Anheuser-Busch,Inc.

National Labor Relations Board - Board Decisions

Sep 29, 2007

351 N.L.R.B. 644 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 40
644
Anheuser-Busch, Inc. and Brewers and Maltsters,
Local Union No. 6, affiliated with International
Brotherhood of Teamsters. Case 14–CA–25299
September 29, 2007
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, KIRSANOW, AND WALSH
On July 22, 2004, the National Labor Relations Board
issued its Decision and Order in this proceeding,1 in
which it found, among other things, that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing to
give notice to and bargain with the Union prior to the
installation and use of hidden surveillance cameras. The
Board, in fashioning its remedial Order, denied a make-
whole remedy to the 16 employees whom the Respon-
dent discharged or suspended for misconduct detected
through the use of the cameras. Subsequently, the Re-
spondent petitioned the United States Court of Appeals
for the District of Columbia Circuit to review the
Board’s Order, the General Counsel cross-petitioned for
enforcement of the Order, and the Union cross-petitioned
to review the Order. On July 5, 2005, the court issued a
decision affirming the Board’s decision that the Respon-
dent violated Section 8(a)(5) and (1). However, the court
granted the Union’s petition for review of the remedial
issue. The court remanded the case for the Board to fur-
ther address whether the appropriate remedy for the vio-
lation should include make-whole relief for employees
whom the Respondent disciplined for misconduct de-
tected through use of the hidden cameras.2
On January 3, 2006, the Board notified the parties that
it had accepted the remand and invited the parties to file
statements of position. The General Counsel, the Re-
spondent, and the Union filed statements of position.
Background
The issue on remand is whether the Board should grant
a make-whole remedy to 16 employees disciplined by the
Respondent for misconduct observed by means of cam-
eras installed without prior bargaining with the Union.
The relevant facts follow.
The Respondent operates a brewery in St. Louis. The
Union has represented the brewery employees for many
years. In March 1998,3 the Respondent, while conduct-
ing a routine inspection of the facilities, uncovered evi-
dence that employees were engaging in misconduct, in-
cluding possible use of illegal drugs, in informal break

1 342 NLRB 560 (2004).
2 Brewers & Maltsters Local 6 v. NLRB, 414 F.3d 36 (D.C. Cir.
2005).
3 All dates are in 1998, unless otherwise indicated.
areas on the roof of a building. The Respondent installed
a hidden surveillance camera on the roof and another
camera inside an elevator motor room. The use of hid-
den surveillance cameras was a change in the Respon-
dent’s operations. The Respondent did not notify the
Union of its decision to install the cameras.
The Respondent operated the cameras from mid-May
through June 30, and during that time observed 16 em-
ployees engaging in misconduct. On July 1, after discon-
tinuing the surveillance, the Respondent notified the Un-
ion that it had been using the cameras. The Union pro-
tested the Respondent’s failure to provide notice and an
opportunity to bargain over the installation of the cam-
eras.
The Respondent interviewed each of the 16 employ-
ees. Before each interview, the Union advised the em-
ployee that the Respondent had videotaped the em-
ployee’s conduct; each employee then admitted engaging
in the observed misconduct.
The Respondent discharged 5 of the 16 employees.
Each of the discharged employees had violated the Re-
spondent’s rules by, inter alia, using illegal drugs (mari-
juana) at work. The Respondent suspended the remain-
ing 11 employees, and issued “last chance” agreements
to 7 of them. All of the suspended employees had vio-
lated Respondent’s rules by entering a restricted area and
by being away from an assigned work location for an
extended time period. Some of the suspended employees
had also violated the Respondent’s rules by sleeping on
duty or by urinating on the roof.
In its initial decision, the Board found that the Re-
spondent violated Section 8(a)(5) by failing to give the
Union notice and an opportunity to bargain before in-
stalling the hidden surveillance cameras. 342 NLRB at
560–561.4 The Board’s remedial Order directed the Re-
spondent to cease and desist from the violations found
and to post an appropriate notice. Id. at 561–562, 569.
However, the Board denied a make-whole remedy to the
16 disciplined employees. Id. at 562.
The Board, noting that the employees’ conduct vio-
lated plant rules and that the Respondent’s discipline was
based on their misconduct, concluded that it would be
“inconsistent with the policies of the Act, and public pol-
icy generally, to reward parties who engaged in unpro-
tected conduct.” Ibid. In support of this conclusion, the
Board cited Taracorp Industries.5 Ibid. In that case, the

4 The court affirmed this finding. 414 F.3d at 42–45. The Board
also found that the Respondent violated Sec. 8(a)(5) by failing fully to
respond to a union request for information. 342 NLRB at 560, 567–
568. The court affirmed this finding also. 414 F.3d at 45–46. These
issues are not before the Board in this proceeding.
5 273 NLRB 221 (1984).
ANHEUSER-BUSCH, INC. 645
employer discharged an employee for misconduct based
on information obtained during an investigatory inter-
view in which the employer unlawfully denied the em-
ployee’s request for union assistance. The Board’s Order
in Taracorp nevertheless denied a make-whole remedy
to the discharged employee. In its initial decision here,
the Board found Taracorp instructive, explaining: “The
Board [in Taracorp] reasoned that there was an insuffi-
cient nexus between the unfair labor practice committed
(denial of representation at an investigatory interview)
and the reason for the discharge (perceived misconduct)
to justify a make-whole remedy.” Ibid.
In further support of its conclusion in the instant case,
the Board relied on a provision in Section 10(c) of the
Act that prohibits the Board from granting a make-whole
remedy to employees who are disciplined “for cause.”6
The Board explained that “[t]he principle that an em-
ployee discharged or disciplined for misconduct is not
entitled to reinstatement and backpay even though the
misconduct is uncovered in an unlawful way, is embod-
ied in the remedial restrictions in Section 10(c) of the
Act.” Id.7
The D.C. Circuit affirmed the Board’s unfair labor
practice findings, but remanded the make-whole remedy
issue to the Board. With regard to this issue, the court
noted that although it “gives great deference” to the
Board’s choice of remedy, the Board was required to
“distinguish adequately its applicable precedent.” 414
F.3d at 46. With regard to the Board’s reliance on Sec-
tion 10(c), the court observed that Section 10(c) did not
“expressly address whether the Board shall or shall not
deny make-whole relief where an employer would not
have discovered its employees’ misconduct but-for its
own unlawful action,” and that the Board, accordingly,
could “fill [the statutory] interstices with a reasoned ap-
proach.” Id. at 47. The court found, however, that be-
cause the Board had “failed to distinguish adequately its
prior decisions,” it had not adopted the requisite reasoned
approach. Ibid.
In analyzing the relevant Board precedent, the court
noted that in Tocco, Inc., 323 NLRB 480 (1997), the
Board ordered make-whole relief for employees dis-
charged for drug use after the employer unlawfully
changed its drug-testing policy. The court rejected the
Board’s explanation that Tocco was distinguishable from
the instant case because it involved a unilateral change

