On April 11, 2023, the National Labor Review Board (“NLRB”) issued a Decision about use of surveillance cameras in unionized (or unionizing) workplaces that should be noted by all employers. In Stern Produce Company, the employer placed video cameras inside its company trucks facing both outward towards the front of the vehicle, and inward towards the employee drivers. The camera system served multiple purposes, including protecting the public from unsafe driving and for liability purposes. The camera system also has the ability to issue alerts to the employer if a driver is in an unauthorized residential area, stops for an extended period, or engages in a harsh breaking event. While the footage from the truck cameras were accessible to the employer in the event of an accident, the employer did not routinely view the camera footage.
During a union organizing campaign, a driver – a union committee member who had previously been reinstated to employment after the union filed an unfair labor practice charge about unrelated conduct – covered the inward-facing camera in his vehicle during his lunch break because he wanted privacy while eating. The driver had done this in the past without incident. Shortly after covering the camera, the driver’s supervisor texted the driver, telling him he cannot cover the camera, and to remove the cover. The employee complied, and never placed a cover over the camera after that incident. The Union filed an unfair labor practice charge, alleging that the employer had created an unlawful impression that its employees were under surveillance.
At the hearing, the driver’s supervisor testified that he checked the truck cameras only when there was a safety issue, an accident, a harsh brake incident, or a stop in an unusual location for at least two hours. The parties did not dispute that none of these factors were present during the lunch period at issue. The supervisor also denied sending text messages to the employee – testimony that was disproven when the text messages were introduced into evidence. The Administrative Law Judge ruled for the employer, and the union appealed to the Board. The Board overruled the ALJ, and held for the union/employee.
During a union election campaign, the National Labor Relations Act places several restrictions upon an employer’s conduct, including a restriction on surveillance activities. The Board’s standard for determining whether an employer has unlawfully created an impression of surveillance is whether the employer’s statements or other conduct would lead reasonable employees to assume that the employer has placed their union activities under surveillance. Generally speaking, mere observation of employee activity on an employer’s property, standing alone, will not create an impression that employee activities are under surveillance. However, if the employer does something ‘out of the ordinary’ to give employees the impression that it is engaging in surveillance of their protected activities, it may violate the law. In this case, the supervisor’s text message to the driver while he was eating his lunch in a stopped vehicle, at a time when the employer’s policy indicated that it should not have been monitoring the cameras in the vehicle, was just such an “out of the ordinary” activity.
The NLRB’s decision highlights that departing from prior practice regarding employee surveillance can lead to an unlawful impression of surveillance under the NLRA. If an employer has already installed, or is planning to install, surveillance cameras in its facilities or vehicles, the employer should put policies in place about when and in what circumstances the employer will view/access the surveillance footage. Once a policy is in place, employers should follow the policy (and update it as necessary).
If you have any questions about this case, or any questions about viewing surveillance footage or installing cameras on your property or in your facilities, please call our office. Thank you.
This Client Alert provides a general overview of new legal developments. It is not intended to provide legal advice. If you have questions or would like more information about how these developments may affect your business, please contact us at (570) 341-8800.
Leave a Reply