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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2005 Decided July 5, 2005
No. 04-1278
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
Consolidated with
Nos. 04-1297 & 04-1316
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-
2
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.
Opinion for the Court filed by Circuit Judge ROGERS.
Opinion dissenting in part filed by Circuit Judge SENTELLE.
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
3
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
4
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
5
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
6
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
7
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 violate the Act by refusing to furnish
information in response to the Union’s oral request on or about
July 2, 1998, but that it did violate the Act when it failed to
furnish information in response to the Union’s request by letter
of October 5, 1998. Anheuser-Busch, the Union, and the
General Counsel filed exceptions to the ALJ’s decision.
Nearly five years later, a divided three-member panel of the
Board issued its Decision and Order. Anheuser-Busch, Inc., 342
N.L.R.B. No. 49 (July 22, 2004). One two-member majority
(Chairman Battista and Member Walsh; Member Schaumber,
dissenting) affirmed the ALJ’s ruling that Anheuser-Busch
violated section 8(a)(5) and (1) by failing to notify and to
bargain with the Union before installing and using hidden
surveillance cameras in the workplace. That majority relied on
National Steel Corp. v. NLRB, 324 F.3d 928 (7th Cir. 2003),
enforcing 335 N.L.R.B. 747 (2001), to reinforce that the use of
such cameras is a mandatory subject of bargaining. Another
two-member majority (Chairman Battista and Member
Schaumber; Member Walsh, dissenting) affirmed the ALJ’s
decision not to revoke the discipline. Relying on Taracorp
Industries, 273 N.L.R.B. 221 (1984), this majority ruled that
section 10(c) of the Act, 29 U.S.C. § 160(c), precludes make-
whole relief even when misconduct is discovered through
unlawful means. It distinguished Great Western Produce, 299
N.L.R.B. 1004 (1990), and Tocco, Inc., 323 N.L.R.B. 480
(1997) – two cases where the Board ordered the revocation of
discipline that was based on misconduct – because it said those
cases involved a unilateral change in a rule regulating employee
conduct and the discipline came directly from the unilateral
change. In contrast, that majority found “an insufficient nexus
in the instant case between [Anheuser-Busch’s] unlawful
8
installation and use of the cameras and the employees’
misconduct to warrant a make-whole remedy.” Anheuser-
Busch, 342 N.L.R.B. No. 49, at slip op. 2. The Board
unanimously affirmed, without discussion, the ALJ’s rulings
regarding Anheuser-Busch’s responses to the Union’s requests
for information. The Board’s Order directed Anheuser-Busch
to cease and to desist, to bargain, upon request, respecting the
installation and use of surveillance cameras and any other
mandatory subject of bargaining, to respond in a timely manner
to the Union’s information requests respecting matters relevant
to bargaining-unit employees, and to post appropriate remedial
notices. Anheuser-Busch petitions for review of the Board’s
ruling that it violated the Act, the Union petitions for review of
the Board’s remedial Order, and each has intervened to oppose
the other’s petition. The Board seeks enforcement of its Order.
II.
Under section 8(a)(5) of the Act, it is an unfair labor
practice for an employer to refuse to bargain with the exclusive
bargaining representative of its employees, 29 U.S.C. §
158(a)(5), and a violation of section 8(a)(5) constitutes a
derivative violation of section 8(a)(1), Exxon Chem. Co. v.
NLRB, 386 F.3d 1160, 1164 (D.C. Cir. 2004). The duty to
bargain is mandatory with respect to the subjects listed in
section 8(d) of the Act, 29 U.S.C. § 158(d), i.e., wages, hours,
and terms and conditions of employment. See Litton Fin.
Printing Div. v. NLRB, 501 U.S. 190, 198 (1991). Subjects that
are “plainly germane to the ‘working environment’” and are
“not among those ‘managerial decisions, which lie at the core of
entrepreneurial control’” are deemed “terms and conditions of
employment” and therefore are mandatory subjects of
bargaining. Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979)
(quoting Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S.
203, 222, 223 (1964) (Stewart, J., concurring)). Thus, an
employer’s unilateral change in a term or condition of
9
employment without first bargaining to impasse violates section
8(a)(5) and (1). See Litton, 501 U.S. at 198; Beverly Health &
Rehab. Servs., Inc. v. NLRB, 317 F.3d 316, 322 (D.C. Cir. 2003).
