Smile, You Are On The Employer's Camera

Introduction

In a recent setback for public sector workers' rights, the New Jersey Public Employment Relations Commission ("PERC") held that New Jersey Transit Bus Operations ("NJTBO") could unilaterally install security cameras on buses, and use footage for disciplinary purposes. Beyond the facts of the case, the decision based its conclusion upon a broad view of the employer's interest in providing safe and efficient public transportation.1 At first glance, the decision seems to elevate universally applicable and vague articulations of an agency's mission - safety and efficiency - above fundamental precepts of labor law, setting a dangerous example for other jurisdictions.

Nonetheless, for reasons explained in this article, a similar challenge to such blanket surveillance in New York, and potentially in New Jersey outside the NJTBO context, would likely be decided differently. Despite the seemingly broad justification underpinning New Jersey's decision, public sector unions in New York should not expect the New York Public Employment Relations Board ("PERB") to be persuaded by New Jersey's reasoning. Rather, PERB has held that blanket surveillance is typically a mandatory subject of bargaining. Moreover, even where the surveillance is sufficiently targeted and investigatory in nature as to be non-mandatory, PERB has held that the impact of such surveillance remains mandatorily negotiable.

Amalgamated Transit Union, Local 820 v. NJTBO

NJTBO is a public transportation corporation that serves as the nation's third largest provider of bus, rail and light transit.2 The Amalgamated Transit Union, Local 820 ("ATU") represents bus operators who work for NJTBO.3 In 2007, NJTBO unilaterally installed a surveillance system called DriveCam on their buses without negotiating with ATU.4 DriveCam is a camera and microphone system located on the front windshield that records video and audio footage of the bus driver and the passenger area, in addition to footage of the road in front of the bus.5 NJTBO's justification for installing DriveCam was to "provide passengers and operators protection and deterrence of crime through videotaping of incidents on buses."6 When NJTBO installed the program over ATU's objections, ATU filed a grievance against NJTBO, alleging that the use of DriveCam was a mandatorily negotiable subject of bargaining.7

In 2013, after ATU had filed for arbitration of its grievance, NJTBO applied to the Superior Court, Chancery Division for an order restraining arbitration. The Superior Court issued a preliminary injunction restraining arbitration and referred the matter to PERC. Because PERC has exclusive jurisdiction regarding the ATU's claim, the court permanently enjoined the arbitration. ATU then filed a scope of negotiations petition before PERC.

In addressing the issue, PERC was asked to reconcile two competing concepts: (i) enforcement of traditional notions of collective bargaining between NJTBO and ATU, and (ii) NJTBO's explicit statutory mission of providing efficient, effective and safe public transportation.8 Although the concept of balancing these sometimes-competing interests is familiar in scope of bargaining matters, PERC applies a specific and explicitly employer-friendly analysis when the matter pertains to NJTBO.

When issues arise that simultaneously impact the employment relationship and NJTBO's statutory mission in particular, PERC employs an approach initially adopted by the New Jersey Supreme Court:

[A]n issue that settles an aspect of the employment relationship is mandatorily negotiable unless negotiations over that issue would prevent NJT[BO] from fulfilling its statutory mission.9

Therefore, NJTBO's statutory mission seemingly takes precedence over traditional precepts of collective bargaining when the two...