Randell Warehouse of Arizona, Inc.

RANDELL WAREHOUSE OF ARIZONA 347 NLRB No. 56 591 Randell Warehouse of Arizona, Inc. and Sheet Metal Workers’ International Association, Local 359, AFL–CIO. Case 28–CA–16040 July 26, 2006 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN, SCHAUMBER, KIRSANOW, AND WALSH This case presents the issue of whether the Union’s unexplained photographing of employees while union representatives distributed campaign literature to them prior to the election constituted objectionable conduct. Overruling established precedent holding that such pho- tographing has a reasonable tendency to interfere with employee free choice, the Board’s initial decision in this proceeding found that the conduct was not objection- able.1 The Respondent sought review of the Board’s decision in the United States Court of Appeals for the District of Columbia Circuit, which subsequently re- manded to the Board “for further consideration and a reasoned opinion.”2 Upon reconsideration, we find that the Randell I Board erred in its initial disposition of this case. Prior to Ran- dell I, Board precedent established that “absent proper justification, the photographing of employees engaged in protected concerted activities violates the Act because it has a tendency to intimidate.”3 The Board, concerned with the potentially intimidating nature of the conduct, rather than the identity of the party photographer, did not distinguish between employer and union photographing.4 The Randell I majority overruled that precedent, but only as to union photographing of employees engaged in Sec- tion 7 activity, which the Board held to be nonobjection- able conduct unless accompanied by an express or im- plied threat or other coercion. The Randell I majority retained the rule that employer photographing was pre- sumptively coercive, even if it was not accompanied by an express or implied threat or other coercion.5 By adopting different standards for union and em- ployer photographing of employees engaged in Section 7 1 Randell Warehouse of Arizona, 328 NLRB 1034 (1999) (Randell I). Thereafter, the Respondent refused to bargain with the Union and the Board issued its decision finding that the refusal to bargain violated Sec. 8(a)(5) and (1). Randell Warehouse of Arizona, Inc., 330 NLRB 914 (2000). 2 252 F.3d 445, 449 (D.C. Cir. 2001). Following the court’s remand, the Respondent and the Union filed statements of position. 3 F. W. Woolworth, 310 NLRB 1197 (1993). 4 However, as discussed below, the Board, in Pepsi-Cola Bottling Co., 289 NLRB 736 (1988), said that photographing by a union is coer- cive unless there is an explanation, presumably given to the photo- graphed employees. 5 Randell I, supra, 328 NLRB at 1037. activity, the Board’s decision in Randell I marked a sig- nificant departure from established precedent. After due consideration, we have concluded that the Randell I ra- tionale cannot withstand careful scrutiny. To the con- trary, the rationale for finding that unexplained photo- graphing has a reasonable tendency to interfere with em- ployee free choice applies regardless of whether the party engaged in such conduct is a union or an employer. Thus, the disparate treatment embraced by the Randell I Board cannot be squared with the Act’s fundamental principles. Accordingly, we overrule Randell I and re- store the appropriate standard, i.e., that in the absence of a valid explanation conveyed to employees in a timely manner, photographing employees engaged in Section 7 activity constitutes objectionable conduct whether en- gaged in by a union or an employer. I. FACTUAL BACKGROUND The Respondent’s objections allege (1) numerous acts of intimidation, including threats and implied threats by union adherents and agents directed to eligible voters; and (2) other acts of interference, restraint, and coercion by union adherents and agents that affected the results of the election. A third objection filed by the Respondent asserted that the Board agent failed to maintain proper control over the voting area. The hearing officer recom- mended overruling the third objection, and the Respon- dent did not except. With respect to the Union’s photographing of employ- ees, the parties stipulated that prior to the election, union representatives took photographs of the distribution of union literature outside the Respondent’s facility. Sev- eral employees also testified that photographs were taken outside the Respondent’s facility on other occasions, but they could not identify the person taking the pictures. The photographs included both employees who accepted and those who rejected proffered literature. Employee Carlos Velazquez testified that when he asked one of the individuals distributing the flyers why the other person was taking pictures, he was told, “It’s for the Union pur- pose, showing transactions that are taking place. The Union could see us handing flyers and how the Union is being run.” Velazquez also testified that he knew that this individual was “a representative from the Union” because he was with the individuals who were handing out leaflets. The other election objection filed by the Respondent relates to other acts and conduct of union supporters prior to the election. At a preelection campaign meeting called by the Respondent, an employee asked what would happen if there was a strike and some employees crossed the picket line. Employee Ray Encinas, an open union supporter, responded that “they would bring some- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592 body from down below [Mexico] to take care of those people.” At a second meeting, an employee asked what would happen to individuals who did not want to become union members if the Union was voted in and Encinas replied that “they would have the Chico Mafia take care of those people.” In addition, employee Pepe Valenzuela pointed to a “Vote No” tag that employee Johnny Vielma was wearing and told him that “there is people here that beat up people that wear that.” The hearing officer discredited testimony by employee Carlos Velazquez that, about a week before the election, prounion employees Jesus Gallegos and Guillermo Ce- laya told him to take off a blue tag reading “Randell, Vote No,” that Gallegos told Velazquez that he was look- ing for problems, and that later that same day Gallegos and Celaya chased him in their cars as he was driving home after work and attempted to box him in and force him off the road. Instead, the hearing officer found that, in fact, Velazquez had cut into a lane of traffic in which Celaya was approaching, which caused Celaya to slam on his brakes to avoid hitting Velazquez’ car. The hear- ing officer acknowledged, however, that a rumor circu- lated throughout the plant that Velazquez had been al- most forced off the road while driving home from work. After hearing the rumor, Leadman Valenzuela told Ve- lazquez, “You have to be careful, you don’t know what they are doing, they are crazy.” A. The Hearing Officer’s Report The hearing officer found that the photographing de- scribed above was attributable to the Union and inter- fered with employee free choice in the election. Apply- ing the standard set forth in Pepsi-Cola Bottling, supra, the hearing officer found no evidence that the Union ever communicated to employees the reason for the photo- graphing. The hearing officer also found that, in any event, the explanation given, i.e., “it’s for the Union pur- pose,” was “hardly enough to comfort someone that the photographs might not be used for some other, possibly devious, purpose.” Accordingly, the hearing officer rec- ommended that the election be set aside. The hearing officer found no merit to the remaining objections filed by the Respondent. Specifically, he found that none of the individuals who were alleged to have engaged in unlawful threats or other coercive statements were officers, representatives, or agents of the Union. Applying the third-party misconduct standard, which requires proof that the misconduct is “so aggra- vated as to create a general atmosphere of fear and repri- sal rendering a free election impossible,”6 the hearing 6 Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). officer concluded that the alleged threats and other coer- cive statements set forth above were not objectionable. B. The Board’s Decision in Randell I The Randell I Board adopted the hearing officer’s finding that the alleged third-party threats “were not made by agents, representatives, or officers of the Union, and that they were not objectionable when measured by the Board’s third-party standard.”7 A majority of the Board, however, reversed the hearing officer’s recom- mendation that the Respondent’s objection to the Un- ion’s photographing of employees be sustained. The Randell I majority stated that prior Board and court deci- sions permit unions to ask employees directly whether they support the union, to attempt to persuade employees to sign petitions in support of representation, and to re- cord the employees’ responses.8 Finding that the stan- dard for union photographing of employees in a preelec- tion setting established by Pepsi-Cola Bottling was in- consistent with these decisions, the Randell I majority held that the Union’s photographing employees during the distribution of union literature outside the Respon- dent’s premises was not accompanied by any express or implied threats or other coercion and therefore was not objectionable. The Randell I Board acknowledged that it was apply- ing a different standard to union photographing than it applied to employer photographing of employees en- gaged in Section 7 activities, which the Board has held to be coercive absent proper justification, because the latter has a tendency to intimidate.9 The Board stated that this disparate treatment was justified because “photographing employees during an organizing campaign is one means by which unions can determine the identity and leanings of employees and carry out their legitimate objective of 7 Randell I, supra, 328 NLRB 1034 fn. 4. The Respondent’s excep- tions to the hearing officer’s report do not dispute the hearing officer’s determination that the individuals who made the threats and other coer- cive statements were not agents, representatives, or officers of the Union. The Respondent also did not contend that these individuals were agents of the Union in its petition for review filed with the court of appeals. 8 The Board cited Springfield Hospital, 281 NLRB 643, 692–693 (1986) (union asked employees whether they were for or against union and recorded responses), enfd. 899 F.2d 1305 (2d Cir. 1990); Kusan Mfg. Co., 267 NLRB 740 (1983) (union solicited employees to sign petition), enfd. 749 F.2d 362 (6th Cir. 1984); J.C. Penney Food De- partment, 195 NLRB 921 fn. 4 (1972) (union polled employees as to how they would vote), enfd. 82 LRRM 2173 (7th Cir. 1972); and Mercy-Memorial Hospital, 279 NLRB 360 (1986) (union asked proun- ion employees to report activities of coworkers who were assisting management), enfd. sub nom. NLRB v. Mercy-Memorial Hospital Corp., 836 F.2d 1022 (6th Cir. 1988). 9 The Board cited with approval F.W. Woolworth Co., supra (1993) (employer unlawfully photographed and videotaped employees handing out leaflets in front of store). RANDELL WAREHOUSE OF ARIZONA 593 obtaining majority support,”10 and because of the greater coercive potential attached to photographing by “an em- ployer [who], unlike a union, has virtually absolute con- trol over employees’ terms and conditions of employ- ment.”11 The Randell I Board further stated that it was not over- ruling Mike Yurosek & Son, Inc.,12 because it “would reach the same result today on the facts presented there,” 328 NLRB at 1036. In reality, the Randell I analysis departed significantly from that of the majority opinion in Mike Yurosek, which relied specifically upon Pepsi- Cola in finding that a union representative engaged in objectionable conduct when he photographed campaign activity at the entrance gate of an employer’s plant.13 The Mike Yurosek majority therefore held that the photo- graphing would be objectionable even if it were not ac- companied by threats or other coercion. Only the con- curring Member (Higgins) in Mike Yurosek relied on the threats. Attempting to distinguish Mike Yurosek from the facts of the present case, the Randell I Board reasoned as fol- lows: In contrast to Pepsi-Cola, where the union’s videotap- ing was not accompanied by any threats or other coer- cive conduct, in the Mike Yurosek case, a union repre- sentative told an antiunion activist that “we’ve got it on film; we know who you guys are . . . after the Union 10 Randell I, supra, 328 NLRB at 1036. 11 Id. at 1037. In support of this latter proposition, the Board cited Plant City Welding & Tank Co., 119 NLRB 131, 133–134 (1957), revd. on other grounds sub nom. Boilermakers Local 609 v. NLRB, 133 NLRB 1092 (1961). Former Member Brame concurred in the majority’s finding that the photographing in this case was not objectionable conduct, but disagreed with the majority’s adoption of different standards for employers and unions. Former Member Hurtgen, dissenting, would have set aside the election. 12 292 NLRB 1074 (1989). 13 The Mike Yurosek majority explained: In Pepsi-Cola Bottling Co., 289 NLRB 736 (1988), the Board found that the appearance of videotaping by a union representative of at least two employees at a rally the day before the election gave the employ- ees the impression that the pictures would be used for future reprisals against them. The Board noted that no legitimate explanation for the videotaping was offered to the employees at the rally, and that none was proffered at the hearing. Under these circumstances the Board concluded that the conduct would reasonably tend to interfere with employee free choice in the election. Similarly, in the instant proceed- ing the pictures of employees were taken by a union agent and, like Pepsi-Cola Bottling Co., no explanation was provided to employees while pictures were being taken to assuage their fear that the pictures would be the basis for future reprisals. Further, [the contemporaneous remarks of Union Agent Hansen with respect to the videotaping] are arguably threatening, and certainly do nothing to assure employees that the pictures Hansen was taking would not be improperly used. [292 NLRB at 1074.] wins the election some of you may not be here.” As former Member Higgins pointed out in Mike Yurosek, “the photographing of antiunion employees accompa- nied by this statement could reasonably put employees in fear that the pictures would be used for future repri- sals and was therefore objectionable.” 292 NLRB at 1074 fn. 5. Significantly, no threats of this character, at- tributable to the Union, are present in the instant case. [328 NLRB at 1036.] In sum, the Randell I Board effectively adopted the concurring opinion in Mike Yurosek and found no objec- tionable conduct because no comparable threats accom- panied the Union’s photographing in Randell I. C. Court of Appeals Decision The D.C. Circuit declined to enforce the Board’s deci- sion, and instead remanded the case to the Board for “further consideration and a reasoned opinion. . . .”14 The court declined to rule on the change in Board law undertaken by the Randell I Board. Instead, the court remanded the case for the Board to consider further the applicability of Mike Yurosek. The court stated that “the applicability of Mike Yurosek is a critical issue the Board should have examined carefully. Yet, having announced that Mike Yurosek would continue to apply, the Board failed to explain why the threatening conduct catalogued by the Hearing Officer did not amount to objectionable conduct under that case.”15 II. ANALYSIS As noted above, the Randell I Board essentially adopted the concurring opinion in Mike Yurosek and in- dicated it would reach the same result on the facts of that case even after overruling the Pepsi-Cola presumption that unexplained videotaping by a union agent was objec- tionable. In the court’s opinion, however, the Board failed adequately to explain how the union agent’s threats in Mike Yurosek made union videotaping objec- tionable there while threatening statements in this case did not. As the court noted, “Union supporters had en- gaged in at least three separate instances of potentially threatening conduct,” and “rumors about a fourth and graver incident circulated throughout the plant.” 