Decision 2313E – Rio Hondo Community College District

The ALJ relied properly on NLRB authority finding negotiable an employer’s use of surveillance cameras in the work place. (Colgate-Palmolive Co. (1997) 323 NLRB 515.) The District distinguishes this NLRB decision on the ground that the surveillance cameras in question were hidden and that the premises in question were private. Such distinctions (overt vs. covert cameras, and public vs. private premises) are of no moment when assessing whether workplace surveillance of employees presents issues appropriate for meeting and negotiating the effects of an employer’s decision to install security cameras.

In Trustees of the California State University (2012) PERB Decision No. 2287-H (CSU) we ruled that when assessing a charge of failure to negotiate over effects of a non-negotiable decision, the proper focus is on prospective, not actual, impact. We there reviewed and disavowed prior Board decisions, to the extent they require a charging party to establish “actual impact” when alleging failure or refusal to bargain over negotiable effects. For the reasons outlined in CSU, we likewise disavow similar provision in San Francisco Unified School District (2009) PERB Decision No. 2048. A charging party may state a prima facie case of refusal to negotiate over the effects on discipline and evaluation procedures of a firm decision to install surveillance cameras, without alleging that the employer has created either new grounds for discipline or new evaluation procedures. Upon receiving a union’s effects bargaining demand, the employer has three options: (1) accede to the demand and address the union’s concerns in negotiations; (2) ask the union for its negotiation justification, viz., seek clarification of (a) the areas of impact proposed for negotiation and (b) whether these areas of impact are within the scope of representation; or (3) refuse the union’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified.

The duty to bargain over effects of a non-negotiable decision arises when an employer makes a firm decision. Once a firm decision is made, an employer must provide the union with notice and a reasonable opportunity to negotiate before taking action that impacts matters within the scope of representation. This includes the duty to seek clarification of what is proposed for bargaining and whether what is proposed falls within the scope of representation. A union’s effects bargaining demand is sufficient if it clearly identifies negotiable areas of impact, viz., subject matters within the scope of representation, and clearly indicates a desire to bargain over the effects of the decision as opposed to the decision itself. Upon receiving such a demand, the duty to bargain obliges the employer either to bargain, or to seek clarification of the union’s negotiability rationale. If the employer seeks such clarification, and it thereafter refuses to bargain, it may defend this refusal on the ground that the union’s bargaining demand, as clarified, failed to address an impact that was both reasonably foreseeable and within the scope of representation. If the employer refuses to bargain without seeking clarification of the union’s negotiability rationale, it fails to meet and negotiate in good faith. A union’s effects bargaining demand should afford the employer general notice of the union’s interest in the effects of the decision. An effects bargaining demand need not be specific or made in a particular form so long as it adequately signifies to the employer a desire to negotiate on a subject within the scope of representation, to wit, the effects of a non-negotiable decision rather than the decision itself. Further, the demand must identify clearly the areas of impact, viz., matters within the scope of representation, on which it proposes to bargain. The proper place to clarify bargaining demands and proposals is at the bargaining table itself. This is especially true in effects bargaining, where parties must anticipate the future impact of a non-negotiable decision announced but not yet implemented. When approaching effects bargaining, parties must anticipate changes yet to flow from the employer’s decision. Union and employer may disagree over what effects are possible and within the scope of representation. Thus, clarification is essential. Upon receiving an effects bargaining demand, and before refusing to negotiate, an employer must attempt to clarify through discussions with the union any uncertainty as to what is proposed for bargaining and whether it falls within the scope of representation. Refusing an effects bargaining demand without first attempting to clarify ambiguities and or whether matters proposed for bargaining fall within the scope of representation, violates the duty to bargain in good faith.

The employer must provide notice sufficiently in advance of implementation to permit the union a reasonable amount of time to consider demanding to bargain over and to negotiate over the effects.

To succeed with a claim that the union’s bargaining demand was inadequate and thus effectively waived the union’s right to meet and negotiate over the effects of a non-negotiable decision, the employer must demonstrate, inter alia, that: (1) the employer met its obligation to seek clarification of the union’s effects bargaining demand (Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375); and (2) even as clarified, the union’s effects bargaining demand was inadequate, to wit, it failed to indicate a desire to bargain effects, as opposed to the decision, or it failed to identify clearly a matter within the scope of representation on which the union sought negotiations. Silence by itself is never clear and unambiguous, to be deemed sufficient to waive statutory rights, a union’s silence must be accompanied by other indicia of intent, for example, unreasonable delay. Whether a delay is unreasonable depends on the circumstances of the particular case.

Applying the Board’s Anaheim Union High School District (1981) PERB Decision No. 177 test, we first conclude that the type of evidence an employer relies on or is permitted to use to substantiate employee performance evaluations is logically and reasonably related to evaluation procedures, which is an enumerated term and condition of employment in EERA section 3543.2(a). The same can be said for evidence that an employer may rely on for imposing discipline. An employer decision to install security surveillance cameras in areas where employees work or take breaks has reasonably foreseeable effects on discipline and performance evaluations, both matters within the scope of representation.

An employer decision to install security surveillance cameras in areas where employees work or take breaks has reasonably foreseeable effects on discipline and performance evaluations, both matters within the scope of representation. Such effects include, without limitation, disciplining and/or evaluating employees in reliance upon employee conduct observed or recorded by use of the surveillance cameras. Using surveillance cameras to monitor employees is of concern to employees and management, and may lead to disagreements over whether and how to use the video records of employee observations in evaluations or disciplinary proceedings.

Requiring negotiation over the effects on performance evaluations and potential discipline flowing from the District’s decision to install security cameras would not significantly abridge the exercise of managerial prerogatives essential to the achievement of the employer’s mission.

Surveillance camera monitoring of employee compliance with workplace rules presents the same concerns as employer policies or workplace rules concerned with monitoring employee internet usage which we have held to be negotiable.