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.