Robert Orr-Sysco Food Services

National Labor Relations Board - Board Decisions

Aug 7, 2001

334 N.L.R.B. 977 (N.L.R.B. 2001)

ROBERT ORR-SYSCO FOOD SERVICES 977
Robert Orr−Sysco Food Services and Teamsters Lo-
cal 480, a/w International Brotherhood of Team-
sters. Case 26–RC–8160
August 7, 2001
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held June 14, 2000, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to an amended order reinstating petition
and directing election. The tally of ballots shows 76 for
and 86 against the Petitioner, with 4 challenged ballots,
an insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs1 and has decided to adopt the hearing
officer’s findings2 and recommendations,3 as explained
below, and to set aside the election and order a new elec-
tion held.
The hearing officer recommended sustaining the Peti-
tioner’s Objection 4, which alleged that the Employer’s
security-camera surveillance of its employees’ handbill-
ing activities near its facility was objectionable. We
adopt the hearing officer’s recommendation to sustain
Objection 4 for the reasons set forth below.
The Employer’s facility is a substantially rectangular
building situated so that its two longer sides face north-
east and southwest, and its two shorter sides southeast
and northwest. The entrance to the building is on the
southwest-facing side. Roughly 100 feet away from the
entrance stands a guardshack. The northeast-facing side
of the structure borders Centennial Place, a public high-
way. The facility’s southeast-facing side borders another
public road, Hermitage Plaza, which makes a “T” inter-
section with Centennial Place. Thus, to enter the Em-
ployer’s facility approaching from the southeast on Cen-
tennial Place, vehicles must turn left on Hermitage Plaza,
pass by the southeast side of the building (which would
be to the driver’s right), and then turn right onto a road
that leads to the guardshack in front of the southwest
entrance. Through traffic on Hermitage Plaza continues
to an airport situated directly west of the facility.

