The National Labor Relations Board (Board), in a 3-2 decision involving Randell Warehouse of Arizona, found that Sheet Metal Workers Local 359 (Union) engaged in objectionable conduct when its agents photographed employees during the Union's distribution of campaign literature.

The Board found that employees have a right to accept or not accept the Union's literature, and that photographing them as they make that choice would reasonably be coercive. The Union did not provide the employees with any legitimate justification for the photographing.  Thus, the Board found that the Union's conduct tended to interfere with employee free choice in the election, and directed that a second election be held. The majority opinion is signed by Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow.  Members Wilma B. Liebman and Dennis P. Walsh dissented.  The decision is posted on the Board's website at www.nlrb.gov.

In a prior decision (Randell I), the Board found that the photographing was not objectionable because it was not accompanied by other coercive conduct. In that decision, the Board overruled precedent which had held that union photographing was objectionable even if it was not accompanied by other coercive conduct.  The Board there retained the rule that employer photographing was presumptively coercive, even if it was not accompanied by other coercion.

The D.C. Circuit Court of Appeals did not agree with the Board.  The court noted that the Board had not dealt adequately with its prior decision in Mike Yurosek, 292 NLRB 1074 (1989).  The court remanded for "further consideration and a reasoned opinion."  The court did not preclude the Board from overturning precedent so as to clarify Board law.

Upon reconsideration, the majority in Randell II concluded that the Randell I rationale for the different standards for employees and unions could not withstand careful scrutiny.  The majority stated:

The rationale for finding that unexplained photographing has a reasonable tendency to interfere with employee free choice applies regardless of whether the party engaged in such conduct is a union or an employer.  Thus, the disparate treatment embraced by the Randell I Board cannot be squared with the Act's fundamental principles.

The decision stated:

In the context of an election campaign, the union seeks to become (or remain) the representative of the unit employees.  To achieve this goal, the union must convince a majority of employees to vote in its favor.  A reasonable employee would anticipate that the union would not be pleased if he or she failed to respond affirmatively to the union's efforts to enlist support, just as an employee would anticipate that an employer would not be pleased if he or she rebuffed the employer's solicitation to reject union representation.

Accordingly, the Board overruled Randell I and found that:

[I]n the absence of a valid explanation conveyed to employees in a timely manner, photographing employees engaged in Section 7 activity constitutes objectionable conduct whether engaged in by a union or an employer.

Applying that principle, the majority concluded that:

[T]he Union engaged in objectionable conduct by photographing employees as they were being offered literature by Union representatives.  For the reasons explained above, such photographing is presumptively coercive.  Moreover, the Union did not adequately explain its purpose for the photographing.  The one explanation offered to a single employee — "It's for the Union purpose, showing transactions that are taking place.  The Union could see us handing flyers and how the Union is being run" — was ambiguous at best.  It did not establish a legitimate justification for the photographing. Accordingly, the photographing reasonably tended to interfere with employee free choice, and the election must be set aside.