NLRB Finds No-Recording Policy Remains Lawful Even Where Unlawfully Applied to Restrict Protected Activity

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The National Labor Relations Board (“NLRB” or the “Board”) held that a lawful rule or policy applied to restrict employee rights provided by the National Labor Relations Act (“NLRA”) did not automatically render the rule unlawful to maintain.

No-Recording Policy: In AT&T Mobility, LLC, the company maintained a no-recording policy prohibiting employees from recording conversations with other employees, managers, or third parties. An employee, who was also a union steward, accompanied another employee to a meeting with management to discuss management’s alleged targeting of the employee for termination. At the meeting, the company terminated the employee. The union steward secretly recorded the meeting on his personal and work cell phones. When the company learned of the recording, a store manager administered a coaching and advised the union steward-employee that recording conversations with management violated the no-recording policy, and the manager “did not want anyone to be held accountable for not following policy.”

ALJ Decision: The administrative law judge (ALJ) held that the company violated Section 8(a)(1) of the NLRA, which prohibits employers from interfering with employees’ protected rights under the Act, in two ways. First, the company unlawfully threatened an employee engaged in protected activity. Second, the company violated the NLRA by maintaining the no-recording policy.

Board Decision: The Board agreed that the company violated Section 8(a)(1) by threatening the union steward-employee that a refusal to comply with the no-recording policy would result in unspecified reprisals. The Board, however, reversed the ALJ and held that the no-recording policy was lawfully maintained. Additionally, the Board held that an otherwise lawful policy need not be found unlawful to maintain simply because an employer applied the policy unlawfully. Put simply, the Board concluded that applying a rule or policy to restrict employees’ exercise of Section 7 rights (to engage in concerted activity for their mutual aid or protection) is an unfair labor practice, but it does not make the applied rule unlawful to maintain.

In concluding that the policy was lawful under Boeing, the Board reiterated that such no-camera/no-recording rules as a type are lawful. While such rules may prohibit recording of some protected conversations, a majority of conversations covered by such policies have no relation to Section 7 activity. Additionally, employees remain able to speak to each other about working conditions and other protected Section 7 topics even if they may not record such conversations. On the other side of the balancing test, employers have strong business justifications outweighing the “comparatively slight” impact on Section 7 rights. Specifically, employers have a legal duty under federal law to safeguard customer information and customer communications. Accordingly, the Board again found a no-recording policy lawful to maintain.

The Board then considered whether the union steward-employee was engaged in protected union activity when he recorded the termination meeting with management, and, if so, whether the company unlawfully applied the policy by threatening him with unspecified reprisals for future violations of the rule. The Board rejected the company’s argument that because the rule was lawful to maintain, it could not violate the NLRA by advising employees it would enforce the rule against violators. The Board reasoned that whether an employee is engaged in protected activity by recording a workplace discussion is a fact-based inquiry. Here, the employee was acting in his capacity as a union steward when he recorded the meeting. Further, the recorded meeting was held for the sole purpose of terminating another employee, and the company was not contending that private customer information or customer communications were likely to be discussed during the meeting. Accordingly, the Board found that the employee was engaged in protected union activity when he recorded the termination meeting, even though his act of recording violated the lawful no-recording policy. Additionally, the Board found that the company unlawfully applied the policy because the employee’s sole act of not following the policy was protected by Section 7. Thus, the manager’s application of the rule amounted to an unlawful threat that unspecified adverse action would be taken against the employee if he were to again engage in the protected activity of recording a termination meeting.

Finally, the Board addressed whether the rule became unlawful to maintain solely because it was applied unlawfully. The Board’s 2004 decision in Lutheran Heritage Village – Livonia set forth a three-part test to determine whether a rule is unlawful. Prong three of the test states that if a rule has been “applied to restrict” Section 7 activity, it cannot be lawfully maintained. The current Board opined that this rationale did not adequately explain why a single instance of a lawful rule being applied unlawfully automatically renders the rule unlawful to maintain. The Board concluded that Lutheran Heritage’s “applied to restrict” prong ignores an employer’s often legitimate interests in maintaining the rule. Accordingly, to the extent that prong three of the Lutheran Heritage test permits blanket prohibition of rules that have been applied unlawfully even once, it was overruled.

Takeaways: This decision touched on many issues to employers. First, the Board reaffirmed that no-recording policies are lawful to maintain (Note: This holding may be revisited with the nearing change of the political composition of the Board. We will keep you posted of any developments.) Second, even if an employee violates a lawful rule, it may be unlawful for the employer to discipline the employee – or even threaten discipline – if the employee was engaged in activity protected by the NLRA while violating the lawful rule. Finally, in what is a positive holding for employers, the Board will not simply find a lawful rule unlawful to maintain simply because it was applied unlawfully on a single occasion.