Foley Hoag LLP partner Patrick Scully secured a victory for client Stern Produce in the case Stern Produce Co. Inc. v. National Labor Relations Board (NLRB). The ruling vacates an NLRB ruling that found Stern unlawfully disciplined one employee and created an impression of surveillance in two separate incidents.

The case concerned NLRB rulings on two incidents that occurred in 2021 involving Stern delivery truck drivers. The first occurred in July 2021 and involves driver Jose Ruiz, who covered the truck’s inward facing camera during a lunch break. Observing the live video at Stern’s headquarters in Arizona, a supervisor texted Ruiz and told him to uncover the camera, as covering the camera violated company rules. 

The second incident involved another driver, Uvaldo Ponce, and occurred at the company in August 2021. Ponce was disciplined with a written warning for a comment he made that was deemed derogatory to two other drivers.

Both Ruiz and Ponce have been involved in pro-union activities at Stern and the union filed unfair labor practice charges stemming from these two incidents. The NLRB issued a complaint and found Stern violated the National Labor Relations Act based on those charges, saying the text message about the covering of the camera and written warning for the verbal comment were driven by “anti-union animus.”

However, the D.C. Circuit rejected the NLRB’s findings – saying there was not enough evidence to support those findings. In fact, the circuit court called the Board’s approach “nonsense” because it treated the charges as if they were evidence, instead of relying on the facts of the two incidents. The D.C. Circuit vacated the NLRB’s decision and order.

The NLRB has been taking a closer look at employer monitoring and other safety/productivity measures as alleged “surveillance.” The D.C. Circuit clearly does not share the Agency’s expansive view and seems more inclined to acknowledge that such measures are standard in most industries.