252 F.3d at 449. The dissent contends that the threatening statements and rumor in this case did not make the Union’s photo- graphing objectionable because they involved third-party conduct, rather than the conduct of a union agent, and had no direct connection with the photographing. We need not decide whether the distinction drawn by the 14 Randell Warehouse of Arizona v. NLRB, supra, 252 F.3d at 449. 15 Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594 dissent is sufficient to justify a different result in this case than in Mike Yurosek because we disagree with the proffered justifications for the Board’s reversal of prece- dent in Randell I. Consequently, in agreement with the primary rationale of the Mike Yurosek majority, we find that the unexplained union videotaping or photographing in each case was objectionable even if not accompanied by any threats or other coercive conduct. Our precedent establishes that an employer’s unex- plained photographing of employees engaged in Section 7 activities has a tendency to intimidate employees. Waco, Inc., 273 NLRB 746, 747 (1984); F. W. Wool- worth, 310 NLRB 1197 (1993). This precedent rests on three premises: (1) during an election campaign, an em- ployer may be displeased with employees who exhibit support for the union or fail to support an employer’s campaign against the union, e.g., by accepting union campaign literature or by declining to accept employer literature; (2) the photographing and videotaping of em- ployees engaged in such activity constitutes permanent recordkeeping, which is more than “mere observation”; and therefore (3) employees could reasonably fear “that the record of their concerted activities might be used for some future reprisals.”16 We hold that these premises also apply when a union photographs employees engaged in Section 7 activity. In the context of an election campaign, the union seeks to become (or remain) the representative of the unit em- ployees. To achieve this goal, the union must convince a majority of employees to vote in its favor. A reasonable employee would anticipate that the union would not be pleased if he or she failed to respond affirmatively to the union’s efforts to enlist support, just as an employee would anticipate that an employer would not be pleased if he or she rebuffed the employer’s solicitation to reject union representation. Likewise, there is no substantial basis for finding that the photographing of employees responding to efforts to enlist their support reasonably tends to create a fear of reprisal when done by an employer but not when it is done by a union. In either case, employees know that they are being recorded by a party to the election. The permanent recording suggests an intent to take the em- ployees’ response into account. While that may not trouble an employee who supports the photographer’s position in the organizing campaign, it is likely to raise reasonable concern among nonsupporters or open oppo- nents that their pictures could be used against them in the future. See Overnite Transportation Co. v. NLRB, 294 16 Waco, 273 NLRB at 747 (quoting NLRB v. Colonial Haven Nurs- ing Home, 542 F.2d 691 (7th Cir. 1976)). F.3d 615, 624 (4th Cir. 2002) (“We have little doubt that there will be some instances of union photography that will be inherently restraining or coercive of the right of employees to exercise their Section 7 rights.”). In attempting to distinguish the effects of union photo- graphing on employees engaged in Section 7 activity from employer photographing that has a presumptive tendency to intimidate, the Randell I majority, like the dissent here, relied heavily on the argument that employ- ees would not fear reprisals in the case of union photo- graphing because unions are said to be less able to retali- ate against employees than employers. We recognize that employers possess some means of retaliation that are generally not available to a union. However, the Board’s experience in the administration of the Act, as well as the legislative history of the Act, show that unions also have ample means available to them to punish employees, and that some unions have used that power in reprisal against employees who oppose them in organizing campaigns. Once elected, a union has a voice in determining when employees will work, what they shall do, how much they will be paid, and how grievances will be handled. Just as some employers have used the means at their disposal for retaliation, some unions have used their influence and authority to retaliate against employees who displease them. See, e.g., Letter Carriers Branch 3126 (Postal Service), 330 NLRB 587 (2000) (union unlawfully caused employer to deny overtime to nonmember), enfd. 281 F.3d 235 (D.C. Cir. 2002); Teamsters Local 17 (Universal Studios & Warner Bros.), 251 NLRB 1248 (1980) (union unlawfully caused employer to discharge nonmembers). Consistent with the foregoing, a reason- able employee could believe that a union could make good on threats to have antiunion employees fired or run off the job if the union won the election. NLRB v. Ken- tucky Tennessee Clay Co., 295 F.3d 436, 446 (4th Cir. 2002) (union agents told employees that if the union won they would run them off or get them fired); see also Mike Yurosek, supra (employees could reasonably fear reprisal when union agent photographed antiunion employees and told them, “We’ve got it on film; we know who you guys are . . . after the Union wins the election some of you may not be here”); Alyeska Pipeline Service Co., 261 NLRB 125 (1982) (union coerced employees during election campaign by promising to give union members an unlawful advantage over nonmembers in its operation of its hiring hall); Graham Engineering, 164 NLRB 679, 694–695 (1967) (union coerced employees who opposed the union by threatening to discharge and withhold its services from them). Indeed, the Board has justified the different standards applied to third-party and union elec- tion conduct on the very ground that “employees rea- RANDELL WAREHOUSE OF ARIZONA 595 sonably have a greater concern about threats emanating from the union that may become their exclusive repre- sentative.” Cal-West Periodicals, Inc., 330 NLRB 599, 600 (2000). A union’s powers of reprisal are not limited to its po- tential authority as a collective-bargaining representative. Indeed, evidence of abuses by unions of their power over employees during organizational campaigns motivated Congress to establish union unfair labor practices in the Taft-Hartley Act. The Senate report discussing what became Section 8(b)(1)(A) stated that “the committee heard many instances of union coercion of employees such as that brought about by threats of reprisal against employees and their families in the course of organizing campaigns.”17 Similarly, in review of the legislative his- tory of Senate floor debate on this provision, the Su- preme Court found that “[t]he note repeatedly sounded is as to the necessity for protecting individual workers from union organizational tactics tinged with violence, duress, or reprisal.”18 Thus, contrary to the Randell I majority, there is ample reason to believe that employees subjected to unexplained union photographing of Section 7 activity prior to an election could reasonably tend to fear reprisal because unions have the capacity to affect them. The opportunities for and means of reprisal available to un- ions may differ from those available to employers, but they are no less real or intimidating. Furthermore, the legislative history of the Taft-Hartley Act indicates that Congress intended similar standards to apply to like kinds of employer and union intimidation.19 Consistent with this concept, the Board uses the same general standard in evaluating the conduct of the parties in the election setting: whether the conduct reasonably tends to interfere with the employees’ free and uncoerced choice in the election. Baja’s Place, 268 NLRB 868 (1984); Bristol Textile Co., 277 NLRB 1637 (1986). The distinction drawn by the Randell I majority and the dissent here as to the parties’ relative capacity for reprisal provides no basis for departing from a uniform standard 17 S. Rep. No. 105, 80th Cong., 1st Session. 