Last week an administrative law judge for the National Labor Relations Board (NLRB) held that Boeing Company engaged in a series of unfair labor practices surrounding its recording and photographing of union solidarity marches inside its plants in Everett, Washington and Portland, Oregon. Boeing Co., NLRB ALJ, No. 19-CA-90932 (May 15, 2014). The dispute arose during the fall of 2012 when employee members of the engineers union were negotiating a new contract with the company. Consistent with what they had done in prior negotiations, the union members staged solidarity walks and marches inside and around Boeing's facilities. The walks were peaceful and did not result in any discipline from the Company. However, in response to these solidarity activities, Boeing issued a directive to its security personnel, that in the event of a union "demonstration," security staff was to "take photos of those involved in the event, ensure participants are acting in a safe manner and clearly document the event" on the Company's security incident response forms. Under well-settled case law from the NLRB, "an employer engaging in such photographing or videotaping [must be able] to demonstrate a reasonable basis to have anticipated misconduct by the employees." National Steel & Shipbuilding Co., 324 NLRB 499 (1997) [an enhanced version of this opinion is available to lexis.com subscribers]. Applying that standard, the ALJ found that, in this case, Boeing did not have a reasonable basis to record the solidarity walks. Instead the Company practice amounted to "mere taking of photos of protected activity * * * just to stick them in a file." As such, the practice was "inherently intimidating" and without "solid legal justification." Accordingly, the company committed unfair labor practices when it "surveiled" employees engaging in demonstrations on Company premises. Additionally, the ALJ considered a Company policy that prohibited employees from using camera-enabled devices in unsecured areas of Boeing's facilities without a "valid business need and an approved Camera Permit that has been reviewed and approved by Security." The ALJ concluded that the Company had adequate protections for its secured military and commercial information, and that the policy amounted to an impermissible infringement on employee concerted activity protected by the National Labor Relations Act (NLRA). Citing the NLRB's recent decision in Hills & Dales General Hospital, 360 NLRB No. 70 (2014), in which the Board concluded that a policy requiring employees to represent the hospital "in the community in a positive and professional manner in every opportunity" impermissibly curtailed employees' Section 7 rights, the ALJ in this case held that the prohibition on camera usage without company permission would "tend to chill employees in the exercise of their Section 7 rights." Therefore, the ALJ held, the policy amounted to an unfair labor practice. The ALJ's ruling stands as another exemplar of the current NLRB's expansive interpretation of employees' Section 7 rights. Employers' right to control or even know what conduct occurs on their own premises must, at least in some regard, take a back seat to employees' rights to engage in concerted activities about the terms and conditions of work, even when those activities occur on Company premises.
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Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements.
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