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29 of Ordinances prohibits public security cameras from recording audio.392 The state of Washingtonâs statute may be the most stringent in requiring the consent of all parties. Unless otherwise permitted, it is unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any: (a) Private communication transmitted by telephone, tele- graph, radio, or other device between two or more individu- als between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication; (b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.393 Washingtonâs statute further requires, Where consent by all parties is needed pursuant to this chap- ter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communica- tion or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.394 In sum, although it appears that under the federal Wiretap Act and under most state statutes, one partyâs consent (e.g., a transit agency that is a party to the communication) is sufficient to record or intercept lawfully an oral or electronic communication, several state statutes require the consent of all parties. VIII. VIDEO SURVEILLANCE AND THE RIGHT TO PRIVACY IN THE WORKPLACE A. Whether a Public Employee Has Fourth Amendment Rights in the Workplace In general, the courts have held that âwork- relatedâ searches are reasonable under the Fourth Amendment.395 In responding to the survey, sixty-three transit agencies (87.50%) reported that they use video surveillance in the workplace.396 Fifty-six transit agencies (77.78%) give prior notice to employees of their agencyâs use of video surveil- lance in the workplace.397 For an employee to make a Fourth Amendment claim based on video surveillance, the employee must prove that he or she had âa subjective and objective reasonable expectation of privacy.â398 Because courts may assume that an employee has a subjective expec- tation of privacy, the courts may focus on whether there was an objective expectation of privacy.399 The reasonableness standard, however, âis so narrow that few employees will be protected from video surveil- lance under the Fourth Amendment. The mere possi- bility that an unexpected person may enter the area may be enough to defeat an expectation of privacy.â400 On the issue of workplace privacy, the courts tend to follow the guidelines in OâConnor v. Ortega.401 In OâConnor, the issue was whether a public employee had a reasonable expectation of privacy in his office, desk, and file cabinets at his place of work. The Supreme Court, in an opinion by Justice OâConnor, first observed that the Fourth Amendment applies to the states through the Fourteenth Amendment to the Constitution and thus to the conduct of govern- ment officials.402 Second, Justice OâConnor wrote that the âwork- place includes those areas and items that are related to work and are generally within the employerâs control.â403 Nevertheless, there are places in the work- place where employees have a reasonable expecta- tion of privacy and against intrusion.404 In cases 396 See Appendix C, transit agenciesâ responses to ques- tion 19(a). Seven agencies (9.72%) stated that they do not. Two agencies (2.78%) did not respond to the question. 397 See Appendix C, transit agenciesâ responses to ques- tion 19(b). Eleven agencies (15.28%) stated that they do not. Five agencies (6.94%) did not respond to the question. 398 Fiore & Weinick, supra note 118, at 535 (footnotes omitted). 399 Id. (footnotes omitted). 400 Id. (footnotes omitted). 401 480 U.S. 709, 714â19, 107 S. Ct. 1492, 1496â98, 94 L. Ed. 2d 714, 721â24 (1987). See also, Thompson v. Johnson County Community College, 930 F. Supp. 501 (D. Kan. 1996, aff âd without op., 108 F.3d 1388 (10th Cir. 1997) (holding that there was no reasonable expectation of pri- vacy in a locker room that was also a storage area and contained the air conditioning equipment where the col- lege had installed a video surveillance camera; and Ban- nen v. Kings Local Sch. Dist. Bd. of Educ., 144 Ohio App. 3d 620, 761 N.E.2d 84 (2001) (no reasonable expectation of privacy in a break room open to all school employees). 402 OâConnor, 480 U.S. at 714, 107 S. Ct. at 1496, 94 L. Ed. 2d at 721. 403 Id. at 715, 107 S. Ct. at 1496â97, 94 L. Ed. 2d at 722. 404 Id. at 715, 107 S. Ct. at 1497, 94 L. Ed. 2d at 722. 