A recent ruling by the National Labor Relations Board (NLRB) should serve as a warning to employers that misguided efforts to “keep an eye” on possible union activity in the workplace, can have severe legal consequences.

Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to unionize and to engage in other concerted activities for the purpose of collective bargaining, and Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

In AdvancePierre Foods, Inc. and United Food and Commercial Workers Union, the NLRB held that an employer’s video surveillance of employees distributing union literature was illegal, constituted an unfair labor practice under Section 8(a)(1) of the Act, and imposed monetary and injunctive penalties against the company.

AdvancePierre Foods, Inc. (APF) is a Cincinnati, Ohio corporation that manufactures processed foods for restaurant chains and convenience stores nationwide. In the Spring of 2015, APF employees met with officials of the United Food and Commercial Workers Union to discuss unionizing the 600 employee workforce. Prompted by employee complaints that coworkers were distributing union literature and authorization cards in the employee breakroom, APF’s Human Resources Manager reviewed the day’s break room surveillance video footage and observed two employees distributing materials. The two employees were subsequently questioned about their actions, verbally disciplined for violating the Company’s no-solicitation/no-distribution policy, and were warned not to distribute union literature in the future.

In ruling against the Company, the NLRB noted that an employer’s videotaping or photographing of employees engaged in union or protected concerted activity, without proper justification, violates Section 8(a)(1), as it has a tendency to intimidate employees. In this instance, the NLRB discounted the Company’s claim that the surveillance was justified because of the employees’ violation of APF’s no-solicitation/no-distribution policy, noting that the policy itself violated Section 8(a)(1).

Under the NLRA, unions have significant freedom to solicit employees and make promises in order to unionize a workplace, while the actions available to employers are much more restricted and full of potential legal landmines. As illustrated by this case, before taking any actions in response to unionization efforts, employers should seek legal advice from experienced labor law counsel.