50. 18 NLRB v. Teamsters Local 639 (Curtis Bros.), 362 U.S. 274, 286 (1960). 19 See Ladies Garment Workers (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731, 738 (1961) (employer and union violated Sec. 8(a)(2) and Sec. 8(b)(1)(A) respectively by according and accepting recognition of the union’s representative status in the absence of major- ity employee support). We recognize that the language of Sec. 8(b)(1)(A) is narrower than Sec. 8(a)(1). However, the underlying case here is an objections case, not an unfair labor practice case. Whatever the implications of this dissimilarity in statutory language may be for employer and union unfair labor practices, they do not apply to our evaluation of election objections based on the same conduct, i.e., em- ployer and union photographing of employees engaged in Sec. 7 activ- ity. for objections to a specific form of coercive conduct that is equally available to unions and employers, namely, the photographing of employees engaged in Section 7 activ- ity during an election campaign. Equally untenable is the Randell I majority’s conten- tion that union photographing is not objectionable, absent explicit accompanying threats, because it cannot be dis- tinguished from legitimate union organizing activity such as soliciting employees to support the union by signing petitions or authorization cards. The Board has held that it is not objectionable conduct for a union to solicit em- ployees noncoercively to support it and to maintain a written record of how employees respond.20 Contrary to the Randell I majority, it does not follow from this proposition that unions may also photograph how em- ployees respond to solicitations. In this respect, there is a significant difference between photographing and other means used by unions to identify supporters in an organ- izational campaign. Direct personal solicitation and polling are the primary means by which unions effectuate the policies of the Act by affording employees the right to “self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choos- ing.”21 These activities present the threshold opportu- nity for employees to choose whether to be represented during an organizational campaign. In particular, the voluntary signing of petitions or authorization cards is a necessary prelude to a union’s seeking a Board election or voluntary recognition from an employer. Solicitation and polling by a union also provide natural occasions for bilateral discussion and noncoercive attempts to per- suade. While a union solicitor typically will explain to the employee the purpose of the solicitation during such discussion, the need to solicit and persuade as part of an organizational campaign is obvious even without an ex- planation. Even employees opposed to unionization would reasonably tend to regard personal solicitation and polling (devoid of accompanying coercive statements or conduct) as serving the legitimate purpose of identifying union supporters in an organizational campaign. Photographing employees during the course of orga- nizing activities is different. It captures a nonconsensual record of the extent of an employee’s participation in or receptiveness to certain Section 7 activity. In addition, 20 See, e.g., NLRB v. Media General Operations, Inc., 360 F.3d 434, 441 (4th Cir. 2004) (union’s directly soliciting employees to sign “vote yes” petition not objectionable conduct); Springfield Hospital, supra (union asked employees whether they were for or against union and recorded responses), enfd. 899 F.2d 1305 (2d Cir. 1990); and J.C. Pen- ney Food Department, supra (union polled employees as to how they would vote). 21 National Labor Relations Act, 29 U.S.C. § 157 (Sec. 7). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596 while polling and the solicitation of authorization cards, like photographing, may create a permanent record of an employee’s position,22 the purpose of photographing employees engaged in Section 7 activities is rarely self- evident. To the contrary, an employee who is the target of unexplained photographing is unlikely to have any idea why his or her photograph is being taken. Moreover, given the less intrusive and commonly employed tactics available to unions to ascertain employee sentiment through voluntary responses and discussion, the subjects of union photographing would have even greater cause to wonder why their interactions with union supporters needed to be visually documented. Similarly, from a union’s perspective, photographing of employees simply does not play the same central role in employee self-organization occupied by the solicita- tion and petition activity on which the Randell I majority relied. As previously stated, polling and solicitation are recognized as traditional vehicles for organizing, but unexplained photographing serves no such crucial func- tion. Indeed, common sense suggests that photographing must furnish a comparatively unreliable measure of em- ployee sentiment. The very presence of a union photog- rapher recording Section 7 activity would tend to induce employees unsympathetic to the union to accept its prof- fered literature simply to avoid being permanently re- corded as antiunion and becoming identifiable as such on sight. Illustrating this important point, the Union here did not claim to be identifying its supporters; the only justification the Union offered for the photographing at issue in this case was that “[i]t’s for the Union purpose, showing transactions that are taking place.” Nor do the additional post-hoc justifications offered by the dissent (none of which were conveyed to the employees sub- jected to the photographing alleged to be objectionable in this case) warrant the application of different standards for employer and union photographing. Employers may also want to use photographs for legitimate campaign communication purposes, but the Board does not con- sider those potential uses sufficient to warrant a pre- sumption that employer photographing does not have a tendency to interfere with free choice. Thus, we find the inherent potential of unexplained photographing by em- ployers or unions to interfere with employees’ statutory right of free choice clearly outweighs any legitimate in- terests of unions or employers in using photographing as a campaign tool. The Board’s treatment of employer photographing as compared to mere observation of open union activity is 22 See Allegheny Ludlum Corp., 333 NLRB 734, 742 (2001), enfd. 301 F.3d 167 (3d. Cir. 2002). instructive. As discussed, the Board has found that ab- sent a proper justification, an employer may not photo- graph employees openly engaged in protected concerted activities because such photographing has a tendency to intimidate. F. W. Woolworth, supra. By contrast, an employer may lawfully observe employees engaged in protected activities when those activities are conducted openly on or near company premises. See Roadway Package System, Inc., 302 NLRB 961 (1991); Southwire Co., 277 NLRB 377, 378 (1985). Thus, the Board has recognized that making a permanent visual record of employees’ Section 7 activity without a legitimate justi- fication has a reasonable tendency to coerce employees, even when other forms of observation may not be objec- tionable. We apply the same reasoning to the Union’s photographing in this case. III. RESPONSE TO DISSENT We think that the court in remanding this case for fur- ther explanation was reasonably concerned about the consistency and rationality of Board decisions in this area. We have addressed those concerns in this decision. The dissent reiterates the Randell I Board rationale, addressed above, that because employers have greater access to employees and more direct control over their working conditions than unions, unexplained photo- graphing will not be viewed by employees as threatening when union agents hold the camera. Again, we do not understand why that