Steel’s management right to use hidden cameras and it seeks to preserve the level of confidentiality necessary to allow for the continued effective use of such devices.

Similarly, the DC Circuit Court in Anheuser-Busch also discussed the nature of the collective bargaining requirement for the use of surveillance cameras.  In that case, Anheuser-Busch raised an issue that the Board did not explain what aspects of the use of hidden surveillance cameras should be bargained.  However, the Court held in that case as follows:  (1)  That while an employer must bargain over the proposed use of hidden surveillance cameras and the general reasons for such proposal, it need not apprise the Union of the location of the cameras or the times when they will be in use; (2) The Board did not require bargaining over each instance where surveillance cameras would be used; (3) The Board’s opinion was that during negotiations, the Union and employer should only bargain over the general requirements for an employer’s use of hidden surveillance cameras such as: (a) whether the cameras may ever be used; (b) in which areas the cameras may be used; (c) whether the employer would be required to demonstrate some level of suspicion before using the cameras; and (d) whether the cameras may be used to discipline employees.  By addressing the above issues, the Board determined that it preserved the benefits of hidden surveillance while also involving the Union in developing the terms and conditions of their members’ employment.

B.        The knowledge and acquiescence of the Union in the past to the District’s use of surveillance cameras does not constitute a waiver of its right to bargain regarding the use of video surveillance cameras.

Both the National Steel and Anheuser-Busch Circuit Courts also address the issue of whether the Union had waived its right to bargain over the use of video surveillance cameras based upon the Union’s past apparent consent and/or waiver of the use of video surveillance in the past.  The Seventh Circuit in National Steel recognized the longstanding principles that “a party to collective bargaining, however, waives its right to bargain over an issue only by clearly and unmistakably expressing its intent to do so.  [Citations omitted]  The failure to demand bargaining in the past, without more, does not amount to waiver if it does not unmistakably show that the Union intended to permanently give up its right to bargain in the future. [citations omitted].”  Similarly, the DC Circuit Court in Anheuser-Busch recognized the well-established principle that “a Union’s acquiescence in previous unilateral changes does not operate as a waiver of its right to bargain over such changes for all time. [citations omitted].”  Unfortunately, neither Court provides a great deal of specific information regarding each employer’s past use of the surveillance cameras.  The National Steel case only indicates that the Union knew about the company’s past use of such cameras and previously had requested that Union members install such equipment.  In the Anheuser-Busch case, there is only a reference that the company had used hidden surveillance cameras on two (2) isolated occasions and several years in the past. 

C.        Under certain circumstances, the video tape evidence of employee misconduct may be used in employee disciplinary proceedings although it may have been obtained as the result of an unfair labor practice.

In the Anheuser-Busch case, the Labor Board affirmed the ALJ’s decision not to revoke the discipline, relying primarily on Section 10(c) of the National Labor Relations Act which precludes make-whole relief even when misconduct is discovered through unlawful means. 

However, the Circuit Court in Anheuser-Busch disagreed with the ALJ and Labor Board and held that “because the Board failed to distinguish adequately its prior decisions that support ordering make whole relief, a remand is necessary so that the Board can apply, distinguish adequately, or overrule those precedents.”  The Labor Board precedents at issue were the cases of Tocco and Great Western which were summarized by the Circuit Court in Anheuser-Busch as follows:

1.         Tocco, Inc., 323 NLRB 480 (1997).  In this case, the Labor Board ordered make whole relief for employees who were discharged for drug use after the employer unilaterally changed its drug testing policy from testing employees only for cause as determined by the evidence of possession or use of drugs by a specific employee to a policy of determining cause based on overall safety, efficiency and production records.  This unilateral change resulted in the testing of all employees.  The Circuit Court in Anheuser-Busch therefore determined in both the Tocco and Anheuser-Busch cases, the employer would not have discovered the employees’ misconduct but for its unlawful unilateral change.  The Circuit Court therefore felt that the Labor Board had treated like situations differently. 

2.         Great Western Produce, Inc., 299 NLRB 1004 (1990).  In this case, the Labor Board ruled that unilateral work rule changes, including a record keeping system that tracked employee excessive tardiness and absenteeism was an unfair labor practice.  As summarized by the Circuit Court in Anheuser-Busch, the Labor Board in Great Western held that an employer may avoid having to reinstate and pay back pay to an employee discharged pursuant to an unlawfully instituted rule or policy if the employer demonstrates that it would have discharged the employee even absent that rule or policy.”  Great Western at 1006.  This rule applies in the following two scenarios:  (1) where the employer discharges employees for violating substantive rules that were unlawfully changed; and (2) where the employer’s unlawful work rule (video surveillance) allowed it to discover grounds (sleeping/leaving assigned work areas) for an employee’s discharge.  If the employer relies solely upon the information gained from the unlawful work rule in imposing discipline without any independent basis other than the unlawful work rule change, the employee could be reinstated.  The Labor Board in Great Western held that “where the employer had a source of knowledge about [another employee’s unsatisfactory performance] independent of the unlawful employee reports,” the Board refused to order reinstatement and back pay.  Great Western at 1007. 

The Circuit Court in Anheuser-Busch determined that Anheuser-Busch did not assert a source of knowledge of the employee misconduct independent of the unlawful video surveillance.  This was regardless of whether the employees confessed during the investigatory interview because there was no evidence that Anheuser-Busch relied on the admissions to discipline the employees or that they would even have been subject to investigatory interviews absent the misconduct discovered on the videotape. 

However, it should be noted that the Circuit Court in Anheuser-Busch did not order make whole relief, but rather remanded to the Labor Board to either distinguish the precedents or overrule them.  This may be due in part to the fact that there was a dissent filed to this part of the Court’s decision.  The majority of the Court recognized that Section 10(c) of the Act provides as follows:

“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.”  29 U.S.C. § 160(c).

As the dissent points out, the majority then proceeds to add to the clear language of Section 10(c) by quoting from the Seventh Circuit case of Communication Workers of America v. NLRB, 784 F.2d 847, 851 (7th Cir. 1986) as follows:

“The proviso [in § 10(c)] does not prevent the Board from insisting that the employer [prove ‘cause’] without using the ‘fruit’ of the violation … Section 10(c) does not speak to burdens of persuasion, fruits of violations, exclusionary rules, and the other paraphernalia of trials and inferences.”

The dissent takes the position that the Seventh Circuit attempts to add additional requirements to Section 10(c) which “absolutely and unqualifiedly” do not apply.  A clear reading of the statutory language does not provide for any exception.

Unfortunately, because the remand to the Labor Board only recently occurred in July 2005, it is unknown at this time how the Labor Board addressed the reinstatement issue upon remand.  While the statutory language of Section 10(c) appears clear, the Labor Relations Board precedents of Tocco and Great Western raise enough doubt that if the District’s suspension and/or termination of the employees is based or derived solely from the misconduct discovered from the video surveillance, there is a strong possibility that the employees may be reinstated, either by the Labor Board or the Courts.

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