By Wayne D. Garris Jr., J.D.
The employer had unilaterally installed cameras in work areas but the union argued that the employer crossed the line when it installed cameras where employees changed clothes.
Reversing an ALJ’s decision in favor of a freight company, the NLRB found the employer violated the NLRA when it unilaterally installed video cameras in an employee break room where employees regularly changed clothes. The Board rejected the ALJ’s finding that the installation was valid as a past practice, noting that installation of cameras in work areas, such as docks, was substantially different than installation in a changing area. Furthermore, there was nothing in the agreement between the union and the employer that authorized the employer to act unilaterally (ABF Freight System, Inc., June 19, 2020).
The employer provides freight services throughout the United States. The employer and union are covered by the National Master Freight Agreement (NMFA), which does not include a management-rights clause. The NMFA, however, includes a clause regarding the employer’s use of video cameras which states:
The Employer shall not install or use video cameras in areas of the Employer’s premises that violate the employee’s right to privacy such as in bathrooms or places where employees change clothing or provide drug or alcohol testing specimens.
Camera installation. In 2013, the employer installed cameras in two of its break/locker rooms, called “shacks,” but removed them in response to employee objections because they changed their boots and outer garments in the rooms.
The employer installed cameras in the shacks again in 2017. This time, however, the union requested that it remove the cameras until the parties could discuss the issue. The employer refused, arguing that it did not notify or bargain with the union because the employees had ratified the NMFA and because its installation of the cameras was in accordance with the NMFA.
ALJ proceedings. The General Counsel issued a complaint alleging, in part, that the employer violated Section 8(a)(5) and (1) by installing the cameras in the shacks “without prior notice to the Union and without affording the Union an opportunity to bargain.” The judge found that there was no violation of the Act because the employer acted pursuant to an established past practice, not contested by the union, of installing cameras anywhere on its premises except personal privacy spaces.
Past practice. The Board disagreed with the judge’s conclusion that the installation of the cameras was a lawful past practice. The installation of the cameras in the shacks was “materially different” from past unilateral camera installations in areas such as a loading dock. By installing cameras in the shacks, the employer “was now focusing its lenses on employees’ recreational and changing areas as opposed to merely surveilling their dock work, which had been the prior custom.” The employees’ objections to installing cameras in the shacks in 2013 was further evidence that it was significantly different than installation of cameras in work areas.
NMFA coverage. The ALJ also found that the NMFA authorized it to install the cameras in the shacks without bargaining with the union. The Board disagreed noting that the NMFA did not contain a management-rights clause and that the only mention of camera installation in the NMFA prohibits the employer from doing so. There is a question of whether the clause applied to shacks, but the court did not need to address this issue because the General Counsel argued that the employer violated the Act by refusing to bargain with the union.
Duty to notify. Thus, the only issue was whether the NMFA granted the employer the right to install cameras unilaterally. The Board concluded, based on the plain language of the NMFA, that there was only a contractual prohibition, which the employer arguably breached. Therefore, there was no contract language allowing the employer to install cameras without notifying the union.
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