The court’s review of the Board’s determinations in an
unfair labor practice proceeding is limited, DaimlerChrysler
Corp. v. NLRB, 288 F.3d 434, 442 (D.C. Cir. 2002), and it may
not “displace the Board’s choice between two fairly conflicting
views, even though the court would justifiably have made a
different choice had the matter been before it de novo,”
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
The Board’s classification of bargaining subjects as “terms or
conditions of employment” is entitled to “considerable
deference,” Ford Motor, 441 U.S. at 495, and the court will
uphold the Board’s determination so long as it is “reasonably
defensible,” id. at 497; see also Regal Cinemas, Inc. v. NLRB,
317 F.3d 300, 307 (D.C. Cir. 2003). The Board’s factual
findings are conclusive if supported by substantial evidence in
the record as a whole, 29 U.S.C. § 160(e); Universal Camera,
340 U.S. at 488. The court, however, will not enforce an order
of the Board that is irrational or otherwise inconsistent with the
Act. See, e.g., NLRB v. Fin. Inst. Employees, 475 U.S. 192, 202
(1986); Titanium Metals Corp. v. NLRB, 392 F.3d 439, 445-46
(D.C. Cir. 2004).
A.
Anheuser-Busch contends that the Board erred in ruling that
it violated section 8(a)(5) and (1), and it first relies on section
9(b)(3), 29 U.S.C. § 159(b)(3), to support the proposition that its
use of hidden surveillance cameras is not a mandatory subject of
bargaining because the Act exempts matters of internal security
from bargaining. That reliance is misplaced. Section 9(b)(3)
prohibits the Board from including both rank-and-file employees
and guards in a single bargaining unit and from certifying a
union as the representative of a guard bargaining unit if the
10
union also represents non-guards or is affiliated with a union
that does so. This provision does not express a broad policy
disfavoring bargaining over security-related matters. In fact, it
has nothing to do with bargaining, and the Act does not prevent
an employer from bargaining with a properly-constituted unit of
security employees. See, e.g., Swanson Group, Inc., 312
N.L.R.B. 184 (1993); J.W. Mays, Inc., 253 N.L.R.B. 717 (1980);
cf. Gen. Serv. Employees Union v. NLRB, 230 F.3d 909, 913
(7th Cir. 2000). Instead, as the court has noted, “Congress
drafted this provision ‘to minimize the danger of divided loyalty
that arises when a guard is called upon to the enforce the rules
of his employer against a fellow union member.’” Wackenhut
Corp. v. NLRB, 178 F.3d 543, 546 (D.C. Cir. 1999) (quoting
Drivers, Chauffeurs, Warehousemen, & Helpers v. NLRB, 553
F.2d 1368, 1373 (D.C. Cir. 1977)). Similarly, the cases
Anheuser-Busch cites do not suggest that matters of internal
security cannot be mandatory subjects of bargaining.
Contrary to Anheuser-Busch’s assertion, the Board’s rulings
in section 8(a)(1) unlawful-surveillance cases easily are
reconcilable with its rulings that the use of hidden surveillance
cameras constitutes a mandatory subject of bargaining.
Although the Board has recognized that an employer may use
overt surveillance of its employees’ protected, concerted
activities where necessary to further its legitimate security
concerns, section 8(a)(1) prohibits the employer from using that
surveillance in a manner having a tendency “to interfere with,
restrain, or coerce employees in the exercise of” such activity,
29 U.S.C. § 158(a)(1). See, e.g., Nat’l Steel & Shipbuilding Co.,
324 N.L.R.B. 499 (1997), enforced, 156 F.3d 1268 (D.C. Cir.
1998). At most, Anheuser-Busch’s contention indicates that the
Board’s section 8(a)(1) unlawful surveillance cases do not
address whether overt surveillance of protected, concerted
activities is a mandatory subject of bargaining – a logical
omission as section 8(a)(1) does not directly address bargaining.
11
Here, the Board also accommodated employers’ legitimate
security concerns, as its ruling does not prevent an employer
from using hidden surveillance cameras after bargaining over
the issue.
