Hidden Cameras, Pot-Smoking Employees, and Fruit of the Poisonous Unfair Labor Practice: D.C. Circuit Partially Enforces NLRB Decision

The D.C. Circuit recently partially enforced an NLRB decision holding that Anheuser-Busch violated Section 8(a)(5) by installing and using hidden surveillance cameras in the workplace without first bargaining with its employees' union. Brewers & Maltsters, Local No. 6 v. NLRB, No. 04-1278 (D.C. Cir. July 5, 2005), partially enforcing 342 NLRB No. 49 (2004). Without bargaining with or even notifying the union, Anheuser-Busch installed two hidden cameras near an elevator motors room, which served as a de facto employee break room. Footage from the cameras showed five employees smoking marijuana and other employees urinating on the roof of the facility, sleeping on the job, and/or taking extended unauthorized breaks. The cameras also captured footage of other employees engaged in no misconduct.

Anheuser-Busch fired the five employees who had smoked marijuana and imposed lesser discipline on the other employees who urinated, slept on the job, and/or took excessively long breaks. The union filed a ULP charge alleging that Anheuser-Busch failed to bargain in good faith.

Consistent with Board precedent, the Board (Battista and Walsh; Schaumber dissenting) held that use of hidden cameras in the workplace is a mandatory subject of bargaining. Consequently, the Board held that Anheuser-Busch violated Section 8(a)(5) by failing to bargain with the union before installing and using the cameras. In so holding, the Board disclaimed any suggestion that Section 8(a)(5) obligates employers to notify unions where they plan to locate hidden cameras. The Board stated that good-faith bargaining depends upon the facts of each case and the course of negotiations.

Finally, the Board (Battista and Schaumber; Walsh dissenting) fashioned the remedy for the company's violation. The Board ordered Anheuser-Busch to cease and desist from refusing to bargain with the union before installing and using hidden cameras. Importantly, the Board refused to order the company to reinstate the employees whom the company discharged for smoking marijuana or to rescind the discipline imposed on the other employees. The Board reasoned that such relief would be "contrary to the specific remedial restriction contained in Section 10(c)," which provides that "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 backpay, if such individual was suspended or discharged for cause." The Board distinguished several earlier cases that ordered backpay and reinstatement of employees discharged for cause, reasoning that those cases involved a nexus between the employer's unlawful conduct and the employees' misconduct. Unlike those cases, the Board found that an insufficient nexus existed between Anheuser-Busch's unlawful conduct (using the cameras without bargaining) and the employees' misconduct (using drugs, urinating on the roof, and sleeping on the job) to warrant reinstatement.

Anheuser-Busch petitioned the D.C. Circuit for review of the Board's order, arguing that the Board erred in finding that it unlawfully refused to bargain. The union cross-petitioned, arguing that the Board erred in refusing to order the company to reinstate the discharged employees or to rescind the other discipline. The D.C. Circuit unanimously agreed that Anheuser-Busch unlawfully refused to bargain. On the other hand, a panel majority (Judges Rogers and Ginsburg) held that the Board failed to adequately explain why it refused to order Anheuser-Busch to reinstate the discharged employees or to rescind the other discipline. The majority first found that Section 10(c) does not expressly address whether the Board shall or shall not deny make-whole relief where an employer would not have discovered its employees' misconduct but-for its own unlawful action. The majority noted that Section 10(c) "does not prevent the Board from insisting that the employer prove 'cause' without using 'fruit' of the violation . . . Section 10(c) does not speak to burdens of persuasion, fruits of violations, exclusionary rules, and other paraphernalia of trials and inferences." The majority explained that, given Section 10(c)'s failure to address the issue of whether an employer can rely on employee misconduct that it discovers through its own unlawful conduct, the Board could adopt a rational rule to fill the statutory interstice. The majority nevertheless held that the Board failed to adequately explain its remedial decision. Specifically, the majority held that the Board failed to adequately distinguish its earlier precedent. Consequently, the majority remanded the case to the Board to articulate a rational basis for its remedial order.

