Employer's Destruction of Requested Video Surveillance Should Preclude Nonexistence Defense in Failure to Provide Information Case: NLRB Division of Advice | Practical Law

Employer's Destruction of Requested Video Surveillance Should Preclude Nonexistence Defense in Failure to Provide Information Case: NLRB Division of Advice | Practical Law

In Greektown Casino, LLC, the Division of Advice of the National Labor Relations Board's (NLRB) Office of the General Counsel released an advice memorandum dated December 20, 2019 concluding that an unfair labor practice (ULP) complaint should issue against the employer for failing to provide video surveillance requested by the union.

Employer's Destruction of Requested Video Surveillance Should Preclude Nonexistence Defense in Failure to Provide Information Case: NLRB Division of Advice

by Practical Law Labor & Employment
Published on 21 Jan 2020USA (National/Federal)
In Greektown Casino, LLC, the Division of Advice of the National Labor Relations Board's (NLRB) Office of the General Counsel released an advice memorandum dated December 20, 2019 concluding that an unfair labor practice (ULP) complaint should issue against the employer for failing to provide video surveillance requested by the union.
On January 15, 2020, in Greektown Casino, LLC, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released an advice memorandum dated December 20, 2019 concluding that an unfair labor practice (ULP) complaint should issue against the employer for failing to provide video surveillance that:
  • The union requested to enforce the collective bargaining agreement's (CBA) antidiscrimination clause.
  • The employer asserted it could not produce because it had been over-written.
Advice instructed the applicable NLRB regional office to urge the panel (Board) heading the NLRB's judicial functions to:
  • Follow common law principles and the Federal Rules of Civil Procedure by holding that parties have an affirmative duty to preserve information:
    • once it has been requested; and
    • pending such time as the relevance of the information to collective bargaining or CBA administration can be established.
  • Hold that the employer's destruction of the video information after the union had requested it, even if purportedly according to the employer's retention policy, estops the employer from using the nonexistence of the video as a defense to a Section 8(a)(5) ULP charge.
While advice memoranda are not binding, this advice memorandum instructs that the NLRB General Counsel expects employers to preserve information requested by unions for collective bargaining or CBA administration as it would information that is potentially relevant to a predictable litigation. Advice was not swayed by the employer's assertion that it could not have reasonably known to preserve the video surveillance because the employee did not report the incident to the human resources department, which ordinarily triggers the employer's preservation protocols. The union requested the surveillance footage within days of the incident, at least a week before it would be overwritten under the employer's policy.