6 Sec. 10(c) provides, in pertinent part, “No order of the Board shall
require the reinstatement of any individual as an employee who has
been suspended or discharged, or the payment to him of any back pay,
if such individual was suspended or discharged for cause.”
7 Member Walsh dissented from the Board’s denial of a make-whole
remedy for the 16 disciplined employees. Id. at 562–564.
“to the very policy under which the employees were dis-
charged.” Instead, the court reasoned that the employer
in Tocco did not alter its underlying drug policy, but
rather, changed its method of detecting which employees
violated that policy. The court found that “[s]imilarly, in
the instant case, the [Respondent] did not alter its under-
lying conduct rules, but instead unilaterally instituted a
new means for detecting violations of a preexisting stan-
dard.” 414 F.3d at 47. Further, the court noted, the
Board granted a make-whole remedy in Great Western
Produce, Inc., 299 NLRB 1004 (1990), where the em-
ployer unlawfully changed its method for recording mis-
conduct and then relied on misconduct documented
through that new system to discharge employees. Id. at
48. The court concluded that the Board’s granting of
make-whole remedies in Tocco and Great Western could
not be reconciled with its denial of a make-whole remedy
in the instant case, as each involved situations in which
the employees’ misconduct would not have been de-
tected absent the Respondent’s unlawful change in detec-
tion methods. Id. at 47–48. The court also addressed
Taracorp, supra, where the Board denied a make-whole
remedy to an employee discharged following an unlaw-
ful interview. The court noted that the Taracorp em-
ployer, unlike the Respondent here, had an independent
source of knowledge of the employee’s misconduct un-
tainted by the employer’s unlawful conduct. Id. at 48.
For these reasons, the court remanded the case for the
Board “to address the appropriate remedial order for the
disciplined employees” because “it remains for the Board
to determine, based on policies consistent with the Act,
whether reinstatement is not appropriate here because an
exclusionary rule would improperly reward [employees]
who engage[d] in unprotected conduct.” Id. at 48–49
(internal quotation omitted). The court found a remand
necessary “so the Board can apply, distinguish ade-
quately, or overrule” its Tocco and Great Western deci-
sions. Id. at 48.8
Analysis
Having accepted the court’s remand, we now respond
to the court’s directives. As explained below, we con-
clude that Section 10(c) precludes the Board from grant-
ing a make-whole remedy on the facts of this case. Also,
as explained below, we overrule Tocco and Great West-
ern to the extent that they hold that an employer may not
discipline employees for uncontested misconduct if that
misconduct is detected through unilaterally and unlaw-
fully implemented means.

8 Judge Sentelle dissented from the remand, finding that the “plain
language” of the statute precludes an award of backpay to employees
discharged for cause. Id. at 49–50.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD646
A. The Appropriate Remedial Order
Section 10(c) provides, in pertinent part, that “[n]o or-
der of the Board shall require the reinstatement of any
individual as an employee who has been suspended or
discharged, or the payment to him of any back pay, if
such individual was suspended or discharged for cause.”
Section 10(c) thus prohibits a make-whole remedy
where discipline is “for cause.” In its initial decision in
this case, the Board cited Section 10(c) as support for its
denial of a make-whole remedy. However, as the court
observed, Section 10(c) does not “expressly address” the
circumstances in the instant case—that is, “where an
employer would not have discovered its employees’ mis-
conduct but-for its own unlawful action.” 414 F.3d at 47.
The court was not persuaded by the Board’s reliance on
Section 10(c). We now articulate the rationale that the
court found missing in our earlier decision.
1. The Weingarten cases
This not the first time that the Board and the courts
have addressed the issue of whether Section 10(c) pro-
hibits a make-whole remedy where the employer uses
unlawful methods to detect employee misconduct. Un-
der Weingarten,9 an employer violates the Act if it con-
ducts an investigatory interview after denying the inter-
viewed employee’s request for the assistance of a union
representative. Notwithstanding that fact, both the Board
and reviewing courts consistently have held that Section
10(c) precludes the Board from granting a make-whole
remedy to employees disciplined for misconduct uncov-
ered through an unlawfully-conducted investigatory in-
terview. See Taracorp Industries, 273 NLRB 221
(1984); Pacific Telephone & Telegraph Co. v. NLRB,
711 F.2d 134, 137–138 (9th Cir. 1983); General Motors
Corp. v. NLRB, 674 F.2d 576, 577–578 (6th Cir. 1982);
Montgomery Ward & Co. v. NLRB, 664 F.2d 1095, 1097
(8th Cir. 1981); NLRB v. Potter Electric Signal Co., 600
F.2d 120, 123-124 (8th Cir. 1979). Indeed, every circuit
court that has decided the issue has affirmed this conclu-
sion.10
The dissent asserts that the Board’s reliance on Section
10(c) in Taracorp is specific to Weingarten cases. We
disagree. Because Section 10(c) precludes a make-whole
remedy where the employer learns of employee miscon-
duct through an unlawful investigatory interview, it fol-

9 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
10 The Seventh Circuit in Communication Workers Local 5008 v.
NLRB, 784 F.2d 847 (7th Cir. 1986), observed that it was “not so sure
as the Board” that Sec. 10(c) precluded a make-whole remedy for
Weingarten violations (id. at 850), but explicitly declined to decide the
issue and instead found that the Board properly exercised its remedial
discretion in denying a make-whole remedy for Weingarten violations.
Id. at 851–853.
lows that Section 10(c) also precludes such a remedy
where, as here, the Respondent learns of the misconduct
through unlawfully installed hidden surveillance cam-
eras. In each situation, the employer acquires facts relat-
ing to the misconduct through unlawful means. In each
situation, the reason for the discipline is not that the em-
ployee engaged in union or other protected concerted
activities. Rather, in each situation, the employee is dis-
ciplined for actions the employer considers to be mis-
conduct, i.e., the discharge or suspension is “for cause.”11
Therefore, under the plain language of Section 10(c), the
Board may not require the reinstatement of or award
backpay to such employees.
We recognize that the Board, in its initial decision
herein, cited Taracorp in support of its denial of a make-
whole remedy (342 NLRB at 561), and that the court
distinguished Taracorp on the basis that the employer in
that case had a separate and untainted source of informa-
tion regarding the employee’s misconduct. 414 F.3d at
48. The dissent contends that Taracorp and other Wein-
garten cases are distinguishable from the instant case
because in those cases, the employer suspected the em-
ployee’s misconduct prior to conducting the disciplinary
interview. However, the Taracorp Board’s holding did
not turn on the presence of an untainted source. Indeed,
the Taracorp decision does not even refer to the un-
tainted information source, and instead relies heavily on
Section 10(c)’s prohibition against making whole em-
ployees who have been discharged for cause. Similarly,
although the Sixth Circuit’s General Motors decision
cited above notes the presence of an untainted informa-
tion source, the Eighth and Ninth Circuit decisions cited
above do not, and instead rely solely on Section 10(c) in
denying a make-whole remedy. Furthermore, in other
Weingarten Board decisions issued shortly after Tara-
corp, the Board relied on Section 10(c) in denying a
make-whole remedy even though the employer would
not have discharged the employee absent the information
obtained through the unlawful interview. See Illinois
Bell Telephone Co., 275 NLRB 148 (1985), enfd. 784
F.2d 847 (7th Cir. 1986); Montgomery Ward & Co., 273