Anheuser-Busch further contends that Colgate-Palmolive
Co., 323 N.L.R.B. 515 (1997), where the Board first ruled that
the installation and use of hidden surveillance cameras was a
mandatory subject of bargaining, is inapposite because that case
involved employees’ privacy concerns about being videotaped
in a restroom and a fitness room. However, as noted, the well-
established test for determining whether a subject is a term or
condition of employment is not whether it affects employees’
privacy interests, but whether it is “plainly germane to the
‘working environment’” and “not among those ‘managerial
decisions, which lie at the core of entrepreneurial control.’”
Ford Motor, 441 U.S. at 498 (quoting Fibreboard, 379 U.S. at
222, 223 (Stewart, J., concurring)). As to the first criterion, after
analogizing surveillance cameras to other mandatory subjects of
bargaining – physical examinations, drug/alcohol testing
requirements, and polygraph testing – because of their shared
purpose as “investigatory tools,” the Board in Colgate-
Palmolive concluded that the use of hidden surveillance cameras
“has the potential to affect the continued employment of
employees whose actions are being monitored.” 323 N.L.R.B.
at 515. Although the Board also considered the privacy
implications of the employer’s particular use of hidden
surveillance, that issue was secondary to whether the
surveillance occurred in “the working environment.” Id. In any
event, although Anheuser-Busch placed the cameras at issue in
less sensitive places than the employee restroom and fitness
room, the potential for constant monitoring in “the working
environment,” id., cannot be said to be free of privacy concerns.
As to the second criterion, the Board in Colgate-Palmolive ruled
that the installation and use of hidden surveillance cameras in
12
the workplace do not constitute managerial decisions that lie at
the core of entrepreneurial control because “the use of
surveillance cameras is not entrepreneurial in character, is not
fundamental to the basic direction of the enterprise, and
impinges directly on employment security.” Id.
The Board reaffirmed its characterization of the use of
hidden surveillance cameras as a mandatory subject of
bargaining in National Steel Corp., 335 N.L.R.B. 747 (2001),
where the employer had installed a hidden surveillance camera
in a manager’s office to determine who was accessing it when
the manager was not present. That the Board found the case
“not distinguishable in any material respect” from Colgate-
Palmolive, id. at 747, even though the area surveilled was an
office, as opposed to a restroom and a fitness room,
demonstrates that the extent of possible privacy concerns is not
necessarily dispositive in determining whether an employer
must bargain over the installation and use of a particular camera.
The Seventh Circuit enforced the Board’s order in National
Steel Corp. v. NLRB, 324 F.3d 928, 932 (7th Cir. 2003),
concluding that the Board’s determination was “objectively
reasonable and wholly supported.” We agree that the Board’s
legal conclusion that the installation and use of hidden
surveillance cameras in the workplace constitutes a mandatory
subject of bargaining is eminently reasonable, especially in light
of the cameras’ effects on the employees’ job security here.
Anheuser-Busch further faults the Board for not explaining
what aspects of the use of hidden surveillance cameras should
be bargained. In its Decision, however, the Board recognized
that while an employer must bargain over a proposal for the use
of hidden surveillance cameras and the general reasons for such
a proposal, it need not “apprise the union of the location of the
cameras or the time in which they will be in use.” Anheuser-
Busch, 342 N.L.R.B. No. 49, slip op. at 2 n.7. Anheuser-Busch
13
responds that, even with this caveat, the Board has created an
unworkable situation because “instance-by-instance bargaining
. . . is impractical and undercuts an employer’s legitimate need
for promptness and secrecy.” Br. of Pet’r Anheuser-Busch, Inc.
at 39. We do not read the Board’s Decision to require instance-
by-instance bargaining. Instead, the Board has left open what
seems to be the far more practical option of a union and an
employer bargaining over the general requirements for an
employer’s use of hidden surveillance cameras as part of their
collective bargaining agreement, including, for example,
whether the cameras may ever be used, in what general areas the
cameras may be used, whether the employer would have to
demonstrate some level of suspicion before using the cameras,
and whether the cameras may be used to discipline employees.
Addressing these and other issues as part of the collective
bargaining agreement preserves the benefit of hidden
surveillance, while also involving a union in the development of
the terms and conditions of their members’ employment.