392 City of Pittsburgh, Pennsylvania Code of Ordinances, Art. VIII Â§ 680.02 (2017). In contrast, the Maryland Tran- sit Authority records audio on some of its buses; however, the Maryland attorney generalâs office has stated that the recording of audio does not violate Marylandâs wiretap- ping law. Transportation Nation, Maryland Expanding Audio Recordings on Buses Over Privacy Objections, (Oct. 19, 2012), http://www.wnyc.org/story/285680-maryland- expanding-audio-recording-on-buses-over-privacy- objections/ (last accessed Aug. 22, 2017). 393 WaSh. reV. coDe ann. Â§ 9.73.030(1)(a) and (b) (2017) (emphasis supplied). 394 WaSh. reV. coDe ann. Â§ 9.73.030(3) (2017) (emphasis supplied). 395 OâConnor v. Ortega, 480 U.S. 709, 720â21, 107 S. Ct. 1492, 1499, 94 L. Ed. 2d 714, 725 (1987).
30 material fact whether their Fourth Amendment rights were violated.â413 The court ruled also, There were no genuine issues of material fact concerning whether Plaintiffsâ California Constitutional right to privacy was violated by Defendants Schneider and Thompson.â¦ Further, under California Government Code Â§ 815.2(a), which holds a City liable for the injuries caused by its employees acting in the scope of their employment, Defen- dant City is liable for Defendant Schneiderâs violation of the California Constitution.414 In Laba v. Chicago Transit Authority,415 the plain- tiffs alleged that their former employer, the defen- dant Chicago Transit Authority (CTA), videotaped them without their knowledge or consent from at least September to October 2013 in an electrical room at work where they were permitted to change their clothes.416 The defendants argued that the plaintiffs failed to establish a Monell v. Dept. of Soc. Servs.417 claim against the CTA because there was no allega- tion that the CTA president has final policymaking authority.418 However, in deciding the defendantsâ motion to dismiss, the court ruled that the plaintiffs had alleged enough facts to permit the court to draw a âreasonable inferenceâ that the president of the CTA âmay have possessed, or had been delegated, final policy-making authority that resulted in the violation of Plaintiffsâ constitutional rights.â419 B. Video Surveillance and Violation of Collective Bargaining Agreements The only substantial federal restriction on employersâ use of video surveillance of employees is based on National Labor Relations Board (NLRB) decisions that ârequire employers to bargain with unions before installing and using hidden cameras in the workplace.â420 In responding to the survey, nineteen transit agencies (26.39%) reported that they bargained with employees or the union before involving searches by a public employer, the Court held that an invasion of employeesâ legitimate expec- tations of privacy must be balanced âagainst the governmentâs need for supervision, control, and the efficient operation of the workplace.â405 Third, the Court held that except in cases when a search of oneâs property is unreasonable without a warrant, âa warrant requirement is not appropri- ate when âthe burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.ââ406 Fourth, the Court held that the probable cause standard does not apply to workplace searches: A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbi- trary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.407 Fifth, the absence of an employer policy on privacy or searches in the workplace does not make a search unlawful.408 Finally, in the OâConnor case, the Court ruled that summary judgment was not appropriate because there was a factual dispute concerning the âactual justification for the search.â409 In Trujillo v. City of Ontario,410 a federal district court in California agreed with other courts that have stated that âcovert video surveillance is partic- ularly intrusive.411 The Trujillo court ruled that a detectiveâs decision to conduct video surveillance of the menâs locker room in the City of Ontario Police Department was an unlawful search. The locker room was a place where the plaintiffs had an objec- tively reasonable expectation of privacy. The plain- tiffs did not have to have âan expectation of total privacy in order to have a reasonable expectation that they will not be recorded surreptitiously while changing clothes in a locker room.â412 The court ruled that the plaintiffs had âsatisfied their burden of demonstrating that there are no genuine issues of 405 Id. at 715, 107 S. Ct. at 1499, 94 L. Ed. 2d at 724. 406 Id. at 715, 107 S. Ct. at 1499, 94 L. Ed. 2d at 725 (citation omitted). 