On June 1, the Second Circuit issued a summary order in Whole Foods Market Group, Inc. v. NLRB, affirming the National Labor Relations Board’s order in Whole Foods Market, Inc., 363 NLRB No. 87 (2015), where the Board found that the employer’s rules prohibiting recording of company meetings or conversations in the workplace violated Section 8(a)(1) of the National Labor Relations Act.

In Whole Foods, the employer had two separate policies prohibiting recording. One provided:

In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, [employer] has adopted the following policy concerning the audio and/or video recording of company meetings:

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.

The other provided:

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.

Overruling the administrative law judge, the Board, in a 2-1 decision, reasoned that Section 7 protects photography and audio or video recording if employees are acting in concert for their mutual aid and protection and no overriding employer interest exists:

Such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.

In affirming and enforcing the Board’s order, the Second Circuit noted:

The Board’s finding that recording, in certain instances, can be a protected Section 7 activity was reasonable….So too was its finding that, because Whole Foods’ no-recording policies prohibited all recording without management approval, ’employees would reasonably construe the language to prohibit’ recording protected by Section 7.

Like the Board, the Second Circuit found that the employer’s policies prohibited all recordings without management approval.  The court also dismissed the employer’s argument that the statue purpose of the rules–to promote employee communication in the workplace–negated any chilling effect that the rules might have on employees’ exercise of Section 7 rights.

The Court did note, however, that not every no-recording policy that places some limits on recording audio and video in the work place violates the Act. It stated that the employer’s interests in maintaining such policies “can be accommodated simply by their narrowing the policies’ scope.”