ABF FREIGHT SYSTEMS, INC.

National Labor Relations Board - Board Decisions

Jun 19, 2020

369 N.L.R.B. 107 (N.L.R.B. 2020)

369 NLRB No. 107
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
ABF Freight System, Inc. and General Truck Drivers,
Warehousemen, Helpers, Sales and Service and
Casino Employees and International Brother-
hood of Teamsters (IBT), Local 957. Cases 09–
CA–208379 and 09–CA–210267
June 19, 2020
DECISION AND ORDER
BY CHAIRMAN RING1 AND MEMBERS KAPLAN AND
EMANUEL
On August 20, 2018, Administrative Law Judge Keltner
W. Locke issued the attached bench decision. The Gen-
eral Counsel filed exceptions with supporting arguments,
and the Respondent filed an answering brief. Pursuant to
a notice and invitation to file briefs issued on October 31,
2019, the General Counsel and the Respondent filed sup-
plemental briefs addressing the application to this case of
MV Transportation, Inc., 368 NLRB No. 66 (2019).
The National Labor Relations Board has considered the
decision and the record in light of the exceptions2 and
briefs and has decided to affirm the judge’s rulings, find-
ings,3 and conclusions only to the extent consistent with
this Decision and Order.4
BACKGROUND
The Respondent provides “less-than-truckload” freight
transportation services throughout the United States. This
case concerns its facility in Dayton, Ohio, and specifically
1 Chairman Ring, who is recused, is a member of the panel for quorum
purposes only, but he did not participate in the consideration of this case
on the merits.
In New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a two-
member quorum when one of the panel members has recused himself.
Under the Court’s reading of the Act, “the group quorum provision [of
Sec. 3(b)] still operates to allow any panel to issue a decision by only
two members if one member is disqualified.” New Process Steel, 130 S.
Ct. at 2644. See also, e.g., D.R. Horton, 357 NLRB 2277, 2277 fn. 1
(2012), enfd. in relevant part, 737 F.3d 344, 353 (5th Cir. 2013); NLRB
v. New Vista Nursing & Rehabilitation, 870 F.3d 113, 127–128 (3d Cir.
2017); 1621 Route 22 West Operating Co. 357 NLRB 1866, 1866 fn. 1
(2011), enfd. 725 Fed. Appx. 129, 136 fn. 7 (3d Cir. 2018).
2 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(5) and (1) of the Act by failing and refusing to furnish
information requested by the Charging Party.
3 The General Counsel implicitly excepted to the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
the installation of surveillance cameras in two of its
break/locker rooms (Shacks A and B) used by its dock
workers who are represented by General Truck Drivers,
Warehousemen, Helpers, Sales and Service, and Casino
Employees and International Brotherhood of Teamsters,
Local 957 (the Union). The shacks are rooms that have
tables and seats on one side and lockers on the other, and
they are also connected to some of the managers’ offices.
The employees change their boots and outer garments in
the shacks, and there is nowhere else in the facility where
employees regularly change clothes.5 The Respondent
does not have a policy on where employees can change
clothes.
The Respondent and the Union are covered by the Na-
tional Master Freight Agreement (NMFA), and the events
in this case occurred during the life of the April 1, 2013—
March 31, 2018 agreement. The NMFA does not include
a management-rights clause.
Article 26 of the NMFA states in part:
Section 2. Use of Video Cameras for Discipline and Dis-
charge
The Employer shall not install or use video cam-
eras in areas of the Employer’s premises that vio-
late the employee’s right to privacy such as in
bathrooms or places where employees change
clothing or provide drug or alcohol testing speci-
mens.
In 2013, the Respondent started to install cameras in its
shacks but removed them after the employees and the Un-
ion objected, arguing that employees change clothes in the
shacks.6 The Respondent has installed cameras in other
4 We have amended the judge’s conclusions of law consistent with
our findings herein. We have also amended the remedy and modified the
judge’s recommended Order consistent with our legal conclusions
herein, to conform to the Board’s standard remedial language, and in ac-
cordance with our recent decision in Danbury Ambulance Service, Inc.,
369 NLRB No. 68 (2020). We shall substitute a new notice to conform
to the Order as modified.
5 The Union provided testimony that the employees sometimes
change clothes by stripping down to their underwear in the shacks. The
judge was skeptical of this evidence, however, and found that such sig-
nificant clothing changes “were infrequent at most, and surreptitious.”
In contrast, the judge found that employees regularly used the shacks to
change clothes by donning or doffing outerwear, “such as cold weather
gear and boots.”
