The National Labor Relations Board’s recent decision in Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (2011) addresses several issues of importance to managers and labor law practitioners alike.

First, the Board held that employees may secretly tape record meetings with their managers that they reasonably believe could result in discipline when (1) the employer has denied the employee the Weingarten right to union representation at the meeting; (2) the employer does not have a rule against taping; and (3) the taping does not violate state or local law.

Second, the Board clarified that unlawfully discharged employees who engage in post-discharge misconduct must be reinstated with backpay unless the employer proves “misconduct so flagrant as to render the employee unfit for further service or a threat to the efficiency of the plant.”  This standard is derived from the Board’s 1969 decision in O’Daniel Oldsmobile, Inc., 179 N.L.R.B. 398 .  It imposes a heavier burden on employers than the U.S. Supreme Court’s test in Jefferson Standard, which provides a defense to employers who discipline or discharge current employees for disparaging the employer.  The Board overruled cases relying on Jefferson Standard in the post-discharge context.

Finally, the Board suggested that it might reconsider its long-standing precedent, articulated in Anheuser-Busch, Inc., 237 N.L.R.B. 982 (1978)), that employers need not provide witness statements, obtained in the course of a disciplinary investigation, to the unions representing their employees.  The Board did not decide this issue and asked the parties to submit briefs because, the Board said, “Board precedent does not clearly define the scope of the category of ‘witness statements.’”

There are a few important takeaways from this case:

• Employers should consider adopting policies prohibiting tape recording of meetings by employees. While other factors, such as state law, or in this case, providing a union representative, may make such recordings illegal or unnecessary, it is unknown what other situations the Board might find such recording to be protected in the absence of an employer rule.
• The post-discharge misconduct at issue in Hawaii Tribune-Herald included a blog posting disparaging the employer’s news coverage.  The Board continues to adapt old case law, originally intended to apply to “watercooler” conversations, to new technology, including social media, without regard to the differences in scope, permanency, damage or involvement of a preponderance of persons who have no interest in the employer-employee relationship.
• Given the significance of the witness statement privilege, employers and their representatives should consider seeking amicus participation in the case, whether or not the Board invites amicus participation as it has in a number of other recent cases.