With virtually no fanfare, an Illinois Labor Relation Board administrative law judge recently issued a recommended decision and order that poses tremendous operational consequences to employers and virtually undercuts the ability to use surveillance cameras to capture and deter not only misconduct but also nefarious activity. In Painters District Council No. 14 and the Chicago Transit Authority, L-CA-14-035, the administrative law judge concluded the CTA violated the Illinois Public Labor Relations Act (“the Act”) when it failed and refused to bargain with the Union over a disciplinary policy relating to footage taken from surveillance cameras and the effects thereof. This decision presents questions of bargaining obligations that negatively affect an employer’s prerogative to implement safety and security measures in the face of known misconduct and criminal activity. The administrative law judge’s findings and conclusions of law impose a broad legal obligation that dramatically expands the scope of mandatory subjects of bargaining and effectively undercut the employer’s important interest in maintaining safe and secure physical facilities to implement protective measures necessary to combat and deter misconduct as well as crime.
The central thrust of the union’s protestations were that the CTA’s use of surveillance cameras and their claim that the CTA never bargained over the use of video surveillance footage and the footage from CTA's rail platform cameras as evidence to discipline bargaining unit members. By way of background, over fourteen years ago, the CTA began installing cameras in its rail stations. To date, the CTA has installed throughout its rail system approximately 4,300 pan-tilt-zoom cameras which are capable of an operator manipulating the camera angle from the “video room” at CTA headquarters and permits the operator to manipulate the camera to provide wide area coverage and the zoom feature allows the operator to focus on specific details. All the cameras capture live video feed and record the feed. After a full hearing on the merits, the administrative law judge concluded that the CTA violated the Act because it materially changed the status quo regarding wages, hours, and terms and conditions of employment when it used video footage from rail platform cameras as evidence in Unit employees disciplinary proceedings which resulted in a significant impairment of employment security for Unit employees because. The CTA substantially varied the method by which it investigates suspected employee misconduct and it changed the character of proof that the CTA relies upon to discipline Unit employees.
It is important to emphasize that this decision follows the ILRB’s 2015 decision in City of Chicago, 31 PERI ¶129 (ILLRB LP 2015) in which the Local Panel found the City committed an unfair labor practice when it installed surveillance cameras in a branch of the Chicago Public Library. Even though the City did so exclusively to combat and deter crime of unknown origins that had occurred at the particular branch on several occasions and the installation of surveillance cameras did not involve the issuance of a new disciplinary policy or procedure, the ILRB found that the City's unilateral implementation of and use of hidden surveillance cameras was a violation of the Act.
While the CTA has not yet filed its exceptions to the recommended order and decision, nor has the decision been heard by the ILRB local panel, we recommend employers take the following action to insulate itself from unfair labor practice charges and union grievances:
1. Determine that there is a reasonable need for installing surveillance cameras, hidden or otherwise, on the worksite.
2. Provide the Union the opportunity to bargain over its use of surveillance cameras, hidden or otherwise, as evidence in disciplinary proceedings of bargaining unit employees. In the face of the CTA decision, we recommend doing so even if the intent was not to ensnare an employee.
3. If the use of surveillance cameras will involve the issuance of a new disciplinary policy or procedure, provide the union an opportunity to bargain over the new policy.
4. For instances of discipline or discharge agree to allow the union to review any video of a member captured on video surveillance
5. Make certain that the installation of surveillance cameras are not placed in areas where personal privacy could be compromised.
6. If the installation of surveillance cameras is necessary to address criminal activity, notify the union that the single criterion for using surveillance cameras was to capture and deter crime.
7. With respect to hidden surveillance cameras, be prepared to bargain over location, use, whether they are ever used, whether the employer would be required to demonstrate reasonable suspicion of misconduct prior to using the surveillance cameras, and whether the recordings may be used in disciplinary proceedings.
By proactively raising these issues with the union, we believe employers are well positioned to defend against unfair labor practice charges and union grievances while preserving the fruits of video surveillance. We will continue to update our clients about the CTA case and any other cases that involve the use of surveillance cameras in a collective bargaining context.
