NLRB Advice Memoranda, Hershey Chocolate Co. of Virginia, National Labor Relations Board, (Apr 21, 2023)

Please use the email below instead of the earlier version, which inadvertently described the Employer's cameras as capturing “audio only” (instead of video only). Thank you!

The Region submitted these cases for advice as to whether the Employer's electronic-surveillance practices violated Section 8(a)(1) of the Act pursuant to GC Memorandum 23-02, Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights. We conclude that the evidence is insufficient to find that the Employer used its camera systems to engage in surveillance or create the impression of surveillance of employees' protected activities in violation of Section 8(a)(1).

Background and Facts

These cases involve a series of allegations occurring during an organizing drive at a large manufacturing facility in Stuarts Draft, Virginia. The Region found merit to a Section 8(a)(3) allegation involving the suspension and discharge of Employee A, a known Union supporter, as well as to a significant number of 8(a)(1) allegations (including two impression of surveillance allegations directed at Employee A). A related representation case proceeded to an election, at which the petitioning Union lost by a significant margin. The petitioning Union filed a request to block the processing of the representation petition based on the instant ULP charges; thus, the Region has not issued a Certification of Results.

The allegations concerning the suspension and discharge of Employee A implicate GC 23-02, because, after having observed Employee A's late return from a scheduled break on ​     ​, 2022, and during an ensuing investigation into this unauthorized extended break, the Employer reviewed footage from its video camera system and obtained additional information supporting its asserted basis for discharging Employee A. Specifically, the Employer's review of the film indicated that, in addition to returning late from break, Employee A had also left for that break nine minutes early (and thus that ​     ​ break totaled 54 minutes versus the scheduled 30-minute break), that ​     ​ statements about the alleged infractions were not entirely accurate, and that ​     ​ had violated food safety rules when ​     ​ picked up a cup from the production line while not wearing gloves. In concluding that the Employer discriminatorily suspended and discharged Employee A, the Region noted the Employer's pattern of coercive treatment toward Employee A and animus against ​     ​ Union activities, and that although Employee A had an extensive disciplinary record and violated the Employer's break period and “Good Manufacturing Practice” policies on ​     ​ the Employer did not meet its Wright Line burden of showing that it would have disciplined and/or terminated ​     ​ for that conduct absent ​     ​ protected activities.

In its most recent position statement, the Employer explains that since approximately 1991, it has maintained security cameras on the exterior of its Stuarts Draft facility and inside the facility near entryways. Later, in the wake of the events of September 11, 2001, and passage of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, the Employer installed cameras (“food defense cameras”) in interior food production and storage areas. After the passage of the Food Safety Modernization Act (FSMA) in 2011, the Employer implemented a Company-wide food defense initiative, which included the installation of additional cameras in its manufacturing facilities. In 2018, in response to the FDA's 2017 issuance of the FSMA Intentional Adulteration Rule, the Employer implemented a Company-wide Food Defense Policy through which it, among things, installed new food defense cameras and upgraded existing cameras. There are currently over 225 food defense cameras and 36 site security cameras at the Employer's Stuarts Draft facility. None of the cameras are hidden or otherwise covert.

The food defense cameras capture video but not audio; they are fixed and do not pan or tilt. These cameras are maintained in working areas (food production and storage areas) throughout the facility, but not in break rooms, restrooms, locker rooms, or other areas where employees are known to congregate (such vending machines/eating areas). There is no dedicated monitoring of the food defense camera system. Access is restricted to approximately 20 Employer representatives. The food defense cameras can be monitored in real time by those authorized individuals, though the Employer asserts this happens infrequently, if ever. Authorized individuals may request footage to perform a “root cause analysis” to, for example, assess when, where, or why a machine malfunctioned or when and why a food product may have been contaminated.

