An NLRB administrative law judge (“ALJ”) recently held that Boeing engaged in unfair labor practices when it photographed and recorded employees engaged in union activity.  Boeing’s policy prohibiting employee use of cameras in the workplace was also found to be in violation of the National Labor Relations Act (“NLRA”).

The ALJ found that Boeing lacked any reasonable justification for photographing four union marches that took place in 2012 in support of the union’s demands for a new contract. To record such union activity, an employer must have a reasonable basis for anticipating misconduct. While Boeing claims to have a reasonable justification, the ALJ found that the lack of any prior history of misconduct during the marches weighed against Boeing. In addition, the employer’s recording had a chilling effect on the employees’ exercise of their federally protected rights. If an employer has the desire to video tape or photograph its employees’ union activity, it should first speak with counsel in order to determine whether or not it possesses the justification necessary to do so, thus avoiding a costly claim of unfair labor practice under the NLRA.

The issue of larger import for employers, however, was the ALJ’s decision to invalidate Boeing’s policy prohibiting employee use of cameras in the workplace. The policy prohibited workers’ use of personal camera enabled devices to capture images or videos unless there was a valid business need and an approved permit. The judge found the policy to be at odds with the NLRA since employees would reasonably construe the rule as barring all photography in the company’s facilities, including photography related to solidarity marches during bargaining negotiations or other protected concerted activities. The policy, the judge reasoned, would reasonably tend to chill the exercise of workers’ labor law protected rights.

At a time when nearly every working-aged individual has a camera built into their phone, an employer’s ability to curtail the use of those devices may be integral to its ability to protect the security of its facility as well as its proprietary information. To avoid invalidation of internal policies, employers should consult with Kelley Drye when drafting or revising their policies in order to protect their security and proprietary information while at the same time avoiding any liability under the NLRA.