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.

The NLRB held that "for cause" under Section 10(c) means the absence of a prohibited reason. Id. at *6. In other words, if the discharge is not due to the employee's protected activities, it is for cause, regardless of what the NLRB or anyone else might think of the employer's methods. Section 10(c) does not include an inquiry into the source of an employer's knowledge. Id.

Thus, even though the employer violated the Act by installing the hidden cameras, it was still permitted to use the evidence it obtained to discipline the workers. The NLRB chose not to adopt an exclusionary rule, such as is found in criminal law. Id. at *10. When the government acquires evidence against a criminal defendant by illegal means, the evidence so obtained may not be used at the trial. For example, if the police conduct an illegal search, the evidence it obtains as a result of the illegal search cannot be used to convict the accused.

The NLRB held that Section 10(c) precludes it from ordering reinstatement of employees guilty of misconduct. Id. In an effort to cover all bases, the NLRB went on to state that even if the court determines that Section 10(c) does not preclude the adoption of an exclusionary rule, compelling policy considerations dictate that employees who engage in misconduct and are disciplined for it should not benefit from their misconduct through a windfall award of reinstatement and back pay. See id.

Does this mean that employers should ignore their bargaining obligation and install cameras? No. It is a violation of Section 8(a)(5). If the NLRB order to cease and desist from violating the Act is enforced by a Court of Appeals, an employer who chooses to ignore the order may be held in contempt of court.

To avoid this, employers should notify the Union of their intent to install hidden surveillance cameras and offer to bargain. If the employees know that hidden cameras may catch their misdeeds, it may have the effect of stopping the misconduct before it happens. Bargaining with the Union does not necessarily require an employer to disclose where it will install the cameras or when they will be used.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.