The National Labor Relations Board has continually held that surveillance of employees engaged in union organizing activity is generally unlawful. An employer that photographs or videotapes employees engaged in concerted activities may be engaging in prohibited surveillance, unlawfully creating the impression of surveillance, or both.
The classic example of when this happens is after an owner learns that a union organizing meeting will take place at the local pizza parlor and drives out of his way on his way home to see which employees’ cars are in the pizza parlor’s parking lot. My advice to these owners is always to avoid driving by the pizza parlor because someone is likely keeping an eye out to catch the owner (or a manager) driving by; the filing of unfair labor practice charges will quickly follow.
Even creative attempts of learning the identities of employees meeting with unions have fallen flat. For example, the Board found that an employer engaged in unlawful surveillance by having security guards check security badges of employees in a break area where union activity was known by the employer to take place. The absence of any reason for suspecting that non-employees had entered the break area was a significant factor in the ruling.
To be clear, an employer may generally observe open and public union activity on or near its property without engaging in unlawful surveillance. But, when a nursing home administrator who does not usually work Saturdays stands in the doorway of the nursing home on a Saturday and observes a union meeting taking place in the facility’s parking lot, that surveillance is unlawful.
As a rule of thumb, the Board holds that an employer may not “do something so ‘out of the ordinary’ to give employees the impression that it is engaging in surveillance of their protected activities.”
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.