United States: Smile, You Are On The Employer's Camera

Introduction

In a recent setback for public sector workers' rights, the New Jersey Public Employment Relations Commission ("PERC") held that New Jersey Transit Bus Operations ("NJTBO") could unilaterally install security cameras on buses, and use footage for disciplinary purposes. Beyond the facts of the case, the decision based its conclusion upon a broad view of the employer's interest in providing safe and efficient public transportation.¹ At first glance, the decision seems to elevate universally applicable and vague articulations of an agency's mission – safety and efficiency – above fundamental precepts of labor law, setting a dangerous example for other jurisdictions.

Nonetheless, for reasons explained in this article, a similar challenge to such blanket surveillance in New York, and potentially in New Jersey outside the NJTBO context, would likely be decided differently. Despite the seemingly broad justification underpinning New Jersey's decision, public sector unions in New York should not expect the New York Public Employment Relations Board ("PERB") to be persuaded by New Jersey's reasoning. Rather, PERB has held that blanket surveillance is typically a mandatory subject of bargaining. Moreover, even where the surveillance is sufficiently targeted and investigatory in nature as to be non-mandatory, PERB has held that the impact of such surveillance remains mandatorily negotiable.

Amalgamated Transit Union, Local 820 v. NJTBO

NJTBO is a public transportation corporation that serves as the nation's third largest provider of bus, rail and light transit.² The Amalgamated Transit Union, Local 820 ("ATU") represents bus operators who work for NJTBO.³ In 2007, NJTBO unilaterally installed a surveillance system called DriveCam on their buses without negotiating with ATU.⁴ DriveCam is a camera and microphone system located on the front windshield that records video and audio footage of the bus driver and the passenger area, in addition to footage of the road in front of the bus.⁵ NJTBO's justification for installing DriveCam was to "provide passengers and operators protection and deterrence of crime through videotaping of incidents on buses."⁶ When NJTBO installed the program over ATU's objections, ATU filed a grievance against NJTBO, alleging that the use of DriveCam was a mandatorily negotiable subject of bargaining.⁷

In 2013, after ATU had filed for arbitration of its grievance, NJTBO applied to the Superior Court, Chancery Division for an order restraining arbitration. The Superior Court issued a preliminary injunction restraining arbitration and referred the matter to PERC. Because PERC has exclusive jurisdiction regarding the ATU's claim, the court permanently enjoined the arbitration. ATU then filed a scope of negotiations petition before PERC.

In addressing the issue, PERC was asked to reconcile two competing concepts: (i) enforcement of traditional notions of collective bargaining between NJTBO and ATU, and (ii) NJTBO's explicit statutory mission of providing efficient, effective and safe public transportation.⁸ Although the concept of balancing these sometimes-competing interests is familiar in scope of bargaining matters, PERC applies a specific and explicitly employer-friendly analysis when the matter pertains to NJTBO.

When issues arise that simultaneously impact the employment relationship and NJTBO's statutory mission in particular, PERC employs an approach initially adopted by the New Jersey Supreme Court:

Therefore, NJTBO's statutory mission seemingly takes precedence over traditional precepts of collective bargaining when the two conflict. This rule does not apply to other government employers in New Jersey, although it is not entirely clear if the general rule would reach a different result in similar facts.¹⁰

This employer-friendly approach largely governed PERC's determination that DriveCam was not a mandatorily negotiable subject of bargaining, and that DriveCam recordings could be used for disciplinary purposes. Ultimately, PERC decided that "negotiations over whether NJTBO can use DriveCam video recordings as evidence for the imposition of disciplinary sanctions against ATU members would substantially impair NJTBO's ability to fulfill its statutory mission of efficiently and effectively operating a safe, responsive public transportation system."¹¹ PERC held that NJTBO was justified in unilaterally implementing this recording system without negotiating with ATU because it could improve safety and security for passengers, drivers, and other members of the public – a dangerously broad holding.

Although pointing out that the NJTBO rule is different than the rule applicable to other public employees in New Jersey, PERC also relied on a non-NJTBO case that reached the same result. In City of Paterson v. PBA, P.E.R.C. No. 2007-62, the board articulated the broadly applicable rules that scope of bargaining determinations require "balancing the impact on employees' work and welfare against interference with the determination of government policy." While stated slightly differently, the rule is substantially similar to the NJTBO rule and yielded, in that case, the same result: the city's unilateral installation of overt video surveillance cameras in a public safety building was not mandatorily negotiable.

Implications for New York

On its face, PERC's reasoning in the NJTBO case could have far-reaching implications, as all agencies are created by statute, and statutes typically have expansive language defining the agency's mission. A precedent allowing unilaterally implemented changes to the workplace justified by reference to ubiquitous mission components like "safety" and "efficiency" would substantially erode bargaining rights.