407 Id. at 715, 107 S. Ct. at 1502, 94 L. Ed. 2d at 728. 408 Id. at 715, 107 S. Ct. at 1503, 94 L. Ed. 2d at 730. 409 Id. at 715, 107 S. Ct. at 1502, 94 L. Ed. 2d at 729. 410 428 F. Supp. 2d 1094 (C.D. Calif. 2006), affâd, Bernhard v. City of Ontario, 270 F. Appâx 518 (9th Cir. 2008). 411 Id. at 1107 and n. 9 (citing cases regarding the sever- ity of video surveillance). 412 Id. at 1104 (citation omitted). 413 Id. at 1109. 414 Id. at 1121. 415 No. 14-C-4091, 2015 U.S. Dist. LEXIS 70758, at *1 (N.D. Ill. 2015). 416 Id. at *2. 417 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The U.S. Supreme Court determined that a municipality is not vicariously liable under 42 Â§ 1983. Laba, 2015 U.S. LEXIS 70758 at *5. 418 Laba, 2015 U.S. Dist. LEXIS 70758 at *4. 419 Id. at *6. 420 Jamila Asha Johnson, The Union Workplace Meets Big Brother: Advising clients on employer conduct with regard to hidden surveillance, [sic] 3 ShiDler J. l. coM. & tech. 2, P4 (2006), hereinafter referred to as âJohnson.â See id. at P 8 for a discussion of Colgate-Palmolive v. NLRB, 323 NLRB 515 (1997) and id. beginning at P2 for a discussion of Brewers and Maltsters, v. NLRB, 414 F. 3d 36 (2005) (AnheuserâBusch) analyzed in this part of the digest.
31 The court also stated that âthe extent of possible privacy concerns is not necessarily dispositive in determining whether an employer must bargain over the installation and use of a particular camera.â431 However, as seen in Colgate, supra, collective bargain- ing on mandatory subjects does not require that the employer and the workers come to an agreementâthe parties must only bargain until they reach an agreement or an âimpasse.â An impasse occurs when it is clear that no further progress is expected on an issue. With permissive subjects of bargaining there is no requirement to even reach an impasse.432 As for the discipline that AnheuserâBusch imposed on some employees, the court held that the NLRB had treated âlike situationsâ in other cases differently and, therefore, remanded the case so that the Board could apply, adequately distinguish, or overrule the Boardâs prior precedents.433 C. State Statutes on Video Surveillance in the Workplace The use of video surveillance in the workplace has become quite common.434 However, employees have little constitutional, statutory, or common law recourse for an employerâs use of video surveillance.435 Only Californiaâs constitution recognizes a right to privacy that applies to private actors.436 In Chico Feminist Womenâs Health Center v. Scully,437 the court stated that Californiaâs âprivacy guaranty is broader than the federal privacy right.â¦ Article I, section 1 of the California Constitution expressly makes the pursuit and obtaining of privacy an âinalienable right.â â¦[I]t has been held the state privacy right protects against invasions of privacy by private citizens as well as the state.â438 adopting a video surveillance system. Forty-three agencies (59.72%) said that they did not.421 In Colgate Palmolive Co. & Local 15, Interna- tional Chemical Workers Union,422 Colgate Palmol- ive Co. (Colgate) implemented video surveillance because of an increase of theft in the workplace and because of suspected misconduct by employees.423 The NLRB affirmed an Administrative Law Judgeâs ruling that when Colgate installed hidden cameras without bargaining with the Union, it violated the National Labor Relations Act.424 The NLRB ruled that the use of hidden surveillance cameras is a mandatory subject of bargaining, because Colgateâs decision to use video surveillance was ânot a mana- gerial decision that lies at the core of entrepreneur- ial control.â425 The NLRB did not address the kind of agreement or arrangement that should result from the partiesâ collective bargaining.426 In Brewers and Maltsters, Local Union No. 6 v. National Labor Relations Board,427 an Administra- tive Law Judge ruled that AnheuserâBusch, Inc. (AnheuserâBusch) violated the National Labor Rela- tions Act when the company, without first notifying and bargaining with the Union, used cameras to surveil an area where employees worked and took breaks.428 After the surveillance revealed miscon- duct, AnheuserâBusch discharged five employees and imposed lesser discipline on eleven other employ- ees. The NLRB, with one member dissenting, ruled that AnheuserâBusch violated the National Labor Relations Act by failing to bargain with the Union regarding the installation and use of hidden cameras, as well as by failing to provide the Union with infor- mation that it had requested about the cameras.429 In affirming the NLRBâs ruling, the D.C. Circuit stated that âthe well-established test for determin- ing whether a subject is a term or condition of employment is not whether it affects employeesâ privacy interests, but whether it is âplainly germane to the working environmentâ and ânot among those managerial decisions, which lie at the core of entre- preneurial control.