6 The Respondent challenges the notion that “the Union, as opposed
to the employees, confronted the Company on the issue,” though it does
not cite to any testimony to counter the testimony that the Union was
involved. Regardless, the record shows that the Respondent previously
removed cameras from the shacks after receiving objections.
There is some testimony that these events occurred in 2014. It makes
no difference to our analysis whether the events occurred in 2013 or
2014.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
locations throughout the facility without objections from
the Union.
On September 19 and 20, 2017, the Respondent in-
stalled cameras in Shacks A and B, without providing the
Union notice or an opportunity to bargain. The Union
asked why the Respondent was installing cameras there
contrary to its earlier expressed intent to prioritize in-
stalling cameras on the dock. The Union further requested
that the Respondent remove the cameras until the parties
could discuss the issue. The Respondent refused, assert-
ing that it did not notify or bargain with the Union because
the employees had already ratified the NMFA. After the
installations, the Union continued to request bargaining,
and the Respondent continued to refuse due to its claimed
compliance with Article 26 of the NMFA.
In February 2018, the General Counsel issued a com-
plaint alleging, in part, that the Respondent violated Sec-
tion 8(a)(5) and (1) by installing the cameras in the shacks
“without prior notice to the Union and without affording
the Union an opportunity to bargain with Respondent with
respect to this conduct and the effects of this conduct.”7
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act when it installed cam-
eras in the shacks because it acted pursuant to an estab-
lished past practice, not contested by the Union, of in-
stalling cameras anywhere on its premises except personal
privacy spaces. For the reasons set forth below, we re-
verse the judge’s decision and find that the Respondent
violated the Act when it installed cameras in the shacks.
DISCUSSION
“An employer violates Section 8(a)(5) and (1) if it
makes a material, substantial, and significant change re-
garding a mandatory subject of bargaining without first
providing the union notice and a meaningful opportunity
to bargain about the change to agreement or impasse, ab-
sent a valid defense.” MV Transportation, Inc., 368
NLRB No. 66, slip op. at 3 (2019). One possible defense
to a charge of an unlawful unilateral change is that there
was no change because the employer’s actions did not ma-
terially vary in kind or degree from the parties’ past prac-
tice. See Raytheon Network Centric Systems, 365 NLRB
No. 161, slip op. at 16 (2017). Another defense is that the
change was “covered by” the collective-bargaining agree-
ment because “it falls within the compass or scope of con-
tract language that grants the employer the right to act uni-
laterally.” MV Transportation, 368 NLRB No. 66, slip op.
at 11. The General Counsel excepts to the judge’s finding
that the camera installations were lawful due to an estab-
lished past practice, and he also disagrees with the
7 The General Counsel is not alleging that the Respondent unlawfully
modified the contract.
Respondent’s argument, submitted in its supplemental
briefs, that the installations were “covered by” the parties’
NMFA. We consider each of these defenses in turn.
1. Past Practice
We reverse the judge’s finding that the installation of
the cameras in the shacks was lawful pursuant to an estab-
lished past practice. When determining whether there was
an established past practice, the Board will make a com-
monsense determination by comparing the challenged ac-
tion to the employer’s past actions. See Raytheon, 365
NLRB No. 161, slip op. at 12–13. As the party asserting
a past practice, the Respondent must prove that the em-
ployees would reasonably consider the action at issue to
be consistent with what the Respondent has done in the
past. See Mike-Sell’s Potato Chip Co., 368 NLRB No.
145, slip op. at 3 (2019). Here, as noted above, the judge
found that the Respondent had an “established past prac-
tice, not contested by the Union, of installing cameras an-
ywhere on its premises except the personal privacy
spaces.” The judge framed the issue closely following the
prohibition in the NMFA on the installation of cameras in
areas that would “violate the employees’ right to privacy.”
However, a past practice finding does not depend on the
language of a collective-bargaining agreement. See Ray-
theon, 365 NLRB No. 161, slip op. at 6–7. Rather, a past
practice analysis simply evaluates whether the employer’s
action varied in kind and degree from what had been cus-
tomary in the past.
Here, the record shows that the installation of the cam-
eras in the shacks was materially different from the Re-
spondent’s past unilateral camera installations in other
parts of its facility. By installing the cameras in the
shacks, the Respondent was now focusing its lenses on
employees’ recreational and changing areas as opposed to
merely surveilling their dock work, which had been the
prior custom. We believe employees would reasonably
consider such a change to be a departure from Respond-
ent’s past practice. The Respondent’s employees’ imme-
diate objections to the installation in both in 2013 and in
2017 supports our view.
