D.C. Circuit Overrules NLRB On Worker “Surveillance” Case

Vincent Jackson
Vincent Jackson

Earlier this week, the U.S. Court of Appeals for the D.C. Circuit overruled a recent decision of the National Labor Relations Board finding that an employer engaged in unfair labor practices by “surveilling” union activity and issuing disproportionate punishment to a union activist.

The case, Stern Produce Company v. NLRB, involved two separate incidents:  (1) a driver who was sent a text message from a supervisor advising him that he had to uncover a camera in the cab of a company truck, and (2) an employee who received written discipline for violating the company’s EEO policy by referring to another employee’s nationality in derogatory fashion.  

The first incident occurred when a driver, pausing to take a lunch break in the cab of his truck, covered an inward-facing camera present in the cab.  All trucks that were part of the company fleet were equipped with a real-time data transmitting system, as well as an inward and outward facing camera.  The driver was advised at some point by a manager via text message that he could not cover the camera, as it was against company rules.  This was an isolated incident that resulted in no further action.

The second incident involved an investigation of an employee who, in an apparent attempt at humor, stated to two co-workers that they “kill [gay] people like that in your country.”  A manager was present when the comments were made, and an investigation was commenced during which human resources issued a written warning because the employee had insulted his co-worker based upon perceived ethnicity, race, and sexual orientation.

The union, United Food and Commercial Workers, Local 99, filed two unfair labor practice charges based on these incidents.  The Administrative Law Judge charged with hearing the case held an eight-day trial, and ruled in favor of the company.  On appeal, the NLRB reversed, and found in favor of the union.  The company then appealed to the D.C. Circuit, which, to use a technical legal term, issued a “smack-down” of the NLRB’s decision.

The D.C. Circuit began its decision with the following:  “the Board’s majority and its General Counsel, at least at the time of these proceedings, should have brushed up on the ancient and wise legal doctrine de minimis non curat lex—that is, the law does not concern itself with trifles.”

The Court then excoriated the Board’s reasoning that the employer had conducted “unlawful surveillance” on the truck driver.  They noted that the company manual explicitly stated that truck drivers could be monitored at any time, and that there was nothing in the manager’s text message that rose to the level of coercive or intimidating conduct.  What’s more, the D.C. Circuit reasoned that a single cab of a truck in which only one employee was present could hardly have been a hotbed of union activity that the NLRA is meant to protect.

With regard to the second incident, the D.C. Circuit stated what should hopefully be obvious:  a company’s enforcement of its EEO policy that results in minor discipline against a pro-union employee cannot provide the basis for an unfair labor practice charge. 

The D.C. Circuit’s decision is a clear repudiation of the NLRB’s aggressive and sweeping interpretations of the labor statutes it is charged with upholding.  One hopes that the NLRB will heed the Court’s advice, forgo a focus on “trifles,” and decide to focus on issues of greater importance to both workers and employers.   

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