Latest NLRB Decision Rules in Favor of Organized Labor Shenanigans

By Eric B. Meyer

No inflatable rats here, folks. Just some organizing shenanigans.

Last week, the National Labor Relations Board was tasked with determining whether a union may use the photograph of an employee, without his authorization, on union-organizing materials.

The case involves a union election in which the union won by a scant three votes. The employer subsequently objected.

Facts behind the NLRB ruling

From the NLRB decision, here are the facts leading up to the election:

Employee and union supporter Chafik Omerani took Henriquez’ photograph in a food court at a mall near their workplace. The Union included his photograph in a campaign flyer that it circulated a few days before the election. On one side, the flyer contained photographs of Henriquez and seven other bargaining unit employees surrounding the words, “Yes, Everybody can make the right choice!! To end Unfair treatment & Unfair pay!!” The other side of the flyer had a longer “Dear Colleagues” note that encouraged employees to allow the Union to be their “voice” for better pay, better benefits and better treatment. Both sides of the flyer were marked, “URGENT.”

There is no credited evidence that Henriquez objected to the Union’s use of his photograph in the campaign flyer or that he opposed the Union. The parties stipulated only that Henriquez did not authorize the use of his photograph.”

In a 2-1 decision, the Board held that the union had not engaged in any misrepresentation in campaign propaganda because, in its opinion, the union had not used “forged documents which render the voters unable to recognize propaganda for what it is” and because the employer did not present evidence that the union misrepresented Henriquez’s support of the union.

But was it “unlawful coercion?”

Still, the majority acknowledged that the Union implicitly misrepresented that Henriquez authorized the use of his image in the flyer. But, since no outright forgery was involved, no harm, no foul.

In his dissent, NLRB Board Member Brian Hayes cited Board precedent holding that an employer may not use an employee’s photograph in campaign material in a manner that reasonably tends to indicate the employee’s position on union representation, without the employee’s permission. Reasoning that what’s good for the goose is also good for the gander, Member Hayes concluded that the use of Henriquez’s image, absent his informed consent, constitutes unlawful coercion.

Article Continues Below

Sounds reasonable to me. Hayes’s dissent, that is. But, what do I know?

What do you think? Sound off below.

Also, be sure to check out these posts on last week’s NLRB decision, in which the Board held that arbitration waivers in class actions are unenforceable.

Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


Leave a Comment

Your email address will not be published. Required fields are marked *