Originally appeared in Labor Law Newsletter - January 2002
In a ruling that may reduce intimidation against replacement workers crossing picket lines, the National Labor Relations Board recently held that a union violated the Act where picketers videotaped replacement workers entering and exiting the employer’s facilities, recorded their license plate numbers and directed abusive remarks toward them.
In General Teamsters, Warehousemen and Helpers Union (Basic Vegetable Products, L.P.), 335 NLRB No. 55 (August 27, 2001), the union struck after the contract expired and the employer hired replacements who were eventually converted to permanent replacements. The union instructed its picket line captains and picketers to have a video camera available at all times, allegedly to record any violence or violations of the law on the part of the employer and to record events on the picket line in the event of any allegations of misconduct on the part of picketers. However, the union picketers used the cameras to videotape vehicles entering and exiting the facility. The cameras were aimed at license plates and the occupants of the vehicles. In one incident, while a picketer was using a camera, another union supporter used a bullhorn to call out the license number of each vehicle entering the facility. Picketers simultaneously sometimes shouted obscenities at the replacements.
The Administrative Law Judge held that the Union violated Section 8(b)(1)(A) by videotaping the replacement employees, their vehicles and license plates. A Board majority affirmed the finding that, although video-taping employees is not by itself a violation of the Act, when picketers combined the videotaping with other action that indicates that the union may react negatively to employees who fail to honor a picket line, such conduct violates the Act.
From now on, union videotaping of replacement workers or other people attempting to cross picket lines may be unlawful when it is combined with abusive remarks or other conduct that has a reasonable tendency to instill fear of retribution in the minds of replacement or crossover employees.
As our readers know, federal and state departments of labor have intensified their scrutiny of independent contractor arrangements and are coordinating with the federal and state taxing authorities when misclassifications are found.
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