Nat'l Steel Corp v. NLRB ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3798, 01-4149
NATIONAL STEEL CORPORATION,
Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
____________
Petition for Review and Cross-Application
for Enforcement of Orders of the
National Labor Relations Board.
____________
ARGUED SEPTEMBER 19, 2002—DECIDED APRIL 7, 2003
____________
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 sup-
port the Board’s findings and therefore enforce its orders.
2 Nos. 01-3798, 01-4149
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 peri-
odically 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 man-
ager 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 hid-
den 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
Nos. 01-3798, 01-4149 3
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 administra-
tive 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 infor-
mation 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
4 Nos. 01-3798, 01-4149
the Board’s order, and the Board cross-appeals for its en-
forcement.
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 evi-
dence 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 en-
sure 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
Nos. 01-3798, 01-4149 5
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 ‘mana-
gerial 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 (1979) (quoting
Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203,
222-23 (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; 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 im-
plications for its employees’ job security.” Id. at 515-16. The
Board found that the use of such devices “is not entrepre-
neurial in character [and] is not fundamental to the basic
direction of the enterprise.” Id. at 515 (citing Ford, 441 U.S.
at 498, and quoting Fibreboard, 379 U.S. at 222-23). We
find the Board’s legal conclusion, that the use of hidden
surveillance cameras in the workplace 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; Jones Dairy Farm,
6 Nos. 01-3798, 01-4149
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 compro-
mise the secrecy that is required for them to be effective.2
National Steel also argues that bargaining is so cumber-
some 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 constrict-
ing as National Steel suggests.
In Colgate-Palmolive, the Board acknowledged an em-
ployer’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 inter-
ests 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
surveillance cameras and, as in Colgate-Palmolive, does not
dictate how the legitimate interests of the parties are to be
1
National Steel looks to the Board’s decision in Quazite Corp.,
315 N.L.R.B. 1068 (1994), for the proposition that “the Board held
that an isolated, investigative undertaking involving the use of a
surveillance camera is not a mandatory subject of bargaining.”
Quazite is inapposite, however, as the security camera in that case
was installed only to observe a faulty alarm system wire, not to
monitor employees as they went about their daily tasks in the
workplace. Id. at 1077.
2
National Steel argues that the cameras were not used solely to
catch union employee misbehavior but whatever unknown person
committed the crime.
Nos. 01-3798, 01-4149 7
accommodated in the process.3 The Board’s order does not
mandate an outcome of negotiations, nor does it make any
suggestion that National Steel must yield any prerogatives,
other than yielding the right to proceed exclusive of con-
sultation with the union. We agree with the Board that
effective accommodation is necessarily dependent on the
facts of the individual case and the course of bargaining
itself. See Colgate-Palmolive, 323 N.L.R.B. at 516 n.11.
Here, the Board’s order is consistent with the Act’s require-
ment that parties resolve their differences through good-
faith bargaining; it simply directs National Steel to initiate
an accommodation process, and to provide assertedly con-
fidential information in accord with whatever accommo-
dation the parties agree upon (such as a confidentiality
agreement or protective order). The Board’s order does not
eliminate National Steel’s management right to use hidden
cameras and it seeks to preserve the level of confidentiality
necessary to allow for the continued effective use of such
devices.
We reject National Steel’s argument that the collective
bargaining process is so cumbersome that requiring such
bargaining is equivalent to prohibiting any meaningful use
of hidden cameras. In Ford, the Supreme Court rejected the
employer’s similar argument that the Board’s position
would result in “unnecessary disruption because any small
change . . . will trigger the obligation to bargain . . . possibly
requiring endless rounds of negotiation over [minor] issues.”
441 U.S. at 501-02. The Court upheld the Board’s determi-
3
In Colgate-Palmolive, the Board stated that its ruling “has no
bearing upon the content of any agreement or arrangement that
may emerge from collective bargaining. Nor does it address the
employer’s establishment of practices on the subject matter sub-
sequent to having bargained to impasse. It is the duty to bargain
and only the duty to bargain that is involved here.” 323 N.L.R.B.
at 516.
8 Nos. 01-3798, 01-4149
nation that such concerns were “exaggerated,” finding that
“it is sufficient compliance with the statutory mandate if
management honors a specific union request for bargaining
about changes that have been made or are about to be
made,” and that “problems created by constantly shifting
[conditions] can be anticipated and provided for in the
collective bargaining agreement.” Ford, 441 U.S. at 501-02.
We also reject National Steel’s argument that it would be
unduly burdensome to require it to bargain over the use of
hidden cameras because ten separate local unions represent
the Granite City plant employees. As the Ford Court stated,
such considerations are “essentially irrelevant” because
“[t]he definition of a mandatory collective bargaining sub-
ject does not depend on the number of unions within the
bargaining unit.” 441 U.S. at 502 n.13.
National Steel next argues that the union waived its
right to bargain over the issue of hidden cameras because
it knew about the company’s past use of such cameras,
never made a timely request for bargaining, and previously
had requested that union members install such equipment.
