Managements Rights to Video Record Employees - PDF

							IN THE MATTER OF AN ARBITRATION




BETWEEN:            TEAMSTERS LOCAL UNION 647
                                                  (the "Union II )

                                  - AND -

                    WILLIAM NEILSON DAIRY
                                                (the   II   Company II )




AND IN THE MATTER THE SURVEILLANCE CAMERAS GRIEVANCE




SOLE ARBITRATOR               Robert D. Howe



APPEARANCES

For the Union                 Denis W. Ellickson, Counsel
                              Marton Cerqua
                              Murray Bulloch

For the Compar,ty             Peter J. Thorup, Counsel
                              Kinnear Carrick




A hearing in the above matter was held in Ottawa, Ontario,
on December 11, 2008, and on January 13 and February 12, 2009.
                             A WAR D



           The Union policy grievance which gave rise to

these proceedings challenges the Company's installation of
additional surveillance cameras in its Ottawa plant.
           The Company employs approximately one hundred

bargaining unit employees at that location, plus about
twenty-five salaried employees who are not in the bargaining

unit.   In addition to its core refrigerated products operation
which produces fluid milk and other refrigerated products, the
plant has an aseptic bottle line which was installed in 2002
to produce non-refrigerated products.
           Nestle is the plant's most significant customer.

However, since the plant was acquired by Saputo in the fall of
2008, Neilson has ceased to be the owner of the plant and has
become its other major customer.    Neilson is owned by George
Weston Foods ("Weston ll ) , which also owns Loblaws Companies

Limited, to which a substantial portion of the plant's
products are supplied.

           The plant is generally in continuous operation from
Monday to Friday, with limited operation during parts of the
weekend.    It has a security guard on site during the weekend
periods when few or no other employees are present.     As a

result of heightened security concerns following 9/11, the
Company has taken a number of additional measures to protect
the security of the plant.    Additional barbed wire fencing has
been added at the back of the property and fencing on the east


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side of the property has been rehabilitated, but the front of
the property remains unfenced.     A swipe card system has been
added to external doors, and some additional internal doors
have been added to restrict internal access.     With the
exception of the door to the front lobby of the building,

all of the doors by which people enter are accessed by swipe
cards.   The rest of the external doors are emergency exits
which are alarmed.   All of the external doors are subject to
electronic monitoring, which indicates when they are opened
and for how long.    However, the evidence indicates that

employees sometimes leave external doors propped open.      The
external door to the front lobby is unlocked from 9:00 a.m. to
5:00 p.m., but people entering the front lobby cannot gain

access to the office or the plant without being I1buzzed in'l

through doors with electronic locks.

         Prior to the installation of the additional cameras
which gave rise to these proceedings, the plant had one
internal camera and nine external cameras.     Those ten cameras
are not challenged by the Union.     They were installed in

2003-2004, along with a digital video recorder which

records the images they produce.     The external cameras are
strategically located around the perimeter of the building to

monitor activity in the yard, which does not have a guardhouse
or any other single secure entry point.     If a person enters
the yard and moves toward a plant door, an external camera
will generally cover the person until he or she gets to about
five feet away from the door.     However, it will not show


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whether or not the person enters the door.
         The installation of the additional cameras
was overseen by Henry Schroder, who prior to the plant's
acquisition by Saputo had been its Technology Manager for five

years.   Mr. Schroder was the first witness called by the
Company in these proceedings.       He'testified that the external

and internal cameras provide two levels of protection.           The
external cameras monitor traffic in and out of the facilityls
yard, and help to secure the contents of trailers parked in
the yard.     The internal cameras monitor anyone who gets inside

the building and enable the Company to track their movement to
determine whether there is any cause for bio-security concerns
regarding ingredients or finished products.        Some of the
internal cameras also capture critical equipment, including

the filler (which has experienced hydrogen peroxide leaks and
some cooling water problems which gave rise to concerns about
possible sabotage but which ultimately turned out to be
mechanical in origin), equipment in the case washing room
(where the Company has experienced problems with operators
turning off hydraulic power to equipment and then calling for
maintenance), and stackers (on which someone had used a

permanent marker to cover one of the optic sensors, thereby
creating a "serious safety hazard).

