By Chris Casillas and Sarah Derry
In Community Transit, PERC Examiner Ramerman held that installation of video cameras on buses is not a mandatory subject of bargaining. Examiner Ramerman reasoned that: (1) video cameras had already been used in the buses, albeit in a more limited capacity; (2) bus drivers have no reasonable expectation of privacy while driving the buses; and (3) the cameras could further the employer’s significant interest in passenger and driver safety. Based on these three determinations, Examiner Ramerman concluded that the employer is not required to bargain with the bus drivers’ union over the camera installation.
Video cameras were first installed in the buses in 1995. Since that time, the cameras have been updated as technology improved. The employer’s stated reason for installing cameras was “safety and security of our customers and employees.” By 2013, however, the fleet’s cameras and recording equipment was obsolete – replacement parts had to be tracked down on eBay. Eventually, the employer decided to replace all existing camera equipment with a new system. The new system included 8 cameras per bus (3 more than in the old system), with wider-angle lenses, capturing more of the driver and recording bus location, speed, turn signals, and brake usage. Furthermore, data in the new system is stored longer and more easily retrieved. The union requested to bargain over installation of the new system, but the employer refused. The employer, however, did agree to bargain any effects on employees caused by the new camera system. The union responded by filing an Unfair Labor Practice Complaint.
Examiner Ramerman primarily focused on the question of whether the installation of the new video system constituted a mandatory subject of bargaining, ultimately concluding the decision itself was not mandatory. Within this analysis, she weighed the employees’ interest in potentially being disciplined through this system and each employee’s privacy interest against the employer’s interest in the safety and security of its operations and interests in technology upgrades. Ultimately, she concluded that the employees’ concerns over disciplinary ramifications was mitigated by the fact that access to the data was already limited by their existing contract and that the employee’s right to privacy, as bus drivers, was quite limited. In contrast, she concluded the employer had a “significant interest in managing its resources efficiently” and its safety and security interests were paramount. On balance, therefore, the employer could implement the new system without bargaining the underlying decision.
The examiner likewise determined that, even if the union had not failed to show the cameras would significantly effect working conditions, the union had waived its right to bargain both under the terms of the CBA and by inaction. Examiner Ramerman held that because the management rights provision reserved for the employer the right to “change or eliminate existing…equipment,” the employer’s actions here are permitted under the CBA. Additionally, it was determined the union waived its right to bargain over the effects through its inaction. From October 2013 until February 2014, each time the union requested to bargain, the employer replied that it would agree to bargain the effects of the new cameras and “asked the union to specifically describe any impacts it wanted to bargain and to provide dates it was available to discuss those impacts.” The union continued to argue that the entire issue was bargainable, and did not provide any specific effects it wanted to bargain. Examiner Ramerman determined the union waived its right to bargain by failing to “timely follow-up” with the employer’s offer to bargain the camera system’s effects.
As a general rule, PERC has found that the installation of new video cameras in employee work areas for disciplinary purposes is a mandatory subject of bargaining. See City of Mountlake Terrace, Decision 11702 (PECB, 2013); King County, Decision 9495-A (PECB, 2008); Snohomish County, Decision 9678 (PECB, 2007). What made this case unique, consistent with a related line of cases, is that a camera system already existed in this case and it was recording employees, albeit in their work location, in a location for which it was determined that there could not be a reasonable expectation of privacy. In a situation, however, where cameras were installed in an employee work location not normally observable to the public and with at least a partial purpose of capturing potential wrongdoing, the decision itself would almost certainly be bargainable in nature.
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