Video Surveillance without Bargaining Found to be Illegal

By December 19, 2004Articles

The National Labor Relations Board (NLRB) recently held that an employer violated federal labor law by failing to give notice to and bargain with a union prior to the installation and use of surveillance cameras. Nonetheless, the Board upheld the judge’s decision not to revoke the discipline imposed on 16 employees whose misconduct was recorded by the cameras. Anheuser-Busch, Inc., 342 NLRB No. 49 (July 22, 2004).

Factual Background
Anheuser-Busch operates a brewery in St. Louis, Missouri. The plant’s employees are represented by Brewers and Maltsters, Local Union No. 6. In the Spring of 1998, during a tour of the brewery’s roof and elevator motors room, a supervisor discovered six foot foam pads, cardboard mats, a table and four chairs. These items led management to suspect that workers were using the room for impermissible purposes, possibly drug activity.

Shortly thereafter, the company installed a camera on the roof to determine who was entering and exiting this area. This surveillance camera began recording activities on May 17 and remained in place until June 30. In early June, a second surveillance camera was installed in the interior of the elevator motors room. Between May 17 and June 30, the cameras recorded several workers engaged in activities that violated company policy (including using unlawful drugs on company property).

On July 1, Anheuser-Busch told the union for the first time that it had used the cameras. The company also told the union that it had reviewed the tapes and that a number of employees had been observed engaging in misconduct. Over the next week, company management interviewed 18 employees. Sixteen of these employees were disciplined for misconduct discovered through the surveillance cameras. Five were discharged, four were suspended, and seven were given last-chance agreements and suspensions.

The union filed unfair labor practice charges alleging that Anheuser-Busch violated Section 8(a)(5) and (1) of the National Labor Relations Act (NLRA) by installing surveillance cameras in the workplace without first giving the union notice and an opportunity to bargain. The union also sought to rescind the discipline imposed on the 16 employees based on the unlawfully installed cameras.

Legal Analysis
The administrative law judge (ALJ) held that the company violated federal labor law by failing to notify and bargain with the union prior to installing the surveillance cameras in the workplace. The NLRB agreed with this finding, relying in part on prior decisions that use of hidden surveillance cameras is a mandatory subject of bargaining.

The Board wrote: “While the area surveilled was not a part of the physical plant in which employees worked frequently, the record shows that employees did work there regularly, at least once a month, to perform the lock out and tag out procedure that is used to immobilize the elevators for cleaning.”

Likewise, the Board found that the roof area was a designated break area. Because the cameras were trained on a work and break area, the Board concluded, unilateral installation and use of the cameras violated the NLRA. The NLRB and the ALJ also agreed to uphold the discipline assessed by the company. The ALJ concluded that the employees’ misconduct was in violation of company policy, and such misconduct was the basis for the suspensions and terminations. Moreover, the ALJ found it inconsistent with the policies of the NLRA, and public policy in general, to reward parties who engaged in unprotected conduct.

Thus, while the unfair labor practice findings against the employer were affirmed, the Board refused to rescind the employer’s disciplinary actions.

For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at (619) 525-7000 or

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