Labor & Employment Law

NLRB decision may be used as a primer on employee surveillance

By Harvey Randall, Esq.

NLRB decision may be used as a primer on employee surveillance

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

As students of labor law know, surveillance of concerted activity has a long history in labor law. It is generally unlawful because it tends to chill protected activity. In Sprain Brook Manor, 351 NLRB No. 75 (Dec. 21, 2007), the Board had occasion to review the applicable standards. As the Board stated:

Although an employer may observe open union activity on or near its property, ?an employer may not do something ?out of the ordinary? to give employees the impression that it is engaging in surveillance of their protected activities.?

Loudon Steel, Inc., 340 NLRB 307, 313 (2003). The record shows that Miscioscia?s actions on August 13 were out of the ordinary. Indeed, her very presence at the facility was unusual because she did not ordinarily work on Saturdays. Employees testified that they had never seen her at the facility on a Saturday. On this day, employees saw her standing in the doorway and watching their union activities. By her own testimony, Miscioscia was at the facility solely for the purpose of observing union activity. Under these circumstances, Miscioscia?s conduct was ?out of the ordinary? and constituted unlawful surveillance. See Partylite Worldwide, Inc., 344 NLRB 1342 (2005); Arrow Automotive Industries, 258 NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982).

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on January 15, 2008 (boomark / email).