Court to Labor Board: Your “misguided attempt to find a labor-law violation” is “nonsense”


Like The Rock laying the smack(eth) down on Cody Rhodes in a Chicago parking lot, a federal appellate court recently pummelled the National Labor Relations Board. Although to be clear, no one was harmed as part of the DC Court of Appeals’ recent ruling about the contours of employee surveillance.

I’ll tell you what happened.

During his lunch break, a delivery driver covered an onboard camera in his company truck. So his supervisor texted him once not to cover the camera. That’s it.

But the union filed unfair-labor-practice charges anyway, and the Board’s General Counsel issued a complaint, alleging that the company had created an impression of surveillance of organizing activities by making the employee, a known union supporter, aware that he was being watched.

Section 8(a)(1) of the National Labor Relations Act prohibits employers from coercing employees in their rights to form a union. This happens when an employer creates an “impression” that it is conducting surveillance of employees “concerning the exercise of rights guaranteed by the Act.”

Did the single text message that mentioned nothing about union activity create an impression of employee surveillance?

The company argued it didn’t, especially in the face of longstanding written policies that: (1) the company could monitor any data in its systems and inspect company property at any time without notice; (2) drivers have “no expectation of privacy” in any information stored or recorded on company systems, including vehicles; and (3) “[a]ll vehicle safety systems, telematics, and dash-cams must remain on at all times unless specifically authorized to turn them off or disconnect” because vehicle safety is paramount.

The Board disagreed, concluding that the supervisor’s actions were “out of the ordinary,” without justification, and created an impression of surveillance. Plus, it found no evidence that the employee violated his supervisor’s instruction by covering the camera in his vehicle.

But the DC Court of Appeals was not having any of it, concluding that the Board’s “misguided attempt to find a labor-law violation in one text message” was pure “nonsense.”

After all, the company’s rules were crystal clear and well-known, and the Board’s “guesswork” that the employee engaged in any union activity in the small cab of his delivery truck lacked “any reasonable understanding of that provision’s prohibition on practices that ‘coerce employees in the exercise of the rights guaranteed’ by the Act.”

Further, an employee’s pro-union leanings do not “automatically render suspect any interaction between him and management in perpetuity,” especially in the face of a single instruction from a supervisor that does not reference the employee’s union activity.

“At bottom,” noted the court, “the Board’s errors reveal just how far it strayed from its statutory mandate [to administer the Act].”

If you smell what the court is cookin’!

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