ââ430 421 See Appendix C, transit agenciesâ responses to ques- tion 19(c). Ten agencies (13.89%) did not respond to the question. 422 323 N.L.R.B. 515 (1997). 423 Colgate-Palmolive, 323 N.L.R.B. at 515. 424 See 29 U.S.C. Â§ 158(a)(5) (2000). 425 Colgate-Palmolive, 323 N.L.R.B. at 515. 426 Id. at 516. 427 367 U.S. App. D.C. 145, 414 F.3d 36 (D.C. Cir. 2005), review denied, 303 F. Appâx 899 (D.C. Cir. 2008). 428 Id. at 40, 41. 429 Id. at 38. 430 Id. at 43 (citations omitted) (some internal quotation marks omitted). 431 Id. 432 Johnson, supra note 420, at P5 & n. 14 (citing 2 Guide to Employment Law and Regulations Â§ 17:311 (2006) and Quaker State Oil Ref. Corp., 107 NLRB 34, 35 (1993)). In Johnsonâs opinion, â[m]ost employers can use hidden surveillance in the workplace without repercus- sion.â Id. at P26. 433 Brewers and Maltsters, 414 F.3d at 47â48. 434 Fiore & Weinick, supra note 118, at 525. 435 Id. at 527. 436 Id. at 542 (citing Hill v. NCAA, 865 P.2d 633, 644 (1994) (holding that the California state constitutional privacy provision âcreates a right of action against private entities as well as government entitiesâ)). 437 208 Cal. App. 3d 230, 256 Cal. Rptr. 194 (Cal. App. 1989). 438 Id. at 241â42, 256 Cal. Rptr. at 199â200 (citations omitted).
32 A Rhode Island statute provides that an employer may not âcause an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for employees to change their clothes, unless authorized by court order.â446 The statute further states that any record- ing made in violation of the statute may not be âused by an employer for any purpose.â447 A second category of statutes protects employees from video surveillance of their âintensely privateâ activities.448 As noted, Connecticut prohibits the use of electronic surveillance in areas used by employ- ees for personal comfort and health and in areas they use to protect their possessions.449 In New York, an employer may not make âa video recordingâ¦of an employee in a restroom, locker room, or room designated by an employer for employees to change their clothes, unless authorized by court order.â450 A video recording made in violation of the statute may not be used by an employer âfor any purpose.â451 An employer violating the statute may be held liable to an employee for damages, reasonable attorneysâ fees, and costs, as well as be enjoined.452 West Virginia prohibits a public or private employer, including the employerâs agent or repre- sentative, from operating an electronic surveillance device or system, such as a closed-circuit television system or a video-recording device, âin areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, shower rooms, locker rooms, dressing rooms and employee lounges.â453 A third category of statutes requires that employ- ers give notice to employees of the presence of video surveillance.454 Connecticut requires an employer to post a conspicuous notice advising of the employerâs use of electronic monitoring. The term electronic monitoring is defined to be ââthe collection of information on an employerâs premises concerning employeesâ activities or communications by any means other than direct observation,ââ such as the use of a camera.455 In Trujillo v. City of Ontario,439 the court stated, âTo establish a claim under the California Constitu- tion, a plaintiff must establish the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious inva- sion of privacy.â440 Because other state constitutions do not protect employee privacy, employees must rely on state stat- utes that prohibit or restrict the use of video surveil- lance or argue that the employees have a reasonable expectation of privacy in some places.441 Although some states have laws protecting employee privacy, the scope of the laws is âinconsistent.