As a follow up to our post yesterday about how one employer’s employees publicized an internal  meeting about an upcoming union election, this week a National Labor Relations Board administrative law judge issued a decision in Whole Foods Market, Inc., Case No. 01-CA-096965 (Oct. 30, 2013), upholding an employer rule prohibiting the recording of conversations. Specifically, the employer’s rule states:

It is a violation of Whole Foods Market 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 to 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.

Violation of this policy will result in corrective action up to and including discharge.

Although the rule does not expressly state, the rule applies during working time and to all areas of the store, including the parking lot and the area in front of the store, but not during break time. The rule applies to all levels of management and to all employees. 

Consistent with the analysis in the Interbake decision and our observations yesterday, the purpose of the rule and when the rule was implemented played an important factor in the ALJ’s decision. Notably, the employer held meetings with employees, including a "town hall" meeting at least once a year, at which employees have an opportunity to express their views and opinions on various topics. The employer presented evidence that the recording of such meetings would "absolutely chill the dynamic" of the meeting because employees would be reluctant to voice their opinions about store management if they knew that their comments were being recorded. Moreover, the rule was not promulgated in response to union activity.

While the ALJ’s decision provides further guidance for employers in crafting policies prohibiting recordings, it is still subject to review by the Board if exceptions are filed. As we noted yesterday, given the Board majority’s desire to expand employee rights under the Act, employers should still proceed cautiously because the Board will likely scrutinize this decision closely. Please continue to follow us here at the blog, via Twitter (@LRToday), or via Flipboard for further developments and analysis on this issue.