Even if the installation and use of hidden surveillance
cameras generally is a mandatory subject of bargaining,
Anheuser-Busch contends that it still did not violate section
8(a)(5) and (1) under the circumstances presented here. It first
maintains that the Board’s determination that the cameras were
trained on an employee work area and break area is not
supported by substantial evidence in the record. The record,
however, belies Anheuser-Busch’s assertion. Although, as the
Board noted, “the area surveilled was not a part of the physical
plant in which employees worked frequently,” Anheuser-Busch,
342 N.L.R.B. No. 49, at slip op. 1, it is undisputed that two
employees had work assignments in the elevator motors room at
least once a month. In fact, the hidden surveillance cameras,
which were trained on the stairs leading to the elevator motors
room and inside the room itself, recorded those employees
performing their routine tasks. Furthermore, the record contains
14
ample evidence that the roof generally was a de facto break area
and that the camera trained on the steps filmed a portion of the
roof itself. This evidence is sufficient to support the Board’s
determination that the hidden surveillance cameras were located
within the working environment and therefore that their
installation and use was a mandatory subject of bargaining.
Anheuser-Busch next contends that the Union made no
demand to bargain. However, a union is obligated to demand
bargaining only “[i]f an employer gives a union advance notice
of its intention to make a change to a term or condition of
employment.” Regal Cinemas, 317 F.3d at 314. The Union did
not know about the hidden surveillance cameras until July 1,
1998 – the day after Anheuser-Busch removed them – and
therefore it would have been futile for it to demand bargaining.
See, e.g., id.; Teamsters Local Union No. 171 v. NLRB, 863 F.2d
946, 954 (D.C. Cir. 1988). Anheuser-Busch also contends the
Union cannot now claim a violation of the obligation to bargain
because it long has been aware of the company’s use of
surveillance cameras and never has sought bargaining. To the
extent that this is a waiver argument, it is contrary to the well-
established principle that “a union’s acquiescence in previous
unilateral changes does not operate as a waiver of its right to
bargain over such changes for all time.” Verizon N.Y. Inc. v.
NLRB, 360 F.3d 206, 209 (D.C. Cir. 2004) (quoting Owens-
Corning Fiberglas Corp., 282 N.L.R.B. 609, 609 (1987))
(internal quotation marks omitted); see also Nat’l Steel, 324
F.3d at 934. And, to the extent Anheuser-Busch is arguing that
there has been no change in the status quo because it has used
hidden surveillance cameras before, this argument is nothing
more than a re-characterization of the waiver argument and
suffers from the same flaws because the Union’s purported past
acquiescence does not have any present effect. In any event, the
two isolated and dated usages of hidden surveillance cameras
cited by Anheuser-Busch are insufficient to constitute a practice
15
that is incorporated implicitly into the terms and conditions of
employment.
Therefore, because 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).
B.
Anheuser-Busch also challenges the Board’s determination
that it violated section 8(a)(5) and (1) by failing timely to
respond to the Union’s October 5, 1998, request for information.
It is well-settled that “[t]he duty to bargain in good faith also
includes the obligation to provide the union with information
relevant to the collective bargaining process in certain
circumstances.” ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1439
(D.C. Cir. 1997) (citing Detroit Edison Co. v. NLRB, 440 U.S.
301, 303 (1979)). An employer violates the Act not only by
refusing to provide such relevant information but also by not
providing it in a timely manner. Providence Hosp. v. NLRB, 93
F.3d 1012, 1021-22 (1st Cir. 1996); Woodland Clinic, 331
N.L.R.B. 735, 736 (2000); Leland Stanford Junior Univ., 307
N.L.R.B. 75, 80 (1992). Although “[a] union’s bare assertion
that it needs information to process a grievance does not
automatically oblige the employer to supply all the information
in the manner requested,” Detroit Edison, 440 U.S. at 314, the
court has held that the “the threshold for relevance is low,”
DaimlerChrysler, 288 F.3d at 443 (quoting Country Ford
Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191 (D.C. Cir. 2000))
(internal quotation marks omitted), such that “[t]he fact that the
16
information is of probable or potential relevance is sufficient to
give rise to an obligation . . . to provide it,” Crowley Marine
Servs., Inc. v. NLRB, 234 F.3d 1295, 1297 (D.C. Cir. 2000)
(quoting Oil, Chem. & Atomic Workers Local Union v. NLRB,
711 F.2d 348, 359 (D.C. Cir. 1983)) (alteration and omission in
original). It therefore is sufficient that the information sought is
relevant to the investigation and processing of grievances,
DaimlerChrysler, 288 F.3d at 443, and the court has recognized
that “‘[i]nformation related to the wages, benefits, hours, [and]
working conditions’ of unit employees is presumptively
relevant.” Id. (quoting Country Ford, 229 F.3d at 1191)
(alteration in original).
