Employee’s Secret Recording of Meeting Protected by NLRA

Section 7 of the National Labor Relations Act (NLRA) protects the rights of union and nonunion employees to engage in protected concerted activities that address working conditions, wages, or discipline. Employers that interfere with those rights through disciplinary actions risk violating Section 8 of the NLRA. The National Labor Relations Board (NLRB) recently held that an employer violated the NLRA by disciplining two of its employees who acted in concert to secretly tape a disciplinary meeting. The Board also held that the employer violated Section 8 by issuing a rule banning secret audio recordings at work in immediate response to the incident.

Facts
Peter Sur and Dave Smith worked as reporters for the Hawaii Tribune-Herald, which has been a party to a collective bargaining agreement with the newspaper staff for more than 50 years. On March 3, 2006, the newspaper’s editor, David Bock, informed Smith that he needed to meet with him. Jason Armstrong, a fellow reporter who had met with Bock moments earlier, informed Smith that Bock would be issuing a warning to him and that he should consequently bring a witness to the meeting to protect his Weingarten rights. (Unionized employees have the right to bring a representative to an employer’s investigatory interview that may lead to discipline.)

When Smith raised the issue with Bock, the editor informed him that the meeting wouldn’t be a Weingarten meeting and a witness was unnecessary. Smith then cut the meeting short and called a union administrator, who recommended that Smith attend the meeting and take notes.

When Sur overheard what had happened, he suggested that Smith surreptitiously record the meeting with Sur’s voice recorder. Sur showed Smith how to use the voice recorder, while two other employees, reporter Christine Loos and photographer William Ing, encouraged Smith to use the voice recorder. Later that day, Smith went back into Bock’s office with the voice recorder hidden in his shirt pocket. He again asked Bock for a witness to protect his Weingarten rights, which the editor denied. Bock then criticized Smith’s productivity and issued a verbal warning. Three days later, he learned that Smith had secretly taped the meeting.

On March 9, Bock called Sur into his office to inform him that he knew Sur had provided Smith with the tape recorder used during the March 3 meeting. Sur admitted that he provided Smith with the recorder and explained that he did it because he was concerned that the meeting implicated Smith’s Weingarten rights. Bock specifically asked for the identities of anyone else who was involved in the decision to record the meeting. He then demanded that Sur turn over the voice recorder and called Sur’s action “the biggest act of disloyalty he had ever seen.” He immediately suspended Sur without pay.

Bock then held a similar meeting with Smith, who admitted that he had taped the March 3 meeting and justified his actions by explaining that he did it because he was denied a witness and wanted to ensure an accurate record. He also admitted that Sur provided him with the voice recorder. As he did with Sur, Bock specifically asked Smith for the identities of anyone else who was involved in the decision to record the March 3 meeting. He then suspended Smith and described his conduct as the “worst case of defiance in the newsroom.”

The editor subsequently held similar meetings with Loos and Ing, both of whom had encouraged Smith to use the voice recorder. Although Bock didn’t discipline Loos or Ing, he accused them of engaging in a conspiracy to be disloyal. On March 15, the newspaper’s publisher issued a new policy prohibiting its staff from making secret audio recordings.

Smith and Sur filed a complaint alleging that the newspaper violated Section 8 of the NLRA by disciplining them for engaging in protected concerted union activity. The complaint also alleged that the newspaper’s policy prohibiting secret audio recordings impermissibly restricted their right to engage in concerted activity. An administrative law judge ruled in favor of Smith and Sur, and the decision was subsequently upheld by an NLRB panel.

NLRB’s Decision
The NLRB first considered whether Smith and Sur’s conduct was concerted activity protected by Section 7 of the NLRA. In weighing the issue, the Board considered not just the acts of Smith and Sur but also their collective engagement with Loos and Ing and the fact that they made a group decision that the tape recorder would take the place of a witness. Moreover, the NLRB found that Smith didn’t act solely on his own behalf in recording the meeting because the four employees believed that a Weingarten violation had also happened in the case of Armstrong, who had met with Bock before Smith did. In short, the four employees engaged in protected activity under Section 7 of the NLRA because they collectively enlisted the support of fellow employees for their mutual aid and protection.

The NLRB next considered whether the employer violated Section 8(a)(1) of the NLRA by impermissibly interrogating Smith, Sur, Loos, and Ing about their concerted activity. The Board held that the newspaper, through the actions of Bock, violated Section 8(a)(1) in at least two respects: first, by engaging in interrogations designed to discover whether anyone else was engaged in protected activities and, second, by failing to make reasonable efforts to refrain from questioning that pried into the employees’ protected union activities. Further, the NLRB concluded that the newspaper violated Section 8(a)(3) of the NLRA by disciplining Smith and Sur on the basis of their protected activities. The Board accordingly ordered the newspaper to reinstate Smith and Sur and pay them lost wages.

The second important aspect of the NLRB’s decision addressed the propriety of the newspaper’s rule prohibiting secret audio recordings. The Board held that the rule constituted an improper attempt to curtail protected Section 7 activities. In reaching that determination, the NLRB focused on the fact that the rule was issued immediately after the March 3 meeting in direct response to the fact that the employees were exercising their rights to engage in concerted activity under Section 7. Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (2011).

Bottom line
The NLRB’s decision is important in at least two respects. First, employers should exercise considerable caution when holding meetings that could implicate Weingarten rights. In this case, the newspaper could have easily avoided the considerable costs and frustration of the NLRB litigation had it simply permitted Smith to have a union representative on hand in the first place. Second, while a workplace rule prohibiting secret audio recordings may not constitute a per se violation of the NLRA — and in a very limited number of cases may be consistent with similar state law — you should be careful to draft such rules in a narrow and nonreactionary fashion to avoid the risk of infringing on rights protected by the NLRA.

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