Indeed, in 2013, the Respondent started to install cam-
eras in the shacks, but removed them in response to objec-
tions from the employees and the Union. The judge’s
bench decision did not mention the uncontroverted and
corroborated testimony regarding these attempted instal-
lations, which necessarily undermine the judge’s past
practice finding. Therefore, based on the specific facts of
this case, we reject the judge’s finding that the Respondent
ABF FREIGHT SYSTEM, INC. 3
was authorized to unilaterally install cameras in the shacks
pursuant to an established past practice.
2. Contract Coverage
We also reject the Respondent’s argument that its ac-
tions were “covered by” the parties’ collective-bargaining
agreement. In determining whether a contract authorizes
an employer to make a disputed change without bargain-
ing with a union, the Board will conduct a limited review
and “examine the plain language of the collective-bargain-
ing agreement to determine whether action taken by an
employer was within the compass or scope of contractual
language granting the employer the right to act unilater-
ally.” MV Transportation, 368 NLRB No. 66, slip op. at
2, 11. See also ADT, LLC, d/b/a ADT Security Services,
369 NLRB No. 31, slip op. at 3 (2020); Huber Specialty
Hydrates, 369 NLRB No. 32, slip op. at 3 (2020).
The Respondent argues that the NMFA privileged it to
install the cameras in the shacks without bargaining with
the Union. But the NMFA only contains a prohibition on
camera installation, stating in relevant part that “[t]he Em-
ployer shall not install or use video cameras in areas of the
Employer’s premises that violate the employee’s right to
privacy such as in bathrooms or places where employees
change clothing or provide drug or alcohol testing speci-
mens.” There is no management-rights clause or other
provision ostensibly authorizing the installations.
Though the shacks may not be intended as places for
employees to strip down to their underwear, the record is
clear that the shacks contain lockers, in part, to store em-
ployee clothing, and that, at a minimum, employees
change clothing such as footwear and outer garments
there. The NMFA clearly prohibits the installation of
cameras where employees “change clothing,” and there is
nowhere else—at least in the Dayton facility—where em-
ployees regularly change clothes. So, it would be
8 See Bath Iron Works Corp., 345 NLRB 499, 502–503 (2005) (ex-
plaining that contract modification cases require greater proof because
the remedy—requiring adherence to the contract for its terms—is more
severe), affd. sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475
F.3d 14 (1st Cir. 2007).
9 Our holding is consistent with the circuit courts’ contract coverage
cases, and we are unaware of a case where the courts have found a uni-
lateral action to be covered based on contract language with as muddled
an application to the case’s facts as here. Cf. Department of Justice v.
FLRA, 875 F.3d 667, 676 (D.C. Cir. 2017) (change in work assignments
clearly within scope of contract language identifying procedures for as-
signing work); Columbia College Chicago v. NLRB, 847 F.3d 547, 553–
554 (7th Cir. 2017) (reducing credit hours covered by contract where
employer had the right to “modify . . . all aspects of educational policies
and practices,” including the “modification [or] alteration . . . of any
course”); NLRB v. Solutia, Inc., 699 F.3d 50, 66–67, 71–72 (1st Cir.
2012) (finding that a transfer of work was not covered by a contract’s
management-rights clause giving the employer discretion over routine
plausible to interpret the NMFA as prohibiting the instal-
lation of surveillance cameras in the shacks.
However, we need not and do not determine whether
installing cameras in the shacks is prohibited by the con-
tract because the General Counsel is not arguing that the
installations modified the contract; rather, he is making
the lesser allegation that the Respondent made a unilateral
change without bargaining with the Union.8 Therefore,
we must only consider whether the installations came
within the compass or scope of contractual language
granting the employer the right to act unilaterally. Alt-
hough a collective-bargaining agreement need not specif-
ically address the employer decision at issue to be “cov-
ered by” the contract, here, looking at the plain language
of the NMFA, all we find is a contractual prohibition,
which the Respondent may well have breached. Accord-
ingly, we cannot say that the installations came within the
compass or scope of any contract language that granted
the Respondent the right to install the cameras in the
shacks.9
Finding that this contract does not cover the installa-
tions also furthers our policy objective of promoting more
thorough collective-bargaining agreements and the amica-
ble resolution of labor disputes. See MV Transportation,
368 NLRB No. 66, slip op. at 15 (explaining that contract
coverage “better supports labor relation stability by en-
couraging employers and unions to foresee potential is-
sues and resolve them through comprehensive collective-
bargaining agreements”). Here, if the parties had more
clearly set forth their rights in the NMFA—either through
affirmative language specific to camera installation or a
broad management-rights clause that encompassed such
camera installation—this labor dispute may well have
been avoided. However, as written, the language is insuf-
ficient to obviate continued bargaining on the subject.10
employment decisions as to individual employees, such as promotion
and discipline, despite both the employer and the union making contract-
based arguments regarding the lawfulness of the transfers); Regal Cine-
mas, Inc. v. NLRB, 317 F.3d 300, 312–313 (D.C. Cir. 2003) (finding that
management-rights clause providing right to change or introduce new or
improved work methods, processes, and procedures of work did not
cover converting facilities into management-operated theaters).