1 By letter dated June 4, 2001, counsel for the Employer drew to our
attention Saia Motor Freight Line, Inc., 333 NLRB (2001).
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
3 Absent exceptions, we adopt the hearing officer’s recommenda-
tions that Objection 3 be overruled and that the Petitioner’s withdrawal
of Objections 5 and 6 be approved.
Four exterior security cameras are located at or near
the four corners of the Employer’s facility. These cam-
eras transmit images to monitors located in the guard-
shack, and those images are recorded on videotape. The
cameras are capable of being rotated by means of con-
trols located in the guardshack. One of the cameras, des-
ignated in the record as camera number 1, is mounted on
a pole situated near the intersection of Centennial Place
and Hermitage Plaza. Pointed straight ahead, camera
number 1 points down Centennial Place to the southeast.
Rotated to the right—or, from the perspective of some-
one standing to the southeast on Centennial Place and
facing the camera, to the left—camera number 1 points
westward down Hermitage Plaza.
Every Friday morning for the 8 weeks immediately
preceding the election, prounion employees of the Em-
ployer took part in handbilling southeast of the facility
along Centennial Place. On these occasions, camera
number 1 was pointed at the handbillers. Although a
witness for the Employer testified that camera number 1
typically points straight down Centennial Place, the hear-
ing officer credited the contrary testimony of the Peti-
tioner’s witnesses that camera number 1 generally points
down Hermitage Plaza.
Camera number 1 recorded the employees’ handbilling
activities on videotape. One such videotape was entered
into evidence as Employer’s Exhibit 13. Recorded the
Friday morning before the election, Employer’s Exhibit
13 shows traffic on Centennial Place slowing, stopping,
and otherwise responding to the conduct of the handbill-
ers, who frequently walked back and forth across the
road. The Employer’s director of training, safety, and
security informed the local police several times about the
traffic situation on Centennial Place. The police re-
sponded each time, and then began making regular pa-
trols of the handbilling site without further prompting
from the Employer.
The well-established rule is that absent proper justifi-
cation, photographing or videotaping employees as they
engage in protected concerted activity violates Section
8(a)(1) of the Act. F. W. Woolworth Co., 310 NLRB
1197, 1197 (1993); Saia Motor Freight Line, Inc., supra.
It also constitutes objectionable conduct, Mercy General
Hospital, 334 NLRB (2001), and warrants direction of a
new election unless the impact on election results is de
minimis, id. at. These rules apply not only where a
videotape is shot with a handheld camera, but also
where, as here, the videotape is created with a rotatable
security camera purposefully directed at protected con-
334 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978
certed activity. See, e.g., Mercy General Hospital, supra;
U.S. Ecology Corp., 331 NLRB 223 (2000); Dyna-
tron/Bondo Corp., 323 NLRB 1263, 1269 (1997), enfd.
in relevant part 176 F.3d 1310 (11th Cir. 1999); Frontier
Hotel & Casino, 323 NLRB 815, 837 (1997), enfd. in
relevant part sub nom. Unbelievable, Inc. v. NLRB, 118
F.3d 795 (D.C. Cir. 1997). At the same time, however,
the Board “recognize[s] that an employer has the right to
maintain security measures necessary to the furtherance
of legitimate business interests during the course of un-
ion activity.” National Steel & Shipbuilding Co., 324
NLRB 499, 501 (1997), enfd. 156 F.3d 1268 (D.C. Cir.
1998). Thus, it is neither unlawful nor objectionable
when a rotatable security camera, operating in its cus-
tomary manner, happens to record protected concerted
activity on videotape. Cf. Mercy General Hospital, su-
pra, at (finding no justification for videotaping where
direction security camera was pointing “did not result
from the established way in which the camera was oper-
ating”); Frontier Hotel & Casino, supra at 837 (finding
no justification for videotaping where security camera
focused on union activity and did not rotate to scan park-
ing lot “as was customarily the case”).
The Employer does not dispute the hearing officer’s
finding that when directed at the handbillers on Centen-
nial Place, camera number 1 was not operating in its cus-
tomary manner. Rather, the Employer seeks to defend its
conduct as justified by its concern for the safety of its
employees and the general public. In Saia Motor Freight
Line, Inc., supra, the Board accepted an employer’s con-
cern about traffic safety as a legitimate justification for
photographing employees engaged in handbilling. This
case differs from Saia, however, in two important re-
spects.
First, in Saia the handbilling took place in the em-
ployer’s driveway. Saia Motor Freight Line, supra. slip
op. at 1. The driveway, in turn, intersected with a public
road. Ibid. Handbillers approached trucks as they turned
off the public road into the driveway, causing the trucks
to slow or stop with their trailers extended into the road-
way. Id. at 8. Under these circumstances, the employer
in Saia was concerned about potential negligence liabil-
ity. Id. at 1. Thus, the Board’s holding in Saia that the
employer had presented a proper justification was consis-
tent with the settled rule that it is not unlawful to take
photographs for the purpose of gathering evidence. See,
e.g., Ordman’s Park & Shop, 292 NLRB 953, 956
(1989); Roadway Express, 271 NLRB 1238, 1244
(1984). Here, by contrast, the handbilling activity took
place entirely on the public highway itself, two turns
away from the Employer’s driveway. To reach the loca-
tion comparable to the handbilling site in Saia, vehicles
would have to turn left off Centennial Place onto Her-
mitage Plaza, drive past the southeast side of the facility,
and then instead of continuing ahead to the airport, turn
right onto the roadway leading to the guardshack. Un-
surprisingly, the Employer does not contend that it feared
negligence liability as a potential consequence of its em-
ployees’ concerted activities.
Second, in Saia the Board found it significant that the
respondent began taking photographs only “when it be-
came dissatisfied with the efforts of the police to mini-
mize traffic congestion.” Saia Motor Freight Line, su-
pra. In this case, however, the Employer failed to estab-
lish that it was similarly dissatisfied with the way the
police responded to the situation on Centennial Place.
On the contrary, according to the Employer’s own wit-
ness, the police response was prompt and ongoing. The
Employer nevertheless continued to videotape its em-
ployees’ handbilling activities right up to and including
the last Friday morning before the election.
Under the circumstances presented here, we conclude
that the Employer has failed to establish a proper justifi-
cation for videotaping of its employees’ handbilling ac-
tivities. Thus, we further conclude that the videotaping
constituted objectionable conduct that warrants setting
aside the June 14 election. Accordingly, we sustain the
Petitioner’s Objection 4 and set aside the election,4 and
we shall direct a second election.
[Direction of Second Election omitted from publica-
tion.]

4 As we have sustained the Petitioner’s Objection 4, we find it un-
necessary to pass on the issues raised by its Objections 1 and 2.