In a shocking decision, the NLRB recently ruled that the Carpenters Union did not violate Section 8(b)(1)(A) of the NLRA when it infiltrated a non-union contractor’s job site, videotaped non-union employees, and then posted the edited video on YouTube.

In Metropolitan Regional Council of Carpenters (Forcine Concrete), the Board addressed  an unfair labor charge based upon a YouTube video that showed the Union Representatives, who were disguised as “Inspectors,” asking questions of Hispanic employees of the non-union firm regarding their immigration status, how long they worked for the contractor, and how much they were paid.  The video was viewed 28,961 times and received 211 comments.  Later, the Carpenters Union linked the YouTube video to its Facebook page.

Although the Administrative Law Judge found that the video showed that the Union “questioning was done in a very intimidating manner” and prevented the non-union firm’s men from working, he ruled that the Carpenters Union did not violate the employees’ Section 7 rights.  Curiously, the Judge ruled that while the employees were undoubtedly restrained and coerced they were not restrained and coerced in exercise of their Section 7 rights.

The ALJ ruled that Section 7 protects an employee’s right to both engage in or refrain from certain conduct.  The Judge ruled that in order to refrain from certain conduct “employees must be presented with a choice as to whether to engage in activity or not.”  Here, the Judge found that the workers were not confronted with a choice to engage in activity or not.

While the Union’s actions may not be a Section 8(b(1)(A) violation, how about 8(b)(4)?  Clearly the purpose of the union video tapping the Hispanic employees was to encourage those individuals to refuse to work for the non-union employer. This decision is another victory for unions and the questionable tactics often employed by organized labor and one that merit based firms and neutral secondary employers should obvously be concerned about.