10 Having found that the Respondent’s actions were not covered by
the contract, we must then consider whether the Union clearly and un-
mistakably waived bargaining over the change by looking at bargaining
history, past practice, and provisions of a collective-bargaining agree-
ment. See MV Transportation, 368 NLRB No. 66, slip op. at 2 & fn. 7.
There are no exceptions to the judge’s findings that neither the bargain-
ing history nor the language of the collective-bargaining agreement sup-
ports finding a waiver. And because the Union was consistently opposed
to the installation of the cameras in the shacks, we do not find a waiver
based on past practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
AMENDED CONCLUSIONS OF LAW
1. The Respondent, ABF Freight System, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The General Truck Drivers, Warehousemen, Help-
ers, Sales and Service, and Casino Employees and Inter-
national Brotherhood of Teamsters, Local 957 (the Union)
is a labor organization within the meaning of Section 2(5)
of the Act.
3. At all times since April 1, 2008, the Union has been
the exclusive collective bargaining representative, within
the meaning of Section 9(a) of the Act, of a unit of the
Respondent’s employees which is an appropriate unit
within the meaning of Section 9(b) of the Act.
4. The Respondent violated Section 8(a)(5) and (1) by
unilaterally installing cameras in break/locker rooms in
the Respondent’s facility in Dayton, Ohio without first no-
tifying the Union and giving it an opportunity to bargain.
5. The Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to bargain collectively with the Union
by failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining rep-
resentative of the Respondent’s unit employees.
6. The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and (1)
by unilaterally changing the terms and conditions of its
unit employees by installing cameras in the break/locker
rooms in its facility in Dayton, Ohio, we shall order the
Respondent to rescind the changes and restore the status
quo ante until it negotiates in good faith with the Union to
agreement or impasse. Having found that the Respondent
violated Section 8(a)(5) and (1) by failing and refusing to
provide the Union with requested information that is nec-
essary and relevant to the Union’s performance of its du-
ties as the exclusive collective-bargaining representative
of the unit employees, we shall order the Respondent to
11 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
provide the Union with the information it requested on
September 23, 2017.
ORDER
The National Labor Relations Board orders that the Re-
spondent, ABF Freight System, Inc., Dayton, Ohio, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees without first notifying the Union and
giving it an opportunity to bargain.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining rep-
resentative of the Respondent’s unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of em-
ployees in the following bargaining unit:
All employees in the classifications of work covered by
the ABF National Master Freight Agreement (NMFA),
as referred to in article 3, section 1 of the NMFA, effec-
tive April 1, 2013 through March 31, 2018.
(b) Rescind the changes in terms and conditions of em-
ployment for its unit employees that were implemented on
September 19 and 20, 2017.
(c) Furnish to the Union in a timely manner the infor-
mation requested by the Union on September 23, 2017.
(d) Post at its Dayton, Ohio facility copies of the at-
tached notice marked “Appendix.”11 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
ABF FREIGHT SYSTEM, INC. 5
other electronic means, if the Respondent customarily
communicates with its employees by such means. The
Respondent shall take reasonable steps to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
September 19, 2017.
(e) Within 21 days after service by the Region, file with
the Regional Director for Region 9 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. June 19, 2020
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT change your terms and conditions of em-
ployment without first notifying the General Truck Driv-
ers, Warehousemen, Helpers, Sales and Service, and Ca-
sino Employees and International Brotherhood of Team-
sters, Local 957 (the Union) and giving it an opportunity
to bargain.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of
the rights listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All employees in the classifications of work covered by
the ABF National Master Freight Agreement (NMFA),
as referred to in article 3, section 1 of the NMFA, effec-
tive April 1, 2013 through March 31, 2018.
WE WILL rescind the changes in the terms and condi-
tions of employment for our unit employees that were uni-
laterally implemented on September 19 and 20, 2017.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on September 23,
2017.
ABF FREIGHT SYSTEM, INC.
The Board’s decision can be found at
www.nlrb.gov/case/09-CA-208379 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Zuzana Murarova, Esq., for the General Counsel.
