The National Labor Relations Board's (NLRB) Acting General Counsel recently concluded that surreptitious recordings of collective bargaining sessions is a per se violation of the National Labor Relations Act (the Act). In the memo issued to NLRB regional offices on June 25, 2025, Acting General Counsel William B. Cowen instructed regions to issue a complaint, alleging bad faith bargaining, if an investigation reveals surreptitious recording occurred.
Cowen, a Trump appointee, said this policy is necessary to promote free and open dialogue at the bargaining table. He wrote, "[s]ecretly recording individuals at bargaining sessions without knowledge or consent is a breach of trust, undermining the integrity of relationships and eroding the basic principles of mutual respect and dignity that form the foundation of healthy interactions."
In GC Memorandum 25-07, the Acting General Counsel relied on the fact that parties may not bring a court reporter to negotiations without the other party's consent, and that insisting on the presence of a court reporter in negotiations is a permissive subject of bargaining upon which no party may lawfully insist to impasse. The Acting General Counsel maintained that it logically follows that secret recording of negotiations is not permitted.
Employer Takeaways
The Acting General Counsel's memorandum may make it unlawful for a party to secretly record union negotiations, even in a state where the law requires only one party's consent for the recording. Employers that suspect they are being recorded during collective bargaining now have recourse at the NLRB.
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