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Smile--You’re on Candid Camera! NLRB Upholds Discipline for Employees Unlawfully Subject to Hidden Surveillance Camera

Until recently the National Labor Relations Board (Board) has held that employees who are discharged for cause are entitled to make-whole remedies when the employer learns of the misconduct through unlawful means. In Anheuser-Busch, Inc., 351 N.L.R.B. No. 40 (September 29, 2007), the Board overturned this precedent holding that Section 10(c) of the National Labor Relations Act (Act) prohibits remedial measures when employees are disciplined for cause despite the employer’s unfair labor practice.

The Facts

Management at the St. Louis Anheuser-Bush plant installed hidden surveillance cameras after finding evidence of illegal activities during a routine inspection. Management installed the cameras without notifying or bargaining with the union. The cameras captured employees participating in illegal drug activities, sleeping at working and entering restricted areas. Thereafter, Management removed the cameras, notified the union and disciplined sixteen employees. The Union filed unfair labor practices charges and requested make-whole remedies on behalf of the disciplined employees.

The Board held that Anheuser-Bush violated Section 8(a)(5) by failing to bargain with the union, but refused to award the employees make-whole remedies. The union appealed and the D.C. Circuit Court remanded the claim ordering the Board to reconcile its decision with past precedent.

The Board’s Analysis on Remand

On remand, a three Member panel of the Board held 3-2 that employees who are disciplined for cause are not entitled to make-whole remedies, even if the employer learned of the misconduct in violation of the Act. The Board overruled its prior rulings in Tocco and Great Western awarding employees make-whole remedies when the employers unlawfully changed misconduct detection policies. The Board reasoned that Section 10(c) of the act prohibits remedial measures when an employee is disciplined for cause. The “for cause” language of Section 10(c) should not be confused with “just cause” used by arbitrators, which encompasses principles of fairness. An employer’s means of obtaining knowledge of misconduct is no longer an element of “for cause” under the Act. The purpose of Section 10(c) is to protect an employer’s right to discipline employees. The employees’ actions in this claim merited discipline despite the employer’s unfair labor practice. Only those disciplinary actions for protected activity are not for cause. Unionized are employees do not have a free ticket to violate company policy and engage in wrongful conduct. Only those actions encompassing protected activity are protected under the Act. Employees are no longer entitled to benefit from their misconduct. This is a big win for employers wanting to uncover illegal activities occurring in the workplace when the union won’t otherwise cooperate.

For more information please contact a member of Greenebaum's Labor and Employment Team.

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