NLRB Bars Blanket Workplace Recording Bans
March 23, 2016 by Andrew Baker
The UFCW scored a victory for Whole Foods Market employees who complained about a company rule prohibiting the recording of all workplace conversations. The UFCW challenged the rule in an unfair labor practice charge filed with the National Labor Relations Board. The NLRB agreed with the Union that the rule unlawfully interfered with the employees’ protected right to engage in “concerted” activity. Whole Foods Market, Inc., 363 NLRB No. 87.
The Board noted that it is well established that employee photography and audio recording in the workplace is protected under the National Labor Relations Act if the employee is acting in concert with other employees for their mutual aid and protection “and no overriding employer interest is present.” As examples of this kind of protected activity, the Board mentioned “documenting inconsistent application of employer rules, or recording evidence to preserve it for later use … in employment-related actions.”
The Board distinguished its holding here from an earlier decision that upheld a hospital’s ban on the use of cameras in the hospital. In that earlier case, the hospital rule barring the use of cameras for recording images in the hospital was limited in its application to protect patient privacy. In the Whole Foods case, however, the recording ban could reasonably be understood by employees to bar all recording, including recording protected by the NLRA.
The scope of this holding is limited to non-private conversations in the workplace. California Penal Code Section 632 prohibits the recording of “confidential communications” without the consent of all parties. And in contrast to the holding here, the NLRB has previously ruled that neither an employer nor a union may insist to impasse on recording contract negotiations or grievance meetings.
More Information about Whole Food and its workers:
http://gawker.com/whole-foods-employees-ask-for-a-union-1655959545
http://www.thenation.com/article/surprise-whole-foods-not-worlds-greatest-employer/
https://www.facebook.com/Whole-Foods-Workers-Unite-359493237561123/
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