PETITION FOR REVIEW NATIONAL LABOR RELATIONS BOARD NLRB Nos. 13-CA-19419 & 13-CA-19420
Before: HUNTER, WEIS and HIGGINBOTHAM, Circuit Judges
1. This case is before us upon the petition of United States Steel Corporation ("petitioner") for the review of a decision and order of the National Labor Relations Board (the "Board"). The Board determined that petitioner violated section 8(a) (1) of the National Labor Relations Act (the "Act") by photographing employees engaged in a peaceful demonstration.*fn1 The Borad ordered petitioner to cease and desist from such photography, and to destroy all photographs taken.
2. We believe that the evidence does not support the finding of a section 8(a) (1) violation. Therefore, we will set aside the decision and order of the Board.
FACTS AND PROCEDURAL BACKGROUND
3. This case is predicated upon a single, independent section 8(a) (1) allegation described in the complaint as follows:
On or about November 14, 1979, the [petitioner] photographed its employees as said employees engaged in protected concerted activity thereby creating the appearance of coercive surveillance for purposes of future reprisals.
4. The findings of the Administrative Law Judge ("ALJ") may be summarized as follows: Petitioner operates a steel manufacturing facility, known as the South Works, in Chicago, Illinois. The employees of the plant are represented by Local 65 of the United Steel Workers of America (the "Union"). Prior to the events at issue here, female employees at the South Works plant manifested their concern for the adequacy of locker room facilities made available for their use. In consequence, grievances were filed which, as of November 1979, had been heard at the third step of the established contractual dispute settlement procedures. In support of these grievances, on 14 November 1979 a demonstration was held at a plant entrance under the sponsorship of the Women's Committee of the Union.
5. Approximately fifty to seventy-five employees participated in the two-hour demonstration. The record shows that the participants, many of whom carried picket signs, were good humored and peaceable, and the rally encompassed neither violence nor other illegal activities.*fn2 No employee was disciplined as a result of the demonstration, and no legal action was taken by petitioner.
6.Petitioner assigned two photographers, each with a camera, to record the demonstration. The photographers were given no guidelines or limitations in their task. Roughly 140 pictures were taken, including some close-up photographs of employees, and the picture-taking encompassed preparations for the demonstration as well as the demonstration itself. The pictures were retained, although never used, by petitioner. Petitioner's photographic practice was undertaken on the advice of counsel, and had ...