Watch the Workplace Legally
Print Issue: October 2015
To express thier solidarity in fall 2012, Boeing Engineers’ Union members began to wear red union shirts on Wednesdays and to participate in peaceful solidarity marches throughout Boeing’s facilities in Everett and Renton, Washington, and Portland, Oregon.
After the union began the marches, Boeing management decided to update a previous rule, requiring it to notify security immediately for videotape support if a workplace march occurred. The rule was also updated to require managers to notify employees of the potential for corrective action and pay impact for unacceptable conduct during mass marches. Additionally, the updated rule removed previous prohibitions on recording peaceful picket lines.
After the rule change, during a peaceful march that presented no safety-related issues and during which no violence occurred, security guards used digital cameras and cell phones to photograph workers participating in the union marches. Boeing claimed that it recorded the marches to document possible safety violations.
However, the union filed a complaint with the National Labor Relations Board (NLRB). The NLRB found that because the photographing occurred only during the solidarity marches, Boeing’s actions were a deviation from normal, past security practices and were unlawful under the National Labor Relations Act (NLRA). Boeing was not fined, but the company was instructed to cease and desist its activities in response to the marches.
Currently, 6.6 percent of the U.S. workforce, or 7.4 million private sector workers, belong to labor unions. These individuals and others seeking unionization have protections under the NLRA, which says that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”
The NLRA also makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights” guaranteed to them under the law. NLRA violation complaints can be brought before and heard by the NLRB, a five-person panel appointed by the president whose decisions carry precedent.
Violations involving security personnel are commonplace. This can be attributed to the nature of the role of security in organizations because security personnel are “agents” or proxies of the employer. Security is seen as carrying out policy and speaking and acting for management making some surveillance activities unlawful under the NLRA.
To avoid NLRB claims and to ensure positive labor management relations in the workplace, security managers must have a comprehensive understanding of what constitutes unlawful surveillance under the NLRA.
Generally, individuals do not have a reasonable expectation of privacy when they are openly conducting union-related activities. Management—and its agents—can openly observe and engage in normal surveillance of union-related activities on or near company property without violating the NLRA.
The test for determining whether an employer has engaged in unlawful surveillance is whether “employees would reasonably assume from the employer’s statements or conduct that their protected activities have been placed under surveillance,” according to a 2014 NLRB decision. For instance, at Alta Bates Summit Medical Center, employees were involved in union organizing activities at two of the company’s healthcare facilities. They were using the company cafeterias as a meeting place for union members—a common past practice in prior union-related activities.
In response to the union meetings, security officers—assigned by management to follow employees—stationed themselves nearby and carefully listened to and observed the union stewards’ activities in the cafeteria. In another location and in a separate incident, security staff sat close to and photographed a union member’s activities.
The union filed a claim, and the NLRB found that these two events were not “mere happenstance” because the surveillance was not an ordinary business activity and was used to “trammel and stymie” union activities, according to the decision.
In another instance, involving Ozburn- Hessey Logistics, the NLRB determined that a security manager’s actions were out of the ordinary when observing employees passing out union materials and encouraging employees to sign union authorization cards in the company parking lot.
The security manager randomly drove around the employee parking lot where union organizing was occurring and then exited his vehicle for a few minutes feigning a cell phone call. The NLRB found that this behavior was coercive in nature. It also rejected the manager’s testimony that he never saw the organizing activities, determining it to be implausible “given that he is a security official who would likely notice such activities.”
Creating an impression of surveillance without any manifest actions can also be an unfair labor practice. The NLRB has found that disparaging comments made by management about union organizers creates an impression that union members could be watched, chilling union activities.
Furthermore, simply telling employees that management is aware of union activities without disclosing the source of that information creates an impression of surveillance since employees are “left to speculate as to how the employer obtained that information, causing them reasonably to conclude that the information was obtained through employer monitoring,” according to a 2007 NLRB decision.
Video surveillance is a common security activity. Employers have a right to maintain security measures in furtherance of their legitimate business interests, even if they record concerted union-related activities. Overt video surveillance operated in a customary manner is not an unfair labor practice.
But at Robert Orr-Sysco Food Services, a preexisting security camera was not operating in its customary manner. While it was typically set to rotate, during the union activity it was fixed directly on union hand-billers across the street from company property. Because the company could not provide a legitimate security justification for this activity, the NLRB found it to be an unfair labor practice.
The NLRB has determined that recording and photographing is more than mere observation, and deviations from normal camera use can be an unfair labor practice. This is based on the logic that photographing or recording the activities of union members—in any manner—can prevent them from engaging in union activities for fear of a permanent record of their activities, the lack of anonymity, and concern over future reprisals.
The installation and use of hidden or covert security cameras in a union setting is a mandatory subject of bargaining. The reasoning for this is that the evidence collected from these cameras can be used for disciplinary purposes, affecting the terms and conditions of a person’s employment.
Employers, however, are not obligated to bargain with the union regarding the location, placement, and time of camera use, or the upgrade and repair of existing surveillance equipment.
Cyber surveillance is another area of contention. In a complaint involving Purple Communications, Inc., the NLRB examined a company policy that prohibited the use of company e-mail for union activities. Even though the company had a policy stating that all electronic communications were the property of the company and that e-mail should be used for business purposes only—not for activities on behalf of organizations not affiliated with the company—the board found the policy too restrictive.
In its decision, the NLRB raised the point that e-mail has become a “critical means of communication” and is a “natural gathering place” where coworkers “share common interests.” The board also explained that the personal use of e-mail systems, regardless of written policy, is often accepted by employers when such use does not interfere with business needs or add significant costs.
