Busted and fired but (maybe) reinstated; improper employer surveillance trumps employee illegal drug use?
Local St. Louis corporate favorite Anheuser-Busch, which rumor has it used to allow employee drinking on the job (Bud only), decided to install hidden surveillance cameras unbeknownst to the union.
The cameras caught some employees using another mind-altering substance on their break, and the pot smokers were fired. All’s as it should be, right?
Wrong:
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit . . . upheld a finding that the brewer committed an unfair labor practice when it installed the cameras in 1998 before bargaining with the union, Brewers and Maltsters, Local Union No. 6, as required under federal labor laws.
“Court says A-B might have to take back workers” by Sam Hananel (AP)
Conclusion, from the court’s opinion:
[B]ecause the Board reasonably concluded that the use of hidden surveillance cameras in the workplace is a mandatory subject of bargaining, substantial evidence in the record supports the Board’s finding that Anheuser-Busch used these cameras in the workplace without bargaining over them, and the Union did not waive its right to object to the unilateral change in terms or conditions of employment, we defer to the Board’s determination that Anheuser-Busch violated section 8(a)(5) and (1).
Interesting question for the NLRB on remand: Must the company reinstate the discharged employees with back pay — “make-whole” relief?
Again, the court:
Section 10(c) . . . provides . . . “No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.” . . . Section 10(c) does not expressly address whether the Board shall or shall not deny make-whole relief where an employer would not have discovered its employees’ misconduct but-for its own unlawful action.As the Seventh Circuit has observed, “[T]he proviso [in § 10(c)] does not prevent the Board from insisting that the employer [prove 'cause'] without using the ‘fruit’ of the violation. . . .
Section 10(c) does not speak to burdens of persuasion, fruits of violations, exclusionary rules, and the other paraphernalia of trials and inferences.”
My guess? At this point it’ll settle out. No way they want these guys back. They must’ve really wanted to get rid of them. Otherwise, why not bargain with the union about installing cameras? Wouldn’t it have the same deterrent effect?
Lessons: 1) It takes an awful long time to get unfair labor practice issues resolved — the events occurred in 1988; 2) An awful lot of things are mandatory subjects of bargaining (good reason most employers prefer not to have to deal with unions).
