National Steel Corp. v. N.L.R.B.

• Decision Date: 07 April 2003
• Docket Number: No. 01-3798.,No. 01-4149.,01-3798.,01-4149.
• Parties: NATIONAL STEEL CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

324 F.3d 928

NATIONAL STEEL CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

No. 01-3798.

No. 01-4149.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2002.

Decided April 7, 2003.

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Dennis G. Collins (argued), Greensfelder, Hemker & Gale, St. Louis, MO, for Petitioner.

Eric D. Duryea (argued), Aileen Armstrong, National Labor Relations Board, Washington, D.C., for Respondent.

Before CUDAHY, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

The National Labor Relations Board determined that National Steel Corporation violated various provisions of the National Labor Relations Act by refusing to bargain with several unions with which it had collective bargaining agreements (CBAs) regarding the installation and use of hidden surveillance cameras and regarding a confidentiality agreement to accommodate the unions' request for information about existing surveillance cameras. We find that there is substantial evidence to support the Board's findings and therefore enforce its orders.

I. BACKGROUND

National Steel operates a facility in Granite City, Illinois, where it employs approximately 3000 employees. Those employees are represented by ten different unions and covered by seven different collective bargaining agreements (CBAs). National Steel's Granite City plant uses over 100 video cameras in plain view to monitor areas of the plant. In addition, for the past fifteen years, National Steel periodically has used hidden cameras to investigate specific cases of suspected theft, vandalism, or other instances of wrongdoing. In February 1999, National Steel installed a hidden camera in a manager's file cabinet in an attempt to discover who was using the office at night when the manager was not at work. It discovered that a member of Local 67, one of the union locals covered by a National Steel CBA, was using the office to make long-distance telephone calls. National Steel discharged the employee, and Local 67 filed a grievance over the termination.

During the course of the grievance process, Local 67 President Donald Ogle became aware of Colgate-Palmolive Co., 323 N.L.R.B. 515 (1997), in which the Board held that the use of hidden surveillance cameras by an employer is a mandatory subject of collective bargaining. At a National Steel steering committee meeting in January 2000, Ogle presented the company with a copy of the Colgate-Palmolive decision, asked the company for information regarding hidden surveillance cameras, and stated that National Steel needed to talk to the union before it installed additional cameras. Ogle and representatives of five other union locals also sent a letter to National Steel advising it that "the use of hidden surveillance cameras has been deemed by the National Labor Relations Board as a mandatory subject of bargaining and the union has not waived its right to bargain over the subject." The letter also requested "all information concerning any existing hidden surveillance cameras that our members are subjected to that exist in any and all areas and locations of Granite City, National Steel property."

National Steel responded to the union letter by stating that it had reviewed "[the union's] recent request that [National Steel] provide [the union] with the location of hidden surveillance cameras," that "disclosing the location of this equipment would defeat its purposes," and that "[National Steel] does not believe that the union is entitled to this information." National Steel cited a "consistent and long-standing practice of using surveillance when there is a reasonable suspicion of wrongdoing and in areas where employees should have no expectation of privacy." National Steel also noted that the union had never challenged this practice and previously had requested that union members install the hidden cameras at the Granite City facility.

Local 67 responded by filing charges with the Board, asserting that National Steel refused to bargain over or provide information about the use of hidden surveillance cameras. The Board's general counsel issued a complaint against National Steel, alleging violations of §§ 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1). An administrative law judge (ALJ) conducted a hearing and recommended the Board find that National Steel is obligated, under Colgate-Palmolive, to bargain with the unions over the use of hidden surveillance cameras and the provision of information about such cameras, and also to find that National Steel had failed to do so in response to the union's requests, in violation of § 8(a)(5). The ALJ recommended the Board order National Steel to cease and desist from failing to bargain over the use of such cameras and the provision of information about their use, and to affirmatively engage in such bargaining and information sharing. The Board agreed with the ALJ's findings and adopted the ALJ's proposed order without alteration. See National Steel Corp., 335 N.L.R.B. 60 (2001). National Steel petitions for review of the Board's order, and the Board cross-appeals for its enforcement.