Mark Theodore, Esq. and Sophia Alonso, Esq. (Proskauer Rose,
LLP), of New York, New York, for the Respondent.
John R. Doll, Esq. (Doll, Jansen & Fort), of Dayton, Ohio, for
the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge: I heard this
case on June 13, 2018, in Cincinnati, Ohio. After the parties
rested, I heard oral argument, and on July 27, 2018, issued a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
bench decision pursuant to Section 102.35(a)(10) of the Board’s
Rules and Regulations, setting forth findings of fact and conclu-
sions of law. In accordance with Section 102.45 of the Rules and
Regulations, I certify the accuracy of, and attach hereto as “Ap-
pendix A”, the portion of the transcript containing this deci-
sion.121 The Remedy, Order, and notice provisions are set forth
below.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including posting the notice to em-
ployees attached hereto as Appendix B. The Respondent must
also furnish to the Union, without further delay, the information
which the Union requested on about September 23, 2017.
CONCLUSIONS OF LAW
1. The Respondent, ABF Freight System, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The International Brotherhood of Teamsters and its con-
stituent local union, General Truck Drivers, Warehousemen,
Helpers, Sales and Service, and Casino Employees, Local 957
(the Charging Party), are labor organizations within the meaning
of Section 2(5) of the Act.
3. At all times since April 1, 2008, the International Brother-
hood of Teamsters has been the exclusive collective bargaining
representative, within the meaning of Section 9(a) of the Act, of
a unit of the Respondent’s employees which is an appropriate
unit within the meaning of Section 9(b) of the Act, and has dis-
charged its duties as exclusive bargaining representative through
its constituent local union, General Truck Drivers, Warehouse-
men, Helpers, Sales and Service, and Casino Employees, Local
957.
4. The Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to furnish information which the Charg-
ing Party requested, and which was relevant to the Charging
Party’s performance of its duties as exclusive bargaining repre-
sentative of an appropriate unit of the Respondent’s employees,
and which was necessary for that purpose.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
6. The Respondent did not engage in any unfair labor prac-
tices alleged in the consolidated complaint not specifically
found.
On the findings of fact and conclusions of law, and on the en-
tire record in this case, I issue the following recommended2
1 The bench decision appears in uncorrected form at pp. 369 through
386 of the transcript. The final version, after correction of oral and tran-
scriptional errors, is attached as Appendix A to this Certification.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, these findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board,
and all objections to them shall be deemed waived for all purposes.
ORDER
The Respondent, ABF Freight System, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish the Charging Party with
information it has requested which is relevant to the performance
of its duties as the exclusive bargaining representative of an ap-
propriate unit of the Respondent’s employees, and which is nec-
essary for that purpose.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cilities in, copies of the attached notice marked “Appendix B.”133
Copies of the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or internet site, and/or other elec-
tronic means, if the Respondent customarily communicates with
its employees by such means. J. Picini Flooring, 356 NLRB 11
(2010). In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the fa-
cility involved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the Re-
spondent at any time since September 28, 2017. Excel Con-
tainer, Inc., 325 NLRB 17 (1997).
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.
Dated Washington, D.C., August 20, 2018
APPENDIX A
Bench Decision
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. I find that
the Respondent did not make an unlawful unilateral change when
it installed video cameras in employees’ break rooms, but that it
did violate section 8(a)(5) and (1) by failing and refusing to fur-
nish the Union with requested relevant information necessary for
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ABF FREIGHT SYSTEM, INC. 7
the Union to perform its duties as exclusive bargaining repre-
sentative.
Procedural History
This case began on October 23, 2016, when the Charging
Party, General Truck Drivers, Warehousemen, Helpers, Sales
and Service, and Casino Employees, Local 957, a local of the
International Brotherhood of Teamsters, filed an unfair labor
practice charge alleging that the Respondent, ABF Freight Sys-
tems, Inc., had made unlawful unilateral changes in the terms and
conditions of employment of bargaining unit employees by in-
stalling cameras in the break room/locker room of the Respond-
ent’s facility in Dayton, Ohio. The Board’s Cincinnati office
docketed this charge as Case 09–CA–208379. For brevity, I will
refer to the local Union as the Local Union or Local 957 and will
refer to the International Brotherhood of Teamsters as the Inter-
national Union. The Local Union and International Union to-
gether will be referred to simply as the Union.
On November 21, 2017, the Union filed an additional unfair
labor practice charge against the Respondent. The Board dock-
eted this charge as Case 09–CA–210267. It alleged that the Re-
spondent had failed and refused to furnish the Union with infor-
mation the Union had requested which was relevant to the per-
formance of the Union’s duties as exclusive bargaining repre-
sentative.