â442 One category of statutes protects employees from video surveillance that includes audio surveil- lance.443 A Connecticut statute prohibits public and private employers from operating any electronic surveillance device or system, including but not limited to the recording of sound or voice or a closed- circuit television system, or any combination thereof, for the purpose of recording or monitoring the activities of his employees in areas designed for the health or personal comfort of the employees or for safeguarding of their posses- sions, such as rest rooms, locker rooms or lounges.444 Connecticut also prohibits an employer, or the employerâs agent or representative, from intentionally overhearing or recording âa conversation or discussion pertaining to employment contract negotiations between the two parties, by means of any instrument, device or equipment, unless such party has the consent of all parties to such conversation or discussion.â445 439 428 F. Supp. 2d 1094 (C.D. Calif. 2006), aff âd, Bern- hard v. City of Ontario, 270 F. Appâx 518 (9th Cir. 2008). 440 Id. at 1119 (citation omitted). 441 Fiore & Weinick, supra note 118, at 542. See also, Miriam H. Wugmeister & Christine E. Lyon, eds., Global Employee Privacy and Data Security Law, ch. 10, Email and Internet Monitoring/Video and Physical Sur- veillance, http://www.americanbar.org/content/dam/aba/ administrative/labor_law/meetings/2011/tech/a_04. authcheckdam.pdf (last accessed Aug. 22, 2017) (stating that âthe employerâs best protection against liability for surveillance of employee communications is the employ- eeâs knowledge of those monitoring activitiesâ). 442 Fiore & Weinick, supra note 118, at 527 & n.16 (citing N.Y. Lab. Law. Â§ 203-c (2008); conn. Gen. Stat. ann. Â§ 31-48b (2003); N.J. Stat. ann. Â§Â§ 2A:156A-1 to :156A-34 (2007)). 443 Id. at 542â43 (footnotes omitted). 444 conn. Gen. Stat. Â§ 31-48b(b) (2017). Subsection (a) defines the term employer to mean âthe owner or owners in the case of an unincorporated business, the partners in the case of a partnership, the officers in the case of a corporation or in the case of the state, any town, city or borough, or district, local or regional board of education, or housing authority or district department of health, the chief executive officer thereof.â 445 conn. Gen. Stat. Â§ 31-48b(d) (2017). 446 R.I. Gen. laWS Â§ 28-6.12-1(a) (2017). 447 R.I. Gen. laWS Â§ 28-6.12-1(b) (2017). 448 Fiore & Weinick, supra note 118, at 542â43 (footnotes omitted). 449 conn. Gen. Stat. ann. Â§ 31-48b(b) (2017). 450 N.Y. CLS labor Â§Â§ 203-c(1) (2017). 451 N.Y. CLS labor Â§Â§ 203-c(2) (2017). 452 N.Y. CLS labor Â§Â§ 203-c(3)(a)â(b) (2017). 453 W. Va. coDe Â§ 21-3-20(a) (2017). 454 Fiore & Weinick, supra note 118, at 542â43 (footnotes omitted). 455 Id. at 544 (quoting conn. Gen. Stat. ann. Â§ 31-48d(a)(3) (West 2003)).
33 and/or record operators of transit vehicles and/or other equipment.464 On February 13, 2014, the California Office of the Attorney General responded to a state legislatorâs question on whether the use of continuous video surveillance of truck drivers during on-the-job driving would be a misdemeanor under California Labor Code Â§ 1051 when the video is inspected by a third party for the purpose of disciplining truck drivers. In the Attor- ney Generalâs opinion, the use of continuous video surveillance of truck drivers during on-the-job driving is not a misdemeanor under Labor Code Â§ 1051 provided that the third party is an agent of the driv- erâs employer, the agent is videotaping and inspecting the file for the sole benefit of the driverâs employer, and the file is furnished only to the driverâs employer.465 An Oregon case holds that employers may violate state labor laws if they unilaterally implement a policy of recording transit vehicle operators. Begin- ning in 2012, the Tri-County Metropolitan Trans- portation District (TriMet) in Oregon introduced audio and video surveillance of its bus operators.466 The Amalgamated Transit Union filed a complaint with Oregonâs Employment Relations Board (Board) against TriMet for failing âto bargain in good faithâ by adopting new bus operator electronic surveil- lanceâ¦in violation of Oregon law.467 The Board ruled that the installation of surveillance devices to record bus operators was not a de minimus change to the operatorsâ conditions of employment. The Board stated that â[t]here is undoubtedly a significant impact on employee conditions of employment when every workplace movement, gesture, and utterance is recorded, even those that take place on an employ- eeâs break time.