would be the case. Union agents clearly can, and do, as the dissent concedes, commit co- ercive acts, including acts of physical violence and other retaliatory conduct against nonsupporters both during and after election campaigns. Indeed, precisely such conduct led Congress to establish union unfair labor practices in the Taft-Hartley Act. Moreover, unions, unlike employers, can lawfully solicit employees to re- veal their stance in a campaign. Unions, unlike employ- ers, may also visit employees at their homes, and em- ployees will likely be aware that the union knows where they live as a result of the Excelsior list. Thus, employ- ees plainly have a reasonable basis to believe that unex- plained photographing of their Section 7 activity (or their refraining therefrom) is intended for improper purposes. The dissent finds it “ironic” that we here forbid union photography without explanation and yet we permit a union to record employees’ views in other ways (by ask- ing employees to sign cards or sign petitions or by con- ducting polls). We find no inconsistency. In the latter instances, the acts themselves show their obvious pur- pose to employees, viz to solicit support for the union and/or to gauge the extent of such support. By contrast, the photographing of an employee (who, for example, is accepting or declining a union flyer) does not reveal an RANDELL WAREHOUSE OF ARIZONA 597 obvious purpose. Absent an explanation, employees are left to wonder why they are being photographed. Contrary to the dissent, we do not say that the capacity of unions to coerce employees is “essentially the same as that of employers.” Rather, we simply say that unions have sufficient power to coerce employees such that em- ployees may reasonably fear union retaliation when their Section 7 activity is the subject of unexplained photo- graphing. The Board’s experience in the administration of the Act confirms that employees may reasonably fear union coercion and retaliation.23 Thus, the dissent’s em- phasis on the comparative coerciveness of employer and union photographing misses the point. The issue is not whether union photographing is as coercive as employer photographing, but rather whether the Union’s conduct here had a reasonable tendency to interfere with em- ployee free choice in the election. We find that it did. 24 The dissent says that our even-handed treatment of employers and unions represents “an arbitrary consis- tency of legal standards.” We believe that consistency of legal standards and even-handedness of application does not constitute arbitrary decisionmaking. To the contrary, we believe that our approach is true to the Board’s over- riding mission of protecting the right of employees to engage in union activity and to refrain from such activity. We reject the dissent’s suggestion that this issue should be analyzed by weighing a union’s “legitimate needs and interests in photographing employees against the potential for interfering with employee free choice.” 23 As one court of appeals observed, “Both the courts and the Board, through the application of logic and the experiences of life, have recog- nized the coercive and intimidating effect Union photography may have on employees during an election.” NLRB v. Lakewood Engineering & Mfg., Inc., enfd. mem .28 F.3d 1216 (7th Cir. 1994). Contrary to the dissent, we do not think statistical comparisons of unfair labor practice complaints issued against employers and unions justify presuming that employees will inevitably view identical conduct as coercive when engaged in by the former but benign when engaged in by the latter. Certainly, employees who exercise their Sec. 7 right to oppose unioni- zation are not likely to share the dissent’s view of an obvious innocent purpose to unexplained photographing of their reaction to union leaflet- ing. As the Supreme Court has stated: “If we respect, as we must, the statutory right of employees to resist efforts to unionize a plant, we cannot assume that unions exercising powers are wholly benign to- wards their antagonists whether they be nonunion protagonists or the employer.” NLRB v. Savair Mfg., 414 U.S. 270, 280–281 (1973). 24 The dissent attempts to confuse the issue by comparing our deci- sion here to Harborside Health Care, Inc., 343 NLRB 906 (2004). The issues presented in Harborside Health Care have no bearing on this case, and we disagree with the dissent’s characterization of that case as having “radically reinvented” the Board’s approach to pro-union super- visory conduct during election campaigns. To the extent that the deci- sions share any similarity, it is that both are based on the overriding concern of protecting employee free choice from intimidation and coercion, regardless of the source. As we have shown, unexplained union photographing has a reasonable tendency to interfere with employee free choice. That interference should be reflected in Board law, not balance-tested away. Similarly, we are not per- suaded by the dissent’s argument that a different standard for employers and unions is justified because unions have a legitimate reason “to record employees’ organiz- ing activities” while employers “normally” do not. We agree that a union seeking to organize employees has a legitimate reason to record their views concerning repre- sentation, and our decision today is consistent with that principle. We simply insist that a union record employ- ees’ views noncoercively. As shown, photographing in the absence of a legitimate justification does not meet that standard. Still, our decision today does accommodate a union’s legitimate interest in photographing employees. Where such a legitimate justification genuinely exists, union photographing will be unobjectionable if (as more fully explained below) that justification is timely communi- cated to employees. We also reject the dissent’s argument that the potential noncoercive justifications for such photographing by unions would be so self-evident to employees to warrant different standards for unions and employers. As noted, unions have a variety of less intrusive means of access- ing employees and determining their views, including home visits, mailings with the use of an Excelsior list, and leafleting. In addition, unions may directly solicit employees’ support and make a written record of their responses. See Springfield Hospital, supra.25 Hence, there is no reason to suppose that employees would as- sume that unions would employ a far less direct and reli- able barometer of employee sentiment (photographing employees’ nonverbal responses to solicitation activity) to accomplish the same purpose. Furthermore, there is no reason to believe that employees would more readily discern a legitimate purpose for a union’s unexplained photographing than they would for an employer’s. The dissent questions whether recording employees’ support or nonsupport would be a legitimate justification for photographing them under the standard announced today. We note that this was not a justification provided by the Union to the employees photographed here, and, thus, the issue is not squarely before us. However, the Board has addressed in prior decisions the type of justifi- 25 Indeed, the Union’s leafleting and conversations with employees in this case are not challenged and we find no fault with them here. The dissent’s argument that restricting photographing will limit unions’ access to employees thus is not supported by the record and we have no reason to anticipate more limited union access resulting from our deci- sion today. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598 cations that would warrant photographing employees’ Section 7 activities, and we will continue to be guided by those principles.26 IV. CONCLUSION For the foregoing reasons, we hold that union photo- graphing of employees engaged in Section 7 activity, like photographing by an employer, tends to interfere with employee free choice in an election.27 Prior to Randell I, the Board recognized that such photographing was per- missible in certain circumstances, but the standards for unions and employers were slightly different. Thus, the Board found that union photographing was coercive ab- sent a “legitimate explanation,” but required a showing of “legitimate justification” for employer photograph- ing.28 The former standard suggests that the party must explain to the photographed employee the reason for the photography; the latter does not. We hold that a single standard must be applied in determining whether there is objectionable conduct where employees are photo- graphed while engaged in Section 7 activity. In order to strike the proper balance between protecting employee free choice, on the one hand, and respecting the legiti- mate interests of employers and unions, on the other hand, we shall require that there be a legitimate justifica- tion for the photographing; and, except in cases where the justification is self-evident (e.g., violence or mass picketing, etc.), we shall require that the justification be communicated to employees in a timely manner. In this way, employees can be assured that they will not be sub- jected to photographing by an employer or a union ex- cept where a legitimate justification exists. In addition, the impact of that photographing on employees will be minimized by the requirement that the employees be made aware of the justification for the intrusion on their Section 7 activities (including their choice to refrain from such activities). Applying these principles to the facts of this case, we conclude that the Union engaged in objectionable con- duct by photographing employees as they were being offered literature by union representatives. For the rea- 26 See, e.g., Nu-Skin International, 307 NLRB 223 (1992) (no objec- tionable conduct when union photographed employees who voluntarily attended a union picnic away from work and were told their pictures would be used to memorialize the occasion); F. W. Woolworth, 310 NLRB 1197 (1993) (the mere belief that “something ‘might’ happen did not justify an employer’s photographing of employees’ handbilling activity”). 27 The question of whether union photographing of employees in connection with picket line activities is unlawful was not addressed in Randell I, and we therefore find it unnecessary to address that question for the purpose of this decision. 28 Compare, Pepsi-Cola Bottling Co., 289 NLRB 736 (1988) (union photographing), with F. W. Woolworth, supra (employer videotaping). sons explained above, such photographing is presump- tively coercive. Moreover, the Union did not adequately explain its purpose for the photographing. The one ex- planation offered to a single employee—“It’s for the Un- ion purpose, showing transactions that are taking place. The Union could see us handing flyers and how the Un- ion is being run”—was ambiguous at best. It did not es- tablish a legitimate justification for the photographing. Accordingly, the photographing reasonably tended to interfere with employee free choice, and the election must be set aside.29 ORDER IT IS ORDERED THAT the certification of July 27, 1999, issued in Case 28–RC–5274, is hereby revoked. [Direction of Second Election omitted from publica- tion.] MEMBERS LIEBMAN and WALSH, dissenting. Although the District of Columbia Circuit remanded this case for a limited purpose, the majority treats the remand as a chance to revisit—and overrule—our origi- nal holding: that absent evidence of threats or other coer- cion by a union, the union’s photographing of employees engaged in protected activity during an election cam- paign does not interfere with employee free choice and thus is not a basis for setting aside the election. Accord- ing to the majority, this rule amounts to “disparate treat- ment” of employers and unions, because under estab- lished law (which the majority leaves in place) employer photographing is presumptively objectionable. But in this context, there are basic differences between union conduct and employer conduct. A union has much less access to employees and much stronger legitimate inter- ests in photographing them, and its conduct is far less likely to coerce them. Imposing the same rule on unions, then, simply puts an unwarranted burden on the ability to organize. Ironically, the majority endorses the Board’s sound approach to other union organizing tools— recording employees’ views by way of home visits, au- thorization cards, petitions, or polls—although these ac- tivities would seem to raise the same concerns the major- ity has identified concerning photographing. 29 As previously stated, in light of our disposition of this case, it is unnecessary to pass on whether the third-party conduct in this case was objectionable or should be considered as a factor in determining the impact on employees of the Union photographing discussed above. RANDELL WAREHOUSE OF ARIZONA 599 I. We would adhere to the Board’s original decision.1 The question posed by the District of Columbia Circuit’s remand, in turn, can easily be answered. A. In Randell I, the Board overruled an earlier decision, Pepsi-Cola Bottling Co., 289 NLRB 736 (1988), which had found objectionable the unexplained union videotap- ing of employees being handed union leaflets as they left work.2 The Randell I Board observed that: Pepsi-Cola’s general prohibition against making a vis- ual record of employees’ reactions to proffered union literature cannot be reconciled with Board and court cases permitting unions to ask employees directly whether they support the union, to attempt to persuade employees to sign petitions in support of representa- tion, and to record the employees’ responses. [328 NLRB at 1035 (collecting cases).] The Board pointed to “many legitimate reasons why a union would photograph employees in the course of an organizing campaign”: to help direct and deploy union staff; to create campaign literature; to demonstrate that the union is actively campaigning; to gauge the extent of union support; and, perhaps most importantly, to iden- tify supporters and potential supporters. Id. at 1036. “In sum,” the Board explained, “photographing employees during an organizational campaign is one means by which unions can determine the identity and leanings of employees and carry out their legitimate objective of attaining majority support.” Id. The Board rejected the contention that this approach wrongly treated employers and unions differently. The law already permitted unions to use campaign tools that were denied employers, such as home visits3 and poll- ing.4 Id. at 1037. Different treatment was justified “in recognition of the fundamental fact that an employer, unlike a union, has virtually absolute control over em- 1 Randell Warehouse, 328 NLRB 1034 (1999) (Randell I). Member Liebman joined the Randell I decision. Member Walsh was not a Member of the Board in 1999 when Randell I issued. 2 For a history of the Board’s approach to this area, see Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor Law §7.17 (2d ed. 2004). Professor Gorman and Professor Finkin describe Pepsi-Cola Bottling, supra, as itself a departure from the Board’s precedent in “adopt[ing] a more categorical approach.” Id. at 217. 3 Compare, Peoria Plastic Co., 117 NLRB 545 (1957) (prohibition against employer home visits) with Canton, Carp’s, Inc., 127 NLRB 513 fn. 3 (1960), citing Plant City Welding & Tank Co., 119 NLRB 131 (1957) (permitting union home visits). 4 Compare, Offner Electronics Inc., 127 NLRB 991 (1960) (prohibit- ing employer’s preelection poll) with Glamorise Foundations, Inc., 197 NLRB 729 (1972) (permitting union poll). ployees’ terms and conditions of employment.” Id. At the same time, the union lacks the easy access to em- ployees for campaigning purposes that the employer en- joys. Id.5 Finally, the Board limited its earlier holding in Mike Yurosek & Son, Inc., 292 NLRB 1074 (1989), agreeing with former Member Higgins’ concurrence in that case that union photographing is objectionable only where it is accompanied by union threats or other coercive union conduct. No such threats attributable to the union were present in Randell I, the Board observed, distinguishing Mike Yurosek. Id. at 1036. B. On review, the District of Columbia Circuit denied en- forcement, remanding the case to the Board to explain one aspect of its decision.6 The court held that the Board had failed adequately to consider the applicability of Mike Yurosek, citing the threatening conduct of prounion employees here. 252 F.3d at 448. The court remanded the case to the Board “to explain why [that] threatening conduct . . . did not amount to objectionable conduct under” Mike Yurosek. 