D.C. Circuit Provides Guidance on Unlawful Surveillance Under the NLRA


This month, the U.S. Court of Appeals for the D.C. Circuit issued several opinions that provide some guidance to employers on the issue of unlawful surveillance of union members or supporters under the National Labor Relations Act.

The Rule on Surveillance. The Act prohibits employers from engaging in or creating the impression of surveillance of union-related activity because such conduct may interfere with, restrain or coerce employees who are attempting to exercise their protected right to self-organization. Unlawful surveillance may be found where the employer’s conduct is “out of the ordinary” such that it has a “reasonable tendency in the totality of the circumstances to intimidate the employees.” Routine employer observation of employees, however, is legal.

NCRNC, LLC v. NLRB. In the first case, there was a unionization drive at a health care facility. During the drive, managers distributed informational “fact of the day” flyers that included quotes from a guide to the NLRA and got employee feedback, which, along with their observations of employee reactions, they reported to the employer’s labor relations consultant. The facility also implemented a “Manager on Duty” program, whereby managers would rotate around different floors and purportedly assist staff – but were also directed to observe whether employees gathered in groups and to monitor “suspicious activities.” The Board found these activities to constitute unlawful surveillance.

On appeal, the D.C. Circuit first found that distributing employee flyers, observing employee reactions, and one-on-one persuasion efforts do not constitute unlawful surveillance. Rather it is protected speech under the First Amendment, as recognized by the Act, which provides that, “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice” unless it contains a “threat of reprisal or force or promise of benefit.” More specifically, the D.C. Circuit reiterated that employers have the explicit right to influence their employees through verbal appeals and to communicate their general views on unionism. They also “may investigate employees’ views on unionization so long as employers use non-coercive means to discover those views.”

More problematic, however, was the Manager on Duty program. In determining whether conduct is so out of the ordinary as to constitute unlawful surveillance, the following factors are considered: the duration of the observation, the employer’s distance from its employees while observing them, and whether the employer engaged in other coercive behavior during its observation. Here, the D.C. Circuit found that the increased presence of managers during the union drive, at abnormal times and locations, was atypical monitoring that deviated from the company’s usual practices and was enacted for the purpose of inhibiting employees from participating in protected union activity.

Stern Produce Co. v. NLRB. In the second case, the employer, a wholesale produce distributor, had cameras installed in company trucks to prevent unsafe driving and protect drivers from liability for accidents for which they were not at fault. The employer also had policies directing drivers that all vehicle cameras must remain on “at all times” unless specifically authorized to turn them off, as well as providing notice that drivers should have no expectation of privacy with regard to in-vehicle recording systems.

A driver (who had testified against the employer in a 2019 unfair labor practice trial) stopped for a lunch break and covered the truck’s internal camera. His supervisor sent him a text message: “Got
the uniform guy for sizing bud, and you cant [sic] cover the camera it’s against company rules.” The driver responded several hours later, acknowledging the text and stating that it was his lunchtime. There was no further discussion about this subject. The Board found that the employer had created an impression of surveillance of organizing activities by making the employee aware that he was being watched.

The D.C. Circuit rejected the Board’s argument that the employee had not violated the company’s rules when he blocked the camera during his lunch break, calling it “nonsense” since there was nothing ambiguous about the policy’s requirement to have the camera on “at all times.” The D.C. Circuit found that, under typical circumstances, a reasonable driver would have no basis to believe he was being watched through the truck camera for union activities, particularly since he knew he could be monitored at any time, without warning for any reason, as set forth in the relevant policies. Moreover, there was no evidence that union activity ever took place in a truck cab. In addition, another employee had been issued discipline for covering his camera.

Of particular interest, the D.C. Circuit recognized that the driver was a known supporter of the union and had been previously subjected to unfair labor practices (against all drivers, not just him specifically). It pointedly stated, however, “But those facts cannot automatically render suspect any interaction between him and management in perpetuity.” And an employer does not violate the Act with a single remark that does not directly or indirectly refer to the employee’s union activity.

Lessons for Employers. Employers should be aware that the Board is taking an extremely aggressive position on employer activities that have traditionally been considered lawful under the Act. At the same time, the D.C. Circuit has not been afraid to rein it in. However, employers should be careful about changing any conduct that could be viewed as surveillance in the context of union activity.