Labor Relations Today

Labor Relations Today

Electrical Subcontractor Cannot Catch a Break from the Eighth Circuit

Posted in Duty to Bargain, Federal Court Litigation, NLRA, NLRB, Unfair Labor Practices

On February 9, 2016, the Eighth Circuit Court of Appeals held that National Labor Relations Board (the “Board”) properly concluded that an electrical subcontractor violated the National Labor Relations Act when it unilaterally changed its employee break policy without affording the employees’ union an opportunity to bargain over the change. Parsons Electric, LLC v. NLRB, Nos. 14-3239 and 14-3662 (8th Cir. Feb. 9, 2016).  This decision is a reminder for employers to consider whether a change in the terms and conditions of employment is sufficiently significant to require bargaining with a union before implementation.

Although the collective bargaining agreement between the employer and the union was silent on employee breaks, since at least 2005, the employer maintained a written employee break policy providing for a 15-minute break in the morning and a 15-minute break in the afternoon, subject to jobsite managerial discretion. In 2012, however, the employer amended its employee break by eliminating the default 15-minute breaks and stating that “[the employer] may establish specific break policies as part of the jobsite expectations.”  After a number of employees complained to the union that the employer ceased permitting afternoon breaks and early departures in lieu of breaks, the union filed an unfair labor practice charge.

Giving considerable deference to the Board, the Eighth Circuit concluded that the policy change was “material, substantial, and significant,” thus requiring the employer to bargain with the union. As the court explained:

To be sure, [the employer] retained discretion to override the two-break standard if the particular ‘jobsite expectations’ so required, but under the 2005 Break Policy, that discretion would be exercised as an exception to the default rule. The 2012 Break Policy, by contrast, eliminated the default rule with respect to employee breaks and instead granted [the employer] unfettered discretion to determine whether employee breaks would be permitted at all, and, if they were permitted, when they would occur and how long they would last.

In other words, while the 2005 break policy provided employees with a “specific, concrete standard,” the 2012 break policy left the determination of breaks entirely to management.

The Eighth Circuit also rejected the employer’s argument that the 2012 break policy was nothing more than a clarification of the company’s standard practice under the former policy. Again deferring to the Board’s findings, the Eight Circuit noted that “the Board credited evidence and testimony that, prior to 2012, the typical practice at [the employer’s] jobsites was to follow the default standard set forth in the 2005 Break Policy.”  In the end, the court denied the employer’s petition for review and granted the Board’s petition for enforcement of its order.



West Virginia Inches Closer to Enacting Right-To-Work Law

Posted in Legislation, State/Local Issues

On Thursday, February 4, the West Virginia House of Delegates voted 54-46 to pass the “Establishing West Virginia Workplace Freedom Act,” a measure that would allow employees to opt-out of paying union dues. The Senate, which previously passed the bill 17-16 along party lines, must approve the bill again as it was amended by the House. Governor Earl Ray Tomblin has committed to vetoing the bill, but only a simply majority in the House and Senate is needed to override any veto. If enacted, West Virginia will become the 26th state to have a right-to-work law.

Additional coverage:

Eleventh Circuit Court of Appeals Overrules National Labor Relations Board; Holds That Stagehands Are Independent Contractors, Not Employees

Posted in Federal Court Litigation, NLRA, NLRB

Vacating a National Labor Relations Board (the “Board”) decision that a stagehand referral service violated the National Labor Relations Act by refusing to bargain with its stagehands’ union representative, on February 3, 2016, the Eleventh Circuit Court of Appeals held that the stagehands were independent contractors and not employees of the referral service.  In Crew One Prods., Inc. v. NLRB, No. 15-10429 (11th Cir. Feb. 3, 2016), a three-judge panel concluded that the vast majority of factors used to determine independent contract status led to only one conclusion: “the stagehands are independent contractors and the decision of the Board was contrary to law.”

The employer at issue was a referral service, which referred stagehands to event producers for concerts, plays, trade shows, and other events in the Atlanta area.  The employer offered jobs to the stagehands on a first-come, first-served basis; did not withhold taxes or offer benefits to the stagehands; did not prohibit the stagehands from accepting jobs from other referral services or from doing other work; did not provide the stagehands with any tools (other than a company vest for safety and identification reasons); and required the stagehands to sign independent contractor agreements.  For any job, the employer required only that the stagehands check-in and check-out with the company in order to keep track of their hours.  Nevertheless, when a union petitioned the Board to represent the stagehands, the Board concluded that the stagehands were employees and not independent contractors, directed an election, and certified the union.

