On December 24, 2015, the National Labor Relations Board (NLRB), in
Whole Foods Market, Inc., Case No. 01-CA-096965, 363 NLRB No. 87, held that employees could reasonably
construe the following policies as prohibiting Section 7 concerted activity
activity and that the policies therefore violated Section 8(a)(1) of the
National Labor Relations Act (“NLRA”).
Here are the two policies:
“It is a violation of [employer] 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.”
“It is a violation of [employer] 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 Board stated “case law is replete with examples where photography
or recording, often covert, was an essential element in vindicating the
underlying Section 7 right” and found, therefore, that photography
and audio and video recording at the workplace are protected under certain
But wait, under our state law, it is illegal (Penal Code Section 632) to
record a confidential communication without all parties’ consent.
Also California’s Constitution expressly guarantees a right of privacy
for all citizens. Doesnt that trump the NLRB ruling?
Probably not, because of something called the
Garmon doctrine, which says that the NLRA also preempts states from regulating
conduct that is arguably either protected or prohibited by the NLRA.'
The "arguably protected or prohibited" test broadly excludes
state laws and claims without regard to the substance of the state regulation.
Thus, the NLRA preempts state regulation even where the substantive terms
of a state law are wholly consistent with that of the NLRA.
That’s pretty broad. It’s one more example of how federal agencies
are gradually nationalizing all labor regulations throughout the country.