Substantial evidence in the record supports the Board’s
finding that on October 5, 1998, in advance of the first
arbitration over the employee discharges, the Union made a
written request to Anheuser- Busch for information related to the
use of hidden surveillance cameras, which is a term or condition
of employment. After not receiving a complete response, the
Union followed up with another letter on November 2, 1998.
Although Anheuser-Busch provided the Union with information
about the use of such cameras in Stockhouse 16, the record
indicates that it failed to provide the requested information about
surveillance in other areas of the workplace until over six
months later. Because the Union had put Anheuser-Busch on
notice that it desired information relevant to a mandatory subject
of bargaining, it was under no obligation to make continued
requests, and thus cannot be said to have abandoned its request
in the face of Anheuser-Busch’s resistance. Anheuser-Busch’s
suggestion that the Board’s determination is inconsistent with
the reality of information exchanges that occur prior to
arbitration proceedings ignores that this information relates to a
term or condition of employment and therefore is presumptively
relevant regardless of the context in which the request arose.
See DaimlerChrysler, 288 F.3d at 443. The Board therefore did
17
not need to determine whether the information request was
relevant to the particular arbitration. Furthermore, the
employer’s obligation is to provide relevant information upon
request, and thus, contrary to Anheuser-Busch’s contention, it is
not something over which the employer may opt to bargain
during an arbitration, see, e.g., Crowley Marine, 234 F.3d at
1297; Country Ford, 229 F.3d at 1191-92. Because Anheuser-
Busch’s resistance to providing the Union with information
related to a term or condition of employment, the Board
properly determined that its actions were contrary to its duty to
bargain in good faith and therefore violated the Act.
III.
Although in agreement with the Board’s determination that
Anheuser-Busch violated section 8(a)(5) and (1), the Union
challenges the Board’s failure to order a make-whole remedy for
the disciplined employees. In evaluating the Board’s chosen
remedy, the court “give[s] great deference to [its] selection.”
Caterair Int’l v. NLRB, 22 F.3d 1114, 1120 (D.C. Cir. 1994); see
also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
As the court has stated, “The Act does not require the Board to
‘order that which a complaining party may regard as “complete
relief” for every unfair labor practice.’” Teamsters Local Union
No. 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir. 1991)
(quoting Shepard v. NLRB, 459 U.S. 344, 352 (1983)). Rather,
“[a] party challenging the Board’s choice of remedy must show
that the remedy is ‘clearly inadequate in light of the findings of
the Board.’” Id. (quoting Int’l Union of Elec. Workers v. NLRB,
434 F.2d 473, 478 (D.C. Cir. 1970). The court will not enforce
the Board’s remedial order, however, when it fails to distinguish
adequately its applicable precedent. See, e.g., Gen. Elec. Co. v.
NLRB, 117 F.3d 627, 636 (D.C. Cir. 1997); Avecor, Inc. v.
NLRB, 931 F.2d 924, 933 (D.C. Cir. 1991); cf. DaimlerChrysler,
288 F.3d at 445.
18
In an effort to remedy Anheuser-Busch’s unfair labor
practices, the Board entered a cease-and-desist order, ordered it
to bargain over hidden surveillance upon request, and required
it to post remedial notices. However, relying on section 10(c) of
the Act, a majority of the Board refused to order make-whole
relief for the sixteen disciplined employees because there was
“an insufficient nexus in the instant case between [Anheuser-
Busch’s] unlawful installation and use of the cameras and the
employees’ misconduct.” Anheuser-Busch, 342 N.L.R.B. No.