            The cameras are activated by motion.    The images
which they produce are stored on digital video recorders
in the plant's secure computer room for about thirty to
thirty-seven days (depending on the amount of activity


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recorded)   f   after which they are automatically overwritten by
new images.      Those images can be viewed on a computer screen
located in the computer room, and on a computer terminal in
the office of Dan Gignac, the plant's Production Manager.
Images can also be downloaded onto DVDs if the Company wishes
to preserve them.       The Company accesses recorded images in
response to incidents.       This has led to the imposition of
discipline on at least one occasion.
            There is no legal or regulatory requirement that
there be surveillance cameras in the plant.       The primary

consideration which led to the decision to install the
additional cameras was a concern about security and, in
particular, bio-security.       Prior to their installation, a

trespasser gained access to the plant one evening from a dock

area and proceeded to the lunch room area, where a locked door
prevented him from getting any further.       Although there has
never been a breach of bio-security at the plant, Nestle
wanted bio-security to be enhanced at the facility, as did
Weston (as part of a program which included other weston
facilities, including the Neilson Dairy facility in

Georgetown, where a similar system has been installed without
objection from the different union representing employees at

that location).       A secondary consideration was management's

belief that installing additional cameras could help reduce or
eliminate some employee behavioural problems which have been
encountered, including safety concerns and wilful damage.          The
usefulness of an internal camera in respect of the latter


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concern was evidenced by an incident which occurred in June of
2007, in which the Company's initial internal camera recorded
an. employee intentionally damaging the time clock located near

the employee cafeteria.    (The Company has also experienced
problems with graffiti, but the installation of additional
internal cameras has little bearing on that problem, as it is
concentrated in washroom and change areas that are not subject
to camera surveillance.)   Prior to the installation of the
additional cameras, the Company also experienced problems with
employees using pallet carts as "bumper carsl! on the docks,
boosting pallet cart maintenance costs to over $100,000 a
year.   Those costs dropped significantly after the additional
cameras were installed.    Damage to other equipment has also
declined since the additional cameras were installed.    Since
their installation, the cameras have recorded some intruders
entering the building during the weekend and leaving without
doing any damage.
         The importance of bio-security to Nestle is evident
from its Food Safety Audit Report dated June 30, 2004
regarding the facility.    That report notes that" [sJince the
time of the last audit, significant improvement and investment

has been made in the area of Bio security", and includes the
following details:

   Visitors must sign in upon entry, and are issued
   stickers as badges. They must be accompanied while in
   the facility.  Exterior doors are accessed by means of
   swipe cards. The facility is having a security review,
   and the plan has been forwarded internally.  Phase one
   involves perimeter door access security, and is mostly
   complete.  Phase two involves fencing, property zoning,
   security camera installation - and is currently under

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   review and development.
Nestle also advised the Company that although they were
pleased to see the progress which had been made, they wanted
further improvements because they did not feel that the
facility was properly protected from outside penetration.
         The second witness called by the Company was Wendy
Semper, a Route Audit Clerk who has been employed by
the Company for over twenty years.    The duties and

responsibilities of her non-union staff position include
looking after the Company's computer and security systems,

including the internal cameras.     Ms. Semper and her supervisor

are the primary persons with access to the plant's computer
room.   However, Mr. Schroder, Mr. Gignac, and other members of
management are also given access to it when the need arises.
         Prior to testifying in these proceedings, Ms. Semper
(at the request of Company counsel) picked a process operator
(the first one who showed up on a camera) and, by watching the

internal cameras' output in real time, made a written record
of the periods of time in which the operator was visible on
any of the cameras during the operator's twelve-hour shift on

January 26, 2009.   Those times total about twenty-six minutes.

Since the operator in question spends about ninety to

ninety-five percent of his shift working in a control room
where there is no camera, he is only visible on camera when he
goes to other parts of the plant.
         The Union was provided with a similar opportunity.
Murray Bulloch, the Union's Chief Steward, made a written


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record of the periods of time in which a particular inside
track operator (selected by Mr. Bulloch) was visible on any of
the cameras during the first eight bours of that operator's
ten-hour shift on January 29, 2009.    Those periods of time
totalled about fifty-eight minutes.    Inside track operators'
duties include the operation of the palletizing machine.       They
fill the palletizer with empty skids and take full skids away.

