The Negotiability Of Workplace Cameras

It’s not a body camera decision – so far, there are no reported decisions on the negotiability of body cameras – but a recent decision from an administrative law judge (ALJ) of Washington’s Public Employment Relations Commission lays out some bargaining implications of any workplace camera policy.

The case involved Snohomish Fire District 3 and Local 3315 of the International Association of Fire Fighters. The case began on January 14, 2013, when an assistant fire chief became aware that four radios belonging to the employer were missing. After alerting staff and having no success in locating the radios, the Chief contacted the Washington State Auditor’s Office to report the radios stolen on January 28, 2013. The replacement value for the radios was about $4,400 each, making any alleged theft a felony.

The City of Monroe Police Department assigned a detective to investigate. The detective decided the best course of action would be to install video cameras in the area where the radios had previously gone missing. The detective installed two cameras, one focusing on the equipment rack where the missing radios had been stored and the other on the door where people would enter and exit the area. The video cameras were put into a small pelican box and placed inside a locker that only the detective had access to.

The footage captured by the video cameras was stored on an internal hard drive located inside the pelican box. The Police Department was the only entity that had access to the footage. The employer did not have access to either the video cameras or the footage.

The detective also suggested a radio, similar to the ones taken, be placed out as bait. A bait radio was placed on the equipment rack by the employer. The bait radio was never stolen, but was rather turned in by an employee.

When Local 3315 discovered the video cameras, it filed an unfair labor practice charge, alleging that the installation of the cameras required prior bargaining. Though the cameras were ultimately removed, the ALJ proceeded with hearing the ULP complaint.

The ALJ described four prior Washington decisions on the negotiability of workplace cameras. In the first, PERC held that an employer was required to bargain a change in the use of video cameras when the employer went from using cameras to observe customers to surveillance of employees for the purpose of discipline. The use of the cameras for discipline impacted employees’ terms and conditions of employment and obligated the employer to bargain.

The second case also involved cameras initially installed for non-disciplinary purposes. When, during the course of an investigation, images obtained through the cameras were used in employee discipline, PERC found that the decision to change the intent of the cameras from public safety to employee discipline triggered an obligation to provide the Union with an opportunity to bargain the decision.

The third case involved a fact pattern where information obtained by the employer through video cameras was not used to initiate disciplinary action against an employee, but only to corroborate information obtained through other measures. As the employer showed no intent to institute a policy of using the video cameras for employee discipline, PERC found that “the totality of the circumstances did not show a unilateral change of working conditions.”

In the fourth case, an investigation by the employer indicated that there was suspected criminal activity, the theft of public funds by ticket sellers at automobile ticket tollbooths. The employer notified the Washington State Patrol and was advised to install a video monitoring system in the ticket sellers’ booths. The video tapes were monitored and the tapes ultimately led to the arrest of four employees. The decision of when and where to arrest the four employees was made by the State Patrol. A labor board found that there was no duty to bargain over the decision to install video surveillance because the decision was not made by the employer but by an outside entity in response to a criminal investigation.

The ALJ found the fourth case to be most analogous to the cameras installed in the fire station: “In both cases, the investigation into criminal activity was done by an outside law enforcement agency. The video cameras and footage were not controlled by the employer in the present case. The Monroe Police Department had complete control of the video cameras from installation to review of the footage. Additionally, the video cameras in the present case were installed for a criminal investigation, not for the purpose of employee discipline. Had the intent of the video cameras shifted from safety and security to employee discipline, that may have triggered the employer’s duty to bargain. Since that shift in intent never occurred, the duty to bargain was not triggered.”

IAFF, Local 3315 v. Snohomish Fire District 3, 2015 WL 1013220 (Wash. PERC 2015).