49, slip op. at 2. Section 10(c) “delegate[s] to the Board the
primary responsibility for making remedial decisions that best
effectuate the policies of the Act.” ABF Freight Sys., Inc. v.
NLRB, 510 U.S. 317, 323-24 (1994). However, that section also
provides, as relevant, “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.”
29 U.S.C. § 160(c).
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.”
Communication Workers v. NLRB, 784 F.2d 847, 851 (7th Cir.
1986); cf. NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401 n.6
(1983). The Board, of course, “may fill interstices with a
reasoned approach.” Communication Workers, 784 F.2d at 851;
see also Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501 (1978);
BPH & Co., Inc. v. NLRB, 333 F.3d 213, 222 (D.C. Cir. 2003).
Here, however, the Board has not adopted a reasoned approach
19
because it has failed to distinguish adequately its prior decisions.
In Tocco, Inc., 323 N.L.R.B. 480 (1997), the Board ordered
make-whole relief for employees who were discharged for drug
use after the employer unilaterally changed its drug testing
policy. The Board majority has attempted to distinguish Tocco
by maintaining that it involved a unilateral change “to the very
policy under which the employees were discharged,” Anheuser-
Busch, 342 N.L.R.B. No. 49, at slip op. 2, whereas here “the
rules that the employees violated were unaltered and
preexisting,” id. As the dissenting Board member correctly
concluded, this purported distinction ignores that the employer
in Tocco did not alter its underlying drug use policy. Instead,
the employer unilaterally changed from testing employees only
for cause as determined by evidence of possession or use of
drugs by a specific employee to a policy of determining cause
based on overall safety, efficiency, and production records.
Tocco, 323 N.L.R.B. at 489. This unilateral change resulted in
the testing of all employees. Id. Similarly, in the instant case,
the employer did not alter its underlying conduct rules, but
instead unilaterally instituted a new means for detecting
violations of a preexisting standard of conduct. In both cases,
the employer would not have discovered the employees’
misconduct but-for its unlawful unilateral change.
Consequently, the Board’s purported distinction between the
cases fails, and the Board has treated like situations differently.
Furthermore, in Great Western Produce, Inc., 299 N.L.R.B.
1004 (1990), the Board ruled that the unilateral implementation
of certain work rules, including a record-keeping system that
tracked employees’ shortcomings, violated section 8(a)(5). The
Board, after noting that it traditionally orders make-whole relief
“where an employee’s loss stems directly from the [employer’s]
unfair labor practice,” stated that an “employer may avoid
having to reinstate and pay backpay to an employee discharged
20
pursuant to an unlawfully instituted rule or policy if the
employer demonstrates that it would have discharged the
employee even absent that rule or policy.” Id. at 1006.
Contrary to the view of the Board majority, Great Western
applied this remedial rule not just where the employer
discharged employees for violating substantive rules that were
unlawfully changed but also where the employer’s unlawful
work rule allowed it to discover grounds for an employee’s
discharge. For example, in Great Western, one of the unlawful
unilateral changes was the employer’s establishment of
employee warning reports that chronicled performance and
conduct and that served as a basis for discipline over time. The
Board ordered reinstatement with backpay where the employer’s
“unilaterally instituted recordkeeping system contributed to his
supervisor’s knowledge of his excessive tardiness and
absenteeism,” id., which were the substantive violations that led
to discharge, because the employer “[did] not assert any basis
independent of the unlawfully imposed employee warning
reports for [the employee’s] termination,” id. at 1007 n.13.
Where the employer “had a source of knowledge about [another
employee’s unsatisfactory performance] independent of the
unlawful employee warning reports,” the Board refused to order
reinstatement and backpay. Id. at 1007.
Here, as in Great Western, and unlike Taracorp Industries,
Inc., 273 N.L.R.B. 221 (1984), upon which the Board
principally relied, Anheuser-Busch does not assert a source of
knowledge of the employee’s misconduct independent of the
unlawful change in the manner that it monitors and tracks its
employees’ activities. That the employees confessed during the
investigatory interview is irrelevant because there is no record
evidence that Anheuser-Busch relied on those statements to
discipline the employees or that they would have been subject
to investigatory interviews absent the misconduct discovered on
the videotape footage. Thus, the refusal of the Board majority
21
to order reinstatement here cannot be enforced because it also is
inconsistent with its approach in Great Western.
