NLRB on the March: Secret Recording of Management Meeting Found to be Protected Activity

A Hawaiian employer was recently taught a tough lesson by the pro-labor National Labor Relations Board (NLRB) with respect to employees secretly recording meetings with management. In Stephens Media, LLC d/b/a Hawaii Tribune-Herald -and- Hawaii Newspaper Guild Local 39117, a Hawaiian newspaper publisher was found to have violated the National Labor Relations Act (NLRA) for terminating an employee who secretly tape-recorded a meeting with his supervisor.   

The newspaper's editor issued disciplinary warnings to reporters who failed to meet the paper's story productivity quota. After being prospectively denied a witness at his disciplinary meeting with the editor, one of the underperforming reporters decided to record the meeting, using a handheld device concealed in his shirt pocket. The newspaper terminated the employee after a co-worker told the editor about the tape recording. The employee then filed an unfair labor practice, alleging the termination was illegal because recording the meeting was a protected concerted activity, which was meant to counter the employer's denial of his request for a witness.  

In its defense, the newspaper cited previous NLRB decisions and argued that the employee was not entitled to a witness, because the meeting was held simply to relay a predetermined disciplinary action (based on productivity numbers). The newspaper said a witness wasn't required, because the editor did not interrogate the employee to obtain additional evidence for the disciplinary action. The newspaper also raised a concern that allowing secret tape recording would undermine the confidentiality of business operations and discourage management and employees from speaking openly about workplace issues.   

The NLRB ruled against the employer and found the secret recording was protected concerted activity under the NLRA. According to the Board, the recording was "protected" because it was made in order to protect Weingarten rights (the ruling that says employees have the right to representation during an employer's investigatory interview, if the interview could reasonably lead to discipline). The Board also found the recording activity was "concerted" because, according to witness testimony, the employee had discussed tape recording the meeting with other employees prior to the meeting and therefore "was not acting [solely] on his own behalf but in concert with four other employees to safeguard their Weingarten rights [as well]."  

Based on these findings, the NLRB ordered several remedies against the newspaper, including reinstatement of the employee with payment of back wages and interest compounded daily.  

Will the NLRB's ruling affect employers' ability to maintain confidentiality of business operations?

The NLRB was not persuaded by the Hawaii Tribune-Herald's argument that confidentiality of business operations requires a rule against secretly recorded meetings. However, the NLRB's decision seems to indicate that not all secret recordings will be permissible.   

The decision also mentions that properly implemented work rules may justify prohibiting employee tape recordings; however, because the Hawaii Tribune-Herald did not have a valid work rule, the Board did not to go into detail about what such a work rule would look like.  

What can we take away from this decision?

The NLRB's ruling forces employers to take a close look at policies concerning disciplinary meetings, investigative meetings, and work rules in general. Because the NLRB's protected concerted activity rule applies to both unionized and non-unionized workforces, all employers should make certain their practices are consistent with the continuously developing Board law.

If you have any questions or need further information, please contact Christopher R. Mikula, the author of this alert, at 313-568-5401, or your Dykema relationship attorney.

---

_{As part of our service to you, we regularly compile short reports on new and interesting developments and the issues the developments raise. Please recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Rules of certain state supreme courts may consider this advertising and require us to advise you of such designation. Your comments are always welcome. © 2011 Dykema Gossett PLLC.}