11 The Eighth Circuit’s observation in Montgomery Ward & Co., su-
pra, is apropos here. The court, confronted with the claim that the
discharge of employees for theft stemmed from the employer’s denial
of their Weingarten rights, replied: “[T]he employees effected their
own discharge for stealing and the [Weingarten] violation was simply
incidental to the investigation which preceded the firing.” So too, the
employees here effected their own discharge and discipline by using
illegal drugs on the Respondent’s premises and engaging in other mis-
conduct in clear violation of established work rules.
ANHEUSER-BUSCH, INC. 647
NLRB 1226, 1227 (1984), enfd. mem. 785 F.2d 316 (9th
Cir. 1986).12
In sum, the employees in all of the foregoing Weingar-
ten cases were disciplined “for cause.” Neither the
Board nor the reviewing courts interpreted Section 10(c)
as restricting the Board’s remedial authority only where
the facts supporting the “for cause” discipline derived
from an independent and untainted source. Rather, the
Board and the courts applied Section 10(c) according to
its literal terms, regardless of whether the misconduct
that formed the basis of the discharge was uncovered
through an unlawful means. Therefore, our conclusion in
the instant case that Section 10(c) precludes the granting
of a make-whole remedy is strongly supported by extant
precedent.
2. Statutory analysis
In the Weingarten decisions cited above, the Board
explicitly relied on Section 10(c) in denying a make-
whole remedy. However, in so doing, the Board may not
have fully explained its resolution of the core issue—that
is, why Section 10(c)’s prohibition of a make-whole
remedy, where discipline is “for cause,” should be inter-
preted as including the situation where the misconduct in
question is uncovered through unilaterally and unlaw-
fully implemented means. We now accept the court’s
invitation to “fill [Section 10(c)’s] interstices with a rea-
soned approach” and explain why we find that Congress
intended Section 10(c)’s prohibition of a make-whole
remedy to apply in such cases.
Congress did not explicitly define the term “for cause.”
However, the Board has explained that in the context of
the Act, the term was intended to refer to discipline that
is not imposed for a reason that is prohibited by the Act.
As the Board stated in Taracorp:
Cause, in the context of Sec. 10(c), effectively means
the absence of a prohibited reason. For under our Act:
“Management can discharge for good cause, bad cause,
or no cause at all. It has, as the master of its own busi-
ness affairs, complete freedom with but one specific,
definite qualification: it may not discharge when the
real motivating purpose is to do that which [the Act]
forbids.”

12 The dissent suggests that, in Illinois Bell and Montgomery Ward,
the employers “already suspected” the employees’ misconduct before
the unlawful interviews. However, in each case the employee con-
fessed to the misconduct during the interview, and the employer did not
discharge the employee until after the interview. Neither decision
indicates that the employer would have discharged the employee absent
the confession obtained during the interview. More importantly, neither
decision indicates that the Board’s denial of a make-whole remedy
depended in any way on the suspicions, if any, that the employer har-
bored before the interview.
273 NLRB at 222 fn. 8 (quoting NLRB v. Columbus Marble
Works, 233 F.2d 406, 413 (5th Cir. 1956)). Since the disci-
pline imposed here was not imposed for a prohibited reason,
it was “for cause.” Accordingly, Section 10(c) precludes
the Board from granting a make-whole remedy to the disci-
plined employees in the instant case.13
This meaning of the phrase “for cause” does not in-
clude an inquiry into the source of the employer’s
knowledge of the misconduct. Although that may be
relevant to an arbitration, it is not relevant under the Act.
Indeed the Board has made clear that “[i]t is important to
distinguish between the term ‘cause’ as it appears in Sec-
tion 10(c) and the term ‘just cause’ . . . . Just cause en-
compasses principles such as the law of the shop, funda-
mental fairness, and related arbitral doctrines. Cause, in
the context of Section 10(c), effectively means the ab-
sence of a prohibited reason.” Taracorp Industries, 273
NLRB at 222 fn. 8; accord: Elkouri & Elkouri, How Ar-
bitration Works 974 (6th ed. 2003) (“‘[c]ause’ as used in
Section 10(c), should not be confused with ‘just cause’ as
that term is used by arbitrators”).14
Moreover, the legislative history of Section 10(c)
shows that Congress’ purpose in enacting Section 10(c)
was to insure that an employee who engaged in miscon-
duct was subject to discipline for that misconduct. See
Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203, 217 (1964) (“[t]he legislative history of [Section
10(c)] indicates that it was designed to preclude the
Board from reinstating an individual who had been dis-
charged because of misconduct”). The Supreme Court in
Fibreboard quoted at length from that legislative history
(id. at 217 fn. 11):
The House Report states that [Section 10(c)] was “in-
tended to put an end to the belief, now widely held and
certainly justified by the Board’s decisions, that engag-
ing in union activities carries with it a license to loaf,
wander about the plants, refuse to work, waste time,
break rules, and engage in incivilities and other disor-
ders and misconduct.” H.R. Rep. No. 245, 80th Cong.,

13 In an arbitral context, the term “for cause” refers to discipline that,
according to the arbitrator, is permissible under the parties’ contract.
14 Moreover, even if Congress, in enacting the 10(c) “for cause” pro-
vision in 1947, wished to reflect the arbitral “just cause” concept, that
concept did not then commonly include inquiry regarding due process
issues such as the fairness of the employer’s investigation methods.
See McPherson, The Evolving Concept of Just Cause: Carroll R.
Daugherty and the Requirement of Disciplinary Due Process, 38 Lab.
L. J. 387, 390 (1987); Fleming, Some Problems of Due Process and
Fair Procedure in Labor Arbitration, 13 Stanford L. Rev. 235 (1961).
The inclusion of due process issues in the arbitral “just cause” inquiry
was still controversial 20 years later. See Edwards, Due Process Con-
siderations in Labor Arbitrations, 25 Arb. J. 141, 159–163 (1970)
(unclear whether employers may properly rely upon unlawfully ob-
tained evidence of employee misconduct).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD648
1st Sess., 42 (1947). The Conference Report notes that
under § 10(c) “employees who are discharged or sus-
pended for interfering with other employees at work,
whether or not in order to transact union business, or
for engaging in activities, whether or not union activi-
ties, contrary to shop rules, or for Communist activities,
or for other cause [interfering with war production] . . .
will not be entitled to reinstatement.” H.R. Conf. Rep.
No. 510, 80th Cong., 1st Sess., 55 (1947).
Conversely, Section 10(c)’s legislative history does not
reflect Congressional concern regarding the employer’s
method for detecting the employee’s misconduct. The
legislative history is silent regarding this issue. The leg-
islative history quoted above affirmatively shows that the
impetus for Section 10(c)’s prohibition on making whole
employees disciplined for cause was Congress’ belief
that the Board had overstepped its authority and inter-
fered with legitimate management disciplinary preroga-
tives. If the Board in the instant case were to grant a
make-whole remedy to the 16 disciplined employees, the
Board would be overturning discipline for serious, admit-
ted violations of lawfully established work rules.15
A termination of employment that is motivated by pro-
tected activity is unlawful under Section 8(a)(1) and/or
(3), and is not “for cause.” The termination is unlawful,
and the Board can order reinstatement and backpay.
Similarly, a termination of employment that is accom-
plished without bargaining with the representative union
is unlawful under Section 8(a)(5) and is not “for
cause.”16 Thus, when an employer has unilaterally sub-
contracted unit work and laid off unit employees, those
actions are unlawful, and the Board can order reinstate-
ment and backpay.
The Weingarten cases are consistent with this statutory
analysis. In those cases, the employers unlawfully de-
nied employee requests for union representation during
investigatory interviews and discharged the employees

