Natl Steel & Shpbldg v. NLRB ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1998 Decided October 2, 1998
No. 97-1689
National Steel and Shipbuilding Company,
Petitioner
v.
National Labor Relations Board,
Respondent
Shipwrights, Boatbuilders & Helpers, Carpenters
Local No. 1300, et al.,
Intervenors
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Van A. Goodwin argued the cause for petitioner. With
him on the brief was William C. Wright.
David Habenstreit, Supervisory Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Frederick L. Feinstein, General Counsel,
Linda Sher, Associate General Counsel, John D. Burgoyne,
Acting Deputy Associate General Counsel, and Vincent J.
Falvo, Jr., Attorney.
David Rosenfeld and Stanley S. Mallison were on the brief
for intervenors Shipwrights, Boatbuilders & Helpers, Carpen-
ters Local No. 1300, et al.
Before: Edwards, Chief Judge, Ginsburg, and Rogers,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: The National Labor Relations
Board determined that National Steel and Shipbuilding Co.
(NASSCO) violated s 8(a)(1) of the National Labor Relations
Act, 29 U.S.C. s 158(a)(1), when it videotaped its employees
engaging in protected labor activities. The Board ordered
the company to cease and desist from using, or conveying the
impression that it is using, video and audio devices to record
protected activities. NASSCO petitions for review, arguing
that the Board lacks substantial evidence to support its
conclusions, and the Board cross-petitions for enforcement of
its order. We deny the petition for review and enforce the
Board's order in full.
I. Background
NASSCO, which builds and repairs ships for the Navy and
others, employs approximately 3,000 people in an enclosed
industrial complex. Most employees enter the complex
through Gate 6, which borders a large parking lot. Although
the lot is on NASSCO's property, the Company has historical-
ly permitted the seven unions that represent its employees to
hold rallies there. Nearby stands a shack staffed by three or
four guards with a full view of activity in the lot and at Gate
6. NASSCO also has a system of security cameras monitor-
ing its property, including two that cover the lot near Gate 6.
NASSCO and the unions have a history of labor disputes,
including strikes in 1980, 1984, 1988, and 1992, as well as an
eleven-month period from 1987 to 1988 during which employ-
ees worked without a contract. The most recent strike began
after the expiration of the collective bargaining agreement in
September, 1992 and ended three weeks later, when
NASSCO and the seven unions executed a "return to work"
agreement. When that agreement expired in February, 1993,
the two sides still had not reached agreement on a new
contract and NASSCO unilaterally implemented its final of-
fer. The unions decided not to strike, but instead to work
without a contract and, as in 1987-1988, to pursue a so-called
"inside game." Their strategy was to put pressure on the
Company while the employees remained on the job, thereby
avoiding the risk of replacement that attends a strike. Pur-
suant to this strategy, the unions held rallies in front of Gate
6 each morning at 6 a.m., before the morning shift change.
In order to videotape these rallies, which typically attracted
about 100 employees, NASSCO's chief of security, Eugene
Hutchins, placed a tripod-mounted camera atop Building 15, a
two-story structure adjacent to Gate 6. The videotaping
lasted from February through May, 1993. Additionally,
NASSCO stationed Woody Breece, an industrial relations
staff member, in the shack near Gate 6 with a video camera
and instructions to tape any harassment or violence that
occurred. Breece never had occasion to use the camera,
although once while bantering with an employee Breece
aimed the camera at him in jest. In October, 1993 NASSCO
installed a permanent video camera, equipped with a micro-
phone, atop Building 15. In response to union complaints,
NASSCO removed the microphone but then attempted to
reinstall it at two other locations. The first proved to be too
high to record conversations at ground level; installation at
the second was halted after the unions again complained. As
a result, the microphone was never operational.
The unions filed unfair labor practice charges based upon
each of the surveillance activities described above. After a
hearing, an Administrative Law Judge issued findings and
conclusions, holding that NASSCO violated s 8(a)(1) of the
NLRA. The ALJ found that the videotaping at Gate 6
violated s 8(a)(1) because NASSCO had not "honestly be-
lieved that unprotected misconduct was currently going on or
was imminent." The ALJ also found that Breece's presence
at the guard shack with a video camera violated s 8(a)(1)
because, although not as coercive as actual videotaping, "to
carry the camera is to threaten its use," which has a tendency
to coerce. Finally, the ALJ held that installation of the
permanent camera atop Building 15 violated s 8(a)(1) because
it had unprecedented audio and video recording capabilities.
The Board affirmed the ALJ's order with only two signifi-
cant modifications. See National Steel & Shipbuilding Co.,
324 N.L.R.B. No. 85 (Sept. 30, 1997). First, the Board
disagreed with the ALJ's factual finding that the video re-
cording capability of the camera on top of Building 15 was
unprecedented and accordingly eliminated that portion of the
ALJ's order directing that the camera be dismantled. Sec-
ond, the Board read its precedent as requiring that an
employer, before videotaping protected labor activity, have a
"reasonable, objective basis," not merely an honest, subjective
belief, for anticipating misconduct.
