The National Labor Relations Board (NLRB) recently ruled that an employer’s video surveillance of its employees in the process of distributing Union materials and literature (and thereby breaking Company rules) was illegal under the National Labor Relations Act (NLRA). While normally, this would be lawful, here the underlying policy was illegal and therefore all conduct involved in enforcing the rule was unlawful.
The employer, AdvancePierre Foods, Inc., is an Ohio-based corporation that manufactures processed foods for distribution to restaurants and convenience stores across the country. In March 2015, several employees contacted a union about unionizing the Company’s 600 employees. By early May, some employees began to openly distribute union literature and union authorization cards at or near the plant. Shortly thereafter, the Company began receiving complaints from some employees that their coworkers were handing out union literature and authorization cards in the breakroom in violation of Company policy. To confirm this conduct was in fact occurring, the Company reviewed the breakroom’s surveillance video. The video confirmed two employees were handing out the union-related materials in violation of Company policy. Those two employees were questioned and verbally reprimanded for violating the Company’s no-solicitation and no-distribution rules. They were warned not to distribute union literature anymore.
The Administrative Law Judge hearing the case determined AdvancePierre violated Sections 8(a)(3) and (1) of the Act by maintaining an unlawful no-solicitation/no-distribution policy and by surveilling, interrogating, and disciplining employees for engaging in protected union activity.
On July 19th, a three-member panel of the NLRB agreed with the ALJ that the employer’s video surveillance of employees engaged in protected concerted activity violated Section 8(a)(1). The NLRB found the surveillance tended to intimidate workers and chill their Section 7 rights. The Board did not accept the Company’s claim that the surveillance was justified because it revealed a violation of the Company’s no-solicitation/no-distribution policy since the policy itself violated Section 8(a)(1). Using existing surveillance videos to confirm policy violations is usually lawful, but not here. The unlawful nature of the underlying policy made surveillance, that might otherwise be lawful, illegal.
Employers should consider this a reminder of the need to ensure basic policies are lawful. As this case demonstrates, once the underlying policy is found unlawful, the employers resultant conduct is likely unlawful.
Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
