The National Labor Relations Board was faced with this dilemma: whether or not to uphold the reprimand of a group of Anheuser-Busch employees who were caught violating company policy through hidden cameras that the beer maker unlawfully installed. The BLT background on the case is here.
On one hand: Anheuser-Busch, suspicious about employee activity—the mattress-sized pieces of foam, chairs, and pieces of cardboard in a room of a brewery in St. Louis drew attention—had engaged in an unfair labor practice by installing cameras without first bargaining with the union, Brewers and Maltsters, Local No. 6. On the other: A group of employees had been sleeping on the job. Some were caught smoking marijuana. Five employees were fired; 11 others were reprimanded.
The U.S. Court of Appeals for the D.C. Circuit this week affirmed the decision of the NLRB that the employees are not entitled to “make whole” relief even though their actions were discovered as a result of an unfair labor practice. Judges David Tatel, Brett Kavanaugh, and Laurence Silberman heard argument last month. Schuchat, Cook & Werner partner Arthur Martin argued for the union. The judges, in an unpublished judgment Monday, said the NLRB “offered an acceptable rationale for overturning its precedent” that an employer cannot discipline an employee if the misconduct was discovered unlawfully.
Last year, the NLRB ruled in a split decision that it lacked authority to make whole the affected employees. Even if it had authority to reinstate the disciplined employees, the majority on the board said that “compelling policy considerations" would persuade the board to use discretion and deny reinstatement. The board declined to adopt criminal law’s exclusionary rule, where evidence obtained unlawfully is prohibited in court.