â468 Because the policies were subject D. Whether Transit Agencies Have Immunity for Searches in the Workplace In Trujillo, supra, the court observed that when government officials perform discretionary func- tions, they âgenerally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.ââ456 However, in Trujillo there were no genu- ine issues of material fact concerning whether the detective in question violated the plaintiff âs Fourth Amendment rights.457 Thus, the responsible defen- dants, including the city, could be held liable, because the intrusion in the locker room was âa penetration into a âzone of physical or sensory privacy surround- ingâ in which a person has an objectively reasonable expectation of seclusion or solitude.â458 In Laba, supra, as for whether the defendants had qualified immunity for the plaintiffsâ Â§1983 claim for an âunreasonable workplace search and seizureâ in violation of the Fourth Amendment, the court held that âthe right to privacy at the workplace was clearly established in OâConnor,â supra.459 Although the individual defendants did not have a qualified immunity defense, the plaintiffsâ evidence would have to show that they had a reasonable expectation of privacy that the defendants violated.460 In Maryland v. Washington Metropolitan Area Transit Authority,461 the court held that WMATA, as an interstate compact agency and instrumentality of Maryland, Virginia, and the District of Columbia, is not a person within the meaning of Â§ 1983 and therefore cannot be sued under Â§ 1983.462 Because the plaintiffsâ claims for violations of the Fourth and Fifth Amendments to the Constitution must be construed as Â§ 1983 claims, the plaintiffs could not bring their Fourth and Fifth Amendment claims against WMATA.463 The court allowed the plaintiffs leave to amend, but any Â§ 1983 claims could be brought only against MV Transportation or the indi- vidual defendants. E. Video Surveillance of Transit Operators According to the survey conducted for this digest, fifty-five transit agencies (76.39%) use video surveil- lance (e.g., backward facing cameras) to monitor 456 Trujillo, 428 F. Supp. 2d at 1109 (citation omitted). 457 Id. at 1110. 458 Id. at 1122 (citation omitted). 459 Laba, 2015 U.S. Dist. LEXIS 70758, at *11. 460 Id. at *12â13. 461 No. 14-3397, 2015 U.S. Dist. LEXIS 91409, at *1 (D. Md. 2015). 462 Id. at *7â8. 463 Id. at *8. 464 See Appendix C, transit agenciesâ responses to ques- tion 20. Fifteen agencies (20.83%) said that they do not. Two agencies (2.78%) did not respond to the question. Available software analyzes and reports driving events captured by the video event recorders to track and moni- tor driver behavior. The information is used for discipline and training and to assess liability in collisions. 465 Office of the Attorney General, State of California, Opinion of Kamala D. Harris and Manuel M. Medeiros, Deputy Attorney General, No. 12-1101, at 1 (February 13, 2104), https://oag.ca.gov/system/files/opinions/pdfs/12- 1101_0.pdf (last accessed Aug. 22, 2017). 466 ATU, Division 757 v. TriMet, Oregon Employment Relations Board, No. UP-009-13, at 4â5 (2014), http:// www.oregon.gov/ERB/orders/07-01-14%20thru%2006-30- 15/UP00913.pdf (last accessed Aug. 22, 2017). 467 Id. at 1. 468 Id. at 23. See also, AnheuserâBusch, Inc., 342 NLRB 560 (2004), aff âd in relevant part sub nom Brewers and Maltsters Local No. 6 v. NLRB, 414 F.3d 36 (D.C. Cir. 2005); National Steel Corporation, 335 NLRB 747 (2001), enfâd, 324 F.3d 928 (7th Cir. 2003); and Colgate-Palmolive Co., 323 NLRB 515 (1997).
34 should face an operator to provide evidence of assaults.476 The report recommended that a transit agency address privacy questions, including why data are being collected, what data will be collected, when data will be collected, how privacy and confi- dentiality concerns will be addressed, and how data will be managed, analyzed, and stored.477 However, because of issues of employee morale and distrac- tion, the monitoring of transit employees should be negotiated with employees or their unions.478 G. Transit Agenciesâ Policies on Employeesâ Activation or Deactivation of Surveillance Equipment In response to the survey, twelve transit agencies (16.67%) reported that they have a policy on when employees