By contrast, in New York, PERB has taken a more nuanced approach to issues of video surveillance in the public sector. As a threshold matter, PERB has held that broad-scope video surveillance (as compared to targeted investigatory surveillance) is generally a mandatory subject of bargaining. The most recent and comprehensive articulation of the analysis applicable to video surveillance is found in Town of Clarkstown,¹² an un-appealed decision of an administrative law judge. There, the union claimed that the town employer improperly and unilaterally installed motion-sensitive video cameras in and around the town's Highway Department buildings. The union was advised as to the location of the cameras, which did not include restrooms, locker rooms, or break rooms. The union was also advised that if any employee was viewed on camera involved in improper activity, the video footage could be used as evidence in a disciplinary proceeding.

Relying on prior PERB cases, the town argued that use of cameras was not a mandatory subject of bargaining. The ALJ disagreed, determining that the installation of video cameras was analogous to workplace parcel inspections (previously found to be a mandatory subject of bargaining), and therefore was a new work rule that required a balancing of interests. In Clarkstown, the balance favored the employees' rights.

In reaching that conclusion, the ALJ addressed the employees' privacy interests. Rather than viewing being recorded as something superficial and passive, as had a prior PERB decision, City of Syracuse, the ALJ viewed it as something invasive that necessarily involved the employee's participation. The ALJ rejected the contention that surveillance cameras simply enhance what supervisors were already doing and determined that "[t]o be comparable [one] would have to assume constant supervisory observation of employees in the work areas at several angles and contemporaneous[ly] record[] details of the observations." Finally, while there was no new basis for discipline in that case, the cameras provided an enhanced method for determining when employees engage in misconduct.

PERB has, however, given employers a somewhat wider berth – more akin to New Jersey's approach – when video surveillance is implemented as part of a more targeted investigation. Historically, targeted investigatory procedures in disciplinary matters have been found nonmandatory. For example, in Custodian Association of Elmont, an ALJ declined to find that the employer committed an improper practice when it hired a private investigator to confirm whether a bus driver was driving unsafely (e.g., driving through stop signs, riding curbs, and driving while students were not seated).¹³ The private investigator videotaped the employee's bus on two separate occasions and generated a list of driving infractions. The district acknowledged that it did not videotape its drivers as a matter of course – it had only done so in this instance as an investigative device to follow-up on multiple complaints from parents about the particular employee. Finding for the district, the ALJ determined that

Despite the apparently sweeping language of Elmont, PERB more recently concluded that the investigatory exception to bargainability is limited, finding that the length and scope of surveillance can impact terms and conditions of employment, and therefore negotiability, even in targeted investigation cases. In CSEA v. Nanuet UFSD, 43 PERB 4591 rev'd in part 45 PERB 3007 (2012), PERB concluded that a district's unilateral surveillance of a custodial employee via hidden camera was an improper practice. The district began investigating the employee in connection with complaints that he was "spending too much time in the school's custodial office located in the basement, instead of performing his job duties." As in Elmont, the district hired a private investigator, who placed a hidden, motion-activated camera outside the room in the school where the employee worked, to determine how much time the employee spent in the custodial room during his shift. The district later used images captured from this camera in disciplinary proceedings brought against the employee.

The ALJ initially concluded that Elmont was dispositive, finding for the employer. On exceptions, PERB rejected the ALJ's reasoning. Although ultimately holding that the improper practice charge was untimely, PERB addressed the negotiability of installing the cameras. PERB declared that "in general, the decision by an employer to engage in videotape surveillance of a workplace for monitoring and investigating employees is mandatorily negotiable under the Act because it 'bears a direct and significant relationship to working conditions.'"¹⁵ Thus, typically, an employer may not unilaterally install a video camera system in the workplace, even if the system is being used for "monitoring and investigating."

However, PERB further explained that there are instances when utilizing surveillance is not mandatorily negotiable. In certain cases, PERB posited, such as a correctional facility, "videotaping may be integral to the employer's core mission, and therefore the subject might be nonmandatory if the videotaping is necessary and proportional for meeting that mission."¹⁶ It is unclear if PERB's expressed view as to the unique circumstances of a correctional facility would extend to the general interest in providing safe and efficient public transportation as in NJTBO, but even then PERB's comment suggests only that a correctional facility "may" require a different balancing, not that all use of video surveillance could be free from the duty to bargain.

Finally, even where the decision to utilize video surveillance is not itself mandatorily negotiable, PERB has held that the employer violates its bargaining obligation when it refuses a demand to bargain the impact of using video cameras for disciplinary purposes on buses.¹⁷ In Amalgamated Transit Union and Niagara Frontier Transit Metro System Inc.,¹⁸ the employer acquired new buses that were equipped with a video system that continuously recorded. Previously, the employer had never used video cameras on buses. After the buses were delivered, the union learned that they were equipped with video cameras, and asserted a right to bargain the impact of such video surveillance.

