When Misconduct Does Not Pay: NLRB Denies Reinstatement and Back Pay to Discharged Employees Despite Employer's ULP

As most union employers are aware, they must advise and possibly negotiate with the incumbent union before monitoring union employees in the workplace (through video surveillance or otherwise). See .e.g., Colgate-Palmolive, 323 N.L.R.B. No. 82 (1997) (where use of surveillance cameras was found to be a mandatory subject of bargaining). However, the NLRB recently determined that employees discharged or disciplined for workplace misconduct uncovered by improper video surveillance are not entitled to back pay or reinstatement. Anheuser-Busch, Inc., 351 NLRB No. 40 (9/29/07).

In that case, the employer installed hidden surveillance video cameras without bargaining with the incumbent union. Through use of the cameras, the employer learned that certain employees engaged in misconduct, and the employer disciplined or discharged sixteen of them. Even though the employer committed an unfair labor practice by failing to bargain over a mandatory subject (i.e., surveillance cameras) and was ordered to cease and desist and to bargain with the union, the majority of the NLRB determined that the disciplined and discharged employees should not benefit from their misconduct through a windfall award of reinstatement and backpay. In denying a make-whole remedy, the NLRB overruled prior NLRB cases as inconsistent with its new holding. The NLRB noted that it had similarly denied backpay and reinstatement to employees discharged for misconduct following a violation of their Weingarten rights.

Insomniacs can read the NLRB’s full decision at http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35140.htm&size=170.