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No Recording Rules-NLRB Protected?

In the Boeing Company case (365 NLRB No. 154 (2017)), the National Labor Relations Board established a new system for interpreting Employer policies and whether or not they would have a negative impact on an Employer's ability to exercise their Section 7 rights under the National Labor Relations Act. Specifically in the Boeing Company case, the NLRB determined that the Employer's "no camera rule" was lawful because the Employer (Boeing) articulated sufficient justifications, including specific security protocols necessary to perform classified work for the United States Government that excepted the "no camera rule" of the Employer from the potential violation of Employee Section 7 rights. Unfortunately, many Employers have interpreted this NLRB ruling to be a "blanket coverage" protecting an Employer's policies vis-a-vis Section 7 rights. Unfortunately, that is not true.

In ADT LLC and International Brotherhood of Electrical Workers, Locals 46 and 76, 19 CA 216379, an Administrative Law Judge on July 9, 2019, found that the Employer (ADT) had violated the National Labor Relations Act by terminating two (2) employees who it claimed had violated their workplace recording policy. These two (2) employees were terminated for recording "captive audience meetings" that were held by ADT as a run up to a Decertification Election at the Employer's facility. Obviously, Section 7 rights were truly in play.

In an attempt to substantiate its position, ADT argued that the two (2) Employees were terminated for violation of recording policy which states, "Audio or video recording of co-workers or managers is prohibited where such recordings occur without explicit permission of all parties involved". The State of Washington, which was the locus of the ADT facility, had a law that required both parties to consent to a recording of any private conversations before it was legal under State of Washington law. However, the Administrative Law Judge determined that the Employer meetings about unionization were not private conversations and therefore, were exempt from the State of Washington Recording Law which only dealt with private conversations. Certainly, the fact that the recordings were made of a "captive audience meeting" that clearly was involved in an Election Proceeding (decertification election) also was a factor in this case.

All Employers should be cognizant of the fact that there is no blanket protection under the National Labor Relations Act based on the Boeing standard. Each case will be interpreted on a case-by-case analysis and Employers who wish to have in place a no recording policy should have those policies clearly reviewed prior to dissemination to the employee complement to assure that they are in compliance not only with State Law, but also with the Provisions of the National Labor Relations Act.

Questions? Contact attorney Walter Liszka in our Chicago office at (312)629-9300 or by email at [email protected].

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