15 Noting that the legislative history of Sec. 10(c) decried the
Board’s decisions overturning justifiable discharges of union activists
for various mischiefs and strikers for picket-line misconduct, the dis-
sent deduces by negative implication a Congressional intent to allow
the Board to overturn justifiable discipline in all other contexts. The
statute is to the contrary. Sec. 10(c) is broadly written to apply to “any
individual,” not just union supporters or strikers, and to suspension or
discharge “for cause” without limitation. Thus, nothing in the terms of
Sec. 10(c) suggests that it is limited to a particular type of discipline
recipient or a particular species of cause. Moreover, a fair reading of
the legislative history suggests that Congress’ principal concern was to
protect an employer’s right to impose justifiable discipline rather than
to limit the Board’s remedial power in any particular subset of situa-
tions. In other words, the legislative history cites Board decisions
overturning justifiable discipline in union-supporter and strike miscon-
duct situations by way of illustration, not limitation.
16 See Fibreboard Paper Products Corp. v. NLRB, supra.
based on information obtained during the interviews.
The discharged employees in those cases engaged in
misconduct for which they were discharged. The dis-
charges accordingly were “for cause” within the meaning
of Section 10(c), and the Board was precluded from
granting make-whole remedies.
In the instant case, the 16 disciplined employees each
engaged in misconduct warranting the discipline. There-
fore, under the teaching of Fibreboard and the Weingar-
ten cases, Section 10(c) applies to preclude a make-
whole remedy for the discipline.
We are not unmindful, of course, that the misconduct
was discovered by virtue of the unlawfully installed sur-
veillance cameras. However, our Order provides a
proper remedy for that violation. We have ordered the
Respondent to cease and desist from its unlawful conduct
and to bargain with the Union, and the court has upheld
that Order. This Order stands to bar future unilateral
action by the Respondent. Should the Respondent fail to
adhere to this Order, as enforced, it is subject to con-
tempt proceedings. Communication Workers Local 5008
v. NLRB, supra, 784 F.2d at 852.
For all these reasons, we conclude that Section 10(c)
precludes the Board from granting a make-whole remedy
for the disciplined employees.
The dissent contends that the D.C. Circuit, in its re-
mand decision, held that Section 10(c) does not preclude
the Board from granting a make-whole remedy on the
facts presented here. In support of this contention, the
dissent notes the court’s statement that Section 10(c)
“does not expressly address” the issue of whether the
Board may grant a make-whole remedy on these facts.
However, a statute may require or prohibit an action
without “expressly” requiring or prohibiting the action.
For example, although Section 10(c) “does not expressly
address” the issue of whether the Board may grant a
make-whole remedy where a union supporter is dis-
charged for misconduct warranting discharge, Section
10(c)’s no-make-whole prohibition clearly prohibits a
make-whole remedy on those facts. Section 10(c) “does
not expressly address” the issue presented here because it
would have been impossible for Congress to envision all
of the conceivable fact patterns in which suspensions or
discharges for cause might arise in cases that could be
brought before the Board. Rather, Congress left to the
Board the task of interpreting and applying statutory lan-
guage to a myriad of factual patterns. This is the very
task the Court left to the Board in relation to the facts in
this case. In the Court’s words, the Board is to “fill [the
ANHEUSER-BUSCH, INC. 649
statutory] interstices with a reasoned approach.” 414
F.3d at 47.17
The dissent cites several situations where the Board
has granted a make-whole remedy to employees who
have committed arguably wrongful actions.18 These
cases are distinguishable because it is not clear whether
the employees’ actions would have been wrongful or
would have merited the discipline imposed—that is,
whether the employees’ actions would have constituted
“cause” for discipline—if the employer had not commit-
ted the unfair labor practices. By contrast, in the instant
case, it is clear that the employees’ actions were wrong-
ful and would have merited the discipline imposed—that
is, the employees’ actions constituted cause for disci-
pline—regardless of whether the Respondent had unlaw-
fully implemented the hidden camera surveillance.
In addition to finding that Section 10(c) precludes the
Board from granting a make-whole remedy, we also find
that, even if the Board had authority to grant a make-
whole remedy, compelling policy considerations would
persuade us, in the exercise of remedial discretion, to
deny a make-whole remedy. Those policy considerations
are strongly evidenced by Section 10(c) and its legisla-
tive history. We find particularly compelling the policy
consideration that employees who engage in misconduct,
and who receive the appropriate discipline for that mis-
conduct, should not benefit from their misconduct
through a windfall award of reinstatement and backpay.19

17 Judge Sentelle, dissenting in part from the D.C. Circuit’s remand
decision, found that Sec. 10(c) “plainly” precluded the Board from
granting a make-whole remedy here. 414 F.3d at 49. The majority did
not respond to Judge Sentelle’s dissent. Rather than decide whether
Sec. 10(c) precluded a make-whole remedy, the majority remanded that
issue to the Board for further exploration.
18 Consec Security, 328 NLRB 1201 (1999) (discipline for employee
action that would have been acceptable action absent the employer’s
unlawful unilateral change in conduct rules); Business Products–
Division of Kidde, Inc., 294 NLRB 840, 840 fn. 3, 852 (1989) (disci-
pline for employee action that the employer did not find worthy of
investigation until employees began union activities and the employer
responded with unlawfully motivated examinations); Kolkka Tables &
Finnish-American Saunas, 335 NLRB 844, 849–851 (2001) (discipline
for employee actions that were provoked by the employer’s unfair labor
practices).
19 We also note that the Board’s Order—by requiring the Respondent
to cease and desist from the unfair labor practice found and to bargain
with the Union regarding the installation and use of hidden surveillance
cameras—restores the Union to the status quo ante the Respondent’s
unfair labor practice.
We reject the dissent’s claim that denying a make-whole remedy
would somehow damage the Union’s status as bargaining representa-
tive. Reasonable employees would not be surprised if coworkers were
discharged or suspended for using illegal drugs at work, sleeping on
duty or urinating off of their employer’s roof, and could hardly fault
their union if such discipline occurred.
B. Tocco and Great Western
The Board’s decisions in Tocco20 and Great Western21
stand in contrast to the cases discussed above. In Tocco,
the employer unlawfully failed to bargain with the union
before changing its drug-testing program. The change
involved expanding the program from testing only em-
ployees identified as potential drug users to random test-
ing of all employees. The employer did not change the
penalty—discharge—for a positive drug test. Two ran-
domly-tested employees tested positive and were dis-
charged. The Board granted a make-whole remedy to the
two employees, reasoning that the discharge was the re-
sult of the unlawful policy change.
In Great Western, the employer unilaterally changed
some rules governing employee conduct; the employer
also began recording misconduct violations in employ-
ees’ personnel files, thereby unilaterally changing its
misconduct-recording policy. The employer discharged
four employees, relying on violations of the unilaterally-
changed conduct rules and on the employer’s knowledge
of violations it had obtained as a result of the unilater-
ally-changed misconduct-recording policy. The Board
granted a make-whole remedy to these four employees.22
In its initial decision here, the Board sought to distin-
guish its granting of a make-whole remedy in Tocco and
Great Western from its denial of a make-whole remedy
in the instant case. The Board found that the unlawful
unilateral changes in Tocco and Great Western were
changes in the employers’ misconduct standards them-
selves, whereas the unlawful unilateral change in the
instant case was a change in the Respondent’s method
for detecting misconduct. 342 NLRB at 561. Therefore,
the Board reasoned, as in Taracorp, supra, there was “an
insufficient nexus between the unfair labor practice and
the employee discipline to justify revoking the discipline
as a means to remedy the unfair labor practice.” Ibid.
On appeal, however, the court rejected the Board’s
findings regarding the nature of the unlawful changes in
Tocco and Great Western. The court found, contrary to
the Board, that the unlawful changes in Tocco and Great
Western, like the unlawful change in the instant case, did
not involve changes in the employers’ misconduct stan-
dards but rather involved changes in the employers’
methods for detecting misconduct. The court accord-
ingly rejected the Board’s basis for distinguishing Tocco
and Great Western from the instant case. 414 F.3d at
47–48. We accept, as the law of the case, the court’s

