The Union Workplace Meets Big Brother: Advising Clients on Employer Conduct With Regard to Hidden Surveillance

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 3 No. 1

Shidler Journal of Law, Commerce & Technology 3 Shidler J. L. Com. & Tech. 2 Volume 3, Issue 1, Summer 2006

Corporate & Commercial

Cite as: Jamila Asha Johnson, The Union Workplace Meets Big Brother: Advising clients on employer conduct with regard to hidden surveillance, 3 Shidler J. L. Com. & Tech. 2 (Aug. 24, 2006), at [http://www.lctjournal.washington.edu/vol3/a002Johnson.html]

The Union Workplace Meets Big Brother: Advising clients on employer conduct with regard to hidden surveillance

By Jamila Asha Johnson [fn1]

(c) 2006 Jamila Asha Johnson

Abstract

Hidden cameras may guide a union employer to find employee misconduct, but at what cost? Since the late 1990s, two federal appeals courts and the National Labor Relations Board (NLRB) have required employers to bargain with unions before using hidden video surveillance to observe employees. Until more recently, however, it was less apparent how lawyers should advise clients when an employer wished to use hidden cameras or had already installed non-disclosed video surveillance. In August 2005, the D.C. Circuit Court of Appeals decided a case surrounding surveillance at an Anheuser-Busch facility, which provided further guidance on these issues. This Article analyzes the Anheuser-Bush decision and clarifies the scope of what might happen to an employer who fails to bargain and that subsequently takes actions based on hidden camera technology. It also addresses how an employer can discuss hidden cameras with a union without undermining the benefits of such technology.

Table of Contents

Introduction Understanding the Duty to Bargain How To Bargain With a Union About Hidden Video Surveillance Minimize the Effects of Failing to Bargain When Cameras Have Already Been Installed Conclusion

Introduction

[1] In the United States, 51 percent of companies use video surveillance according to the 2005 Electronic Monitoring and Surveillance Survey conducted by the American Management Association and The E-Policy Institute. This figure increased from 2001, where only 33 percent of companies practiced such behavior. [fn2] However, while many companies value hidden cameras, not everyone sees the technology as a benefit. Employees and unions tend to perceive hidden surveillance devices as invasive of employee privacy. [fn3] Two United States federal legislative proposals - the first in 1970 - requiring notice of monitoring have failed. [fn4] While no federal statute prohibits surveillance in the classic workplace, the United States does regulate surveillance in union workplaces via the National Labor Relations Act (NLRA). [fn5] The NLRB enforces the NLRA and requires employers to bargain with unions for the right to use hidden surveillance. [fn6]

[2] In June of 1998, Anheuser-Busch installed hidden surveillance cameras to monitor an area where employees occasionally worked and took breaks, without giving the union notice of the surveillance. [fn7] Anheuser-Busch found sixteen employees engaging in misconduct during the month it recorded footage. The hidden cameras produced images of workers urinating on company property, smoking marijuana, and taking extended breaks. [fn8] The corporation informed the union, then fired, suspended, or warned the employees. Seven years later, in 2005, the U.S. Court of Appeals for the D.C. Circuit held that Anheuser-Busch's use of hidden cameras was a mandatory subject of union bargaining and that the NLRB had poorly justified its decision to not force the company to engage in make-whole relief. [fn9]

[3] In the Anheuser-Busch case, this relief may ultimately include back pay (less any pay the workers earned elsewhere while fired) and possibly re-instatement based on the decision of the NLRB. [fn10] As the recent D.C. Circuit opinion in Anheuser-Busch suggests, electronic investigations into employee misconduct must be handled delicately. The case also provides helpful suggestions for how lawyers representing employers and unions should handle the issue of hidden surveillance.

Understanding the Duty to Bargain

[4] Federal wiretap laws, state statutes, and judicial rulings heavily regulate an employer's ability to secretly record oral communications. [fn11] However, few restrictions prevent an employer from secretly installing video cameras in the workplace to monitor employee behavior when no sound is recorded or to use video footage to conduct investigations. The only substantial federal restrictions arose from a series of NLRB decisions that interpreted the NLRA to require employers to bargain with unions before installing and using hidden cameras in the workplace.

[5] The NLRA strives, in part, to create a society where organized employees engage in conversations with employers regarding job security and the conditions of employment. [fn12] The structured discussion between employers and unions is called collective bargaining. [fn13] While collective bargaining is a popular term in the media, it can create misconceptions for a professional that seldom handles labor law. Collective bargaining addresses two types of subjects - mandatory subjects of bargaining and permissive subjects. With mandatory subjects, collective bargaining does not require that the employer and the workers come to an agreement - the parties must only bargain until they reach an agreement or an "impasse". [fn14] An impasse occurs when it is clear that no further progress is expected on an issue. With permissive subjects of bargaining there is no...