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U.S. Appeals Court Agrees with NLRB: No Workers in Union-Busting Videos Without Consent October 31, 2004 The bad news is that employers can still use workers in union-busting videos shown in captive audience meetings during organizing drives. The good news is an appeals court has ruled that they cannot do so without the workers permission. The precedent-setting case was decided by the U.S. Court of Appeals for the Third Circuit, which includes Pennsylvania, New Jersey and Delaware. A three-judge panel affirmed an earlier NLRB decision in Allegeheny Ludlum Corp. versus the National Labor Relations Board. The NLRB administrative law judge concluded that Allegheny Ludlum violated the National Labor Relations Act when it solicited employees to appear in an anti-union video. The ruling upholds the presumption the workers included in the video did not have the opportunity to refuse due to the power relationship between employer and employee. "This case sends a clear message to employers that workers cannot be forced to serve as pawns in union-busting campaigns," said IBEW International President Edwin D. Hill. In 1994, during a United Steelworkers organizing drive at the Pennsylvania metals manufacturer, the companys anti-union consultants included employees in a videotape that was later shown to the workers. After losing the secret-ballot election by 12 votes, the union filed unfair labor practice charges with the NLRB. The board found that Allegheny Ludlum violated section 8(a)(1) of the NLRA "by approaching individual employees and asking them to consent to be filmed for the purpose of a campaign videotape, and by requiring employees to register an objection with an agent of [Allegheny Ludlum] in order to avoid being included in its campaign videotape." The appeals court rejected the company contention that the NLRB finding violates an employer's free speech rights. "We conclude that the board's decision is a rational resolution of the tension between the employers First Amendment rights and the employees right to organize freely," said the judges in their decision.
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