Can you spy on your employees to learn more about their union activities?

The use of spies or informants to learn about union activities and employee affiliations is a form of interference, restraint and coercion which violates the National Labor Relations Act. Spying on employees can also be grounds for setting aside an election.

Impression of spying also unlawful. In addition to actually spying on employees, the NLRA forbids an employer from engaging in surveillance activities or in giving employees the impression it is watching them.

When is surveillance unlawful? Typically, an employer's mere observation of open, public union activity on or near its property will not be considered unlawful surveillance. Surveillance condemned by the National Labor Relations Board includes activities ranging from the unexplained presence of the employer's supervisors near a union's meeting hall to uninvited attendance at, and interference with, a union meeting by foremen.

Photographing or videotaping. Photographing and videotaping union activity is generally considered more than mere observation of union activity because the pictures may create fear among employees of future retaliation. An employer that is photographing or videotaping union activities must be able to demonstrate that it had a reasonable basis to have anticipated misconduct by the employee. The test is whether the photographing or videotaping has a reasonable tendency to interfere with protected activity under the circumstances of each case.

Determining when surveillance becomes unlawful.An employer violates the NLRA when it monitors employees engaged in open Section 7 activity by observing them in a way that is out of the ordinary and thereby coercive. Factors tending to indicate coercion include:

• the duration of the observation;

• the employer's distance from its employees while observing them; and

• whether the employer engaged in other coercive behavior during its observation.