If a company allows employees to use an e-mail system for any type of nonbusiness activity, then there is a presumptive right for employees to use the company e-mail for union activities during nonworking times. The same point arguably also applies to Internet use.
Similar issues exist with social media sites, including Facebook, Twitter, and LinkedIn. Generally, if employees invite or “friend” management into their network, they are inviting surveillance, and no unlawful surveillance claims exist. However, if management seeks out contact—where an employee feels obligated to “friend”—then this may be an unfair labor practice. And trolling for union-related information or giving the impression of monitoring social media sites is unlawful.
Additionally, while employers may have disciplinary policies for disloyal, disparaging, or defamatory remarks regarding products and services, the use of social media to discuss conditions and terms of employment and organizing is a protected activity.
In a case involving Three D, LLC, owners of Triple Play Sports Bar and Grill, the NLRB concluded that the termination of two employees for violating company policy by participating in a Facebook discussion about their employer’s tax withholding calculations was unlawful. Even though the discussion was critical of the company, the employees were using social media for a protected and concerted activity, the board found.
Under the principle of anticipatory misconduct, employers can assert their right to protect their property and engage in enhanced surveillance activities. Anticipatory misconduct is more than a mere belief that something may occur; instead, a reasonable basis for increased surveillance must exist based on an articulated safety and security concern.
To determine whether increased surveillance is an unfair labor practice, the NLRB considers whether the “photographing or videotaping has a reasonable tendency to interfere with protected activity under the circumstances in each case,” which balances with the need for security and safety, according to a 1993 decision, which set a precedent on the issue. Washington Fruit and Produce Co. met the requirements for anticipatory misconduct when an official from the Washington Fruit Growers League told the president of the company that the union was organizing a large march in front of the company the next day.
Anticipating a crowd of 100 union demonstrators, many of whom were being brought in and were not company employees, management became concerned that the size of the crowd and its actions would impede traffic, lead to trespassing, damage company property, and endanger the safety of employees.
Because of these articulable reasons and particular facts, the NLRB determined that 19 minutes of videotape of the march that was taken for evidentiary reasons was lawful since management “could easily visualize the consequences of such a high-profile gathering,” predicting that safety and security issues could arise, according to the board’s decision.
The NLRB also determined that the company had legitimate safety and trespass concerns—not mere suspicion—to increase its surveillance activities.
However, in a case involving telecommunications company Embarq Co., the NLRB found no basis for increased surveillance of employees picketing in front of their employer’s retail store. In this instance, a security guard took photos of at least six picketers and videotaped the picket line and other employees.
The NLRB determined that the photographing and videotaping were more than observation of an open and public activity, making it unlawful. The picketers were on public property and were not trespassing, blocking traffic, or engaged in other forms of misconduct. As such, the surveillance by the security guard was unlawful because it had the tendency to intimidate employees.
Employers can also increase the number of security personnel, but this escalation cannot be used for union surveillance activities alone. Instead, the increase in personnel must be related to the furtherance of legitimate business interests and be used to ensure the safety and security of company assets.
Because of this, when the NLRB assesses the validity of complaints, it considers whether the purpose of the increased security presence was simply the surveillance of union activities or was based on the security needs of the organization. The degree to which the surveillance interfered with lawful and legitimate union activities is also considered.
To ensure that policies and practices are legal, meet the specific needs of the organization, and are designed and applied with the goal of long-term harmony, several factors should be considered.
First, managers and staff need to be trained in labor law to ensure that they do not violate the provisions of the NLRA. Based on case review, many violations occur because of the lack of knowledge of what constitutes an unfair labor practice—not because surveillance activities were purposefully intended to interfere with protected union activities.
In addition to training, employers should review all surveillance-related policies and procedures to confirm that they are lawful. Security should also ensure that operations are carried out as normal during all union-related activities.
Employers should also keep in mind that security personnel are often considered to be agents of corporate management. If security officers engage in an unlawful surveillance-related action, the NLRB may consider the activity a managerial activity carried out by security staff.
Furthermore, employers should be mindful that unlawful surveillance is based on an employee’s reasonable assumption that the employer was monitoring protected activities. The burden of proof regarding unlawful surveillance falls upon employers to prove that their surveillance actions did not interfere with protected activities.
Unlawful surveillance is also an issue for security personnel operating in nonunion settings. The NLRA protects all persons involved in concerted labor activities, which include informational pickets and organizing drives. Employers should prohibit security personnel from using their own smartphones or other devices to record protected activities because these actions may be construed to be coercive and have a chilling effect.
Additionally, employers should keep in mind that physical activities and verbal comments made by security personnel related to surveillance—planned or unintentional—may lead to an unlawful surveillance claim.
Employers also need to be consistent. They should not change surveillance-related activities during any union-related activities unless substantial safety or security-related justifications exist.
Finally, employers should remember that increased surveillance is lawful, but only under certain conditions. The justifications for increased surveillance must be related to safety and security needs and not be based simply on suspicion. Increased surveillance of union activities without an articulated, justifiable safety and security reason are likely to result in a NLRA violation.
Brian R. Johnson, Ph.D., is a professor of criminal justice at the College of Community and Public Service at Grand Valley State University, Grand Rapids, Michigan. He received his Ph.D. and master’s degree in labor and industrial relations and criminal justice from Michigan State University. His research and publications are focused on private security, labor relations, criminology, and policing.