In dissent, Judge Sentelle asserted that Section 10(c) "absolutely and unqualifiedly" prohibits the Board from ordering an employer to reinstate an employee who was discharged for cause. He essentially argued that Section 10(c) does not set forth an exception pursuant to which the Board may order reinstatement of an employee discharged for cause where the employer learns of the employee's misconduct as a result of its own unfair labor practice. Because the statute absolutely prohibits the Board from ordering reinstatement of an employee discharged for cause, Judge Sentelle would have enforced the Board's limited remedial order.

George's Employment Blawg, Jottings By An Employer's Lawyer, and Ross' Employment Law Memo have additional coverage of this case:

http://employmentblawg.blogspot.com/2005/07/busted-and-fired-but-maybe-reinstated.html

http://employerslawyer.blogspot.com/

http://www.lawmemo.com/blog/

On Wednesday, July 6, Tucker Carlson discussed the D.C. Circuit's opinion on his MSNBC show "The Situation With Tucker Carlson." He argued that the government has no business meddling in Anheuser-Busch's personnel decisions and simultaneously expressed his opposition to compulsory unionism. Here is a transcipt of the segment from: http://www.msnbc.msn.com/id/8498065/

CARLSON: A pot party at a beer factory may go unpunished. Anheuser-Busch may have to rehire five employees it fired for getting high on the job. They busted them using hidden cameras in a break area. A federal appeals court ruled that not telling the employees' union about the cameras was an unfair labor practice.

Here's my question, Rachel Maddow, how the hell is the federal government involved in hiring and firing decisions at this level? It's Anheuser-Busch's beer factory. They don't you want you getting a high—you know, getting high in the elevator maintenance room. They have a right to fire you. What is the federal government intervening for?

MADDOW: The federal government is intervening because unions have rights.

GASPARINO: Do you have a right to smoke pot at work?

MADDOW: The union has said that, if you're going to have hidden cameras, we need to know about it. And that's part of labor law, that they get to have that privilege.

GASPARINO: And tell everybody that they're hidden.

MADDOW: Yes, but you don't get to know where they are. I mean, it happens to be...

GASPARINO: Wait a second, don't they...

MADDOW: ... that's part of labor law.

(CROSSTALK)

MADDOW: And so therefore, the federal government is protecting labor laws.

CARLSON: No, but I understand that. But back up just two steps. Do you think that Anheuser-Busch, whether told about the cameras or not, ought to have a right to fire people for smoking pot at work if they want to?

MADDOW: They can fire people for smoking pot at work.

CARLSON: But they can't.

MADDOW: But they can't have hidden cameras without telling the union that...

(CROSSTALK)

GASPARINO: It's not like Anheuser-Busch had a hidden camera in the bathroom, OK? They had it in a public place, where you know you're being watched anyway, you know? I mean, basically...

(CROSSTALK)

CARLSON: Apparently, they caught seven employees urinating and/or sleeping on the roof of the Anheuser-Busch factory.

MADDOW: Well, listen, I'm in a union. And if my union has negotiated that I have to be told if there are hidden cameras in my workplace, then if the workplace violates that, yes, I want the government to step in, if that's my right.

CARLSON: Well, I'm in a union, too. Not by choice, because I have to be, and I resent it. And I just want to say clearly, I don't want to be in a union. You should be in the union if you want to. If you don't want to be, you shouldn't have to be.

(CROSSTALK)

MADDOW: Well, I resolve to give you a pass because you're not helping.

GASPARINO: But you shouldn't be smoking pot at work.

CARLSON: Yes, or sleeping on the roof.

GASPARINO: Or urinating...

(CROSSTALK)

CARLSON: All right. Charlie Gasparino, Rachel Maddow, thank you both.

MADDOW: Thank you, Tucker.