In overruling the Board, the Eleventh Circuit concluded that the Board made “five errors…when it applied the law to the facts.”  Among those five errors, the Board did not give adequate weight to the facts that the employer did not withhold the stagehands’ taxes and that the stagehands signed independent contractor agreements.  The court also found irrelevant the Board’s consideration of the stagehands’ inability to negotiate their pay and erroneous the Board’s conclusion that the stagehands performed the “essential functions” of the employer’s operations.

Most importantly, the court stated that the Board widely missed the mark in its analysis of the most critical factor of the independent contractor analysis—control.  As the court explained, “[t]he requirement that stagehands check in and check out evinces control over the ends of the job, not the means of it.  Contrary to the Board’s findings, “[o]nly the event producers and touring crews control the means of the work performed by the stagehands, and [the employer] lacks the expertise to direct the stagehands in their work for any particular client.”  Considering all of the factors, the Eleventh Circuit vacated the Board’s decision.

Although the Board and other federal government agencies continue to be hostile to independent contractor relationships, the Eleventh Circuit’s decision is a welcome reminder that not all workers classified as independent contractors are actually employees.

NLRB Legitimizes Improper Mail Ballot Election Rule Followed by Certain Regional Offices

Posted in NLRB, NLRB Decisions, Representation Elections

For more than 50 years, the Board has maintained a rule for mail ballot elections prohibiting the parties from holding mass campaign meetings on company time (commonly referred to as “captive audience” meetings) with employees “from the time and date on which the ‘mail in’ ballots are scheduled to be dispatched by the Regional Office until the terminal time and date prescribed for their return.” Oregon Washington Telephone, 123 NLRB 339 (1959). Last week, however, the Board “ironically” decided to overrule that long-standing rule and replace it with a rule incorrectly followed by at least two regional offices.

In Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016), the Board majority of Chairman Pearce and Members Hirozawa and McFerran declared that the new rule was needed because of confusion surrounding the rule and a need for a “bright line” standard. The confusion, however, was of the NLRB’s own creation. The Board’s Representation Case Outline of Law provides that:

Where an election is conducted by mail, the Regional Director must give all parties 24 hours’ notice of the date when the ballots are to be mailed. Employers and unions alike are prohibited from making speeches on company time to massed assemblies from the time and date the ballots are scheduled to be sent out by the Region until the time and date set for their return. Oregon Washington Telephone Co., 123 NLRB 339 (1959); and San Diego Gas & Electric, 325 NLRB 1143 (1998).

While correctly setting forth the Oregon Washington Telephone rule, the Representation Case Outline cites San Diego Gas, in which the Board’s majority, concurring, and dissenting opinions all incorrectly explained (in dicta) that the prohibition of captive audience meetings started 24 hours before the ballots are mailed.

Finally, we reject the dissent’s contention that because, under the rule in Peerless Plywood Co., 107 NLRB 427 (1953), employers are prohibited from giving mass ‘‘captive audience’’ speeches to employees during the period beginning 24 hours before the actual balloting period begins, the use of mail ballots ‘‘significantly silences’’ the employer.


As the majority notes, an employer is free to conduct ‘‘captive audience’’ speeches throughout the campaign period until the Peerless Plywood rule takes effect 24 hours before the ballots are mailed and, during the actual balloting period, the employer is free to lawfully campaign in the workplace.


With respect to the factor of full opportunity to hear all points of view, we note that, under Peerless Plywood, 107 NLRB 427 (1953), the employer is essentially barred from having group meetings with employees during the 24-hour period before the balloting. While this rule may make good sense prior to a manual election, the application of that rule to a mail ballot election makes no sense. The mail ballot election occurs over a period of several weeks, and thus the Peerless Plywood rule applies to the entire period beginning 24 hours before the ballots are mailed by the Regional Director and ending with the return of the ballots.

Moreover, it appears that at least some regional offices of the NLRB were incorrectly following San Diego Gas to prohibit captive audience speeches in the 24 hour period before mail ballots were mailed by the Region, as evidenced by Region 5 in Guardsmark and Region 25’s Summer 2013 newsletter (page 5), in which it advised a union representative that the prohibition on captive audience meetings began 24 hours before the scheduled time for the mailing out of the ballots.