The site security cameras also capture video only, though they have the capacity to pan and tilt. They are maintained on the exterior of the facility (including the exterior shipping and docking areas) and inside the facility near entryways. According to the Employer, they are not maintained in areas such as the outdoor picnic area where employees are known to congregate. The site security cameras are monitored at all times by the Employer's third-party security services provider. Those security guards are posted at the main entrance to the plant and are responsible for monitoring the footage collected in real time by site security systems while performing other services, such as checking in guests. Company management may review site security camera footage on an ad hoc basis. For example, if there was a report of a car accident in the parking lot near one of the cameras, the Employer would ask the security vendor to pull the footage for its review as part of its investigation.

Analysis

GC 23-02 directs Regions to assess whether an employer's surveillance and management practices would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act. The framework set forth in GC-23-02 provides for urging the Board to find that an employer presumptively violates Section 8(a)(1) where its surveillance and management practices, when viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act. Should an employer prove that its practices at issue are narrowly tailored to address a legitimate business need i.e., that its need cannot be met through means less damaging to employee rights, the General Counsel will urge the Board to balance the respective interests of the employer and employees to determine whether the Act permits the practices at issue. If the employer's business needs outweigh the employees' Section 7 rights, unless the employer demonstrates special circumstances that require covert use of the technology at issue, the General Counsel will urge the Board to require the employer to disclose to employees the technologies it is using to monitor and manage them, why it is doing so and how it is using the information obtained.

The Employer asserts that the vast majority of its security and food defense cameras constitute a food defense mitigation strategy designed to mitigate intentional food adulteration and minimize the impact of unintentional food contamination. Such practices are required under the FSMA and the FDA's Intentional Adulteration Rule, and the Employer's facilities are frequently inspected by the FDA and its state agency counterpart to ensure compliance.

The Employer explains that the food defense cameras aid investigations concerning where and when a food product may have been contaminated; help assess vulnerabilities and other possible concerns related to the food production process; and permit authorized users to perform root cause analyses and improve company processes and practices. According to the Employer, employees are aware of the location of the food defense cameras and, through the Employer's frequent trainings concerning food defense, that their purpose is for good manufacturing practices, food safety, and food defense.

The site security cameras, in addition to being part of the food defense mitigation strategy, are designed to ensure the safety of employees, visitors, and property coming and going from the facility; to prevent or deter theft; and to allow the Employer to undertake lawful investigations. The Employer asserts that these security cameras are clearly visible and that any reasonable employee would know they exist to ensure the safety of employees and property and to deter theft.

We conclude that, even assuming the food defense cameras would tend to interfere with or prevent a reasonable employee from engaging in Section 7 activity, the Employer's use of these cameras, which do not capture audio and are maintained only in working areas, is narrowly tailored to a substantial and legitimate business need. The food defense cameras are not maintained in break rooms, restrooms, locker rooms, or other areas where employees are known to congregate, such as near vending machines/eating areas. In these circumstances, the Employer's business needs of ensuring that its products are safe for public consumption would outweigh any infringement on employees' Section 7 rights. And the Employer has already disclosed this monitoring to employees, including the purpose of the monitoring and how it is using the information. As such, the Employer's use of the food defense camera technology meets the General Counsel's proposed standard. [1]

Similarly, the outside and entryway site security cameras capture only video, are clearly visible, and are not maintained in places such as the outdoor picnic area where employees typically congregate. Thus, the Employer's use of these security cameras is narrowly tailed to the Employer's business need, i.e., as part of its food defense plan and to secure the safety of employees, visitors, and its property. On balance, this business need would outweigh any interference with Section 7 rights. Although there is no evidence that the Employer has explained to employees the general security and safety purposes of these external and entryway security cameras, the Employer's use of this equipment for these purposes is consistent with the very common business use of this type of technology for protection of property. Moreover, the security cameras' additional purpose as a mitigation strategy in the Employer's food defense policy would presumably have been communicated to employees during food defense trainings. In these circumstances, we conclude that the Employer's business need for this technology would outweigh any interference with Section 7 rights and that its use of this technology meets the proposed standard.

Thus, while the Region is issuing complaint on somewhat related allegations, given that the Employer meets the General Counsel's proposed test, this would not be an ideal vehicle to urge the Board to adopt the approach in GC-23-02.

This email closes the case in Advice as of today. Please contact us with any questions or concerns. Thank you!

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