On December 24, 2015, the National Labor Relations Board (NLRB), in a 2-1 decision held that Whole Foods rules which prohibited the recording of certain meetings in the workplace violated employees Section 7 rights to engage in protected concerted activity.
Whole Foods stated, in relevant part:
It is a violation of Whole Foods Market policy to record conversations, phone call, 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…or unless all parties give their consent…
A second rule provided:
It is a violation of Whole Foods Market policy to record conversations, with a tape recorder or other 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 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.
Neither rule made any specific reference to employees’ rights to engage in protected concerted activity, such as discussions about wages, benefits, discipline, unions, etc. A Whole Foods witness testified the rule applied to all areas of every store, including parking lots, and that it also applied to both employees and managers. He further explained how the rules were an essential part of Whole Foods “core values’ and ‘culture” that employees have a voice and are free to speak out without fear of retaliation. The Company periodically held town hall meetings with employees, where regional managers met with store employees in the absence of their store leadership. Identities of employees who spoke up and may have been critical were not later shared with store managers. At other store meetings, employees could actually vote on whether to add new employees. Employees who were terminated could request a peer review of their termination. That five member peer review team could review documents by the terminated employee, discuss the discipline and vote on whether to uphold or reverse the termination. Finally, there were meetings in which employees could request assistance from Whole Foods Team Member Emergency Fund for personal emergencies or personal crisis. Whole Foods contended open dialogue was critical to these processes, and allowing recording could have a deleterious effect.
An Administrative Law Judge agreed with Whole Foods, but the General Counsel of the NLRB appealed the dismissal of charges to the full Board. In its decision, the NLRB began by noting that a rule violates Section 8(a)(1) of the NLRA “if it would tend to chill employees in the exercise of their Section 7 rights to engage in protected concerted activity. Where, as here, there was no express restriction on those Section 7 rights, there would normally be no violation unless: (1) employees would reasonably construe the rule as prohibiting Section 7 activity; (2) the rule was promulgated in response to actual union activity; or (3) the rule was actually applied to restrict the exercise of Section 7 rights.
In this case there was no contention by the General Counsel that Whole Foods rules met either numbers 2 or 3 above. There was no union organizing activity, nor had the rule been applied to any employees’ Section 7 activity. The sole question was whether employees could reasonably construe the rule as prohibiting them from engaging in protected activity.
Not a single employee of Whole Foods testified in the hearing. Indeed, the only witness was Whole Foods Global VP of Human Resources, who drafted the rules in question and described their purposes as noted above. Despite the lack of any actual testimony as to how employees may have interpreted the rule, NLRB Chairman Pearce and Member Hirozawa concluded the rule was overbroad and could be construed by employees to prohibit the recording of all topics, including those protected by Section 7. Whole Foods VP of HR admitted the rule applied to all recordings, regardless of content. The policy thus could not be “saved” by its stated desire to promote open communication.
Whole Foods cited a prior NLBR decision, Flagstaff Medical Center, 357 NLRB No. 65 (2011), enf’d in relevant part, 715 F. 3d 928 (D.C. Cir. 2013) where the Board upheld a rule that prohibited use of cameras for recoding images in a hospital setting. That prohibition was found lawful based in large measure on the importance of protecting patient privacy, and the hospital’s HIPPA obligations. The Board felt employees would reasonably interpret that rule as a legitimate means of protecting those interests and not as a prohibition on protected activity. Nevertheless, the NLRB in Whole Foods found the blanket prohibition unjustifiable and not presenting the kind of “compelling” interest found in the Flagstaff Medical Center decision.
So, what can we take from this decision? It seems to me to be unfortunate that the NLRB drew conclusions as to how employees would construe the rule without a single witness testifying such was their opinion. It is entirely possible no employee would have felt the rule applied to any protected activity. We’ll never know. There did not seem to be any disagreement with Whole Foods assertion that its policy had laudable goals; i.e., to promote open and honest communication. Similarly, it would seem an employer would have a legitimate right to prohibit photographs, etc. of processes which constitute trade secrets or manufacturing processes. The difficulty appears to be in the breadth of the application of the rule, and the NLRB’s assumption as to how it might be read by employees. Perhaps Whole Foods would have fared better if its policy noted that “with the exception of protected concerted activity or the exercise of Section 7 rights” recordings could be prohibited.
If your company has a rule prohibiting recordings, it would be a good idea to have it reviewed.