They place items on the tracks in their appropriate places in
the cooler.    They also load products on trailers.   Two of
them work on the morning shift and two of them work on the
afternoon shift {on Mondays, Tuesdays, Thursdays, and Fridays,

which are the days of production for that part of the
operation} .
         Although the Union initially challenged the
deployment of all of the additional internal cameras, during

the course of these proceedings the Union withdrew its

objection to eleven of those cameras (numbers 2, 10, 18, 20,

22, 23, 26, 27, 28, 3D, and 32) on the condition that the

recorded images would be retained for only thirty days, and

that they would only be used as a tool to investigate reported

incidents of bio-security threats, reported incidents of

health and safety violations, and reported incidents of

culpable conduct, with no real-time monitoring of employees

and no monitoring of production, lateness, or attendance.
         Union counsel submitted that employees have a
fundamental right of privacy which must be balanced against

the Company's legitimate interest in having a safe and


                              7
productive operation.   Although he acknowledged that the
cameras do achieve some of the Company's stated purposes,
it was his contention that the Company went too far in the
circumstances of this case, and that the cameras challenged by
the Union impair the rights of the employees too significantly

to be considered reasonable.
        Company counsel submitted that the grievance should
be dismissed because there is no clause in the collective
agreement precluding the Company from using security cameras

inside the plant.    It was his contention that any arbitral

restriction on their use would involve the amendment of the
collective agreement and the creation of a non-negotiated
restriction on the exercise of managements rights.       However,

he acknowledged that arbitrators have entered into the
analysis of whether security cameras are overly intrusive.
Thus I his alternative position was that their installation
was a reasonable exercise of management rights in the
circumstances of this case, given the importance of
bio-security and the necessity of being pro-active in that
area in order to retain the plant's key customers.

        As noted by Arbitrator Armstrong in Re Lenwort:h Metal

Products Ltd. and U.S.W.A., Loe 3950 (1999)   I   84 L.A.C.   (4th)
77, there is a considerable and growing body of arbitral
jurisprudence dealing with the subject of electronic
survei~lance   in the workplace.   That award divides the
authorities into five main categories, the last of which
pertains to the matter which was in issue in those proceedings


                               8
and which is also in issue in these proceedings: "the right,
or otherwise of the employer to rely on its management rights
to operate the enterprise by installing surveillance equipment
on the plant premises".    Arbitrator Armstrong concluded (at
page 86) that he had jurisdiction to decide that issue on
three bases, the second of which is also applicable in the

instant case: "second, that the Employer cannot use its powers
under the management rights clause of the agreement to issue
directives, rules, orders or requirements which undermine or
negate the 'reasonable cause' provisions applicable to

employee discipline and discharge".
           A similar approach was adopted by Arbitrator Trachuk
in United Food and Commercial Workers International Union,
Local lOOA, and Janes Family Foods (Surveillance Grievance),
[2006] O.L.A.A. No. 611, in which she wrote, in part, as

follows:
   36   It should not be necessary to wait until an
   employee is disciplined to challenge the cameras.
   If there is going to be doubt about the admissibility
   of the recorded images and the parties have the
   opportunity to address that before the images are
   recorded they should do so. Furthermore, an employee
   in this workplace who objected to the surveillance or
   to her or his image being recorded, and refused to work
   under such a rule, would be subject to discipline.
   That discipline would be subject to just cause
   consideration. However the employee is also subject
                             I

   to the "obey now, grieve later"" rule and could be
   disciplined for insubordination.  It is therefore
   appropriate for the union to challenge the introduction
   of the cameras which are going to be recording images
   of some of the members of its bargaining unit without
   those employees having to be Bubjected to discipline
   in order to get the matter before an arbitrator. That
   is one of the purposes of a policy grievance. This
   principle has been affirmed by the Court of Appeal in
   Metropolitan Toronto (supra) and by the Divisional
   Court in Lenworth Metal Products Ltd. (supra).

