An employer commits an unfair labor practice if it maintains a work rule that tends to chill employees in the exercise of their rights under Section 7 of the National Labor Relations Act. Section 7 gives private sector employees the right to organize and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Marcus Davis is a sales associate for AT&T Mobility, LLC at AT&T’s Dupont Circle store in Washington, D.C. He is also the union steward for CWA Local 2336 for five D.C. area stores. Davis attended a meeting at AT&T’s Chevy Chase, D.C. store. The purpose of the meeting was for the store manager to present a termination notice to a sales associate assigned to the Chevy Chase location. Without telling management, Davis recorded the meeting using his cell phone.
The Chevy Chase store manager suspected that Davis may have recorded the meeting, so he called his supervisor, Area Sales Manager Andrew Collings, for instructions. Collings called Jason Yu, the manager of the Dupont Circle store where David worked. Collings told Yu to retrieve Davis’s phone, delete the recording, and counsel Davis. Yu followed these directions. The next day Collings went to the Dupont Circle store for his once a week routine visit. Collings told Davis that recording conversations in AT&T’s stores violated company policy. Collings also told Davis that he should not encourage others to record such conversations, because he did not want to hold anyone responsible for not following policy.
The policy at issue provided:
Privacy of Communications
Employees may not record telephone or other conversations they have with their coworkers, manager or third parties unless such recordings are approved in advance by the Legal Department, required by the needs of the business, and fully comply with the law and any applicable company policy.
Relying on Whole Foods Market, Inc., 3636 NLRB No. 87 (2015), the ALJ found that AT&T’s privacy rule was overbroad and illegal. Whole Foods dealt with two rules that prohibiting workplace recordings without prior approval from management. Whole Foods stated the purpose of its rules was to eliminate the chilling effect on the expression of views that may occur if a person is concerned his or her conversation is being secretly recorded. The Board did not bite, stating “[p]hotography and audio and video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for the mutual aid and protection and no overriding employer interest is present.”
From the ALJ’s opinion, it seems that AT&T’s defense focused on its interest in maintaining the privacy of customer communications and certain customer information, including account details, social security numbers, billing information, etc. While the ALJ found AT&T’s interest “pervasive and compelling,” he found AT&T’s interests could be protected by a much narrower rule that did not infringe on its employees’ Section 7 rights. Moreover, the ALJ found that Davis’s recording the disciplinary meeting was protected activity.
All of this means that a blanket rule prohibiting all workplace recordings generally will not be legal. If an employer has a rule on workplace recordings, the rule should be narrowly tailored to protect a legitimate business interest. The policy also should be limited to work time and work areas, although even that limitation may not be justifiable given that Davis’s surreptitious recording of a work meeting was permissible. Davis’s recording, however, occurred during a disciplinary meeting and was specifically deemed an activity protected by Section 7. Some recordings will not be protected, such as those meant to harass a coworker or for some other purpose unrelated pay or working conditions.
Finally, Davis made his recording in D.C., which is a “one party” consent to recording jurisdiction. In Maryland, and some other states, it is a crime to record a conversation unless all parties consent, provided those involved in the conversation have some expectation of privacy. It is possible that Maryland law may have to yield to federal law when it comes to conversations protected by Section 7.
Whole Foods appealed the NLRB’s decision to the U.S. Court of Appeals for the Second Circuit. Oral argument was heard in February 2017.
AT&T Mobility, LLC, NLRB ALJ, No. 05-CA178637, 4/25/17