20 Tocco Inc., 323 NLRB 480 (1997).
21 Great Western Produce, Inc., 299 NLRB 1004 (1990).
22 The Board denied a make-whole remedy for a fifth discharged
employee who would have been discharged under the previous rules
and policy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD650
interpretation of those cases. As so interpreted, they are
inconsistent with our interpretation and application of
Section 10(c) here, and thus we overrule them.
As explained above, we interpret Section 10(c) to pre-
clude the Board from granting a make-whole remedy
where the employees were disciplined for cause, even if
the employer learns of the misconduct through unlawful
means. As is clear from our discussion, we decline to
import the criminal law notion of the “exclusionary rule”
into remedial decisions under Section 10(c). The exclu-
sionary rule acts as a deterrent to government conduct
that undermines 4th and 14th Amendment strictures.
Similarly, it could be argued that a make-whole remedy
here would deter employers from engaging in unilateral
action. However, we conclude that Section 10(c) bars
that remedy. In addition, we have provided a remedy for
the Respondent’s failure to bargain that should preclude
a recurrence of the unlawful behavior. But since the em-
ployees engaged in conduct that clearly violated preexist-
ing rules, and thus were discharged or disciplined for
cause, we decline to order the Respondent to rescind
such actions. Accordingly, we now overrule our deci-
sions in Tocco and Great Western to the extent that those
decisions hold that Section 10(c) does not limit the
Board’s authority to grant a make-whole remedy where
an employer disciplines an employee for cause, but the
cause is uncovered through unilaterally and unlawfully
implemented means.
ORDER23
The National Labor Relations Board orders that the
Respondent, Anheuser-Busch, Inc., St. Louis, Missouri,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Brewers and
Maltsters, Local Union No. 6, affiliated with the Interna-
tional Brotherhood of Teamsters (the Union) with respect
to the installation and use of hidden surveillance cameras
and other mandatory subjects of bargaining.
(b) Failing and refusing to respond in a timely fashion
to requests for information respecting matters relevant to
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) On request, bargain collectively with the Union as
the exclusive bargaining representative of the Respon-

23 Pursuant to the court’s direction (414 F.3d at 49), we correct our
Order by substituting “hidden surveillance cameras” for “surveillance
cameras.”
dent’s employees with respect to the installation and use
of hidden surveillance cameras and other mandatory sub-
jects of bargaining.
(b) On request, bargain collectively with the Union by
timely furnishing it with the information it requests re-
specting matters relevant to unit employees.
(c) Within 14 days after service by the Region, post at
its facility in St. Louis, Missouri, copies of the attached
notice marked “Appendix A.”24 Copies of the notice, on
forms provided by the Regional Director for Region 14,
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
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current and former employees employed by the
Respondent at the facility at any time since May 17,
1998.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBERS LIEBMAN and WALSH, dissenting.
Today, the majority overrules Board precedent and
holds that an employer that disciplines employees based
solely on information obtained in violation of Section
8(a)(5) need not make those employees whole. The ma-
jority reaches that conclusion by: (1) relying on a reading
of Section 10(c) that a reviewing court has rejected as a
matter of law, (2) advancing policy arguments at odds
with the Act, and (3) relying on a line of cases that has
no appropriate application here. We dissent. The em-
ployees here, whom the Respondent disciplined based
solely on its unquestionably unlawful use of hidden sur-
veillance cameras, are entitled to make-whole relief.
I. FACTS AND PRIOR PROCEEDINGS
The Union represents about 500 employees at the Re-
spondent’s brewery in St. Louis, Missouri. In spring
1998, during an inspection of the facility, the Respondent

24 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 Na-
tional Labor Relations Board” shall read “Posted pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ANHEUSER-BUSCH, INC. 651
found foam pads, pieces of cardboard, and a table and
chairs in the elevator motor room on the roof of one of
the buildings. None of those objects belonged there,
although the Respondent was aware that employees used
the roof for breaks, to escape the extreme heat of the
work area.
The Respondent had no idea who had placed the items
in the room, but it suspected that the room was being
used for impermissible purposes, possibly including use
of drugs. It decided to install a hidden video surveillance
camera on the roof. The Respondent did not notify the
Union of the inspection, the discovery of the items, the
suspicion of drug use, or the decision to install and use
the camera, which it began using in mid-May.
After a few weeks, the Respondent reviewed the video
footage and determined that unauthorized individuals
were entering the motor room. It then decided to install a
second videocamera in the room itself. The Respondent
operated both cameras continuously through June 30.
On July 1, after it had removed the cameras, the Re-
spondent notified the Union for the first time that it had
installed and used them. The Respondent also informed
the Union that it had reviewed the videotape and ob-
served a number of employees engaging in misconduct.
Solely on the basis of information it obtained from re-
viewing the surveillance tapes, the Respondent sepa-
rately interviewed 18 employees. Prior to the interviews,
the Union advised all of them that they had been ob-
served on tape and should be truthful when interviewed.
In each interview, the Respondent confronted the em-
ployee with videotape evidence against him. Ultimately,
the Respondent disciplined 16 employees: 5 were dis-
charged, 4 were suspended, and 7 were both suspended
and given last-chance agreements. It is undisputed that
the Respondent would not have disciplined those em-
ployees without the evidence from the cameras.
The Board held that the Respondent’s installation and
use of hidden surveillance cameras was a mandatory sub-
ject of bargaining, and that the Respondent therefore
violated Section 8(a)(5) and (1) by failing to give the
Union notice and an opportunity to bargain prior to their
installation. See Anheuser-Busch, Inc., 342 NLRB 560,
561 (2004). But, although the employees had been dis-
ciplined based on misconduct discovered solely through
the use of the unlawfully installed cameras, the Board, by
a vote of 2 to 1, declined to issue a standard order re-
scinding the discipline and restoring the status quo.
Rather, the majority ordered the Respondent only to
cease and desist from refusing to bargain and, affirma-
tively, to bargain with the Union regarding the cameras
and other mandatory subjects of bargaining. Id. at 562.
The majority held that a make-whole remedy (here, re-
scission of the discipline) was barred by the express lan-
guage of Section 10(c) of the Act.1 The majority also
relied on Taracorp, 273 NLRB 221 (1984), which denied
make-whole relief for discipline following a Weingarten
violation,2 and distinguished Tocco, Inc., 323 NLRB 480
(1997), and Great Western Produce, 299 NLRB 1004
(1990)), cases in which the Board granted make-whole
relief where the employer based discipline upon informa-
tion obtained as a result of an unlawful unilateral change.
The Union sought review of the Board’s order in the
United States Court of Appeals for the District of Co-
lumbia Circuit. The Board cross-applied for enforcement
of its order against the Respondent. The court affirmed
the Board’s finding of an 8(a)(5) violation, but it re-
manded to the Board the issue of make-whole relief.
Brewers and Maltster, Local 6 v. NLRB, 414 F.3d 36
(D.C. Cir. 2005). The court rejected the Board’s deter-
mination that Section 10(c), by its terms, bars make-
whole relief in these circumstances:
Section 10(c) does not expressly address whether the
Board shall or shall not deny make-whole relief where
an employer would not have discovered its employees’
misconduct but for its own unlawful action. As the
Seventh Circuit has observed, “[Section] 10(c)] does
not prevent the Board from insisting that the employer
[prove ‘cause’] without using the ‘fruit’ of the violation
. . . . Section 10(c) does not speak to burdens of per-
suasion, fruits of violations, exclusionary rules, and the
other paraphernalia of trials and inferences.”
Id. at 47 (quoting Communications Workers v. NLRB, 784
F.2d 847, 851 (7th Cir. 1986)).
The court also rejected the Board majority’s attempts
to distinguish Tocco, supra, and Great Western Produce,
supra, 414 F.3d at 47–48, and the court reasoned that
Taracorp, supra, upon which the Board majority had
relied, was distinguishable. In Taracorp, the court ob-
served, the employer had knowledge of the employee
misconduct independent of and prior to the unlawful in-
terview. 414 F.3d at 48. Here, however, the Respondent
had no such knowledge independent of the unlawful use
of the hidden cameras.
On remand from the court, the current majority reaches
the same result. It again concludes that Section 10(c)

