Randell Warehouse of Arizona: Surveillance, Coercion, and the Unionization Campaign
Brent G. Tabacchi | 2001 U. Ill. L. Rev.
In this note, Brent G. Tabacchi, examines the implications of the Randell Warehouse of Arizona decision on the use of surveillance in the context of unionization campaigns. Both the federal courts and the National Labor Relations Board (NLRB) have struggled with the tension between an employer and union's use of surveillance during a unionization campaign and the rights of the employees. Randell Warehouse of Arizona, meant to clarify the issue, has instead created greater uncertainty.
The author begins by exploring the roots of the National Labor Relations Act (NLRA) and its prohibition of employer interference with an employee's ability to participate in union activities. Such legislation was necessary as the common law did not adequately protect employees or foster the sluggish economy. Section 7 of the NLRA provided employees the right to self-organize and, more importantly, section 8 provided definitive protection of this right making it an unfair la-bor practice for an employer to interfere with the employee's section 7 rights. Later, the Taft Hartley Act put the same constraints on unions as the NLRA had placed on employers.
Next, the author examines the NLRB's more difficult task of applying the new legislation in the workplace and developing tests to determine what type of conduct constituted a violation by employers and unions. Following NLRB precedent that created a presumption of a violation for certain forms of union photography, the Randell Warehouse of Arizona decision further complicated the issue by dichotomizing the treatment of union and employer exploitation of photography in the context of unionization campaigns. In the majority, though heavily criticized, decision, the NLRB makes broad presumptions concerning the effect and operation of surveillance in the workplace to justify its disparate treatment. This author argues that these presumptions are too broad to be effective, fair, or realistic.
Ultimately, the author recommends that the board apply an "under the circumstances" approach to surveillance in the context of unionization campaigns. Such a test, argues the author, will provide a fair and flexible analysis to cases involving alleged violations of section 8 of the NLRA. When using this approach, the Board merely asks whether, under the particular circumstances of this case, the questioned conduct tended to coerce or tended to interfere with the employee's exercise of his rights. This inquiry serves to promote the interests of the worker without unduly trammeling union and employer prerogatives.