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Union can't photograph employees during literature distribution
August 01, 2006 by Ross Runkel at LawMemo

In a dramatic reversal of its position in a 1999 case, the NLRB says a union engaged in objectionable conduct when its agents photographed employees during the union's distribution of campaign literature. In a 3-2 decision along party lines the Board overturned an NLRB-conducted election and ordered a new election.

The case: Randell Warehouse of Arizona, Inc. and Sheet Metal Workers’ International Association, Local 359 (NLRB 07/26/2006).

Detailed summary: NLRB Finds Union Photographing Of Employees During Organizing Activities Objectionable And Orders Second Election.

The Board found that employees have a right to accept or not accept the union's literature, and that photographing them as they make that choice would reasonably be coercive. The union did not provide the employees with any legitimate justification for the photographing. Thus, the Board found that the Union's conduct tended to interfere with employee free choice in the election, and directed that a second election be held. The majority opinion is signed by Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow. Members Wilma B. Liebman and Dennis P. Walsh dissented.

In a previous decision, the Board had applied a different rule for union photography than for employer photography. This new decision stresses that the rules for photographing employees who are engaging in protected conduct should be the same regardless of whether the party doing the photographing is a union or an employer.

The rule:

In the absence of a valid explanation conveyed to employees in a timely manner, photographing employees engaged in Section 7 activity constitutes objectionable conduct whether engaged in by a union or an employer.

Thanks to David Kight of Spencer Fane Britt & Browne LLP for the tip.

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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.

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