II. ANALYSIS

We enforce orders of the Board if its factual findings are supported by substantial evidence and its legal conclusions have a reasonable basis in law. See 29 U.S.C. § 160(e); Naperville Ready Mix, Inc. v. NLRB, 242 F.3d 744, 751 (7th Cir.2001); NLRB v. Roll and Hold Warehouse & Distrib. Corp., 162 F.3d 513, 517 (7th Cir.1998). Substantial evidence exists if a reasonable mind might accept relevant evidence as adequate to support the Board's conclusion. See NLRB v. Clinton Elecs. Corp., 284 F.3d 731, 737 (7th Cir. 2002); Roll and Hold, 162 F.3d at 517. On questions of law, we defer to the Board's interpretation of the Act unless it is arbitrary or capricious. Naperville, 242 F.3d at 751 (citing NLRB v. GranCare, Inc., 170 F.3d 662, 666 (7th Cir.1999) (en banc)). When reviewing the record, we defer to the Board's inferences and conclusions drawn from facts, Clinton Elecs., 284 F.3d at 737; U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314 (7th Cir.1991) (en banc), but we ensure that its findings fairly and accurately represent the record. Clinton Elecs., 284 F.3d at 737; NLRB v. Harvstone Mfg. Corp., 785 F.2d 570, 575 (7th Cir.1986).

A. The Use of Hidden Surveillance Cameras

An employer commits an unfair labor practice when it "refuse[s] to bargain collectively with the representatives of [its] employees." 29 U.S.C. § 158(a)(5); Mary Thompson Hosp. v. NLRB, 943 F.2d 741, 745 (7th Cir.1991). Collective bargaining requires that an employer meet with these representatives "at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." 29 U.S.C. § 158(d). The Supreme Court has held that matters that are both "plainly germane to the `working environment'" and "not among those `managerial decisions, which lie at the core of entrepreneurial control'" are mandatory subjects of collective bargaining. Ford Motor Co. v. NLRB, 441 U.S. 488, 498, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979) (quoting Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 222-23, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964) (Stewart, J., concurring)). We give substantial deference to the Board's determination that a matter is subject to mandatory collective bargaining because such determinations are within its particular expertise. Ford, 441 U.S. at 497, 99 S.Ct. 1842; Jones Dairy Farm v. NLRB, 909 F.2d 1021, 1027 (7th Cir.1990).

The Board determined in Colgate-Palmolive that the use of hidden surveillance cameras is a mandatory subject of collective bargaining because it found the installation and use of such cameras "analogous to physical examinations, drug/alcohol testing requirements, and polygraph testing, all of which the Board has found to be mandatory subjects of bargaining." 323 N.L.R.B. at 515 (citations omitted). It found that hidden cameras are focused primarily on the "working environment" that employees experience on a daily basis and are used to expose misconduct or violations of the law by employees or others. Id. The Board held that such changes in an employers methods have "serious implications for its employees' job security." Id. at 515-16. The Board found that the use of such devices "is not entrepreneurial in character [and] is not fundamental to the basic direction of the enterprise." Id. at 515 (citing Ford, 441 U.S. at 498, 99 S.Ct. 1842, and quoting Fibreboard, 379 U.S. at 222-23, 85 S.Ct. 398). We find the Board's legal conclusion, that the use of hidden surveillance cameras in the work-place is a mandatory subject of collective bargaining under the standards set out in Ford, objectively reasonable and wholly supported. We accept the Board's determination as conclusive in these circumstances. Ford, 441 U.S. at 498, 99 S.Ct. 1842; Jones Dairy Farm, 909 F.2d at 1027.¹

National Steel argues that Colgate-Palmolive is contrary to public policy. According to National Steel, requiring it to bargain over hidden surveillance cameras, especially as to their locations precludes an employer from meaningfully using such devices because bargaining itself will compromise the secrecy that is required for them to be effective.² National Steel also argues that bargaining is so cumbersome that it would not be able to deploy hidden cameras quickly when the need arose. We conclude that the Board's order, like the one in Colgate-Palmolive, is not as constricting as National Steel suggests.

In Colgate-Palmolive, the Board acknowledged an employer's need for secrecy if hidden surveillance cameras are to serve a purpose. 323 N.L.R.B. at 516 n. 10. The Board's order to National Steel preserves those managerial interests while also honoring the union's collective bargaining rights. It only requires National Steel to negotiate with the unions over the company's installation and use of hidden...