## Facts

- During a labor dispute, off-duty employees distributed handbills to customers near store entrances urging them to shop elsewhere.
- The employees did not block ingress or egress and moved aside when asked by management.
- The employer photographed and videotaped the employees while they handbilled.
- Management did not identify any employee misconduct other than their presence near the doors engaging in handbilling.
- A union filed an unfair labor practice charge alleging unlawful interference with protected activity under NLRA § 8(a)(1).
- An Administrative Law Judge found a violation; the employer filed exceptions to the Board.

## Issues

1. Whether an employer violates NLRA § 8(a)(1) by photographing and videotaping off-duty employees engaged in peaceful, non-obstructive handbilling protected by NLRA § 7.
2. Whether the absence of employee misconduct or a legitimate business justification makes such recording unlawful employer surveillance or apparent surveillance.

## Decision

- The Board affirmed the Administrative Law Judge.
- The Board held the employer violated NLRA § 8(a)(1) by photographing and videotaping employees engaged in protected handbilling without a legitimate justification.
- The Board found the recording had a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of § 7 rights.
- The Board ordered cease-and-desist relief and posting of a notice.

## Legal Principles

- Employer conduct violates § 8(a)(1) if it has a reasonable tendency to interfere with, restrain, or coerce employees in exercising § 7 rights; proof of actual deterrence is not required.
- Photographing or videotaping employees engaged in protected activity can constitute unlawful surveillance or apparent surveillance when it is targeted, overt, and out of the ordinary.
- Absent objective evidence of misconduct or a concrete security/evidentiary need, employer recording of protected handbilling is unlawful because it can chill participation by signaling that the employer is identifying and documenting protected activity.
- Employees’ interest in keeping § 7 activity confidential outweighs an employer’s generalized desire to create a record of that activity when no legitimate justification is shown.

## Conclusion

The Board concluded that overt recording of peaceful, non-disruptive handbilling at store entrances—without evidence of misconduct or a legitimate business reason—reasonably tends to chill protected activity and therefore violates NLRA § 8(a)(1), warranting cease-and-desist and notice-posting remedies.


F.W. Woolworth Co., 310 N.L.R.B. 1197 (1993)