On February 27, 2018, the Regional Director for Region 9 of
the Board, acting on behalf of the Board’s General Counsel, is-
sued an Order consolidating cases, consolidated complaint and
notice of hearing. The Respondent filed a timely answer.
On June 13, 2018, a hearing opened before me in Cincinnati,
Ohio. The parties finished presenting evidence on that day and
I adjourned the hearing until July 25, 2018, when it resumed by
telephone conference call so that counsel could present oral ar-
gument. I then adjourned the hearing until today, July 27, 2018,
when it resumed again by telephone for issuance of this bench
decision.
Admitted Allegations
In its answer, the Respondent admitted many of the allegations
raised in the complaint. Based on those admissions, I find that
the General Counsel has proven the allegations set forth in Com-
plaint paragraphs 1(a), (b), 2(a), (b), (c), 3, 4, 5, 6(a), (b), 7(a)
and (b).
More specifically, I find that the two unfair labor practice
charges were filed and served as alleged in the complaint. Ad-
ditionally, I conclude that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that it is appropriate for the Board to exercise
its jurisdiction in this matter.
Further, I find that the following individuals are supervisors
of the Respondent within the meaning of Section 2(11) of the
Act, and agents of the Respondent within the meaning of Section
2(13) of the Act: Terminal Manager Matthew Godfrey; Opera-
tions Manager Rick West; Regional Manager of Employee Re-
lations Steve Dusko, and Assistant Terminal Manager Rusty
Staab.
Based on the admissions in the Respondent’s answer, I also
find that the Union is a labor organization within the meaning of
Section 2(5) of the Act and that since about April 1, 2008, the
Respondent has recognized the Union as the exclusive bargain-
ing representative, within the meaning of Section 9(a) of the Act,
of Respondent’s employees in a bargaining unit which is an ap-
propriate unit within the meaning of Section 9(b) of the Act.
Such recognition has been embodied in successive collective-
bargaining agreements, the most recent of which is effective
from April 1, 2013, through March 31, 2018.
The Respondent has admitted, and I find, that this appropriate
bargaining unit consists of “All employees in the classifications
of work covered by the ABF National Master Freight Agreement
(NMFA), as referred to in article 3, section 1 of the NMFA, ef-
fective April 1, 2013, through March 31, 2018.”
The complaint alleges, the Respondent has admitted, and I
find that between about September 19 and 23, 2017, the Re-
spondent installed video surveillance cameras in the break
room/locker room areas of the A, B and C shacks at Respond-
ent’s facility
At hearing, the parties stipulated that on September 19, 2017, the
Respondent installed a surveillance camera in the Shack B break
room, and that on September 20, 2017, it installed surveillance cam-
eras in the Shack A and Shack C break rooms at its Dayton facility.
I so find.
The Respondent also has admitted, and I find, that the instal-
lation of these video surveillance cameras relates to wages,
hours, and other terms and conditions of employment of the unit
and is a mandatory subject for the purposes of collective bargain-
ing.
In its answer, the Respondent also has admitted, and I find,
that since about September 23, 2017, the Union has requested, in
writing, that Respondent furnish the Union with the following
information:
A detailed description of when the Company determined to in-
stall the cameras and the decision making process in this re-
gard;
Copies of all directives, instructions, guidelines, or rules per-
taining to the use of the cameras by security and/or manage-
ment personnel;
A description of the type of cameras and the fields of view cov-
ered by the cameras; and
A description of specific events/activities necessitating the in-
stallation of the cameras.
The complaint also alleges, the Respondent has admitted, and
I find, that since about September 28, 2017, Respondent, by
Steve Dusko, has failed and refused to furnish the Union with
this requested information.
Contested Issues
The disputed issues are matters of law rather than of fact. The
Respondent has admitted that it installed surveillance cameras in
three break rooms at its Dayton facility. It has also admitted that
the installation of these cameras was a mandatory subject of bar-
gaining. However, it denies that it thereby violated the Act.
The Respondent likewise has admitted that the Union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
requested certain information and that it has not provided this
information, but denies it thereby violated the Act. In deciding
whether the Respondent acted unlawfully, I first must determine
whether the requested information was relevant and necessary
for the Union to perform its duties as exclusive bargaining rep-
resentative.
