NLRB Rules That Both Employers and Unions Are Prohibited From Photographing Employees Engaged in Protected Conduct

Volume 5, Issue 12
September 20, 2006

In Randell Warehouse of Arizona, Inc., 347 N.L.R.B. No. 56 (July 26, 2006) ("Randell II"), the National Labor Relations Board ("NLRB"), in a 3-2 decision, decided that a union engaged in improper conduct when its agents photographed employees taking or refusing the union's literature prior to an election. The ruling is particularly significant because it reverses the Clinton NLRB's 1999 decision in the exact same case that allowed such conduct by a union, but prohibited employers from doing the same.

Prior to the NLRB's 1999 decision in Randell I, the NLRB held that, absent proper justification, the photographing of employees engaged in protected concerted activities violates the National Labor Relations Act because it has a tendency to intimidate employees.1 The NLRB did not generally distinguish between employer and union photography. However, in Randell I, the Clinton NLRB held that unions could photograph protected concerted activity provided that the photography was not accompanied by an express or implied threat or other coercion, while the same conduct by an employer would be presumably unlawful. The NLRB, in Randell I, reasoned that unions are entitled to a different standard than employers because unions are permitted to determine the leanings and identities of employees in elections and because unions do not control the employees' terms and conditions of employment.

The employer, Randell Warehouse, appealed the NLRB's decision to the District of Columbia Circuit Court of Appeals, which sent the case back to the current NLRB for further consideration. The Bush NLRB reversed Randell I's discriminatory standard. It held that unexplained union photographing and/or videotaping is objectionable even if it is not accompanied by threats or other coercive conduct. The NLRB rejected the argument that employees do not fear union retaliation like employer retaliation, explaining that "the Board's experience in the administration of the Act, as well as the legislative history of the Act, show that unions also have ample means available to them to punish employees, and that some unions have used that power in reprisal against employees who oppose them." The NLRB concluded that "union photographing of employees engaged in Section 7 activities, like photographing by an employer, tends to interfere with employee free choice in an election." Thus, the NLRB imposed upon both parties a uniform rule: photography of protected concerted activity is objectionable unless a legitimate justification (violence, etc.) is communicated to the employees in a timely manner.

The ruling in Randell II is a welcome return to the single standard used to govern a union's or employer's photographing and/or videotaping of employees engaged in protected concerted activity. Moreover, the NLRB's recognition of the potential for union retaliation against employees is an appropriate acknowledgement of the true state of affairs in modern day labor relations.

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