252 F.3d at 449. The short answer to the court’s remand is that in the election context, the Board—with the approval of the courts—has long applied a stricter standard to the con- duct of the parties (unions, employers, and their agents) than to the conduct of third parties.7 Mike Yurosek in- volved objectionable photographing by a union agent who overtly threatened employees at the same time. This case, in contrast, involves alleged third-party misconduct (the prounion employees were not union agents); more- over, there was no connection of any kind between that misconduct and the Union’s photographing. Mike Yurosek, then, is distinguishable on the grounds that the threats here (1) are not attributable to the Union, and (2) are not related to the photographing. II. Instead of simply responding to the Court’s remand, the majority brushes aside the textured rationale of Ran- 5 See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v. Bab- cock & Wilcox Co., 351 U.S. 105 (1956). 6 Randell Warehouse of Arizona, Inc. v. NLRB, 252 F.3d 445 (D.C. Cir. 2001). 7 See, e.g., Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995) (where party conduct is involved, test is whether the conduct “has the tendency to interfere with the employees’ freedom of choice”); Cal- West Periodicals, 330 NLRB 599, 600 (2000) (where third-party con- duct is involved, test is whether the conduct was “so aggravated as to create a general atmosphere of fear and reprisal rendering a fair election impossible”). See also Overnite Transportation Co. v. NLRB, 140 F.3d 259, 264 (D.C. Cir. 1998) (pre-Randell I discussion of Board’s separate standards, in context of videotaping and photographing of employees by union supporters). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600 dell I, in favor of an arbitrary consistency of legal stan- dards. According to the majority, unions and employers must be subject to the same restrictions on photograph- ing: for both, it is presumptively coercive of employee rights, absent an express explanation of its purpose. Cit- ing Board precedent,8 the majority offers three premises supporting the view that employer photographing is co- ercive: (1) an employer may be displeased with employ- ees who fail to support its position; (2) photographing represents “permanent recordkeeping;” and (3) employ- ees may fear that the record made of their pro-union choice could be used for reprisal. The majority asserts that these premises are equally applicable to union pho- tographing. But the majority overlooks a more basic premise underlying the Board’s decisions: Under normal circumstances, employers have no legitimate reason to record employees’ organizing activities. This is not the case for unions. What is missing from the majority’s analysis, then, is any real grasp of the very different positions that unions and employers occupy with respect to employees, in terms of campaign access, economic relationship, and potential for coercion. As the Randell I Board explained, unions have far less access to employees and far less opportunity to coerce them. To the extent that the Board must weigh a party’s legitimate needs and interests in photographing employees against the potential for inter- fering with employee free choice, the balance is simply not the same for unions and employers. The majority gets it wrong with respect to both sides of the scale. As a result, the use of a legitimate organizing tool is now practically prohibited.9 A. The fact that unions, like employers, have the capacity to coerce employees weighs heavily in the majority’s analysis. It is no great concession to acknowledge that unions can, and sometimes do, commit unfair labor prac- tices against employees. What matters here, rather, is the relative capacity of unions to take such action. The majority errs in suggesting that the capacity of un- ions to coerce employees, or the incidence of unfair labor practices by unions, is essentially the same as that of employers. For decades, the Board and the courts have 8 See F. W. Woolworth, 310 NLRB 1197 (1993); Waco, Inc., 273 NLRB 746, 747 (1984). 9 In restricting unions’ organizing efforts in the name of equality, the majority’s decision here bears an unfortunate similarity to the recent decision in Harborside Health Care, Inc., 343 NLRB 906 (2004), from which we dissented. There, also on remand from a court of appeals, the Board radically reinvented its approach to prounion supervisory con- duct during election campaigns in which employers oppose unioniza- tion. recognized that employers are in a far more effective position to coerce employees than unions are. To point out the obvious, employees are economically dependent on the employer, who controls every aspect of their working lives. The employer may fire workers, disci- pline them, impose harsher working conditions, cut their pay, and deny them benefits.10 As one court concluded, “By no stretch of the imagination are employers of unor- ganized workers and unions seeking to organize those workers equally matched with respect to their powers of or opportunities for the exercise of coercion....”11 Recent experience in enforcing the Act is demonstra- tive. Between 1994 and 2005, for every complaint that the General Counsel issued against a union, he issued nine against employers.12 Correspondingly, during the same period, Board decisions involving employers as respondents exceeded decisions involving union respon- dents by a rate of 9 to 1.13 The Board’s experience tends to show, then, that, in general, employees have less to fear from unions than from employers. Employees, it is fair to assume, under- stand as much. B. In turn, as Randell I explained, unions have legitimate reasons to engage in photographing employees during an election campaign. And, contrary to the majority’s claim, employees likely will recognize that those inter- ests are at work, in the absence of any coercive union conduct that would raise suspicion about the photograph- ing, even if the union does not provide employees with an explanation. Employees understand that the cam- paigning union lacks access to them on the job, but still must identify supporters and potential supporters. They may well have experienced union home visits, polling, petitioning, and authorization card solicitation—all per- missible union tools, which the majority endorses, even 10 For a recent case illustrating the range of coercive tactics open to employers, from economic reprisals to physical violence, see Smithfield Packing Co., 344 NLRB 1 (2004). Ironically, the majority cites cases in which unions, having succeeded in becoming employees’ representa- tive, unlawfully persuaded employers to engage in work-related coer- cion. 11 Kusan Mfg. Co. v. NLRB, 749 F.2d 362, 364 (6th Cir. 1984) (re- jecting argument that a union’s preelection polling should be treated as impermissible per se, as an employer’s polling is). See Maremont Corp. v. NLRB, 177 F.3d 573, 577 (6th Cir. 1999) (following Kusan Mfg.); Louis-Allis Co. v. NLRB, 463 F.2d 512, 517 (7th Cir. 1972) (rejecting equation of employer polling and union polling). 12 See Board’s Annual Report, Vol. 59–70 (1994–2005), at 8–10. 