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            I respectfully agree with that reasoning and find it
to be equally applicable to the circumstances of the present
case.   I   also respectfully agree with and adopt Arbitrator

Trachuk's articulation of the "balancing of interests"
approach which arbitrators have generally applied in deciding
cases of this nature:
   38   All of the arbitrators in the "privacy" decisions
   presented to me, including the surveillance camera
   decisions, apply a standard of reasonableness to
   the employer's action and use essentially the!same
   analysis.   The accepted approach with this, as with
   many other labour relations disputes, is to balance
   the employer's interest against the union's or the
   employee's.   In the case of surveillance cameras, the
   analysis weighs the problems the cameras are intended
   to address against the employee's interest in not being
   constantly surveilled, and, in this case, not having
   her or his image recorded.   When weighing the balance
   of interests, one needs to consider the seriousness
   of the problem the employer is addressing, the
   effectiveness of cameras in addressing that problem and
   the availability of other methods of addressing the
   problems.

(See also Re Unisource Canada Inc. and C.E.P., Loc. 433
(2003), 121 L.A.C.      (4th) 437 (Kelleher)i Re Calgary Herald and
G.C.I.U.,    Loc. 34M (2004), 126 L.A.C.        (4th) 386 (Tettensor)   i

Re Ontario (Liquor Control Board of Ontario) and O.L.B.B.U.
(Goneal yes)    (2 0 05) / 137 L.A. C.   (4th) 350 (Carrier); and Re

Leon's Mfg. Co. and R.W.D.S.U., Loc. 955 (2006), 153 L.A.C.
(4th) 155     (Pelton).)

            Having carefully weighed the competing interests in
the circumstances of the present case, I have concluded that
much of the internal video surveillance which the Company is
currently conducting is warranted by the Company's legitimate
interest in maintaining bio-security and in minimizing

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employee misconduct of the type described above.     Although
there has never been a breach of bio-security at the plant,
there have been intrusions by trespassers.     The surveillance
camera system enables the Company to track where intruders
have gone in the plant and to determine if additional steps
need to be taken to ensure that bio-security has not been

breached.     An employer need not await an actual bio-security,
breach before implementing a video surveillance system
designed to safeguard against such a breach going undetected
until after a tainted product has entered the marketplace and
caused harm to consumers.     Although fencing the balance of the
plant property's perimeter and adding a guardhouse might well
enhance the security of the property, it would not enable the

Company to track the activities of anyone who did gain access
to the plant by, for example, scaling the fence or otherwise
surreptitiously entering the property.     Moreover, neither it
nor any of the other options suggested by the Union, such as

adding more security guards, would address the Company's
legitimate interest in minimizing employee behavioural
problems of the type described above involving safety concerns

and wilful damage to Company equipment.     However, an order
requiring some modifications to the existing system is

warranted on the basis of the countervailing interest which
the employees represented by the Union have in not being
unduly surveilled and in not having their images recorded more
frequently or longer than necessary.

            The entire video surveillance system may remain


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deployed in its present configuration at all times when no
employees other than security personnel are present at the
plant.   However, it is hereby ordered that when members of the
bargaining unit are at work, the following modifications are
to be in place, failing which the unmodified cameras are
to be shut down for those periods of time:
(1) Camera 1 is either to be lowered or to have the upper
one-third of its area of coverage blocked off, so as not to
capture the outside track operator (who works in that portion
of the area of coverage for most of the shift).   The remaining
area of coverage will be sufficient to enable the Company to
track passage through the case receiving room (together with
the coverage provided by camera 2, which is not challenged by
the Union) .
(2) Camera 3 is to be repositioned or to have its area of
coverage modi.fied so as reduce as much as possible the amount
of time that any employee working that area (including the
employee operating the palletizer) is covered by the camera,
while maintaining the minimum amount of coverage necessary to
track movement through that part of the plant.

(3) Camera 15 is to be repositioned or to have its area of
coverage modified so as to reduce as much as possible the
amount of time that any employee working that area (including
material handlers and employees working in the area around
the bottle unscrambler) is covered by the camera, while
maintaining the minimum amount of coverage necessary to track
movement through that part of the plant.


