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The NLRB has issued a much-anticipated decision in Stern Produce Company and United Food and Commercial Workers, Local 99 on the use of inward-facing cameras in a commercial vehicle.
Interestingly, a prior decision in this matter was issued by the board on April 5, 2023, finding that the use of such inward-facing cameras constituted unlawful surveillance and violated the NLRA; however, this decision was almost immediately removed from the board’s website and docket.
Yesterday, on April 11, 2023, the board decision was re-issued, continuing to find that the employer (Stern) violated the Act through the use of inward-facing cameras.
By way of background, in 2015, the union conducted an organizing campaign among drivers and warehouse employees at Stern’s wholesale distribution and delivery facility. A representation election was scheduled for late 2015 but was postponed after Stern was alleged to have committed unfair labor practices. The employee involved in the instant NLRB decision involving inward-facing cameras – Ruiz – supported the union’s organizing effort and had testified at the 2015 hearing regarding the unfair labor practices charges. The 2015 hearing resulted in a finding that Stern had unlawfully created the impression that union activities were under surveillance.
In 2020, Ruiz was the subject of additional unfair labor practices charges challenging Stern’s failure to reinstate him (and others) after he was laid off early in the COVID-19 pandemic. Those allegations resulted in a settlement agreement in which Ruiz and his coworkers were reinstated and provided with back pay.
In the instant matter, the union filed charges asserting new unlawful treatment of Ruiz by creating the impression of surveillance by accessing his inside-facing camera in the cab of Ruiz’s truck during his lunch break. Just a few weeks after his reinstatement at Stern, Ruiz covered the inward-facing camera of his truck while eating lunch. Soon after, Ruiz’s supervisor texted him stating that “you can't [sic.] cover the camera it’s against company rules.”
At the hearing, Ruiz explained that he covered his camera because he viewed lunch as his own time and wanted privacy. Ruiz also testified that no one had ever previously told him he could not cover his inward-facing camera. Meanwhile, Ruiz’s supervisor testified that he checked truck cameras only when there was a safety issue, an accident, a harsh brake incident, or a stop in an unusual location for at least two hours; however, it is undisputed that none of those circumstances actually existed at the time Ruiz’s inward-facing camera was accessed.
It is important to note that the NLRB specifically ruled that the fact Ruiz was not actively participating in protected activity at the time he was told to uncover his camera was not dispositive. Instead, the mere fact that Ruiz was an open union supporter and that the supervisor’s actions were “out of the ordinary” was sufficient to unlawfully create the impression that the supervisor’s behavior constituted surveillance.
KEY TAKEAWAYS
The trucking industry is increasingly installing both inward and outward-facing cameras in its fleet vehicles because these cameras serve various important functions, including protecting the public from unsafe driving and protecting drivers from liability for accidents in which they are not at fault (which the NLRB even acknowledged in its decision). Thus, for trucking companies and those who represent them in litigation, this NLRB decision may have far-reaching impact – even if their drivers are at-will employees or independent contractors, rather than union workers.
This decision highlights the importance of keeping employee handbooks up-to-date and making sure acknowledgments of any updates are obtained from employees after each update. Based on the language in the NLRB decision, it appears this finding could have been avoided if the employee handbook simply stated that drivers should not cover their inward-facing cameras at any time. Alternatively, if the driver supervisor had adhered to only checking in on drivers’ cameras in the limited circumstances he provided in his testimony (which hopefully were outlined in the handbook as well), the outcome could have also been avoided.
We are here to serve as proactive business partners to our trucking and transportation clients. In addition to representing companies and drivers in litigation, we are also experienced in reviewing and drafting language for use in employee handbooks and providing training that could help avoid unfavorable and costly outcomes such as this NLRB decision.
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