Assignment:
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:
Questions
1. What test did the ALJ and the NLRB employ to determine whether the placement of hidden surveillance cameras was a mandatory subject of bargaining?
2. Why did the union win this case?
3. If you were managing a workplace where theft, sleeping on the job, and other misconduct were at a worrisome level, would you employ hidden, secret cameras to monitor restrooms, fitness areas, and the like? Explain.
4. 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).