                             12
(4) Camera 17 is to have its area of coverage modified so as

not to capture the water cooler, and so as to reduce as , much
                                                           \""
as possible the amount of time that any employee working that
                                                           1\
area (including the boxer operator) is covered by the camera,

while maintaining the minimum amount of coverage necessary to

track movement through that part of the plant.

(5) Camera 19 is to be repositioned or to have its area of

coverage modified so as not to capture the desks at which

employees work in the drivers' room, and so as to reduce as

much as possible the amount of time that any employee working

that area is covered by the camera, while maintaining the

minimum amount of coverage necessary to track movement through

that room.

(6) Camera 21 is to be repositioned or to have its area of

coverage modified so as to capture neither the computer screen

at the top of that area of coverage nor the work area on the

right side of that area of coverage.

(7) Camera 25 is to be repositioned downward or to have its

area of coverage modified so as not to capture the creamery

operator (who works in that part of the core production area

from most of the shift) .

(8) Camera 27, which has been deactivated by the Company,

is to remain deactivated.   The status quo is also to be

maintained in respect of camera 14, which has never been
installed.

        As part of the aforementioned balancing exercise,
it is also hereby ordered that images obtained from the


                             13
internal camera system only be used as a tool to investigate
bio-security threats or incidents, incidents of health and
safety violations, and incidents of culpable conduct, with no
real-time monitoring of employees for any other purposes, and
no use of those images for purposes of monitoring production,
lateness, or attendance.   It is further ordered that any
images recorded from internal cameras not be retained for more
than the aforementioned period of thirty to thirty-seven days
(after which they are automatically overwritten by new
images), except for the purpose of downloading (to DVDs)

images pertaining to bio-security threats or incidents,
incidents of health and safety violations, and incidents of
culpable conduct.   The downloaded images are only to be
retained for as long as they are reasonably required for
investigative purposes, regulatory purposes, or for purposes
of legal proceedings.
        The coverage provided by camera 4 is necessary to
deter the aforementioned dangerous misconduct of using a
permanent marker to cover 'the optic sensor on a stacker.

Camera 6 is necessary to track people coming to and from one
of the loading dock areas, which by reason of their function
and location are the least secure areas of the plant.

        The Union seeks to have camera 8 removed and camera 7
repositioned.   However, I am not persuaded that those changes
to the system are warranted.    Those cameras provide essential
coverage of one of the plant's loading dock areas.    They
also serve as an effective deterrent to the aforementioned


                               14
costly problem of employees using pallet carts as "bumper
cars" on the docks.
        I am also not persuaded that camera 11 should be
removed, as requested by the Union.   That camera captures
people coming from the back loading dock through the
by-products room to cold storage, and also captures people
going from battery storage to cold storage.   It provides
necessary tracking coverage, and does not unduly impinge upon

employee privacy interests as employees tend to be merely
passing through that room rather than spending substantial
periods of time in it.   Similar reasoning is applicable to
camera 5, which captures people travelling through part of the
cold room where finished product is stored, and to camera 12,
as employees are only in that battery charging area for brief
periods of time once or twice a shift to change batteries.
        Although camera 13 will pick up some employees
driving pallet trucks in the dry storage area, it is necessary
for the Company to be able to track persons who enter this
area through the loading doors at the end of the passageway or
through the doorway located around the corner to the right of
the camera.

        The Union's concern that images from cameras 24 and
29 might be used to monitor the length of breaks or lunch
periods is duly addressed by the order that images obtained
from the internal camera system not be used for purposes of
monitoring production, lateness, or attendance.   No other
direction is warranted in respect of those two cameras, which


                             15
are necessary to achieve the Company's legitimate tracking

objective.   The same is true of camera 31, which is necessary

to track movement through the LFA room and, in conjunction

with camera 16, to safeguard that critical and very expensive
piece of equipment.

        For the foregoing reasons, the grievance is allowed

to the extent indicated above.       I shall remain seised for the

purpose of resolving any issues which may arise regarding the

implementation of this award.



DATED at Burlington, Ontario, this lOth day of March, 2009.




                                            Robert D. Howe
                                            Sole Arbitrator




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