On June 1, 2017, the U.S. Second Circuit Court of Appeals affirmed a decision of the National Labor Relations Board (NLRB) about an employer rule barring employees from making recordings without prior approval.
Whole Foods Market had adopted two rules about employees making recordings at work. The first rule prohibited recordings unless management had agreed to the recording or all parties agreed to the recording. The second rule appears to have been primarily directed toward audio tape recorders and prohibited recordings unless management had agreed to the recording. (See actual rules at the end of this post.)
The United Food and Commercial Workers Union challenged the rules before the NLRB.
Employer’s Rationale for Rules
The Whole Foods vice president for human resources defended the no-recording policy as a way to promote team harmony at its facilities. He indicated that team meetings are held to discuss a variety of issues, and that the policy was designed to prevent criticisms being attributed to particular employees. He maintained the lack of attribution was critical to avoid disruptions in team harmony.
The vice president also suggested that recordings would have a detrimental effect on panel deliberations when an employee is terminated. Whole Foods has a policy that allows termination decisions to be appealed to a five-member panel of employee peers. After an investigation, the panel votes on whether to uphold or overturn the termination.
Finally, the vice president said that recordings could interfere with open dialogue critical to discussions about providing emergency assistance to employees. Whole Foods has a Team Member Emergency Fund from which employees can receive financial assistance because of family events (death, illness, or personal crisis). The team’s discussions are supposed to be confidential.
In summary, the vice president suggested that the rules were designed—
- To encourage open communication, free exchange of ideas, spontaneous and honest dialogue, and an atmosphere of trust.
- To eliminate a chilling effect when one person is concerned that his or her conversation may be secretly recorded. This concern can inhibit honest dialogue especially when sensitive matters are discussed.
NLRB’s Rationale for Nixing the Rules
As summarized by the appeals court, the no-recording rule was overly broad, prohibiting all workplace recording. The court noted the following:
- Section 7 of the National Labor Relations Act (NLRA) guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.
- Interference with these Section 7 rights is an unfair labor practice.
- In evaluating the employer rules, the proper question to ask is whether enforcing the no-recording rule could chill the exercise of these rights.
- The board found that employees could construe the necessity of prior management approval before recording as a prohibition of recording.
- The board’s interpretation was reasonable and should therefore be affirmed.
In its decision, the NLRB pointed out that numerous cases have demonstrated that photographs or recordings, often covert, had been essential in vindicating Section 7 rights.
Employers should not adopt broad no-recording rules. Your employment attorney should vet no-recording rules so that they are carefully tailored to an overriding employer interest and don’t interfere with the exercise of Section 7 rights under the NLRA.
Rule 1: In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company meetings: It is a violation of Whole Foods Market 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. Please note that while many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery.
Rule 2: 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 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.
For additional information, see Whole Foods Market Group, Inc., v. National Labor Relations Board, 691 Fed.Appx. 49 (2nd Cir. 2017) and Whole Foods Market Group, Inc., and United Food and Commercial Workers, Local 919, Cases 01-CA-096965, 13-CA-103533, and 13-CA-103615 (decided by the NLRB on December 24, 2015).
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