The Alleged Unilateral Change
When a union is the exclusive bargaining representative of an
appropriate unit of employees, their employer has a duty to no-
tify the union and give it a reasonable opportunity to negotiate
before making a material, substantial, and significant change in
working conditions. The Board has held that installing and using
surveillance cameras in the workplace is such a change and, ac-
cordingly, an employer violates the Act when it installs such
cameras in the workplace without first giving the union the re-
quired notice and opportunity to bargain. Anheuser-Busch, Inc.,
342 NLRB 560 (2004).
However, under certain limited circumstances, an employer
does not violate the Act if it makes a material, substantial and
significant change in working conditions even though it did not
afford the union advance notice and an opportunity to bargain.
For instance, a union may waive its right to advance notice
and bargaining by agreeing to sufficiently specific language in a
collective-bargaining agreement. However, the Board will not
lightly infer waivers of statutory rights. Gannett Co., 333 NLRB
355 (2001).
An employer also lawfully may make a unilateral change if
the employer is following an established past practice and does
not alter the status quo. The Post Tribune Co., 337 NLRB 1279
(2002).
In the present case, on September 19 and 20, 2017, the Re-
spondent installed video cameras in three break rooms at its Day-
ton facility. These break rooms were located in buildings desig-
nated Shack A, Shack B, and Shack C. The break rooms in
Shack A and Shack B have lockers in which employees can store
lunches and various types of clothing, such as boots and cold
weather gear. The Union maintains that the break rooms in
Shacks A and B also serve as locker rooms where employees
change clothes, sometimes taking off everything except under-
wear. Therefore, it objects to the presence of cameras in those
areas. It does not object to the camera in the break room in Shack
C because there are no lockers there and employees do not
change clothes there.
The Respondent installed the security cameras in September
2017, while the parties’ 2013–2018 collective-bargaining agree-
ment was in effect. This agreement doesn’t have a management-
rights clause, but it does include a provision relating to the use
of video cameras. Article 26 of that agreement includes the fol-
lowing provisions:
Section 2. Use of Video Cameras for Discipline and Discharge
The Employer shall not install or use video cameras in areas of
the Employer’s premises that violate the employee’s right to
privacy such as in bathrooms or places where employees
change clothing or provide drug or alcohol testing specimens.
Section 3. Audio, Video and Computer. Tracking Devices
The Employer may use video, still photos derived from video,
electronic tracking devices and/or audio evidence to discipline
an employee without corroboration by observers if the em-
ployee engages in conduct such as dishonesty, theft of time or
property, vandalism, or physical violence for which an em-
ployee could be discharged without a warning letter. If the in-
formation on the video, still photos, electronic tracking devices
and/or audio recording is to be utilized for any purpose in sup-
port of a disciplinary or discharge action, the Employer must
provide the Local Union, prior to the hearing, an opportunity to
review the evidence used by the Employer.
This contractual language does not specifically authorize the
Respondent to install video cameras, but only states where the
Respondent may not do so. It might seem reasonable to infer
from the prohibition of cameras in this limited category of loca-
tions that the Union has agreed that the Respondent may install
them at any other locations on its property. However, the Board
will not lightly infer waivers of statutory rights. In Rockwell In-
ternational Corp., 260 NLRB 1346, 1347 (1982), the Board
stated:
Where, as here, an employer relies on a purported waiver to
establish its freedom unilaterally to change terms and condi-
tions of employment not contained in the contract, the matter
at issue must have been fully discussed and consciously ex-
plored during negotiations and the union must have con-
sciously yielded or clearly and unmistakenly waived its interest
in the matter.
The present record does not establish that the parties fully dis-
cussed and consciously explored the issue of placing cameras in
break rooms. Therefore, I conclude that a defense based solely
on the theory of waiver would fall short.
However, the Respondent does have a past practice of in-
stalling video cameras on its property in any places except in
bathrooms, or where employees change clothes of give speci-
mens for drug testing. For brevity, I will refer to these locations
as “personal privacy spaces.” The record leaves no doubt that
the Respondent has installed cameras at other places where em-
ployees are not expected to be in a state of dishabille, and the
Union has not objected. The Local Union’s secretary-treasurer
and business agent, Dan Webb, testified as follows:
Q. Okay. And so we’re all clear here, I just want to make sure
I understand it. The Union is not objecting to the installation of
cameras in other areas of the facility, correct?
A. No, sir.
Q. Okay. The company wants to focus a camera on where the
trucks back into the dock, no problem with that?
A. They have them currently. It’s not a problem.
Q. No problem in the exterior areas, right?
A. Other—no—
Q. No problem in any hallways that might exist in the—
A. Just so long as they’re not pointed at the locker rooms, it’s
ABF FREIGHT SYSTEM, INC. 9
not a problem.