Member Miscimarra vehemently disagreed with the Board’s “clarification.” In his dissent Miscimarra asserts that the new rule does not create consistency, but rather “a double standard that, in [his] view, lacks any rational justification”:

By setting the starting time of the captive-audience-speech prohibition in mail-ballot elections 24 hours before a regional office puts ballots in the mail, my colleagues establish a new rule, contrary to over 50 years of precedent, that upsets the consistency between Oregon Washington Telephone and Peerless Plywood. My colleagues say the point in time 24 hours before ballots are mailed “seems to correspond most naturally to the Peerless Plywood rule.” To the contrary, by overruling Oregon Washington Telephone, my colleagues all but guarantee that, in mail-ballot elections, there will be a 48-hour prohibition against captive-audience speeches, double the 24-hour restriction adopted in Peerless Plywood for manual elections.

Arizona Federal Court Grants § 10(j) Injunctive Relief to Stop Employer’s Alleged Labor Law Violations

Posted in Federal Court Litigation, NLRA, Unfair Labor Practices

In a April 30, 2014 General Counsel Memorandum, National Labor Relations Board (the “Board”) General Counsel Richard Griffin declared that his office would expand the pursuit of injunctions in federal court against employers in connection with union organizing and bargaining efforts. In particular, the Memorandum directed the Board’s regional offices to pursue aggressively § 10(j) injunctive relief in unfair labor practice charges involving, among other things, claims of employee terminations during campaigns for union recognition.  On February 1, 2016, the United States District Court for the District Court agreed with the General Counsel’s position that an employee termination during a campaign (and other alleged violations of labor law) could extinguish the “spark to unionize,” thus rendering § 10(j) injunctive relief, including reinstatement of the terminated employee, appropriate.

In Oversteet v. Shamrock Foods Co., No. 2:15-cv-01785-DJH (D. Ariz. Feb. 1, 2016), the Board Regional Director petitioned for § 10(j) injunctive relief to stop the employer’s alleged unfair labor practices including:

[T]hreatening employees with adverse employment actions because of their support for the Union; interrogating employees about their protected activities; spying on its employees as they engage in protected activities and making employees believe that their protected activities are constantly under surveillance; soliciting grievances from employees and promising to correct those grievance in effort to undermine union support; instructing employees to ascertain and disclose employees’ sympathies for the Union; and confiscating employees’ union literature, and issuing discriminatory discipline to an [sic] vocal union supporter and discharging another prominent union supporter because of their activities protected under [the National Labor Relations Act], including their activities in support of the Union.

On the plethora of evidence (including audio and video recordings) submitted to the court, Judge Humetawa found that there was reasonable cause to believe that the Board would sustain the unfair labor practice allegations and that § 10(j) injunctive relief was necessary to prevent further unfair labor practices pending a decision from an administrative law judge.  Although Judge Humetawa declined to summarize all of the evidence supporting the injunction, she specifically noted: 1) statements by the employer threatening its employees with loss of benefits if they voted for unionization (“[t]he slate is wiped clean on wages, the slate is wiped clean on benefits, the slate is wiped clean on working conditions”); 2) statements by the employer giving its employees the impression that their union-related activity was under surveillance (“we kind of have some ideas…of who’s out there”; “we know who they are”; “[w]e know they’ve been conducting meetings offsite here”; and 3) statements by the employer that the union campaign was being waged by disgruntled workers seeking to hurt the company.

Additionally, Judge Humetawa found that the evidence showed a likelihood of success on claims of retaliatory discharge of one employee and retaliatory discipline of another. The terminated employee was a vocal supporter of the union who attended union meetings and persuaded his father- and brother- in-law to sign authorization cards.  During a company “town hall” meeting, the employee asked why, in light of the company’s earnings, the company could not make larger contributions to employees’ health savings accounts and restore an earlier health insurance plan.  The employer terminated the employee one week after the “town hall,” citing his “belligerent and disrespectful” behavior at the meeting.  Judge Humetawa, however, reviewed the audio recording and transcript of the “town hall” and found little evidence to support the employer’s stated reasons for termination.  The court also cited evidence that the employer disciplined another employee and warned that he would be terminated if he did not cease advocating for the union.

