Brewers and Maltsters, Local No. 6 v. N.L.R.B.

• Citation: 414 F.3d 36
• Decision Date: 05 July 2005
• Docket Number: No. 04-1278.,04-1278.
• Parties: BREWERS AND MALTSTERS, LOCAL UNION NO. 6, Affiliated with the International Brotherhood of Teamsters, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent Anheuser-busch, Inc., Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 36

414 F.3d 36

BREWERS AND MALTSTERS, LOCAL UNION NO. 6, Affiliated with the International Brotherhood of Teamsters, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent

Anheuser-busch, Inc., Intervenor.

No. 04-1278.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2005.

Decided July 5, 2005.

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On Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Arthur G. Telegen argued the cause for petitioner Anheuser-Busch, Inc. With him on the briefs was Robert A. Fisher. John H. Henn entered an appearance.

Arthur J. Martin argued the cause for petitioner Brewers and Maltsters, Local Union No. 6. With him on the briefs was Stacey A. Aschemann.

Philip A. Hostak, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.

Arthur G. Telegen and Robert A. Fisher were on the brief for intervenor Anheuser-Busch, Inc.

Arthur J. Martin and Stacey A. Aschemann were on the brief for intervenor Brewers and Maltsters, Local Union No. 6.

Before: GINSBURG, Chief Judge, and SENTELLE and ROGERS, Circuit Judges.

ROGERS, Circuit Judge.

Anheuser-Busch, Inc. installed hidden surveillance cameras to monitor an area where its employees occasionally work and take breaks. As a result of misconduct that Anheuser-Busch discovered on footage from the cameras, five employees were discharged and lesser discipline was imposed on eleven others. The National Labor Relations Board, with one member dissenting, ruled that Anheuser-Busch violated section 8(a)(5) and (1) of the National Labor Relations Act, as amended ("the Act"), 29 U.S.C. § 158(a)(5), (1) (2000), by failing to bargain with Brewers and Maltsters, Local Union No. 6 over the installation and use of the hidden surveillance cameras and by failing to provide the Union with information it requested about the use of such cameras. Anheuser-Busch, Inc., 342 N.L.R.B. No. 49 (July 22, 2004). The Board, with a different member dissenting, refused to order Anheuser-Busch to rescind the discipline and to make the disciplined employees whole. Id. Anheuser-Busch petitions for review of the Board's determination that it violated the Act, the Union petitions for review of the Board's remedy, and the Board cross-applies for enforcement of its Order. We deny Anheuser-Busch's petition, grant the Union's petition, and remand the case to the Board to determine the appropriate remedy.

I.

In response to concern that an elevator motors room on the roof of one of its buildings was being used for activities inconsistent with its employees' work assignments and possibly for drug use, Anheuser-Busch installed two hidden surveillance cameras to monitor that room and the rooftop stairs leading to it. The elevator motors room is on the eighth-floor roof of Stockhouse 16, one of Anheuser-Busch's brewing facilities in St. Louis, Missouri, and, as its name suggests, it contains the electrical motors and systems that operate the building's elevators. It is accessible using a short staircase located on the roof. Although employees do not work frequently in that room, on at least a monthly basis bargaining-unit employees enter the room to perform a lock-out and tag-out procedure that immobilizes the elevators for cleaning. There are no signs restricting access to the roof, and Anheuser-Busch never instructed its employees that they could not use the elevator motors room as a break room, although the door to that room is marked with a sign indicating that only authorized personnel are permitted inside. Anheuser-Busch is aware that employees use the roof as a break area to escape the extreme temperatures in the Stockhouse, and the Board concluded that "the elevator motors room became an extension of the roof break area." Anheuser-Busch, Inc., 342 N.L.R.B. No. 49, slip op. at 1.

