NLRB Rules Employers Must Bargain Over Placement and Use of Hidden Surveillance Cameras


Further extending the concept of mandatory subjects of collective bargaining, the National Labor Relations Board ("NLRB" or "Board") held that an employer must bargain with a union over the installation and use of hidden surveillance cameras placed in an employer's place of business. In Colgate-Palmolive Company, 323 NLRB 515 (1997), the Board held that the installation and use of such hidden cameras is sufficiently "germane to the work environment and outside the scope of managerial decisions lying at the core of entrepreneurial control" as to require an employer to bargain over them.

Hidden Surveillance

Colgate-Palmolive and the union had negotiated various contracts over a twenty year collective bargaining relationship. Colgate had used surveillance cameras since 1981; some were in plain view, while others were hidden. According to the employer, the union had never requested to bargain over the placement or continued use of the cameras. Between 1990 and mid-1994, the company installed 11 new surveillance cameras, most in response to suspected employee theft and other misconduct.

In July 1994, an employee discovered a hidden camera in an air vent located in the men's restroom. Although the company promptly removed the camera, the union filed a grievance regarding the placement of surveillance cameras in the facility. The company responded that while some cameras had been placed in plain view, others had been "strategically placed in other areas in response to reasonably suspected misconduct."

The union thereafter demanded to bargain over the placement and continued use of the hidden surveillance cameras. The company refused and the union filed an unfair labor practice charge with the NLRB.

Violation of National Labor Relations Act

In finding the company's refusal to bargain over the cameras to be a violation of Section 8(a)(5) of the National Labor Relations Act, the Board's administrative law judge paid particular attention to the length of the parties' collective bargaining relationship, holding that the installation and use of hidden surveillance cameras under such circumstances was a mandatory subject of collective bargaining to which the employer could not lawfully refuse to bargain. The Board, however, stated that the length of the relationship ultimately did not matter, in that "[e]ven if the union were newly elected to represent [the company's] employees, it would have the same bargaining rights" regarding the cameras.

Cameras Germane to Working Environment

Applying the tests from the Supreme Court's long-standing decisions in Ford Motor Co. v. NLRB and Fibreboard Paper Products Corp. v. NLRB, the Board held that the placement and use of hidden surveillance cameras are "plainly germane to the working environment" and not among those subjects which are so at the heart of management's control and discretion as to eliminate the employer's obligation to bargain. In so concluding, the Board likened the use of hidden surveillance cameras to drug and alcohol testing, polygraph testing and physical examinations, all of which the Board considers "Investigatory tools or methods" used to determine whether employees have engaged in misconduct and over which the Board has previously held that employers are obligated to bargain.

The Board additionally cited employees' privacy considerations as additional justification for ordering Colgate-Palmolive to bargain with the union over the cameras.

Required to Bargain with Union Regarding Cameras

The Board was seemingly unconcerned about the company's legitimate interest in monitoring and preventing employee misconduct. The company had suggested to the Board that requiring it to bargain with the union regarding the placement of the hidden cameras would defeat the camera's purpose. The Board, however, stated that "the very existence of secret cameras ... is a term or condition of employment, and is thus a legitimate concern" of the union. The Board took the position that any concerns regarding the extent to which the location or placement of the cameras was maintained as a secret was yet another "proper subject of bargaining."