In a public relations nightmare for a Georgia employer, published yesterday an article analyzing a 21-minute audio recording (and the recording itself) consisting primarily of a meeting between management and employees to discuss an upcoming union election and what the employees could expect in the next month leading up to the election. This was Gawker’s lede:

When a union attempts to organize a workplace, the management inevitably tries to talk workers out of it. Usually, that happens out of the public eye. But at one workplace, an audio recorder was running.

It is rare for a recording like this to surface, but that is likely to change given the proliferation of smart phones that make recording and publishing conversations and meetings such as this very easy. The article does not state how the recording was made, but presumably it was secretly made by an employee attending the meeting and, according to the article, was emailed to a list of labor journalists.

For those of us in the labor field, the recording will come across as innocuous and tame. Management is engaging with the employees while perhaps unsurprisingly demonstrating its preference to be union free, but at the same time encouraging employees to talk to both sides and to get as much information as possible. But how is the media and blogosphere portraying it? From an employers’ standpoint, it’s not good:

At one point, a manager tells the workers, "No one in this room has more union experience than me." At that, one worker speaks up to note that he was in a union for five years at a previous workplace, and tells a story of how the union helped save his job after the company tried to fire him unjustly. "Well shame on the company," replies the manager, "but we don’t do that here." (The worker’s previous employer would no doubt say the same thing.), "Here’s Audio of Managers Scolding Employees for Wanting to Unionize"

Towards the end of the meeting, one of the managers unironically adds, "let’s just keep it intimidation free," referring to union representatives’ efforts to talk with workers.

The Huffington Post, "Leaked Anti-Union Rant Shows What Workers Are Up Against in America"

The managers don’t say anything particularly noteworthy in the audio clip, but their staunch anti-union position shows throughout. For every instance of a manager telling employees to “educate yourselves on both sides of the issue” there are several other times when they tell employees how difficult work will become with a union. One manager even resorts to saying that the employees shouldn’t form a union “because this is the south. This is not something where unions are [prevalent].”

Opposing Views, "This Is What Management Trying To Prevent Employees From Unionizing Sounds Like (Audio)"

So what can employers do to protect themselves from employees making and publishing recordings such as these? There are few decisions from the National Labor Relations Board addressing employees’ surreptitious recording of meetings with management. However, the few decisions provide that an employee’s recording of meetings with management is not, in itself, unprotected conduct, and whether it is protected under the National Labor Relations Act will depend on whether there is a nondiscriminatory work rule prohibiting such recordings.

In a recent administrative law judge decision that was ultimately adopted by the Board due to the lack of any exceptions, Interbake Foods, LLC, Case No. 5-CA-33158 (Aug. 30, 2013), the ALJ described the current landscape for when employee recordings are protected under the Act:

My interpretation of what the Board is saying here is that it will leave the question of any sanction for possessing a recorder and secretly recording conversations to the policy judgments of individual employers when they craft their work policies and rules. In other words, such behavior, while clearly unpleasant and sneaky, is not a per se offense of the egregious character that would lose the Act’s protection. However, the fact the conduct is not malum in se does not foreclose an individual employer from making that conduct malum prohibitum. The necessary implication of the Board’s careful wording is that, if this conduct violates a valid, nondiscriminatory work rule, that would render the behavior outside the Act’s protections.

In Interbake, the ALJ found that the employer had a nondiscriminatory rule prohibiting recording devices, so that while the employee’s recordings of conversations with management about the collective bargaining process were concerted activity, they were not protected by the Act.

Based on Interbake and the decisions cited therein, it appears that employers can prohibit employees from recording meetings with management provided that it has a valid, nondiscriminatory rule prohibiting the possession and use of recording devices inside their facilities. Given the ALJ’s analysis in Interbake, employers likely need to adopt such a rule for legitimate business reasons and, similar to the implementation of no-solicitation policies, have the rule in place prior to the onset of union activity. However, employers should be mindful that given the current makeup of the Board and its majority’s (and new General Counsel’s) desire to expand employee protections under the Act, such rules and employers’ expressed need for them will likely be heavily scrutinized and possibly invalidated. Accordingly, employers should continue to monitor developments in this area while at the same time taking appropriate measures to limit its exposure to similar negative PR events.