Ultimately, the court concluded that the union would suffer irreparable harm if it did not grant injunctive relief. The record showed that interest in the union dropped significantly after the employer started conducting meetings and discharged an employee after he expressed pro-union sentiment.  The court entered an injunction requiring the employer to, among other things, cease its unfair labor practices, to reinstate the terminated employee, and to post a copy of the court’s order in its facility.


Tenth Circuit Affirms National Labor Relations Board’s Decision to Disregard Interim Earnings When Calculating Backpay Award.

Posted in Federal Court Litigation, NLRA, Remedies

On January 20, 2016, the Tenth Circuit Court of Appeals affirmed the National Labor Relations Board’s (the “Board”) decision to disregard interim earnings when calculating the backpay awards for employees whose injuries fell short of unlawful termination. NLRB v. Community Health Services, Inc., No. 14-9614 (10th Cir. Jan. 20, 2016).  Rejecting the employer’s argument that the Board failed to provide adequate support for its decision, the Tenth Circuit deferred to the Board’s policy-based rationale that declining to deduct interim earnings offers employees greater incentive to voluntarily seek interim employment and promotes production and employment.

In 1999, the employer-hospital decided to reduce the hours of its full-time, respiratory-department employees. As a result of this decision, the employees’ union representative filed unfair labor practice charges.  The Board ruled in favor of the union and ordered the employer to “make whole any employee for any loss of earnings and other benefits suffered.”  During the compliance phase, the Administrative Law Judge rejected the employer’s argument that any income an employee earned from secondary employment during the backpay period (i.e., the interim earnings) should be deducted from that employee’s backpay award.  In reaching that conclusion, the Administrative Law Judge applied the backpay formula set forth in Ogle Protection Services, Inc., 183 NLRB 682 (1970) in which the Board determined that interim earnings should not be deducted from backpay awards when the underlying violation is something other than a wrongful termination.  In 2007, the Tenth Circuit enforced the Board’s order, but the dispute went to the D.C. Circuit, which remanded the case for further explanation by the Board.  After the Board issued a supplemental decision offering additional policy justifications for excluding interim earnings from the backpay calculation, the employer again appealed to the Tenth Circuit.

The sole question on appeal was whether “the Board provided sufficient support for its decision to exclude interim earnings from backpay calculations when the employer has wrongfully reduced employee hours, but not terminated employment.” Writing for the 2-1 majority, Judge McHugh held that it had.  Specifically, Judge McHugh deferred to the Board’s five policy justifications for its decision.  As the Board reasoned:

  1. “[D]educting interim earnings from backpay calculations in this context would discourage production and employment by making employees who seek additional work no better off than their counterparts who remain underemployed.”
  2. “[D]eclining to deduct interim earnings in this situation is more consistent with [the Board’s] backpay calculations in other contexts[,]” such as where employees “who perform more work than required [to mitigate damages] are entitled to retain the benefit of such ‘extra effort.’”
  3. “[A]n employee who seeks work from a secondary employer generally suffered additional hardships, ‘such as resolving scheduling conflicts between the two jobs and traveling to a second workplace,” such that the employee should be allowed to retain the benefit of undertaking these hardships.
  4. “[D]educting interim earnings from a backpay calculation would create an incentive for wrongdoing employers to delay rescinding their unlawful conduct, ‘knowing that the longer an employee worked a second job, the greater could be the reduction in backpay owed.”
  5. “[W]here one of the parties will obtain a windfall, it is more appropriate for it to be the employee whose extra effort resulted in the interim earnings, rather than the recalcitrant employer.”

Over Judge Gorsuch’s dissent, which called the backpay award excessive and beyond the Board’s remedial powers, the Tenth Circuit ultimately concluded that, “[a]lthough other reasonable remedies undoubtedly exist,” the Board’s calculation of backpay damages was not contrary to the policies of the National Labor Relations Act and thus proper. The Tenth Circuit’s decision is a stark reminder that employers found liable for unlawfully reducing its employees’ hours will not be permitted to reduce their liability by showing their employees’ willingness to work other jobs.

West Virginia Poised to Become Twenty-Sixth Right-to-Work State.