PERB explained that the union's impact demand was "limited to disciplinary procedures," which are, by definition, mandatorily negotiable, so the employer was required to negotiate the impact of its decision.¹⁹ If the union's demand had included investigatory procedures in disciplinary matters, as opposed to the disciplinary procedures themselves, PERB hinted that the matter may then have been nonnegotiable. PERB explained that "investigatory procedures in disciplinary matters have been held to be nonnegotiable,"²⁰ referencing a case decided almost 30 years earlier, but not expressing an opinion about whether that case was correctly decided. Strikingly, in deciding the NJTBO case, PERC considered the PERB Amalgamated case, among others from outside New Jersey, and did not find it persuasive.

It merits briefly noting that negotiability is just one legal consideration for unions and employees facing the use of video (or other) surveillance by a public employer. Depending on the nature of the surveillance, individual employees may claim violations of federal and state constitutional, as well as common law, rights to privacy. Although an employee's reasonable expectation of privacy may be diminished in the public sphere, privacy rights do exist.

A public employee's likelihood of success in a claim for invasion of privacy depends, generally speaking, on weighing his or her employer's legitimate interest in surveillance with the nature and severity of the privacy intrusion and the employee's reasonable expectation of privacy. The surveillance should be reasonably tailored to further the public interest. Thus, surveillance policies that are legitimately and narrowly designed to protect public safety and are applicable to employees who frequently engage with the public are more likely to withstand scrutiny than, for example, policies applicable to administrative employees who have limited public interaction.

Conclusion

Overall, public sector unions in New York should continue to expect a more balanced and nuanced approach to the negotiability of video surveillance under PERB law than evidenced by the New Jersey NJTBO decision. In New Jersey, a finding that video surveillance effectuates the statutory mission of NJTBO essentially granted the employer unfettered discretion to use the cameras.

But, that facially broad holding is limited to that agency even within New Jersey, and should have little weight, if any, in New York. New York's approach does not require an all-or-nothing finding. New York views blanket video surveillance as typically a mandatory subject of bargaining, with a variety of factors to be considered and weighed in instances of investigatory use. As a result, New York's approach is more tailored to reflect a balance between statutory objectives and the important role that public sector bargaining representatives play in a unionized workplace.

Co-Editors: Alan M. Klinger, Co-Managing Partner, and Dina Kolker, Special Counsel in Stroock's Litigation and Government Relations Practice Groups. The Co-Editors wish to thank Beth A. Norton, Special Counsel, and David J. Kahne, Julie L. Goldman, and Samantha M. Rubin, associates, in Stroock's Litigation and Government Relations Practice Groups. We also acknowledge the contributions of Scott A. Budow who was a summer associate in the Stroock program.

Footnotes

1 See Amalgamated Transit Union, Local 820, P.E.R.C. No. 2015-53.

2 See NJ TRANSIT, http://www.njtransit.com/tm/tm_servlet.srv?hdnPageAction=CorpInfoTo (last visited June 25, 2015).

3 See Amalgamated Transit Union, Local 820, P.E.R.C. No. 2015-53.

4 Id.

5 See id.

6 Id.

7 See id.

8 New Jersey authorized the conversion of its mass transit system from private ownership to public ownership in the late 1970's. Amalgamated Transit Union, Local 820, P.E.R.C. No. 2015-53. At the time of conversion, New Jersey enacted legislation establishing that the purpose of the newly created public transit system would be to provide "coordinated, safe and responsive public transportation" "in the most efficient and effective manner" possible. See N.J.S.A. 27: 25-2a, N.J.S.A 27: 25-2b.

9 Amalgamated Transit Union, Local 820, P.E.R.C. No. 2015-53.

10 In Matter of New Jersey Transit Bus Operations, Inc., 125 N.J. 41, 60, 592 A.2d 547, 550 - 56 (1991), the

seminal NJTBO case relied upon by PERC in its recent decision, the New Jersey Supreme Court recognizes that "the prior standard applicable to other public employees does not apply [to NJTBO]."

11 Amalgamated Transit Union, Local 820, P.E.R.C. No. 2015-53.

12 Town of Clarkstown, 44 PERB 4625 (2011).

13 Custodian Association of Elmont, 28 PERB 4693 (1995).

14 Id.

15 Id.

16 Id.

17 Amalgamated Transit Union and Niagara Frontier Transit Metro System Inc., 36 PERB ¶ 3036 (2003).

18 Id.

19 Id.

20 Id.

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