Say cheese! Thank you for supporting organized labor.

No inflatable rats here, folks. Just some organizing shenanigans.

Last week, the National Labor Relations Board was tasked with determining whether a union may use the photograph of an employee, without his authorization, on union-organizing materials.

The case involves a union election in which the union won by a scant three votes. The employer subsequently objected. From the NLRB decision, here are the facts leading up to the election:

Employee and union supporter Chafik Omerani took Henriquez' photograph in a food court at a mall near their workplace. The Union included his photograph in a campaign flyer that it circulated a few days before the election. On one side, the flyer contained photographs of Henriquez and seven other bargaining unit employees surrounding the words, "Yes, Everybody can make the right choice!! To end Unfair treatment & Unfair pay!!" The other side of the flyer had a longer "Dear Colleagues" note that encouraged employees to allow the Union to be their "voice" for better pay, better benefits and better treatment. Both sides of the flyer were marked, "URGENT."

There is no credited evidence that Henriquez objected to the Union's use of his photograph in the campaign flyer or that he opposed the Union. The parties stipulated only that Henriquez did not authorize the use of his photograph.

In a 2-1 decision, the Board held that the union had not engaged in any misrepresentation in campaign propaganda because, in its opinion, the union had not used "forged documents which render the voters unable to recognize propaganda for what it is" and because the employer did not present evidence that the union misrepresented Henriquez's support of the union. Still, the majority acknowledged that the Union implicitly misrepresented that Henriquez authorized the use of his image in the flyer. But, since no outright forgery was involved, and any misrepresentation was not pervasive: no harm, no foul.

In his dissent, Member Hayes cited Board precedent holding that an employer may not use an employee's photograph in campaign material in a manner that reasonably tends to indicate the employee's position on union representation, without the employee's permission. Reasoning that what's good for the goose is also good for the gander, Member Hayes concluded that the use of Henriquez's image, absent his informed consent, constitutes unlawful coercion.

Sounds reasonable to me. Hayes's dissent, that is. But, what do I know?

What do you think? Sound off below.

Also, be sure to check out these posts on last week's NLRB decision, in which the Board held that arbitration waivers in class actions are unenforceable. 

This article was originally published on Eric B. Meyer's blog, The Employer Handbook.

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