Sandulli Grace Partner Alan Shapiro is speaking at the Boston Bar Association’s Workshop for Public Sector Labor Relations Specialists on a panel entitled Show Me the Money: The Duty to Fund Public Sector Collective Bargaining Agreements. The conference takes place at Harvard Law School on May 6, 2006.

The Supreme Judicial Court has held that the government may, in certain
circumstances, spy on public employees, without telling them, even if
the surveillance includes employees dressing and undressing. In Nelson
v. Salem State College (Docket#: SJC-09519) (April 13, 2006), the
state’s highest court ruled that an administrative employee does not
have a reasonable expectation of privacy when she changed clothes after
hours in a remote area of an empty office and when she applied suntan
lotion to her upper chest and neck. The surveillance of the college and
its supervisors in this case did not violate the federal constitution or
state law.

In this case, Gail Nelson worked at a small business development center
of Salem State College in an office that shared space with two other
college programs. A total of nine (9) people worked in the office,
while upwards of 100 people visited for regular meetings. When office
supervisors suspected that former associates were entering the building
after hours without authorization, campus police approved the
installation of hidden cameras. The cameras operated 24 hours a day.

The Court ruled that Ms. Nelson did not have a reasonable expectation
privacy even when she engaged in private activities in areas remote and
not visible to visitors and when no one else was in the building. In
essence, the Court found that the plaintiff could have "no absolute
guarantee" that she was alone, pointing to such factors as:

• The office was open to the public throughout the day
• Visitors were not required to check in;
• Employees and numerous volunteers could access the office with their own keys;
• Furthermore, Many people, including nonemployees whom the plaintiff did not know, had access to the office.
• There was no footage of plaintiff being recorded

The Court’s ruling was highly "fact-specific," which means that it might
rule in favor of an employee under a different set of facts. In other
words, surveillance equipment in a office space, where access is highly
restricted, might produce a different analysis.

Even though the actions may not violate Constitutional law, unions may
have the ability to protect the privacy and dignity of employees. In
the private sector, the National Labor Relations Board has ruled that
surveillance, like drug-testing and other work performance issues, is a
mandatory subject of bargaining. Hidden cameras are focused primarily
on the "working environment" that employees experience on a daily basis
and are used to expose misconduct or violations of the law by employees
or others. The Board also found that bargaining about this issue did
not effect any core managerial concerns of the employer. Therefore,
unions can demand to bargain about decisions on whether to use recording
devices (hidden or not) at all, and, if so, where to use them and for
what purpose. Because unions have the right to demand bargaining on
this issue, it necessarily follows that they are entitled to receive
information about the existence and location of any recording devices in
their workplace. (there are certain restrictions that employers
lawfully may impose on this information). National Steel Corp. v. NLRB,
324 F.3d 928, 930 (7th Cir. 2003).

For unions representing Massachusetts public employees, the issue may be
more complex. To our knowledge, the Massachusetts Labor Relations
Commission has addressed the lawfulness of hidden cameras only once,
involving Duxbury School Committee in 1999. (The Commission regularly
prohibits public employers from monitoring union-related activities,
such as meetings). In Duxbury, the school installed a camera on the
timeclock to see if custodians were falsifying timesheets. The
Commission ruled that this installation, which occurred without
notifying or bargaining with the Union, did not violate the law.
"Because the use of the surveillance was limited to recording the
custodians’ departure times and was in response to a specific concern
about the accuracy of the existing method of timekeeping, we find that
the School Committee’s use of video surveillance in this case was merely
a more efficient and dependable means of enforcing existing work rules
and did not affect an underlying term."

While this case could be read to permit unlimited surveillance of public
employees without the union’s knowledge or consent, we would advocate a
narrow reading. First, the Commission, which usually takes guidance
from federal labor law, did not appear to be aware of the federal line
of cases on this issue. (The Commission quoted from an outdated federal
case on a similar issue). Even if the Commission were to reject the federal line, the Duxbury case does not deal with general surveillance of employees not connected to a specific problem.

Decision: NELSON_v._SALEM_STATE_COLLEGE_DECISION