The Board ordered NASSCO to cease using, or conveying
the impression that it is using, video cameras or audio devices
for the purpose of monitoring protected activities. The
Board also required NASSCO to destroy the tapes of the
Gate 6 rallies, to dismantle the audio capability of the Build-
ing 15 camera, and to post a notice to employees describing
the Board's order.
II. Analysis
In its petition for review, NASSCO challenges the sufficien-
cy of the evidence supporting the Board's conclusion that it
thrice violated the Act. The Board's findings of fact are
conclusive if supported by substantial evidence and this court
reviews the inferences drawn therefrom with considerable
deference in light of the Board's expertise in these matters.
See Avecor, Inc. v. NLRB, 931 F.2d 924, 928 (D.C. Cir. 1991).
A. Videotaping the Gate 6 Rallies
Section 8(a)(1) of the NLRA makes it an unfair labor
practice for an employer "to interfere with, restrain, or coerce
employees in the exercise of the rights" to engage in concert-
ed collective activity guaranteed in s 7 of the NLRA. 29
U.S.C. s 158(a)(1). An employer violates s 8(a)(1) if its
actions have merely a "tendency to coerce, [regardless of
their] actual impact" in a particular case. Avecor, 931 F.2d at
932. The Board and the courts have long recognized that
"absent proper justification, the photographing of employees
engaged in protected concerted activities violates [s 8(a)(1)]
because it has a tendency to intimidate." F.W. Woolworth
Co., 310 N.L.R.B. 1197, 1197 (1993); see also Road Sprinkler
Fitters Local Union No. 669 v. NLRB, 681 F.2d 11, 19 (D.C.
Cir. 1982) (citing cases); Waco, Inc., 273 N.L.R.B. 746, 747
(1984) (same). In Woolworth the Board concluded that pho-
tography and videotaping go beyond mere observation be-
cause "pictorial recordkeeping tends to create fear among
employees of future reprisals." F.W. Woolworth, 310
N.L.R.B. at 1197.
The Board has also held that a reasonable, objective justifi-
cation for video surveillance mitigates its tendency to coerce.
For example, an employer's legitimate security interests may
justify its use of surveillance cameras, even if they happen to
capture protected activities. See Lechmere, Inc., 295
N.L.R.B. 92, 94, 99-100 (1989), rev'd on other grounds, 502
U.S. 527 (1992). Similarly, if an employer has a "reasonable
basis for anticipating picket line misconduct," then its employ-
ees have less reason to fear that the purpose of videotaping
their protected activities is to aid in later taking reprisals
against them. See Waco, 273 N.L.R.B. at 747. Gathering
evidence for use in legal proceedings also constitutes a suffi-
cient justification for videotaping protected activities. See
Roadways Express, Inc., 271 N.L.R.B. 1238, 1240, 1244
(1984); see also NLRB v. Colonial Haven Nursing Home,
542 F.2d 691, 701 (7th Cir. 1976) (holding that "anticipatory
photographing .... does not violate s 8(a)(1) of the Act
where the photographs are taken to establish for purposes of
an injunction suit that pickets engaged in violence").
NASSCO claims that it had all of these justifications for
videotaping the Gate 6 rallies. First, NASSCO argues that
the tripod-mounted camera served a security function because
"[a]ll too often, unlawful or unprotected conduct occurs in-
stantaneously, with no warning, and is over within a matter of
seconds." The short answer to this argument, for which the
Board has substantial evidence, is that the Company already
had security cameras monitoring the lot and guards with a
full view of the Gate 6 area; the minimal additional security
that videotaping may have provided, therefore, was out-
weighed by its tendency to coerce. Cf. Parsippany Hotel
Management Co. v. NLRB, 99 F.3d 413, 420 (D.C. Cir. 1996)
(upholding Board's conclusion that employer increased securi-
ty officers to seven from three in order to engage in surveil-
lance of employees, not to increase security).
Second, the Company claims that it had a reasonable,
objective expectation that misconduct was likely to occur.
The Board concluded that NASSCO's support for this expec-
tation was either too remote in time or was limited to violence
that occurred during a strike, which the Board found a poor
basis for anticipating violence during the unions' pursuit of
the "inside game." Again, the Board's conclusion is sup-
ported by substantial evidence, highlighted by NASSCO's
inability to cite a single instance of non-strike misconduct
occurring between 1984 and the initiation of the videotaping
involved in this case nine years later. Moreover, the Board
concluded that the videotaping continued long after NASSCO
by its own action--namely, removing Breece from the guard
shack after he reported that "nothing was going on"--"dem-
onstrated that it did not believe that violence or other miscon-
duct would occur." National Steel, 342 N.L.R.B. No. 85, at 3;
see UAW v. NLRB, 455 F.2d 1357, 1368 (D.C. Cir. 1971)
(upholding Board's finding s 8(a)(1) violation when photo-
graphing union activity "continued long after it became ap-
parent that there would be no violence on the picket line");
see also Road Sprinkler, 681 F.2d at 20 n.8 (agreeing with
Board's judgment that photographs "taken over three weeks
after the only reported incident of picket line misconduct" had
"inherent tendency" to coerce).
