Law, Business and Society 11th Edition by Tony McAdams

Exercise 22

FACTS
Colgate-Palmolive's Jeffersonville, Indiana, plant employed approximately 750 workers. Colgate and the employees had a collective bargaining arrangement for over 20 years. In 1994 an employee discovered a surveillance camera in a restroom air vent. The union president later discussed the matter with Colgate's human resources officer, who indicated that the camera had been placed in the vent because of theft concerns and that the camera had been removed after employees objected to it. The Union filed a grievance over the matter, and the parties met for discussion where Colgate argued that it had the absolute right to install internal surveillance cameras. Later, the Union sent a letter to Colgate demanding to bargain over the subject of cameras within the plant. Colgate did not respond, and the Union filed an unfair labor practice charge. The case was heard by an administrative law judge. Evidence indicated that Colgate had installed 11 secret cameras over four years to address problems of theft and misconduct, including sleeping on the job. The cameras were placed in several offices, a fitness center, a restroom, and as a monitor for an overhead door that was not a proper exit from the building. The Union and some employees were aware of various "unhidden" cameras in the workplace and in some instances fortuitously discovered some of the hidden cameras.
The Administrative Law Judge (ALJ) concluded that the use of hidden surveillance cameras is a mandatory subject of bargaining and by failing to do so, Colgate-Palmolive violated the National Labor Relations Act. The ALJ's ruling was then appealed to the National Labor Relations Board. The NLRB decision follows.
CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS
In Ford Motor Co. v. NLRB, the Supreme Court described mandatory subjects of bargaining as such matters that are "plainly germane to the 'working environment'" and "not among those 'managerial decisions, which lie at the core of entrepreneurial control.'" As the judge found, 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.
As to the first factor-germane to the working environment-the installation of surveillance cameras is analogous to physical examinations, drug/alcohol testing requirements, and polygraph testing, all of which the Board has found to be mandatory subjects of bargaining. They are all investigatory tools or methods used by an employer to ascertain whether any of its employees has engaged in misconduct.
The Respondent [Colgate-Palmolive] acknowledges that employees caught involved in theft and/or other misconduct are subject to discipline, including discharge. Accordingly, the installation and use of surveillance cameras has the potential to affect the continued employment of employees whose actions are being monitored.
Further, as the judge finds, the use of surveillance cameras in the restroom and fitness center raises privacy concerns which add to the potential effect upon employees. We agree that these areas are part of the work environment and that the use of hidden cameras in these areas raises privacy concerns which impinged upon the employees' working conditions. The use of cameras in these or similar circumstances is unquestionably germane to the working environment.
With regard to the second criterion, we agree with the judge that the decision is not a managerial decision that lies at the core of entrepreneurial control.
The use of surveillance cameras is not entrepreneurial in character, is not fundamental to the basic direction of the enterprise, and impinges directly upon employment security. It is a change in the Respondent's methods used to reduce workplace theft or detect other suspected employee misconduct with serious implications for its employees' job security, which in no way touches on the discretionary "core of entrepreneurial control."
The Respondent urges that bargaining before a hidden camera is actually installed would defeat the very purpose of the camera. The very existence of secret cameras, however, is a term and condition of employment, and is thus a legitimate concern for the employees' bargaining representative. Thus, the placing of cameras, and the extent to which they will be secret or hidden, if at all, is a proper subject of negotiations between the Respondent and the union. Concededly, the Respondent also has a legitimate concern. However, bargaining about hidden cameras can embrace a host of matters other than mere location. And, even as to location, mutual accommodations can and should be negotiated. The vice in the instant case was the respondent's refusal to bargain.
Accordingly, we affirm the judge's finding that the union has the statutory right to engage in collective bargaining over the installation and continued use of surveillance cameras, including the circumstances under which the cameras will be activated, the general areas in which they may be placed, and how affected employees will be disciplined if improper conduct is observed.
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, its officers, agents, successors, and assigns, shall
1. Cease and desist from
a. Failing and refusing to bargain with Local 15, International Chemical Workers Union, AFL-CIO with respect to the installation and use of surveillance cameras and other mandatory subjects of bargaining.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a. On request, bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees with respect to the installation and use of surveillance cameras and other mandatory subjects of bargaining.
b. Within 14 days after the service by the Region, post at its facility in Jeffersonville, Indiana, copies of the attached notice:

At an Anheuser-Busch brewing facility, a supervisor discovered a table, four chairs, a number of foam mattress pads, and cardboard in a room where only authorized personnel were to be, but which was next to a break area. Suspecting illicit activities including illegal drug use, the company installed two surveillance cameras pointed at the entrance and stairs leading to the room. The cameras led to the company identifying 16 employees who engaged in misconduct. The company took down the cameras on June 30, 1998, and then informed the union of their existence. The company fired and otherwise disciplined the employees in question. Did Anheuser-Busch violate the NLRA Explain. Brewers Maltsters v. NLRB, 414 F.3d (D.C. Circuit 2005).