1 The majority relied on the portion of Sec. 10(c) stating as follows:
No order of the Board shall require the reinstatement of any individual
as an employee who has been suspended or discharged, or the pay-
ment to him of any backpay, if such individual was suspended or dis-
charged for cause.
Sec. 10(c), including this language, is discussed in detail in secs. II
and III of this opinion.
2 See NLRB v. J. Weingarten, 420 U.S. 251 (1975).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD652
bars a make-whole remedy and, in addition, it now over-
rules Tocco and Great Western. In so doing, it ignores
both the plain language of the D.C. Circuit’s opinion and
the applicable policies of the Act.
II.
First, it is clear that, prior to this decision, the Board
granted make-whole relief when an unlawful unilateral
change directly resulted in discipline, and that it did so
consistent with the Act. Section 10(c), of which the “for
cause” language cited by the majority is only a small
part, grants the Board authority to devise remedies—
including reinstatement and backpay—to “effectuate the
policies of this Act . . . .” It is well settled that the
Board’s authority under Section 10(c) is broad and dis-
cretionary. See NLRB v. Seven-Up Bottling Co., 344
U.S. 344, 346 (1953). In exercising its authority, the
Board is guided by the principle that remedial orders
should “restor[e] the situation, as nearly as possible, to
that which would have obtained but for [the unfair labor
practice].” Die Supply Corp., 160 NLRB 1326, 1344
(1966) (quoting Royal Plating and Polishing Co., 148
NLRB 545, 548–549 (1964), supplemented 152 NLRB
619 (1965)); accord: Planned Bldg. Services, 347 NLRB
670, 674 (2006); Phelps Dodge Corp. v. NLRB, 313 U.S.
177 (1941). “Effective redress for a statutory wrong
should both compensate the party wronged and withhold
from the wrongdoer the ‘fruits of its violations.’” Inter-
national Union of Electrical Radio and Machine Work-
ers v. NLRB, 426 F.2d 1243, 1249 (D.C. Cir. 1970), cert.
denied 400 U.S. 950 (1970).
Consistent with the foregoing principles, when an em-
ployer violates Section 8(a)(5) and (1) by unilaterally
changing terms and conditions of employment, the Board
restores the status quo ante. See, e.g., Detroit News, Inc.,
319 NLRB 262 fn. 1 (1995) (“it is customary to order
restoration of the status quo to the extent feasible”);
Martin Marietta Energy Systems, 316 NLRB 868 fn. 5
(1995) (Board’s “traditional remedial requirements” in-
clude making employees whole for losses resulting from
respondent’s unlawful unilateral changes). Employees
who have been discharged or disciplined as a direct re-
sult of an unlawful unilateral change are entitled to have
the discipline rescinded and to be reinstated and made
whole.3
Until the present case, the Board has never drawn a
distinction between employees disciplined as a result of a
unilateral change and those disciplined as a result of a
unilateral change in “detection methods.” Rather, as the
court stated, the Board has ordered employees made

3 See, e.g., Delta Tube & Fabricating Corp., 323 NLRB 856, 863
(1997); Storer Communications, 297 NLRB 296, 299 (1989).
whole in both types of cases. In Great Western, supra,
for example, the employer violated Section 8(a)(5) by
unilaterally implementing certain work rules, including a
recordkeeping system that tracked employee infractions.
The Board ordered discharged employees reinstated and
made whole because the new recordkeeping system was
the source of management’s knowledge of their rule in-
fractions. Id. at 1006, 1007. The Board observed that
the employer did “not assert any basis [for the termina-
tion] independent of the unlawfully imposed employee
warning reports.” Id. at 1007 fn. 13. The Board, how-
ever, also stated that “a respondent employer may avoid
having to reinstate and pay backpay to an employee dis-
charged pursuant to an unlawfully instituted rule or pol-
icy if the employer demonstrates that it would have dis-
charged the employee even absent that rule or policy.”
Id. at 1006. Applying that principle, the Board declined
to order reinstatement and backpay for one employee
whose misconduct the employer knew of independent of
the unlawful recordkeeping system. Id. at 1007.
In Tocco, Inc., the employer had previously main-
tained a drug policy that allowed it to test employees for
“cause.” 323 NLRB at 484. But in violation of Section
8(a)(5), the employer unilaterally changed its definition
of “cause,” from evidence of drug possession or use by a
specific employee to a concern that the plant’s overall
safety, efficiency, and production were declining. Ap-
plying that new definition, the employer tested employ-
ees it previously would not have tested, and then dis-
charged three employees who tested positive. The Board
ordered the employer to rescind the unilaterally imple-
mented policy, restore the old policy, and reinstate the
discharged employees and make them whole. See id. at
481 fn. 1.
In sum, Board precedent, consistent with the Board’s
remedial authority, plainly supports a make-whole rem-
edy for the 16 employees in the present case, whose con-
duct was discovered only through the unlawful use of the
surveillance cameras.
III.
Having previously tried unsuccessfully to distinguish
Great Western and Tocco, the majority now overrules
them as inconsistent with Section 10(c). The majority’s
conclusion that 10(c) bars a make-whole remedy is both
flatly contrary to the law of the case and wrong on the
merits.
A.
Judicial review of the Board’s construction of the Act
is governed by Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842–843 (1984),
which states:
ANHEUSER-BUSCH, INC. 653
When a court reviews an agency’s construction of the
statute which it administers, it is confronted with two
questions. First, always, is the question whether Con-
gress has directly spoken to the precise question at is-
sue. If the intent of Congress is clear, that is the end of
the matter . . . . If, however, the court determines Con-
gress has not directly addressed the precise question at
issue, the court does not simply impose its own con-
struction on the statute . . . Rather, if the statute is silent
or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is
based on a permissible construction of the statute.
The “precise question at issue” here is whether a
make-whole remedy is appropriate for employees who
are disciplined or discharged for misconduct discovered
solely through an unlawful unilateral change. The
court’s answer to the first question under Chevron—
whether Congress has “directly spoken” to the issue
here—was a resounding no. The court stated that Sec-
tion 10(c) “does not expressly address” that issue. 414
F.3d at 47. The court emphasized that Section 10(c)
“does not speak to burdens of persuasion, fruits of viola-
tions, [or] exclusionary rules,” and “does not prevent the
Board from insisting that the employer [prove ‘cause’]
without using the ‘fruit’ of the violation.” 414 F.3d at 47
(quoting Communication Workers, supra at 851) (empha-
sis supplied). Thus, the law of the case is that Section
10(c) does not resolve the issue here.
Under the second step of Chevron, the Board is free to
set forth a “permissible construction” of the Act that re-
solves the issue in a manner consistent with the Act’s
policies. Accordingly, the court in the present case
stated that the Board may “fill interstices [in the Act]
with a reasoned approach” and may “determine, based on
policies consistent with the Act,” whether a make-whole
remedy is appropriate here. See 414 F.3d at 47, 48.
What the majority has done instead, however, is to take
the remand as an opportunity to reiterate, albeit in greater
detail, the very position the court rejected: that Section
10(c) precludes a make-whole remedy. The majority’s
10(c) analysis is therefore contrary to the law of the case.
B.
Even if the court had not already rejected the argument
that Section 10(c) bars a make-whole remedy, the major-
ity’s 10(c) argument would not withstand scrutiny. The
majority contends that the legislative history of Section
10(c) shows an intent to insure that employees who en-
gaged in misconduct would be subject to discipline for it.
That is true, insofar as it involves 8(a)(1) and (3) cases
in which the Board must determine whether an employee
was disciplined because of Section 7 activity. But the
legislative history gives no indication that it was intended
to preclude make-whole relief in the circumstances pre-
sent here, where the discipline was the direct result of a
8(a)(5) violation without which the employer would have
had no grounds for discipline.
The “for cause” language in Section 10(c) was added
to the Act as part of the 1947 Taft-Hartley amendments.
The Supreme Court has explained the purpose of the
language as follows:
The amendment was sparked by a concern over
the Board’s perceived practice of inferring from the
fact that someone was active in a union that he was
fired because of anti-union animus even though the
worker had been guilty of gross misconduct.
. . . “In the past, the Board, admitting that an em-
ployee was guilty of gross misconduct, nevertheless
frequently reinstated him, ‘inferring’ that, because
he was a member or an official of a union, this, not
his misconduct, was the reason for his discharge.”
H.R.Rep. No. 245, 80th Cong., 1st Sess., at 42
(April 11, 1947) (emphasis added).
The proviso was thus a reaction to the Board’s
readiness to infer anti-union animus from the fact
that the discharged person was active in the union,
and thus has little to do with the situation in which
the Board has soundly concluded that the employer
had an anti-union animus and that such feelings
played a role in a worker’s discharge.
NLRB v. Transportation Management Corp., 462 U.S. 393,
403 fn. 6 (1983). The legislative history also reflects a con-
cern that the Act not be interpreted to immunize strike mis-
conduct or other concerted activity that exceeds the bounds
of Section 7. See, e.g., H.R. Conf. Rep. No. 510 on H.R.
3020, 80th Cong., 1st Sess., reprinted in 1 Legislative His-
tory of the Labor-Management Relations Act, 1947, at 542–
544. In short, the “for cause” language was intended to
clarify that employees are not immunized from discharge
simply because they support a union or engage in concerted
activity.4
Here, those concerns do not apply. The Respondent’s
unfair labor practice does not stem from antiunion ani-
mus, nor does it involve Section 7 activity. Rather, the
violation was a unilateral change in working conditions
that led directly to discipline and discharge. There is no

