An appellate court’s decision this past spring is worth taking note of for employers.
The United States Court of Appeals for the D.C. Circuit reversed a National Labor Relations Board (NLRB or Board) decision in Stern Produce Co., Inc. v. NLRB, 97 F.4th 1 (D.C. Cir. 2024) as “nonsense” and determined that a produce company did not violate federal labor law by warning a pro-union truck driver not to cover up a surveillance camera in the cab of his truck.
In Stern Produce Co., the employer equipped its company trucks with a system transmitting real-time data about the vehicle's location and operation, in addition to front and rear-facing cameras. The employer maintained a policy explicitly stating that the trucks were subject to monitoring “at all times,” and drivers were not permitted to cover up the cameras.
In July 2021, during a lunch break, an employee covered the truck’s inward-facing camera in violation of the employer’s policy. As a result, the employee’s supervisor sent the individual a single text message reminding him that covering the camera was against company rules.
The union filed an unfair labor practice charge based on this single incident. While an administrative law judge rejected the charge, the NLRB reversed and determined that the supervisor’s text to the employee was “out of the ordinary” and unlawfully created an impression that he was being watched because of his previous support for a union organizing campaign and other protected activity.
On appeal, the D.C. Circuit court strongly rebuked the NLRB’s decision in March 2024, finding that it was unsupported by substantial evidence. The court found that the driver was aware of the company's constant surveillance of truck cabs for safety reasons and reiterated that “[t]here is nothing ambiguous about [the phrase] ‘at all times.’” The court further pointed out that there was no evidence that the employee was engaging in organizing activity while on the job that would otherwise be considered protected concerted activity.
Takeaway for Employers
This case is another reminder that during the Biden Administration, employers have seen NLRB General Counsel Jennifer Abruzzo push the boundaries of the interpretation of the National Labor Relations Act (NLRA). In a 2022 memo, Abruzzo said she would urge the NLRB to limit employers' use of electronic monitoring, including cameras and GPS, because of its potential to discourage workers from unionizing. Stern Produce Co. suggests, however, that there is a realistic chance of having overreach by the Board held in check by appellate courts.
Ultimately, the D.C. Circuit appellate court did not share the NLRB’s expansive view, and based on its decision, it acknowledged that such measures are standard in most industries. If an employer is considering implementing an electronic monitoring policy for its employees, we strongly recommend reaching out to legal counsel to discuss potential risks and best practices for implementation. Employers Council members can learn more about the topic and access sample handbook language in this document. If you have any questions, please contact us.
Drew Hintze is an attorney for Employers Council.