The mere belief that “something ‘might’ happen does not justify buffalo bills football crocs when balanced against the tendency of that conduct to interfere with the employees’
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had the support of the majority of Employees in the appropriate unit. The Court counseled the Board to “take into consideration the extensiveness of an Employer’s unfair practices” in terms of their buffalo bills football crocs past effect upon election conditions and the likelihood of their recurrence “in the future” in determining whether a bargaining order is an appropriate remedy.119 Finally, the Supreme Court identified a third category of cases, Gissel-III cases, involving minor or less extensive ULPs that have only a minimal impact on the election machinery and do not support the issuance of a bargaining order. This falls far short of the required showing. It is no answer to say, as the majority does, that Plath was concerned about safety and trespassing issues. Providing a “solid justification” requires more than simply suspecting that unprotected activity might occur.
6 The employer must “demonstrate that it had a reasonable basis to have anticipated misconduct by the employees.” National Steel & Shipbuilding Co., 324 NLRB 499 , enfd. 156 F.3d 1268 (D.C. Cir. 1998). Nothing that Gempler said would support a finding that Plath had a reasonable basis for anticipating misconduct during the rally. Significantly, there is no evidence of Union or employee misconduct on prior occasions. • All had heard was that a lot of people would be marching on his plant. The applicable principles are well established. Absent proper justification, an employer’s videotaping of employees engaged in protected activities violates Section 8 because “it has a tendency to intimidate.” F. W. Woolworth, 310 NLRB . An employer must “provide a solid justification for its resort to anticipatory .” NLRB v. Colonial Haven Nursing Home, 542 F.2d 691, 701 (7th Cir. 1976).
