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NLRB Signals Possible Rollback of Union Surveillance Rule (1)

Oct. 30, 2019, 10:32 AMUpdated: Oct. 30, 2019, 5:48 PM

Two NLRB members signaled their interest in reconsidering longstanding precedent that can make employer surveillance of union activity unlawful even if the employees don’t know they’ve been observed.

National Labor Relations Board Chairman John Ring and Member Marvin Kaplan mentioned revisiting that case law in an Oct. 29 ruling involving the National Captioning Institute Inc. The NLRB concluded that the company unlawfully surveilled a private employee Facebook group and retaliated against workers for their union activity.

At least one worker knew about the surveillance, so there was no reason to weigh the rule from the U.S. Court of Appeals for the Ninth Circuit’s 1941 decision in NLRB v. Grower-Shipper Vegetable Assn. of Central California, which prohibits “out-of-the-ordinary” surveillance of union activity regardless if the workers are aware of it, according to the board’s ruling.

But that precedent lacks “meaningful analysis” about how an employer can interfere with, restrain, or coerce employees’ exercise of their rights under federal labor law if they don’t know about the surveillance, Ring and Kaplan, two members of the NLRB’s Republican majority, said in a footnote.

Conduct During Organizing Drive

The NCI case stems from the National Association of Broadcast Employees & Technicians—Communication Workers of America’s organizing campaign at the company’s facility in Santa Clarita, Calif., and it’s now-shuttered office in Dallas.

NCI violated federal labor law when it repeatedly got from a worker reports about a members-only Facebook page formed by pro-union workers, said a three-member NLRB panel that also included Democrat Lauren McFerran. The company’s unusual surveillance activity was an unfair labor practice even though it didn’t generate information used in a termination or other adverse employment action, the panel said.

That Facebook surveillance was also part of the evidence showing the company’s anti-union animus motivating its unlawful discipline of a union supporter, the NLRB panel said. That same employee, plus another union supporter, were fired in violation of labor law, the panel said.

The NLRB panel sent parts of the case back to an administrative law judge. The judge, who had previously ruled against the company’s social media and workplace conduct policies under the NLRB’s now-defunct legal standard, should reconsider those policies under the NLRB’s legal test from its 2017 ruling in Boeing, the panel said.

NCI, the company’s attorney, the CWA, and the union’s lawyer didn’t immediately respond to requests for comment.

The case is National Captioning Institute, N.L.R.B., Case 16–CA–182528, 10/29/19.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com