Despite the shortcomings of the remedial aspect of the
Board’s Decision, it remains for the Board to determine, based
on policies consistent with the Act, whether reinstatement is not
appropriate here because an exclusionary rule would improperly
“reward [employees] who engage[] in unprotected conduct.”
Anheuser-Busch, 342 N.L.R.B. No. 49, slip op. at 2. The
Supreme Court stated when the Act was in its infancy that “[i]n
the exercise of its informed discretion the Board may find that
effectuation of the Act’s policies may or may not require
reinstatement. We have no warrant for speculating on matters
of fact the determination of which Congress has entrusted to the
Board.” Phelps Dodge, 313 U.S. at 195-96. Because the Board
failed to distinguish adequately its prior decisions that support
ordering make-whole relief, a remand is necessary so the Board
can apply, distinguish adequately, or overrule those precedents.
Accordingly, we deny Anheuser-Busch’s petition, grant the
Union’s petition, and remand the case for the Board to address
the appropriate remedial order for the disciplined employees.
We note that while the Board’s Order refers twice to
“surveillance cameras,” Anheuser-Busch, 342 N.L.R.B. No. 49,
slip op. at 10, its Decision is plainly limited to “hidden
surveillance cameras,” id. at 1, and, on remand, the Order should
be corrected to reflect that fact.
SENTELLE, Circuit Judge, dissenting in part: I am
completely in concurrence with the Court’s opinion denying
Anheuser-Busch’s petition. I cannot concur in that portion of
the opinion which grants the petition of the union.
To recap briefly what is well set forth in the opinion in the
majority, Anheuser- Busch disciplined sixteen employees. It
discharged five for violating the company’s drug use policy (and
by all appearances, the drug laws of the state of Missouri and
possibly the United States). It entered last-chance agreements
with seven employees for leaving assigned work areas for
extended periods, sleeping on the job, and urinating on the roof
of the brewhouse. It suspended four for leaving assigned work
areas for extended periods. The Board, quite expectedly,
approved this course of discipline. It did so acting under the
authority of section 10(c) of the National Labor Relations Act
(“the Act”), 29 U.S.C. § 160(c). That section provides, in
pertinent part, “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 backpay,
if such individual was suspended or discharged for cause.” The
employees whose status is at issue in the union’s petition were
discharged or suspended for cause. The Board’s order, in
perfect compliance with the statute, did not require
reinstatement. The Court holds this error.
My understanding of the role of the court in the application
of a statute, and specifically in the review of statutory
application by federal agencies, is that: “If the intent of
Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
That should be the end of the matter. We have no need for
legislative history, Chevron step 2, or any other tools. The plain
2
language of the statute is unambiguous. The Board followed
that plain and unambiguous language. I would deny the petition.
The majority quotes from a Seventh Circuit decision,
Communication Workers of Am. v. NLRB, 784 F.2d 847, 851
(7th Cir. 1986), to the effect that “[s]ection 10(c) does not speak
to burdens of persuasion, fruits of violations, exclusionary rules,
and the other paraphernalia of trials and inferences.” This is
correct. It does not. It says, absolutely and unqualifiedly, that
“[n]o 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.” 29 U.S.C.
§ 160(c). The employees in the order at issue before us were
reinstated with backpay by reason of their having been
discharged for cause. The statute plainly covers the
circumstance. The statute does not say that this statute shall not
apply where a court can think of a methodology that derails the
truth-seeking function of the hearing in such a fashion as to
require everyone involved to pretend that the employees did not
commit the misconduct in order to keep these sections from
applying.
I would perhaps be able to better accept the majority’s
reasoning if it were offered in support of a Chevron analysis
upholding a decision the Board had made. Here, where it is
used solely for the purpose of reversing a decision that the
Board has made, it seems to me wholly inappropriate.
In short, the language of the statute is clear. There is
nothing in legislative history or in Supreme Court decisions
compelling or even counseling a departure from that plain
language. The Board was correct. I would deny the union’s
petition.