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NLRB Signals ‘Possible Rollback’ Of Union Surveillance Rule

Published Sunday, November 3, 2019
by Bloomberg Law
NLRB Signals ‘Possible Rollback’ Of Union Surveillance Rule

(WASHINGTON, D.C.) - Two National Labor Relations Board (NLRB) Members have signaled their interest in reconsidering long-standing precedent that can make employer surveillance of Union Activity unlawful - even if the Employees don’t know they’ve been observed.

NLRB Chairman John Ring and Member Marvin Kaplan mentioned revisiting that case law in an October 29th ruling involving the National Captioning Institute (NCI) Incorporated.  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 NLRB’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.

The NCI case stems from the National Association of Broadcast Employees & Technicians (NABET)-Communication Workers of America’s (CWA) Organizing Campaign at the company’s facility in Santa Clarita, California 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 (ULP) - even though it didn’t generate information used in a termination or other adverse employment action, the NLRB 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 NLRB Panel said.

The NLRB Panel sent parts of the case back to an Administrative Law Judge, who had previously ruled against the company’s Social Media and Workplace Conduct Policies under the NLRB’s now-defunct legal standard.

The judge said the company should reconsider those policies under the NLRB’s legal test from its 2017 ruling in Boeing, the NLRB Panel said.

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

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