by Michael Fox
When an employer has a union, its obligations under the NLRA can put it in what would seem to be a very odd situation. For example, consider these facts:
In February 1999, National Steel installed a hidden camera in a manager’s file cabinet in an attempt to discover who was using the office at night when the manager was not at work. It discovered that a member of Local 67, one of the union locals covered by a National Steel CBA, was using the office to make long-distance telephone calls. National Steel discharged the employee, and Local 67 filed grievance over the termination.
During the course of the grievance proceeding, the union requested information about the hidden cameras. National Steel refused on the basis that disclosing it would defeat the purpose of the cameras. Seems reasonable enough, except the NLRB disagreed, and now the 7th Circuit has agreed with the Board. In National Steel Corp. v. NLRB (7th Cir. 4/7/03) [pdf], the Court held that National Steel had a duty to bargain with the union over the hidden cameras and information that might be necessary for the union to fulfill their obligation to represent the members of the bargaining unit. The Court goes to pains to make it clear that they are not holding any certain outcome is required, such as the actual disclosure of the information, as even they could see the foolishness of that position. However, the company must engage in the bargaining process. That is the type of distinction that is a favorite of judges, academicians and politicians. While creating a process that is certain to impact the activity and which often is outcome determinative, they can steadfastly maintain that they have not required it. Some I am sure do it because they don't realize the effect of their action, but the more clever practice it as a regular art.