A party to collective bargaining, however, waives its right
to bargain over an issue only by clearly and unmistakably
expressing its intent to do so. Metro. Edison Co. v. NLRB,
460 U.S. 693, 708 (1983). “The failure to demand bargaining
in the past, without more, does not amount to waiver if it
does not unmistakably show that the union intended to
permanently give up its right to bargain in the future.” Roll
and Hold, 162 F.3d at 518 (citing Metro. Edison, 460 U.S.
at 708 n.12). National Steel argues that the union waived
its right to challenge the use of the cameras when it filed
grievances over previous terminations that were based on
hidden camera surveillance evidence and when it requested
its employees install the cameras. Most of the other griev-
ances that National Steel points to, however, occurred
around the time of the grievance that prompted this case.
The union’s failure to previously request bargaining in
Nos. 01-3798, 01-4149 9
these circumstances is, therefore, not sufficient to show that
the union expressed its clear intent to forego all future
bargaining over hidden cameras. Accordingly, the Board
reasonably concluded that the union did not waive its right
to collectively-bargain over this issue. Roll and Hold, 162
F.3d at 518.
B. The Confidentiality Agreement
The Act requires an employer provide the union with all
requested information that is relevant to a union’s dis-
charge of its statutory obligations as representative of
bargaining unit employees. 29 U.S.C. § 158(a)(5); NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 152-53 (1956); Naperville, 242
F.3d at 756: NLRB v. Pfizer, Inc., 763 F.2d 887, 889 (7th
Cir. 1985). We apply a broad “discovery-type” standard to
determine relevance, and have held that unions should
receive a broad range of potentially useful information to
fulfill these obligations. Mary Thompson Hosp., 943 F.2d at
745 (internal quotation marks omitted); see also NLRB v.
Acme Indus. Co., 385 U.S. 432, 435-37 (1967); Gen’l Elec.
Co. v. NLRB, 916 F.2d 1163, 1168 (7th Cir. 1990). An
employer may be required to provide information that was
requested by a union if the Board determines that there is
“ ‘a probability that the information is relevant and that it
will be of use to the union in carrying out its statutory
duties.’ ” NLRB v. Ill.-Am. Water Co. S. Div., 933 F.2d 1368,
1378 (7th Cir. 1991) (quoting Pfizer, 763 F.2d at 889).
The union generally bears the burden of demonstrating
that the information it has requested is relevant to its
performance of its statutory obligations. Acme Indus., 385
U.S. at 437 n. 6; Naperville, 242 F.3d at 756. But its legit-
imate interest in relevant information does not invariably
predominate over the employer’s legitimate interests, and
in certain situations an employer’s confidentiality inter-
ests may justify the non-disclosure of certain information.
10 Nos. 01-3798, 01-4149
Detroit Edison Co. v. NLRB, 440 U.S. 301, 314 (1979). The
Board is therefore required to balance a union’s need for
relevant but assertedly confidential information against an
employer’s legitimate and substantial need for confidential-
ity. That notwithstanding, an employer cannot prevent
production of this information simply by asserting that it is
“confidential.” Pfizer, 763 F.2d at 891. Rather, it must
bargain toward an accommodation between the union’s
information needs and the employer’s justified interests.
U.S. Testing Co. v. NLRB, 160 F.3d 14, 20-21 (D.C. Cir.
1998) (employer “must offer to accommodate both its con-
cerns and its bargaining obligations, as is often done by
making an offer to release information conditionally or by
placing restrictions on the use of that information”).
In this case, National Steel flatly rejected the union’s re-
quest for information about the hidden surveillance cam-
eras, stating that it “[did] not believe that the union [was]
entitled to this information” and that this information is not
relevant to the union’s fulfillment of its duty as bargaining
representative. However, because the installation and use
of hidden cameras is a mandatory subject of collective bar-
gaining, it necessarily follows that the information regard-
ing hidden cameras is relevant to the union’s discharge of
its statutory duties and responsibilities. Acme Indus., 385
U.S. at 435-36, Naperville, 242 F.3d at 756; see also NLRB
v. Am. Nat’l Can Co., 924 F.2d 518, 523 (4th Cir. 1991).
National Steel is incorrect that the locations of hidden
cameras is the only relevant information requested by the
union. In fact, the union requested “all information’ con-
cerning existing hidden cameras,” which could include a
variety of information other than location (such as whether
and how many cameras were currently being used, the
types of cameras involved, etc.). While National Steel has
legitimate confidentiality interests in the information about
hidden cameras (e.g., that the disclosure of location might
compromise their efficacy), these concerns are susceptible
Nos. 01-3798, 01-4149 11
to accommodation, and the Board properly required Na-
tional Steel to bargain collectively with the union “for a
mutually satisfactory confidentiality agreement, protective
order or other procedure,” and then to act in accordance
with the agreement reached. U.S. Testing, 160 F.3d at 20-
21. Again, as in Colgate-Palmolive, the Board’s order only
requires National Steel to “bargain over the specificity of
the information to be divulged,” it does not mandate what
information must be disclosed or what outcome must be
reached.
III. CONCLUSION
For the reasons stated above, the Board’s orders are
ENFORCED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-7-03