United States: Recent NLRB Developments Of Which All Employers Should Be Aware

The decision by the National Labor Relations Board ("the Board") in Whole Foods Market, Inc. and the Board's encouragement of virtual organizing by unions are developments of which all employers should be aware.

Board Invalidates Employer Rules Prohibiting Audio or Video Recording in the Workplace

In Whole Foods Market, Inc., the Board reversed the administrative law judge and held the company's policies prohibiting recording in the workplace violated Section 8(a)(1) of the Act. The company maintained two rules that were the subject of the case.

The first rule stated:

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.

The second rule stated:

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.

The administrative law judge who initially heard the case found Whole Foods Market's recording policies were lawful because the company did not prohibit employees from engaging in protected, concerted activities, or speaking about them, and because making records in the workplace is not a protected right. The Board disagreed, holding "[p]hotography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present." Protected conduct may include "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 stated the rules at issue "unqualifiedly prohibit all workplace recording." The fact the rule contains language setting forth an intention to promote open communication and dialogue did not "cure the rule of its overbreadth." The Board noted it was not holding that employees are forbidden from maintaining narrowly drawn restrictions on recording, such as to avoid violations of the Health Insurance Portability and Accountability Act ("HIPAA"). The Board did not provide any framework regarding when restrictions on recording would be lawful.

In a strongly worded dissent, Board Member Miscimarra contended the company's rules were intended to encourage all communications, including those protected by Section 7. By allowing recording, employees may actually refrain from open communications due to a concern about being recorded. This same rationale was previously adopted by the Board in a line of cases making it unlawful for any party to insist to impasse on a recording or verbatim transcription of collective-bargaining negotiations or grievance meetings.

Unions Utilize Virtual Organizing to Their Advantage

Last fall, the General Counsel of the Board issued a guidance memorandum stating that the Board will now accept electronic signatures in support of a showing of interest related to a union petition. Under the guidance memorandum, electronic signatures have the same effect and are evaluated under the same standards as traditional handwritten signatures. Unlike handwritten signatures, electronic signatures must be accompanied with contact information of the signatory, such as an email address, social media account and telephone number.

Since the General Counsel's guidance memorandum, unions are using virtual organizing to their advantage. Unions are using virtual signature cards that allow the union to communicate directly with target employees through the Internet while the employees are at home. Union organizers are also using iPads that contain virtual signature cards in their organizing efforts. In addition, unions are creating websites or Facebook pages that employees may access only by providing their contact information. Once on the website or Facebook page, employees are inundated with the union's message and asked to sign a virtual signature card. Employers cannot access these pages because doing so would be unlawful surveillance, subjecting the employer to an unfair labor practice charge.

What This Means for Employers

The Board's decision in Whole Foods Market, Inc. is the latest example of the Board's focus on work rules of both union and non-union employers. Employers should review their handbook and work rules, and they also may want to revise any policy that uniformly prohibits recording or photographing at work.

Non-union employers should be aware of the new virtual organizing tactics utilized by unions as they will likely increase the amount and success of organizing. With the Board's new "quickie election" rules, employers have limited time to combat a union organizing drive and, to the extent possible, should be prepared before an election petition is received.

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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