Photographing Employees During Organizing May Invalidate Election

October 12, 2006 by Beeson Tayer & Bodine

The NLRB has long held that it’s an unfair labor practice for an employer to photograph employees speaking with union organizers or accepting union flyers during an organizing drive. However, for several years, the Board held that unions could photograph employees during union drives so long as the union doesn’t threaten employees while they are photographing them. The different standard was based on the reality that unions, unlike employers, have little ability to retaliate against employees. In a recent decision, Randell Warehouse, 347 NLRB No. 56, the Board overturned this distinction and held that a union commits an unfair labor practice if it photographs employees during an organizing effort without a reasonable explanation to the employees. It’s not clear what the Board would accept as a “reasonable explanation,” but the idea is to dispel any inference that the phototaking will be used to retaliate against employees for opposing the engaging in protected activities. The opinion notes only that pictures taken to “memorialize a picnic” is reasonable, while informing employees that the pictures are “for the union’s purpose” is not a “reasonable explanation.” Significantly, the explanation must be communicated to each employee who is photographed. The upshot is that you should carefully consider whether you want to photograph employees and risk delaying or overturning an election victory.

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