4 The absence of any legislative history concerning unilateral
changes in “detection methods” is therefore understandable. Rather
than showing that 10(c) precludes relief in such cases, the silence sup-
ports the opposite conclusion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD654
indication that the “for cause” proviso was intended to
bar relief under those circumstances.5
C.
Absent any legislative history indicating that the “for
cause” language was intended to apply here, the majority
is left only with the Board’s application of Section 10(c)
in 8(a)(1) Weingarten cases such as Taracorp Industries,
273 NLRB 221 (1984). As the D.C. Circuit held in this
proceeding,6 however, Taracorp is distinguishable: it
represents a narrow exception, inapplicable here, to the
Board’s standard make-whole remedial policy.7
In Taracorp, the employer learned of an employee’s
misconduct and summoned the employee for an inter-
view. The employee requested, and was refused, union
representation during the interview. After the interview,
the employee was discharged for the misconduct. The
Board held that the employer violated Section 8(a)(1) by
denying the employee’s request for union representation.
The Board, however, found that a make-whole remedy
“in the context of a Weingarten violation” was contrary
to Section 10(c). 273 NLRB at 221. The Board rea-
soned that in Weingarten cases, there is “not a sufficient
nexus between the unfair labor practice committed (de-
nial of representation at an investigatory interview) and
the reason for the discharge (perceived misconduct) to
justify a make-whole remedy.” Id. at 223.

5 See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203
(1964) (“There is no indication . . . that [10(c)] was designed to curtail
the Board’s power in fashioning remedies when the loss of employment
stems directly from an unfair labor practice . . . .”).
Citing Taracorp, the majority defines “cause” as “the absence of a
prohibited reason.” But that begs the question of when a reason that is
valid in the abstract—such as misconduct—becomes “prohibited.” The
mere existence of “cause” is not enough; the discipline must also be
“for” cause. Communication Workers Local 5008 v. NLRB, 784 F.2d
847, 851 (7th Cir. 1986). “Few subjects are as debated and difficult as
determining what things ‘cause’ what other things.” Id. at 851. That
determination requires the Board to examine the role the employer’s
unfair labor practice played in the discipline. As discussed in Sec.
III,C, below, that role may have been insufficient to warrant make-
whole relief in Taracorp, but it is not insufficient here.
Nor has it been deemed insufficient in other contexts in which the
employee’s conduct, viewed in a vacuum, would constitute “cause,” but
in which make-whole relief is appropriate under Sec. 10(c). For exam-
ple, in 8(a)(5) cases where an employer unilaterally changes a substan-
tive rule of conduct and disciplines the employee for violating the rule,
the Board will make affected employees whole. See, e.g., Consec
Security, 328 NLRB 1201 (1999). In 8(a)(3) cases, the Board will
make employees whole if they are disciplined for misconduct discov-
ered during an investigation that was unlawfully motivated. Kidde,
Inc., 294 NLRB 840, 840 fn. 3 (1989). The Board also orders employ-
ees made whole where an employer’s unfair labor practice provokes the
employee into engaging in misconduct. Kolkka Tables & Finnish-
American Saunas, 335 NLRB 844, 849–850, 851 (2001).
6 See 414 F.3d at 48.
7 We need not pass on whether Taracorp was correctly decided. As-
suming that it was, it still does not bar make-whole relief here.
In the present case, the majority finds that the reason
for the discipline, as in Taracorp, was misconduct, and
that Section 10(c) therefore bars a make-whole remedy.
The majority’s application of Taracorp is erroneous for
three reasons.
First, the Board’s language in Taracorp is specific to
Weingarten cases, and the decision gives no indication
that the Board intended its holding to apply outside that
context—nor has the Board ever done so.
Second, in cases since Taracorp, the Board has ad-
dressed the precise issue presented here: whether make-
whole relief is appropriate when an employee is disci-
plined for misconduct discovered solely through an
unlawful unilateral change. See Tocco and Great West-
ern, supra. Unlike the majority, we would not overrule
those cases in favor of applying a rule developed for a
different type of violation under a different section of the
Act.
Third, even assuming that a Taracorp analysis would
otherwise be appropriate, here there is a stronger nexus
between the unlawful unilateral change and the discipline
imposed on the employees. In Taracorp, as in the typical
Weingarten case, the employer had knowledge or suspi-
cion of the employee’s wrongdoing before conducting
the disciplinary interview at which the Weingarten viola-
tion occurred. Although the majority asserts that the
Taracorp cases do not rely on that distinction, the Board
in Taracorp did, in fact, focus on whether there was a
“sufficient nexus” between the unfair labor practice and
the reason for the discharge. 273 NLRB at 223. Logi-
cally, in cases like the present one, and unlike Taracorp,
the absence of any source of knowledge or suspicion of
the misconduct aside from the unfair labor practice itself
establishes such a nexus. For here, absent the unlawful
installation and use of the cameras, the Respondent had
no reason to focus its inquiry on those 16 employees, let
alone to discipline them. The nexus is reinforced by the
fact that the Respondent confronted the employees with
the videotaped evidence during their interviews. In the
Weingarten cases, in contrast, it cannot be said that the
employer learned of the misconduct solely through the
unlawful conduct.8 In short, Taracorp is distinguishable,
and the majority’s expansion of it is unjustified.

