NLRB Invalidates Another Employer Conduct Policy

By: Mikyia S. Aaron

On December 24, 2015, in Whole Foods Market, Inc., 363 NLRB No. 87 (2015) (Whole Foods), the National Labor Relations Board (Board) invalidated two Whole Foods Market policies that prohibited employees' use of recording devices in the workplace to record events, conversations, etc., without company authorization. The Board reasoned that such a blanket prohibition requiring management approval to record could prevent employees from engaging together in workplace activities protected by the National Labor Relations Act (Act).

At the center of the case were rules in Whole Foods' "General Information Guide" (GIG). The rules prohibited employees from taking photos or recording conversations inside a store "unless prior approval is received" from a manager or executive, or "unless all parties to the conversation give their consent." The GIG explained that the rules were meant to foster a free exchange of ideas, citing worker town hall meetings as a situation where employees should not have to worry about their colleagues recording what they say.

The United Food and Commercial Workers Local 919 and Workers Organizing Committee of Chicago filed an unfair labor practice charge challenging Whole Foods' rules prohibiting the recording of conversations. At the administrative hearing on the charge, the Board's General Counsel argued that the recording of conversations at work was a protected right. He argued that the employees could interpret the rules as preventing them from recording statements or conversations that are protected by the Act. Administrative Law Judge Steven Davis dismissed the unions' challenge of Whole Foods' no-recording policies, finding that the rules did not prohibit employees from engaging in protected, concerted activities, or speaking about them.

The Board's General Counsel appealed to the Board. He asserted that recording conversations in the workplace was protected activity under Section 7. In support of his position, General Counsel noted that the no-recording rules would apply to concerted activities such as discussions of terms and conditions of employment and unionization, as much as the rules would apply to any other activities.

In its decision invalidating Whole Foods' no-recording policies, the Board admitted that Whole Foods' policies did not expressly restrict Section 7 activity, were not promulgated in response to Section 7 activity, and had not been applied to restrict the exercise of Section 7 rights. The Board did find that the employees of Whole Foods could reasonably interpret the rules to prohibit their use of cameras or recording devices in the workplace for various concerted activities, such as photographing picketing, or recording evidence to be presented in administrative or judicial forums in employment-related matters. For that reason, the Board concluded that the policies are over-broad and violate the Act. In support of its ruling, the Board acknowledged that there was ample support in previous NLRB cases that workers' rights were vindicated with recordings and that the broad rules could hinder workers' ability to gather that evidence.

The Board's ruling has broad implications at a time when practically every worker carries a recording device in his or her pocket. Although the Board's decision will have a far reaching effect on the use of recording devices in the workplace, it does not offer any guidance on how Whole Foods could have properly drafted its policy. Accordingly, employers should:

  • Carefully review the language of similar policies;
  • Carefully craft no-recording policies to avoid encompassing protected, concerted activities;
  • Before discharging an employee for violating company policies relating to the recording of conversations or events, conduct a thorough investigation to ensure that the employee was not engaging in Section 7 activities.

If you have any questions about the Board's decision on corporate no-recording policies, please contact Mikyia S. Aaron at (313) 965-8528 | eat0@eau0eav0eaw0, or another member of Clark Hill's Labor and Employment Practice Group.