Posted in Legislation, State/Local Issues

On January 21, 2016, the West Virginia Senate passed the Workplace Freedom Act (S.B. 1) along a party-line 17-16 vote. The bill, which would “prohibit any requirement that a person become or remain a member of a labor organization, or pay dues and fees to a labor union as a condition of employment,” will make its way to the House of Delegates where Republicans hold a substantial 63-34 majority.  Republican lawmakers in West Virginia have made right-to-work a foundation of their legislative agenda and believe they have the votes to override a possible veto by Democrat Governor Earl Ray Tomblin.  If the Workplace Freedom Act passes the House of Delegates and survives a gubernatorial veto, West Virginia will become the nation’s twenty-sixth right-to-work state.

Professors Petition NLRB to Grant Unions Right to Hold Captive Audience Meetings During Organizing Campaigns

Posted in NLRA, NLRB, NLRB Rule-Making, Representation Elections, Special Interests

On January 15, 2016, more than 100 professors from about 70 universities filed a rulemaking petition with the National Labor Relations Board requesting that the Board adopt a rule providing that where an employer holds “captive audience meetings” to express opposition to unionization, the union has a right upon request to equivalent access to address employees. In other words, unless the employer allows employees to solicit for the union during working time, the union would have the right to have a mandatory, on-the-clock meeting with employees whenever the employer conducts a captive audience meeting to express opposition to a union organizing campaign. Under the proposed rule, if the union loses the election, an employer’s refusal to grant such access will be sufficient grounds to set aside the election.

The professors claim that the petition, filed under the rarely-used NLRB Rule and Regulation § 102.124 allowing any interested person to petition the Board for the “issuance, amendment, or repeal of a rule or regulation,” is designed to counteract the “anti-democratic phenomenon” of captive-audience meetings that they claim destroys the laboratory conditions required for an election. However, the professors note that captive-audience meetings are not objectionable because of the content. Rather, their objection to such meetings is that it denies the union comparable access to the employees. Curiously, the professors cite the Railway Labor Act (RLA) as justification for their proposed rule because the National Mediation Board (NMB), which has jurisdiction over the RLA, prohibits captive audience meetings because it believes that they are “inherently coercive” and thus violate “the ‘laboratory conditions’ required for a fair election.” Yet, the nature of the professors’ proposed rule—to allow everyone to conduct captive audience meetings—is at odds with the NMB’s conclusion.

The full text of the proposed rule is as follows:

Where an employer who is subject to the jurisdiction of the National Labor Relations Act does not specifically allow union solicitation during working time, if that employer—by or through any of its agents, officials, or supervisors—engages in a meeting or meetings with its employees during working time to express opposition to union representation prior to the holding of a Section 9 representation election and refuses to provide the affected union, if requested, with an equivalent opportunity to address employees, such conduct shall be deemed to have impaired the employees’ freedom of choice in the selection of their representative; therefore, if the union loses that election, such conduct shall constitute sufficient grounds for setting aside the results of that election and ordering a new election. The time-period for application of this rule shall begin when the employer first becomes aware that union organizing among its employees is likely to begin or has already begun and shall end on the date on which the representation election is held. This period, however, may be extended to an earlier date, not to exceed six months, if the employer has earlier engaged in any of the above conduct that has had a continuing adverse effect on employees’ free choice and the outcome of the election.

Under the Board’s rules and regulations, the Board has the option of granting or denying the petition with or without a hearing. As the proposed rule is a significant departure from decades of Board precedent and would be a boon to organized labor, it will be interesting to see how the Board addresses this petition in a presidential election year.

Please continue to follow the blog, our Twitter (@LRToday) feed, and our Flipboard magazine for developments on this petition.

Labor Relations Today Issues ‘Labor Law 2015: Year in Review’

Posted in Alternative Labor Law Reform, Beyond EFCA: Labor's Agenda, Bush Board Reversal, Card Check, Department of Labor, Executive Orders, Expedited Elections, Federal Court Litigation, Government Contracts, House of Representatives, Joint Employer, Legislation, Micro Units, Negotiations, NLRA, NLRB, NLRB Administration, NLRB Decisions, NLRB Rule-Making, Remedies, Representation Elections, SCOTUS, Senate, Social Media, Unfair Labor Practices, Unions, White House

LRTCoverMcGuireWoods labor attorneys and the editors of Labor Relations Today are pleased to announce the publication of Labor Law 2015: A Year In Review.