8 Indeed, in affirming a denial of make-whole relief in a Weingarten
case, one court found the existence of independent evidence of miscon-
duct critical to the 10(c) analysis. See General Motors Corp. v. NLRB,
674 F.2d 576 (6th Cir. 1982) (finding that Sec. 10(c) barred a make-
whole remedy “because there exists evidence, completely independent
of [the employer’s] technical violation, upon which [the employee’s]
discharge may be grounded).
The majority contends that in two of the Weingarten cases, the em-
ployer did not have sufficient evidence to discharge the employee prior
to the interview. See Illinois Bell Telephone, 275 NLRB 148 (1985),
ANHEUSER-BUSCH, INC. 655
IV.
Finally, the majority decision is contrary to the Act’s
policies. Restoring the status quo—which would be ac-
complished here by reinstatement and backpay—is the
Board’s standard remedy for an 8(a)(5) unilateral change.
See section II, supra. Discipline imposed pursuant to an
unlawful unilateral change is doubly destructive: it dam-
ages both the affected employees and the union’s status
as bargaining representative. The union’s status “is fur-
ther damaged with each application of the unlawfully
changed term or condition of employment. No otherwise
valid reason asserted to justify discharging the employee
can repair the damage suffered by the bargaining repre-
sentative. . . .” Great Western, supra at 1005. Here, it is
unlikely that the Union’s status will be repaired in the
eyes of the unit employees unless the affected employees
are made whole for losses resulting from the Respon-
dent’s unlawful conduct. In practical terms, the employ-
ees will see that their employer has engaged in spying on
their activities that violated the National Labor Relations
Act, but that their bargaining representative was incapa-
ble of either preventing it or effectively remedying the
harm that flowed from it. By overruling Tocco and
Great Western, the majority ensures that in this and fu-

enfd. 784 F.2d 847 (7th Cir. 1986); Montgomery Ward, 273 NLRB
1226 (1984), enfd. mem. 785 F.2d 316 (9th Cir. 1986). In Montgomery
Ward, it is not clear what evidence the employer had before interview-
ing the employee. The employer, however, apparently already sus-
pected the employee, because the interview involved “repeated accusa-
tions of [the employee] having stolen things.” 273 NLRB at 1228. It is
true that in Illinois Bell, the judge found no “probative, credible, inde-
pendent” evidence of the misconduct outside of the unlawful interview.
275 NLRB at 148. However, the employer already “suspected” the
particular employee (see 784 F.2d at 848), which is presumably why
the employer chose to interview her in the first place. The same would
be true in the typical Weingarten case. Regardless of whether the em-
ployer has enough evidence to impose discipline before the interview,
the employer will have some basis to believe that the particular em-
ployee engaged in misconduct. Indeed, Weingarten does not even
apply unless the employee would have a reasonable belief that the
interview might result in discipline. See 420 U.S. at 257. This basic
distinction between Weingarten and the present case further demon-
strates why the Weingarten cases should not be applied wholesale here.
Furthermore, although the court in Illinois Bell affirmed a denial of
make-whole relief under Taracorp, the court expressed “misgivings
about the construction of Section 10(c) in Taracorp.” Communication
Workers Local 5008 v. NLRB, 784 F.2d 847, 849 (7th Cir. 1986). The
court stated: “We are not so sure as the Board that the proviso to Sec-
tion 10(c) precludes reinstatement.” Id. at 850. The court found that
there was a “strong argument that the Board has discretion to . . . apply
an exclusionary rule. . . .” Id. at 851. The court declined to hold that
Sec. 10(c) barred relief, and instead affirmed the Board’s remedy by
finding that the Board had discretion to deny make-whole relief in
Weingarten cases, based in part on policy considerations specific to
Weingarten cases. Id. at 851–852.
ture cases, the Board will not fully eliminate the effects
of the type of 8(a)(5) violation involved here.9
Furthermore, by prohibiting a make-whole remedy, the
majority decision allows the Respondent to retain the
benefits of its unlawful action, while at the same time
removing the most effective deterrent to future unilateral
changes. “If a party who unlawfully refuses to bargain is
permitted to retain the fruits of unlawful action, the Act
is rendered meaningless, and defiance of the board’s or-
ders is encouraged.” NLRB v. Warehousemen’s Local
17, 451 F.2d 1240, 1243 (9th Cir. 1971), enfg. 182
NLRB 781 (1970); accord: Southwest Forest Industries
v. NLRB, 841 F.2d 270, 275 (9th Cir. 1988), enfg. 278
NLRB 228 (1986).
Finally, we do not condone the employees’ conduct
here, and we are mindful of the principle that Board
remedies should not grant the employees a “windfall.”
But there is no windfall under the Tocco and Great West-
ern approach. An employee will not be made whole if
the evidence shows that he would have been disciplined
even absent the unlawful unilateral change. See Great
Western, supra at 1007. Thus, in cases like Great West-
ern and this one, a make-whole remedy would not leave
employees any better off than they would have been ab-
sent the employer’s violation.10
V.
Here, without the unlawful camera use, the Respon-
dent would not have known of the employees’ conduct
and they would not have been disciplined. A make-
whole remedy is therefore appropriate and consistent
with Board precedent. Contrary to the majority, we
would not revisit a 10(c) analysis that was rejected by the
court, nor would we overrule applicable 8(a)(5) prece-
dent in favor of the approach in 8(a)(1) Weingarten cases
that have no appropriate application here. Accordingly,
we dissent from the majority’s change in the law and
from its decision to deny make-whole relief to the 16
employees who were disciplined as a direct result of the
Respondent’s unlawful conduct.

9 The majority’s claim that “[r]easonable employees would not be
surprised if coworkers were discharged” for committing offenses
misses the point. The question before us is whether a cease-and-desist
order is sufficient to remedy the consequences of the Respondent’s
unlawful spying activity. And that question, in turn, requires us to
consider the employees’ entitlement to effective representation from
their bargaining representative. It is highly unlikely that the employees
here will be comforted or feel vindicated by an order that does no more
than direct their employer to behave, the next time.
10 For the foregoing reasons, we disagree with the majority’s alterna-
tive rationale that, even independent of Sec. 10(c), policy considera-
tions weigh against a make-whole remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD656
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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVE 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
activities.
WE WILL NOT refuse to bargain collectively with Brew-
ers and Maltsters, Local Union No. 6, affiliated with the
International Brotherhood of Teamsters over the installa-
tion and use of hidden surveillance cameras within our
facility and other mandatory subjects of bargaining.
WE WILL NOT refuse to respond in a timely fashion to
requests for information respecting matters relevant to
unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with the Un-
ion as the exclusive bargaining representative of our em-
ployees with respect to the installation and use of hidden
surveillance cameras within our facility and other manda-
tory subjects of bargaining.
WE WILL, on request, bargain collectively with the Un-
ion as the exclusive representative of our employees by
timely providing the Union with information relevant to
unit employees.
ANHEUSER-BUSCH, INC.