Finally, NASSCO attempts to justify videotaping the rallies
at Gate 6 on the ground that it did in fact thereby gather
evidence of misconduct. In this connection NASSCO claims
that the ALJ relied upon its videotape of a morning rally at
Gate 6 in concluding that the Company did not violate
s 8(a)(1) when it videotaped union activity inside the plant
that afternoon. NASSCO's characterization of the ALJ's
decision is mistaken, however. The ALJ concluded that the
afternoon activity was unprotected, and therefore that it was
not an unfair labor practice for NASSCO to videotape it,
based solely upon the contents of the afternoon videotape
itself.
As an alternative to its arguments that the videotaping was
lawful under the Board's precedents because it rested upon a
reasonable objective justification, NASSCO claims that the
evidence in this case compels the conclusion that the video-
taping at Gate 6 did not in fact have a tendency to coerce
employees. According to the Company, the Board's contrary
conclusion therefore indicates that it impermissibly treated
the videotaping as coercive per se. Cf. United States Steel
Corp. v. NLRB, 682 F.2d 98, 101-03 (3d Cir. 1982) (holding
that s 8(a)(1) does not prohibit photography per se, only
photography that has a reasonable tendency to coerce). Spe-
cifically, NASSCO argues that the Board should have deter-
mined that the videotaping at Gate 6 had no tendency to
coerce employees because NASSCO had a long history of
videotaping protected union activity at Gate 6, NASSCO had
never retaliated against an employee based upon protected
activity it had videotaped, and the employees at the rallies
appeared to be unfazed by the camera and indeed invited the
local media to attend.
In our view the Board could reasonably conclude, notwith-
standing this evidence, that NASSCO's video surveillance had
a tendency to coerce employees. That about 100 union
stalwarts were indifferent to the videotaping hardly compels
the conclusion that the videotaping did not tend to coerce the
other 2,900 employees. Nor, absent a reasonable objective
justification for videotaping, need the Board find that the lack
of past reprisals eliminates the tendency of videotaping to
instill in employees a fear of future reprisals. We do not
agree with the Company, therefore, that the Board has
applied a per se rule against videotaping; rather the Board
reasonably determined that NASSCO's proffered evidence
was not of a type that necessarily ameliorates the coercive
tendencies of videotaping.
In sum, the Board's conclusion that NASSCO violated
s 8(a)(1) when it videotaped union rallies outside Gate 6 is
consistent with approved Board precedent and supported by
substantial evidence.
B. The Other Section 8(a)(1) Violations
NASSCO's challenges to the Board's conclusion that it
violated s 8(a)(1) in two other respects may be resolved in
short order. First, substantial evidence supports the Board's
conclusion that adding audio capability to the Building 15
camera violated the Act. NASSCO's response that it "has
historically used video cameras with audio recording capabili-
ty during times of labor unrest" to record protected union
activity near Gate 6 is, like its history of videotaping, insuffi-
cient to compel the conclusion that audio surveillance does not
tend to coerce employees. NASSCO's claim that the camera,
with its audio capability, was part of an on-going security
upgrade, and therefore objectively justified under Lechmere,
runs counter to substantial evidence in the record; in particu-
lar Hutchins, the Company's chief of security, testified that
the camera was not part of that upgrade, and cameras
installed as part of that upgrade did not have audio capability.
Finally, contrary to NASSCO's suggestion, that the micro-
phone was never operational does not render this aspect of
the Board's order moot; there is undisputed evidence that
the camera still has audio capability. See NLRB v. Media
Textile Mills, Inc., 339 U.S. 563, 567-68 (1950) ("A Board
order imposes a continuing obligation; and the Board is
entitled to have the resumption of the unfair practice barred
by an enforcement decree.").
Second, NASSCO failed in its opening brief to this court to
contest the Board's finding that Breece's presence in the
shack with a video camera violated s 8(a)(1). Consequently,
that claim is waived and the Board is entitled to enforcement
of the corresponding portion of its order. See, e.g., Parsippa-
ny Hotel, 99 F.3d at 418. NASSCO contends that until it
received the Board's brief it did not know that Breece's
conduct was the source of a separate violation of s 8(a)(1),
i.e., apart from the videotaping at Gate 6 and the installation
of a camera with audio capability at Building 15, but that
contention is belied by the face of the Board's decision and
order. See National Steel, 324 N.L.R.B. No. 85, at 1 n.2, 7.
III. Conclusion
For the foregoing reasons NASSCO's petition for review is
Denied.