For most of 2015, the National Labor Relations Board consisted of five members and the general counsel — all Senate-confirmed. This Board and the White House continued aggressive efforts to overhaul traditional labor law administratively, implementing expedited representation election rules, rewriting the decades-old “joint employer” standard, proposing regulations designed to blacklist government contractors who fail to adhere to extensive record-keeping and reporting duties, and continuing to expand the notion of what employee misconduct may nevertheless be protected under the NLRA.

As we head into the heat of the 2016 election campaigns, the Board and its allies appear as determined as ever to advance their agenda, and its opponents look to be equally prepared to push back.  Whether the end result of this year’s back and forth will be merely election year posturing, a number of drastic changes which survive only until the new president’s Board is seated, or something more enduring, will be something to watch closely. Against this backdrop, we submit this 2015 Year in Review  to summarize the most noteworthy developments of the year past. We hope you find it a helpful resource as we head into what will undoubtedly be another active year in labor-management relations.

Click here to download Labor Law 2015: A Year in Review.

Board Finds Rule Prohibiting Recordings in the Workplace Unlawful

Posted in NLRA, NLRB, NLRB Decisions

Keeping with its trend of invalidating common workplace rules, the National Labor Relations Board, in a 2-1 decision issued on December 24, 2015 in Whole Foods Market, Inc., 363 NLRB No. 87, found that an employer’s rule prohibiting recording of company meetings or conversations in the workplace violated Section 8(a)(1) of the National Labor Relations Act.

The employer had implemented two separate policies prohibiting recording. One provided:

In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, [employer] has adopted the following policy concerning the audio and/or video recording of company meetings:

It is a violation of [employer] policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President, or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.

Another provided:

It is a violation of [employer] policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.  This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

An Administrative Law Judge found the rules lawful because they did not prohibit protected, concerted activity, were not promulgated in response to union activity, had not been applied to restrict the exercise of Section 7 rights, and could not reasonably be read as proscribing Section 7 activity. The Board disagreed.

In reversing the ALJ’s decision, the Board reasoned that Section 7 protects photography and audio or video recording if employees are acting in concert for their mutual aid and protection and no overriding employer interest exists:

Such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.

The Board even characterized “photography or recording, often covert,” as “an essential element in vindicating the underlying Section 7 right.” The NLRB found the employer’s rules overbroad and unlawful under the Act because they unqualifiedly prohibited all workplace recording and therefore would reasonably chill employees in the exercise of their Section 7 rights.  In so finding, the NLRB ignored the plain language of the rules, noting:

That the rule contains language setting forth an intention to promote open communication and dialogue does not cure the rule of its overbreadth.

The Board rejected the employer’s argument that the rules served important business justifications of preserving privacy interests, including information about an employee’s medical issues, discipline, performance and the employer’s confidential business strategy and trade secrets. Although the Board found these business justifications “not without merit,” it ruled that they were not persuasive or compelling enough to justify the rules’ unqualified restrictions on Section 7 activity.  The NLRB also rejected the employer’s argument that nonconsensual recording was unlawful in many of the states in which it operates because the rules did not refer to those laws and did not limit their restrictions to conduct that does not comply with state law.

In a footnote, the majority claims that its decision does not render invalid all rules regulating recording:

[W]e do not hold that an employer is prohibited from maintaining any rules regulating recording in the workplace. We hold only that those rules must be narrowly drawn, so that employees will reasonably understand that Sec. 7 activity is not being restricted.

The decision, however, provides no guidance on how a rule prescribing recording could be drafted to withstand scrutiny before the current Board.

In his dissent, Member Miscimarra stated that the rules’ obvious purpose was to encourage all communications, including those protected by Section 7:

I believe employees would reasonably read the rules to safeguard their right to engage in union-related and other protected conversations.  These rules themselves state their purpose:  “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust” and “to eliminate a chilling effect on the expression of views . . . especially when sensitive or confidential matters are being discussed.” The rules are no less solicitous of open, free, spontaneous and honest conversations about union representation or group action for the purpose of mutual aid or protection than of other subjects of conversation.  And if employees want to record a conversation, they may do so upon mutual consent.

Based on the plain language of the rules, Member Miscimarra argued that employees would reasonably interpret them to protect Section 7 activity, not to prohibit it.