must activate video surveillance; however, fifty-five agencies (76.39%) said that they do not have a policy.479 As for whether employees are prohib- ited from deactivating video surveillance equipment, although twenty transit agencies (27.78%) have a policy, forty agencies (55.56%) do not.480 The agencies provided various but similar expla- nations. For example, the Ann Arbor Transportation Authority does not have a policy because video surveillance in its transit facilities is always in opera- tion; moreover, when an operator starts a bus, the on-board cameras automatically turn on.481 Although the Greater Peoria Mass Transit District also does not have a policy, its employees do not have the abil- ity to turn the Districtâs video surveillance system on or off.482 Similarly, the Intercity Transitâs video surveillance on coaches and paratransit vehicles starts automatically when there is ignition and oper- ates while the vehicles are in service. Its systems at the transit centers and park-and-ride lots are motion- activated and operate twenty-four hours, seven days a week. The Milwaukee County Transit Systemâs to mandatory bargaining, the Board ordered TriMet to stop video and audio surveillance of operators when they were on their break and to stop all audio recordings of bus operators.469 F. Use of Video Surveillance to Deter or Prevent Assaults on Transit Workers Another reason for a transit agency to use video surveillance is to deter or prevent assaults on transit workers. In 2015, the Transit Advisory Committee for Safety (TRACS) developed recom- mendations for the FTA for a Safety Management System to mitigate and/or prevent assaults on transit workers,470 including the use of audio and video surveillance.471 According to the Report, The Los Angeles County Metropolitan Transportation Authority has achieved lower assault rates by installing video surveillance on many of its buses along with two monitors showing the passengers what is being recorded. While some cameras automatically transmit video to police for real-time surveillance, agencies can also choose to provide police with only clips recorded around the time an incident was reported to have occurred.472 After the Memphis Area Transit Authority installed cameras on its buses, the agency detected assaults that had gone unreported. Bus operators had not reported what they had regarded as routine incidents of assault.473 To deter aggressive behavior, TRACS recom- mended that transit agencies install cameras at stations and on buses and passenger rail cars, along with clear signage noting the presence of surveil- lance cameras, and that transit workers remind passengers of the presence of surveillance.474 TRACS recommended also that video surveillance systems of buses and passenger trains cover the entire passenger area, as well as all entry and exit doors; that camera resolution be sufficient to permit facial recognition; and that there be enough lighting for good image quality in all conditions.475 Video moni- tors should demonstrate to boarding passengers the presence of video surveillance, cameras should be installed outside transit vehicles, and cameras 469 ATU, Division 757, at 28. 470 Transit Advisory Committee for Safety (TRACS), 14-01 Report, Preventing and Mitigating Transit Worker Assaults in the Bus and Rail Transit Industry (July 2015), https://www.transit.dot.gov/sites/fta.dot.gov/files/Final_ TRACS_Assaults_Report_14-01_07_06_15_pdf_rv6.pdf (last accessed Aug. 22, 2017). 471 Id. at vi. 472 Id. at 10â11 (footnote omitted). 473 Id. at 1. 474 Id. at 10 (footnote omitted). 475 Id. at 11. 476 Id. 477 Id. at 28. 478 Id. at 11. 479 See Appendix C, transit agenciesâ responses to ques- tion 21(a). Five agencies (6.94%) did not respond to the question. 480 See Appendix C, transit agenciesâ responses to ques- tion 21(b). Twelve agencies (16.67%) did not respond to the question. 481 See Appendix C, Ann Arbor Transportation Authori- tyâs response to question 21(a). There is video surveillance twenty-four hours, seven days a week, at the Districtâs facil- ities. Whenever a bus is turned on, the video surveillance system is activated. 482 See Appendix C, Greater Peoria Mass Transit Dis- trictâs response to question 21(a). There is video surveil- lance twenty-four hours, seven days a week, at the Districtâs facilities. Whenever a bus is turned on, the video surveil- lance system is activated.