Employees Guilty Of Misconduct Detected By Unlawfully Placed Video Cameras Have No Remedy With The Board
October 13, 2007 by Beeson Tayer & Bodine
The Board majority has once again decided that employers are free to terminate employees based on employee misconduct the employer detects through surveillance cameras unilaterally installed in violation of the employer’s duty to bargain. Anheuser-Busch, Inc., 351 NLRB No. 40 (September 29, 2007).
The Board majority originally reached this conclusion in a decision issued in 2004. The union appealed that decision to the District of Columbia Court of Appeals, which remanded the case to the Board to explain its decision.
The court ruled that the Board had failed to explain adequately why it denied a make-whole remedy to the discharged employees, noting that the Board did nothing to distinguish its decision from two previous Board decisions granting make whole remedies to employees whose misconduct had been discovered through unilaterally implemented means.
For example, in a 1997 case the Board ordered makewhole relief for employees who failed employer drug tests where the employees were tested pursuant to a unilaterally implemented random-testing procedure.
On remand, the Board majority again held that the discharged employees were entitled to no relief, even though the employer discovered their misconduct only by means of hidden surveillance cameras the employer had unlawfully installed without bargaining with the union.
Rather than attempt to harmonize this result with the previous Board decisions noted by the D.C. Court of Appeals, the Board majority simply overruled those prior decisions, concluding the prior decisions are “inconsistent” with the majority’s reading of the NLRA.
The majority’s decision effectively reverses decades of Board law requiring employers found guilty of a unilateral change to restore all conditions to what they were before the change was unlawfully implemented, including making whole employees disciplined as a result of the changes unilaterally implemented.
Now, in any case where an employer can demonstrate it had “just cause” to terminate or otherwise discipline an employee, even where the grounds for just cause are obtained by means of detection that have been unilaterally and unlawfully implemented, the Board will deny relief to the disciplined employee.
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