Q. And they can install those cameras without talking to you
at all, correct? That’s your—
A. To your knowledge, yes.
Q. And that would be pursuant to the language, correct?
A. Yes, sir.
Based on this testimony and the record as a whole, I find that
the Respondent did have an established past practice, not con-
tested by the Union, of installing cameras anywhere on its prem-
ises except the personal privacy spaces. Therefore, whether the
Respondent acted lawfully turns on whether the break rooms are
personal privacy spaces—where the Respondent specifically has
promised not to install cameras. If they are not personal privacy
spaces, the Respondent did not deviate from its past practice of
installing cameras at its discretion.
The General Counsel’s witnesses offered testimony that peo-
ple do change clothes in the break rooms. However, I am skep-
tical of that evidence. It is possible that employees sometimes
did undress in the break rooms when no one else was around.
They did not like to use the restrooms because of the condition
of those facilities. The Union had complained to management
about the sanitary condition of the restrooms and leaking sinks.
However, employees cannot simply convert an area intended
for public use into a personal privacy space without the Respond-
ent’s knowledge or approval. The law of adverse possession does
not apply, and in any event, I find that instances in which people
changed clothes in the break room were infrequent at most, and
surreptitious.
Additionally, the break rooms included not merely lockers but
also tables where employees ate. People of both sexes often used
the break rooms. Windows also allowed people in adjoining of-
fices to view at least some parts of the break rooms.
Moreover, unlike a locker room used by students or athletes
to change in and out of uniform, the break rooms had only lock-
ers but no benches on which to sit. Anyone stripping down to
underwear would find it quite awkward.
Rather, I conclude that the Respondent intended the break
rooms to be used by employees to eat lunch, and to store their
possessions in lockers while they worked. Employees certainly
would don or doff outerwear, such as cold weather gear and
boots, but continued to wear their street clothes. The break
rooms did not constitute personal privacy spaces and Respond-
ent’s installation of cameras there was consistent with its past
practice.
The Information Request
On September 23, 2017, the Union sent the Respondent the
information request alleged in the complaint and set forth earlier
in this decision. The Respondent’s answer admits that it failed
and refused to furnish the Union with the requested information.
However, it denies the information’s relevance.
The Board has held that the installation of security cameras in
the workplace constitutes a material, significant, and substantial
change in terms and conditions of employment. Anheuser-
Busch, Inc., above. It follows that information related to an
employer’s decision to install such cameras, and to the operation
of those cameras, is relevant to, and necessary for the Union to
discharge its duties as exclusive bargaining representative. I so
find.
Regional Manager Steve Dusko denied the information re-
quest in a letter to Business Agent Webb dated September 28,
2017. It stated, in part, “The company is unable to comply with
this request as we believe the information requested is not proper
under Article 7, Section 2 of the ABFNMFA.”
That portion of the collective-bargaining agreement states that
requested information must relate to the specific issues and gen-
eral time periods involved in the grievance. However, I conclude
that the information requested by the Union satisfies this require-
ment.
Moreover, the duty to furnish information is a statutory duty,
not a creation of the collective-bargaining agreement. A union
certainly can waive the right to receive such information by an
appropriate provision in the contract. However, the Board’s
rules concerning the waiver of a statutory right apply. The rec-
ord does not establish that the Union made a clear and unequiv-
ocal waiver in this case.
In sum, I conclude that the Respondent did not violate the Act
by the unilateral change alleged in complaint paragraph 7, but
that it did violate Section 8(a)(5) and (1) of the Act by failing
and refusing to furnish the Union with requested relevant infor-
mation.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the por-
tion of the transcript reporting this bench decision. This Certifi-
cation also will include provisions relating to the Findings of
Fact, Conclusions of Law, Remedy, Order, and Notice. When
that Certification is served upon the parties, the time period for
filing an appeal will begin to run.
During this proceeding, counsel demonstrated the highest
standards of professionalism and civility, which are truly appre-
ciated. The hearing is closed.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail or refuse to furnish the Union, the Interna-
tional Brotherhood of Teamsters and its constituent local union,
General Truck Drivers, Warehousemen, Helpers, Sales and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Service, and Casino Employees, Local 957, International Broth-
erhood of Teamsters, with information it requests which is rele-
vant to and necessary for the performance of its duties as the ex-
clusive bargaining representative of a unit of our employees.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL furnish the Union with the information it requested
pertaining to our installation of video surveillance cameras in
certain break rooms in our facilities.
ABF FREIGHT SYSTEM, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-208379 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1099
14th Street, N.W., Washington, D.C. 20570, or by calling (202)
273-1940.