Employment Law Daily Reviewing archived video footage of employee breakroom was unlawful surveillance of union activity
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Tuesday, July 24, 2018

Reviewing archived video footage of employee breakroom was unlawful surveillance of union activity

By Ronald Miller, J.D.

An employer engaged in unlawful surveillance of its employees’ union activities by reviewing archived video footage of two employees distributing union literature in an employee breakroom, and by searching employee’s clipboards for union authorization cards, ruled a three-member panel of the NLRB. The employer also interrogated one of the employees regarding the union activity of a coworker. Moreover, the Board found that the employer’s solicitation of employees to revoke their union authorization cards violated Section 8(a)(1) because it occurred contemporaneously with serious violations that went to the heart of the card-signing process and began immediately after the employer learned of the union’s organizing campaign (Advance Pierre Foods, Inc., July 19, 2018).

In March 2015, some of the employees at the employer’s food processing plant contacted the union about organizing the facility’s 600 food workers. By May, employees began to openly distribute union literature and union authorization cards at or near the plant. The employer became aware of the union’s organizing campaign by at least May 11.

An administrative law judge found that the employer violated Sections 8(3) and (1) in several respects during the course of the union’s organizing campaign, including maintaining an unlawful no-solicitation/no-distribution policy, surveilling, interrogating, and disciplining four employees for engaging in protected union activity and soliciting grievances. The Board adopted the ALJ’s findings on all of these issues, and found three additional 8(a)(1) violations involving the interrogation of an employee about her union activity, the solicitation of employees to revoke their union authorization cards, and the confiscation of employees’ union authorization cards.

Interrogations. On June 8, 2015, prompted by employee complaints that coworkers were distributing union literature and authorization cards in the employee breakroom, the employer’s HR manager reviewed the day’s breakroom video footage and observed two known union supporters appearing to distribute and/or receive materials. The following day, one of the employees was summoned to meet with the HR manager and told that during a review of video footage he was observed receiving a “stack” of union literature. The employee was questioned about the second employee observed in the video. Further, he was issued a verbal discipline for violating the employer’s no-solicitation/no-distribution policy.

Shortly thereafter, the second employee was called to a meeting with the HR manager. She was similarly told about employee complaints regarding the distribution of literature in the break room and how she was observed on video. The employee denied distributing union literature and stated that the HR manager was attempting to “intimidate” her. The employee was given a “friendly reminder” about the no-solicitation/no-distribution policy.

The Board affirmed the law judge’s finding that the employer engaged in unlawful surveillance of the employees’ union activity in violation of Section 8(a)(1) and unlawfully disciplined them for engaging in union activity in violation of Section 8(a)(3). Additionally, it unlawfully interrogated the first employee about the union activity of a coworker, and the second employee about her own union activity. The Board concluded that under the circumstances of this case, it had no trouble finding that the employer’s line of questioning regarding the employee’s own union activities was coercive interrogation in violation of Section 8(a)(1).

Solicitations to revoke union authorization cards. Almost immediately after learning of the union’s organizing campaign, the employer posted its no-solicitation/no-distribution policy on a door sign. Over the course of the next month, the employer’s supervisors held six employee meetings where the supervisors distributed a flyer on how to withdraw a signed union authorization card, and explained to employees how they could get their cards back. Additionally, on June 8, the employer conducted a search of production employees’ clipboards, confiscated union cards found during the search, and disciplined an employee for violating the no-solicitation/no-distribution policy because union cards were found on his clipboard.

As an initial matter, the employer did not dispute that its no-solicitation/no-distribution policy was unlawfully overbroad in violation of Section 8(a)(1). Next, the Board observed that as a general rule, an employer may not solicit employees to revoke their union authorization cards. Here, the Board rejected the ALJ’s finding that the employer’s explanation of how to revoke union authorization cards was, by itself, not unlawful. It disagreed that Mohawk Industries established a floor as to the types of violations needed to create a perilous atmosphere. Further, the Board disagreed that the violations in Mohawk Industries were more egregious that the violations that occurred here. In this instance, the Board found compelling the employer’s unlawful search for and confiscation of union cards during the clipboard audit, and the related discipline of employees for distributing union cards.

Accordingly, the Board found the employer’s explanation of how employees could revoke their union authorization cards in the context of these contemporaneous serious unfair labor practices created an atmosphere where employee would tend to feel peril if they refrained from revoking their support for the union.

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