Originally appeared in Labor Law Newsletter - January 2002

Reaffirming a prior ruling, a recent decision by the National Labor Relations Board makes clear that an employer must bargain with its union prior to installing hidden surveillance cameras in the workplace. In a 2-1 decision the Board reaffirmed that employer use of hidden surveillance cameras is a mandatory subject of bargaining. The Board also held that an employer has an obligation to respond to an information request from a union concerning use of hidden surveillance cameras. National Steel Corp., 335 NLRB No. 60 (August 27, 2001).

In National Steel, the employer periodically used hidden cameras to investigate specific cases of suspected theft or other instances of wrongdoing. The union asked the employer for information regarding its use of hidden cameras and stated that the employer needed to talk to the union before it installed additional cameras. In a follow-up letter to the employer, the union stated that "the use of hidden surveillance cameras has been deemed by the National Labor Relations Board as a mandatory subject of bargaining and the Union has not waived its right to bargain over the subject." In addition, the letter requested "all information concerning any existing hidden surveillance cameras that our members are subjected to that exist in any and all areas."

The employer responded by letter, stating that "disclosing the location of this equipment would defeat its purpose," and that "the Company does not believe that the Union is entitled to this information." After receipt of this letter, the union filed an unfair labor practice charge and an Administrative Law Judge held that the employer violated Sections 8(a)(5) and (1) by refusing to bargain with the union over the hidden cameras and by failing to seek an accommodation with the union over its confidentiality concerns.

Affirming the ALJ decision, the Board cited its decision in Colgate-Palmolive Co., 323 NLRB 515 (1997), where it held that employer use of hidden surveillance cameras to investigate workplace theft and employee misconduct was a mandatory subject of bargaining because the "installation of surveillance cameras is both germane to the working environment and outside the scope of managerial decisions lying at the core of entrepreneurial control." The employer in National Steel unsuccessfully attempted to distinguish Colgate-Palmolive by arguing that it did not utilize hidden surveillance cameras in areas such as restrooms.

The Board also affirmed the ALJ holding that the employer violated the Act by (1) refusing to provide the union with information pertaining to existing hidden surveillance cameras and (2) refusing to bargain for an accommodation to the union’s information request pertaining to the location of the cameras. The Board stated that the employer had an obligation to come forward with an offer of an accommodation to the union if it had confidentiality concerns about the location and use of the cameras. Unless National Steel is reversed or limited, employers considering the use of surveillance cameras in the workplace must treat it as a mandatory subject of bargaining.

Copyright 2001 © Vedder, Price, Kaufman & Kammholz. The Labor Law Newsletter is intended to keep our clients and interested parties generally informed on labor law issues and developments. It is not a substitute for professional advice.