During an inspection of the premises in late April or early May 1998, an Anheuser-Busch supervisor informed Assistant Brewmaster Mel Harris that he had discovered a table, four chairs, a number of mattress-sized foam pads, and pieces of cardboard in the elevator motors room. Harris notified Anheuser-Busch's Captain of Security William Dougherty, and they, along with the Manager of Human Resources, inspected the room. According to the Administrative Law Judge ("ALJ"), these articles led Dougherty to conclude that "persons were using the room for reasons inconsistent with any work assignment and possibly illegal drug activity might be ongoing." Id. at 7. In response, on May 17, 1998, Anheuser-Busch installed a non-oscillating hidden surveillance camera in a gang box with a pinhole; it was directed toward the stairs that led from the roof to the elevator motors room. A few weeks passed before Dougherty reviewed the video footage. Although the footage revealed that individuals were using flashlights to enter the elevator motors room at night, it was too dark to determine the individuals' identities or what they were doing. To remedy this problem, in early June 1998 Anheuser-Busch placed a special lens on that camera so that it could be used in low-light conditions, and it installed a second hidden surveillance camera inside the elevator motors room that was trained on the room's entrance. Both cameras operated continuously from the moment they were installed until Anheuser-Busch removed them on June 30, 1998.

The complete video footage revealed sixteen identifiable employees engaging in misconduct by smoking marijuana, urinating on company property, and/or being away from their assigned work areas for extended periods. It also showed four employees not engaged in misconduct — two employees were performing the lock-out and tag-out procedure, one employee was removing a ladder, and one employee was engaging in no obvious work activity. Anheuser-Busch informed the Union of the hidden surveillance cameras on July 1, 1998 — the day after they were removed. The Union objected to not being informed prior to the use of the cameras, but Anheuser-Busch maintained, as it does in this court, that it had no obligation to notify or to bargain with the Union over their installation and use. Over the next two months, Anheuser-Busch conducted sixteen investigatory meetings at which each employee admitted engaging in misconduct. At the first such meeting, the Union again asked why it had not been notified prior to the cameras' installation. Anheuser-Busch responded that it was a matter of "corporate security" over which it had no obligation to bargain. Following the investigatory meetings, Anheuser-Busch disciplined the sixteen employees: five were discharged for violating the company's drug use policy; seven received last-chance agreements for leaving assigned work areas for extended periods, sleeping, and urinating on the roof, and four were suspended for leaving assigned work areas for extended periods.

The Union filed grievances on behalf of each employee, and, on October 5, 1998, before the initial arbitration hearing, it wrote to Anheuser-Busch requesting information relating to the installation and use of hidden surveillance cameras or other monitoring devices "[i]n order to carry out its responsibility under the Collective Bargaining Agreement and to properly investigate the grievance and prepare for the arbitration." Anheuser-Busch responded on October 22, 1998, by providing information about the installation of the two hidden surveillance cameras, but it stated that it was "still in the process of determining whether there is any additional information responsive to" the Union's request. On November 2, 1998, the Union's counsel repeated the request, and Anheuser-Busch's counsel responded the next day by stating that the information was not relevant to the arbitration but that he was willing to discuss the matter at the upcoming hearing The parties proceeded to arbitrate three of the employee discharges — deferring the remaining two until the resolution of this proceeding — and three arbitrators independently sustained the discharges but did not rule on the refusal-to-bargain issue. Anheuser-Busch, however, did not provide the Union with the requested information until May 25, 1999 — the first day of the unfair labor practice hearing before the ALJ.

On September 29, 1998, the Union filed an unfair labor practice charge that, as amended on November 13, 1998, alleged that Anheuser-Busch committed two violations of section 8(a)(5) and (1) of the Act: first, by unilaterally installing hidden surveillance cameras and disciplining sixteen employees as a result of information obtained from those cameras; and second, by failing to provide information about the use, installation, and extent of the cameras. On November 23, 1998, the Board's General Counsel issued a complaint alleging violations of section 8(a)(5) and (1), which was amended on May 18, 1999, to allege more specifically that Anheuser-Busch failed and refused to provide information that the Union requested orally and in writing.

After a two-day hearing, the ALJ issued his decision on October 1, 1999. Relying on Colgate-Palmolive Co., 323 N.L.R.B. 515 (1997), the ALJ concluded that an employer's installation and use of hidden surveillance cameras in the workplace is a mandatory subject of bargaining. The ALJ therefore ruled that Anheuser-Busch violated the Act when it placed such cameras in what the ALJ determined to be a work and break area, but the ALJ refused to order make whole relief for the disciplined employees because "it is not consistent with the policies of the Act or public policy generally to reward [employees] who engage in unprotected conduct." Anheuser-Busch, 342 N.L.R.B. No. 49, slip op. at 9. The ALJ also ruled that the company did not...