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NLRB Law Memo 08/01/2006
by Ross Runkel at LawMemo
NLRB Law Memo 08/01/2006
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NLRB - Union's photographing of protected conduct results in new election (3-2).
Randell Warehouse of Arizona and Sheet Metal Workers Local 359 (NLRB 07/26/2006)
The NLRB in a 3-2 decision found that Sheet Metal Workers Local 359 engaged in objectionable conduct when its agents photographed employees during the Union's distribution of campaign literature.
The Board summarized 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."
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.
In a prior decision (Randell I), the Board found that the photographing was not objectionable because it was not accompanied by other coercive conduct. In that decision, the Board overruled precedent which had held that union photographing was objectionable even if it was not accompanied by other coercive conduct. The Board there retained the rule that employer photographing was presumptively coercive, even if it was not accompanied by other coercion.
The D.C. Circuit Court of Appeals did not agree with the Board, noting that the Board had not dealt adequately with its prior decision in Mike Yurosek, 292 NLRB 1074 (1989). The court remanded for "further consideration and a reasoned opinion."
Upon reconsideration, the majority in Randell II concluded that the Randell I rationale for the different standards for employees and unions could not withstand careful scrutiny, and overruled Randell I. The majority stated: "The rationale for finding that unexplained photographing has a reasonable tendency to interfere with employee free choice applies regardless of whether the party engaged in such conduct is a union or an employer. Thus, the disparate treatment embraced by the Randell I Board cannot be squared with the Act's fundamental principles."
The DISSENT said, "Our original decision in this case was correct. Today's decision, in contrast, is arbitrary both in failing to see the difference between union photographing and employer photographing and in failing to see the similarity between union photographing and other, permissible organizing tools. The result places unions in a dilemma: Photographing employees is objectionable, unless a legitimate justification is communicated to the employees, but the majority implies that a central justification for photographing employees, to identify supporters and potential supporters of the union, is inherently coercive. In light of its internal contradictions, we do not see how the majority's decision can stand.
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