13 Id. at 9–11. The statistics cited are for “initial decisions” by the Board, excluding backpay cases, jurisdictional work disputes, and supplemental decisions. RANDELL WAREHOUSE OF ARIZONA 601 though they involve the same recording of employee views condemned in the case of union photographing.14 In contrast, there is no presumptive justification for an employer’s photographing of employees while they en- gage in protected organizing activity; such employer conduct is inherently coercive.15 Although they are free to express their views against unionization, as Section 8(c) of the Act establishes, employers are denied certain campaign tools available to unions, as the Randell I Board explained. In the hands of employers, these tools inherently tend to coerce employees, given their eco- nomic dependence on the employer and the obvious fact that an “employer cannot discriminate against union ad- herents without first determining who they are.”16 Pro- hibiting employers from using these tools, in turn, does not impose a substantial burden on them. They retain virtually unlimited access to employees in the workplace and remain free to use tactics ranging from captive- audience meetings to individual sessions with supervi- sors to persuade employees to vote against the union.17 More fundamentally, of course, the Act does not envi- sion that employers will play the same role with respect to the exercise of employee free choice as unions do. The affirmative relationship between unions and employees seeking to organize themselves is at the heart of the Act’s promotion of collective bargaining.18 The Supreme Court has endorsed both unions’ participatory role in organizing and the related need for unions to communi- cate with employees concerning self-organization.19 Meanwhile, it has recognized that “any balancing of [the] 14 See, e.g., Springfield Hospital, 281 NLRB 643, 692–693 (1986), enfd. 899 F.2d 1305 (2d Cir. 1990). The majority insists that photographing is “different” from home visits, polling, and other unchallenged union methods of gauging and recording employees’ support. According to the majority, photograph- ing is: “non-consensual,” more “intrusive,” and “unreliable.” But pho- tographing an employee who chooses not to accept union literature is no more “non-consensual” than recording an employee’s refusal to sign an authorization card when solicited. In either case, the employee re- veals a disinclination to support the union. Moreover, union photographing is no more “intrusive” than a home visit by the union. As for reliability, none of a union’s organizing tools provide a foolproof measure of employee sentiment. The imperfect reliability of union organizing methods presents an argument for more, not fewer, legitimate tools to assist in communicating with employees. 15 See, e.g., F. W. Woolworth Co., supra. 16 Richard Mellow Electrical Contractors Corp., 327 NLRB 1112, 1114 fn. 15 (1999) (citation omitted); see also Allegheny Ludlum Corp., 333 NLRB 734, 737–738 (2001), enfd. 301 F.3d 167 (3d Cir. 2002). 17 See Harborside Healthcare, supra at fn. 14 (dissent) (collecting illustrative cases). 18 See Sec. 1 of the Act. 19 NLRB v. Babcock & Wilcox Co., supra, 351 U.S. at 113 (examin- ing union organizers’ access to company property and observing that the “right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others”). rights [of employees and employers] must take into ac- count the economic dependence of the employees on their employers.”20 In short, the Act demands that, at a certain point, em- ployers must stay out of the way when their employees seek to organize themselves. As the Board observed long ago, “[i]nherent in the very nature of the rights pro- tected by Section 7 is the concomitant right of privacy in their enjoyment—‘full freedom’ from employer inter- meddling, intrusion, or even knowledge.”21 Unions, in contrast, could not organize effectively without doing precisely what employers are forbidden from doing.22 In sum, when an employer photographs or otherwise records employee organizing activity, it is reasonable for employees to feel threatened, because in usual circum- stances there can be no legitimate basis for the em- ployer’s actions. When a union photographs employees involved in organizing activity, there may be many le- gitimate reasons, consistent with the union’s affirmative role in furthering the exercise of statutory rights. Unless employees have some specific basis for fearing the un- ion—which stands in a very different relationship to them than the employer does—the union’s photograph- ing has no coercive tendency.23 C. There are good reasons, then, for not requiring a union, in contrast to an employer, to explain to employees why it is photographing them. Such a requirement is, in any case, untenable. The majority declines to explain what it means by a “legitimate justification” or “explanation” that must ac- company photographing of employees’ organizing activ- ity, whether by a union or an employer. The majority specifically refuses to state whether it would be accept- able for a union to tell employees that it is, in fact, re- cording their union sentiments, notwithstanding the ma- 20 NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969) (examin- ing employer’s campaign statements). 21 Standard-Coosa-Thatcher Co., 85 NLRB 1358, 1360 (1949). 22 Cf. Glamorise Foundations, supra, 197 NLRB at 729–730 (“While a union engaged in organizing employees may legitimately measure its support among the workforce, an employer may not prop- erly engage in or encourage such surveillance”). 23 The majority asserts that we miss the point when we state that un- ion photographing is not as coercive as employer photographing, be- cause the issue is simply whether a union’s conduct has a reasonable tendency to coerce. With all due respect, it is the majority that misses the point. Because an employer usually has no legitimate reason to photograph its employees during an organizing campaign, it is appro- priate to conclude that such conduct has a reasonable tendency to co- erce. By contrast, employees are well aware of the comparative lack of access and power that unions have over them, and have no reason to fear a union’s use of those means of access it does have, including photography, in the absence of threatening conduct. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602 jority’s endorsement of this purpose for polling, solicit- ing authorization cards, and the like.24 Moreover, the majority rejects the Union’s actual explanation in the present case as “ambiguous,” although it indicated no more than an innocuous, internal, i.e., non-threatening, union purpose.25 Finally, the majority’s sole suggestion of a bona fide “justification” involves a union’s photo- graphing of employees voluntarily attending a union pic- nic, away from the workplace and not involving the rec- ordation of the employees’ attitudes toward the union.26 The majority’s implicit message seems clear enough: regardless of the similarity of union photographing with other, legitimate organizing aids, and regardless of the profound difference between a union’s role and an em- ployer’s role in employee organizing activities, the Board 24 Similarly, the majority fails to provide examples of explanations that employers might use. Where special circumstances exist (violence and mass picketing), the majority holds that employers would not be required to explain their recording of the events. 25 The Union told an employee that the photographing was “for the Union purpose, showing transactions that are taking place. The Union could see us handing flyers and how the Union is being run.” 26 See Nu Skin International, 307 NLRB 223 (1992). will find union photographing coercive in virtually every circumstance where it might record an employee’s view of the union. III. Recognizing that the realities of the workplace bear differently on employers and on unions is not disparate treatment; it is common sense and fidelity to the Act. Our original decision in this case was correct. Today’s decision, in contrast, is arbitrary both in failing to see the difference between union photographing and employer photographing and in failing to see the similarity be- tween union photographing and other, permissible orga- nizing tools. The result places unions in a dilemma: Pho- tographing employees is objectionable, unless a legiti- mate justification is communicated to the employees, but the majority implies that a central justification for photo- graphing employees, to identify supporters and potential supporters of the union, is inherently coercive. In light of its internal contradictions, we do not see how the ma- jority’s decision can stand. Accordingly, we dissent.