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Ban on Union Recordings of Team Meetings Okay; Release of Worker Challenging Contractor Classification Okay Because Not Prompted by Concerted Activity: NLRB Division of Advice
Practical Law Legal Update w-014-8095 (Approx. 6 pages)
Ban on Union Recordings of Team Meetings Okay; Release of Worker Challenging Contractor Classification Okay Because Not Prompted by Concerted Activity: NLRB Division of Advice
by Practical Law Labor & Employment
| Published on 22 May 2018 • USA (National/Federal) |
The Office of the General Counsel of the National Labor Relations Board (NLRB) recently released an advice memorandum finding that an employer's refusal to allow union representatives to record team meetings and investigatory interviews did not violate Section 8(a)(1) of the National Labor Relations Act (NLRA). In a second memorandum, the General Counsel concluded that an employer lawfully discharged a worker who had challenged his independent contractor classification because the worker had not engaged in protected concerted activity.
On May 15, 2018, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released an advice memorandum dated April 17, 2018, which concluded that an employer lawfully refused to permit union representatives to record monthly team meetings and investigatory interviews. On the same day, Advice also released a second memorandum, dated April 23, 2018, which held that an employer had not committed an unfair labor practice (ULP) by discharging a worker who had objected to his designation as an independent contractor because the worker had neither engaged in any protected concerted activity nor demonstrated any intention to do so in the future.
These advice memoranda are not binding precedent from the NLRB. However, they provide insights concerning:
- Which kinds of ULP allegations the NLRB General Counsel is likely to prosecute.
- What liability theories the NLRB General Counsel is developing and pursuing.
- How the NLRB General Counsel is extending, minimizing, combining, or parsing precedent to support prosecuting or dismissing those types of allegations and liability theories.
GE Appliances, Haier
GE Appliances, Haier (Haier) sells and repairs home appliances and parts. Following disagreements regarding the content of statements made by management to employee service technicians during team meetings and investigatory interviews, the union representing those employees asked to record these meetings for use as necessary in future grievance proceedings. Advice upheld Haier's denial of the union's request, concluding that:
- The union's right to record these meetings and interviews is a permissive subject of collective bargaining.
- Any precedent of the panel (Board) heading the NLRB's judicial functions concerning restrictions on individual employees' rights to engage in workplace recordings is inapposite (see Boeing Co., 365 N.L.R.B. No. 154 (Dec. 14, 2017); Whole Foods Market, 363 N.L.R.B. No. 87 (Dec. 24, 2015), enforced, 691 Fed. Appx. 49 (2d Cir. 2017); for more information on these decisions, see Legal Updates, NLRB Establishes New Standard Governing Workplace Policies and Upholds No-Camera Policy and Rule Prohibiting Recording in the Workplace without Prior Management Approval Unlawful: NLRB; also see Hawaii Tribune Herald, 356 N.L.R.B. 661, 661 (2011) (employee's surreptitious recording of an employer meeting where he was denied a union representative was protected concerted activity because he acted in concert with other employees to document perceived potential violations of their Weingarten rights), enforced sub nom. Stephens Media, LLC v. NLRB, 677 F.3d 1241 (D.C. Cir. 2012)).
Specifically, Advice noted that:
- The Board has:
- a long-standing policy disfavoring audio recordings and verbatim transcriptions of meetings between employers and unions due to their potential to stifle the open communications necessary to successful collective bargaining relationships;
- determined that the presence of a court reporter or recording device during collective bargaining is preliminary and subordinate to substantive negotiations over "wages, hours, and other terms and conditions of employment" and therefore is a nonmandatory subject of bargaining;
- concluded that parties may not insist to impasse in bargaining for the right to record or make verbatim transcriptions of collective bargaining sessions (see Bartlett-Collins, Co., 237 N.L.R.B. 770, 772-73 and n.9 (1978), enforced, 639 F.2d 652 (10th Cir. 1981));
- extended the rationale of Bartlett-Collins to demands to record grievance meetings (see Pennsylvania Telephone Guild (Bell Telephone), 277 N.L.R.B. 501 (1985) (union failed to bargain in good faith by insisting to impasse on the right to record grievance meetings), enforced, 799 F.2d 84 (3d Cir. 1986)); and
- effectively overruled Whole Foods Market's analysis of employer rules against workplace recordings in Boeing by expressly overruling Caesars Entertainment (Rio All-Suites Hotel & Casino), on which the Board relied for its holding in Whole Foods Market (362 N.L.R.B. No. 190, slip op. at 4 (Aug. 27, 2015)).
- The employer in this case refused to waive the manager's right under California law to consent to being recorded during confidential communications (Cal. Penal Code § 632(a)).
- The union's request in this case was limited to recordings of meetings by union representatives for labor relations purposes, and did not implicate the Section 7 rights of individual employees to record conversations.
Libra Services, Inc.
Libra Services, Inc. (Libra) is a technology software company. The charging party was a putative independent contractor. After the charging party repeatedly questioned the independent contractor classification, Libra discharged the charging party, ostensibly for poor performance. Advice concluded that Libra's release of the charging party did not constitute a ULP in violation of Section 8(a)(1) of the NLRA because the charging party had not engaged in protected concerted activity for mutual aid and protection when challenging the independent contractor designation. Specifically, Advice found no evidence of a protected concerted activity because the charging party:
- Expressly initiated the inquiry about the independent contractor classification solely on the charging party's own behalf, as an effort "to look out for myself."
- Did not discuss the matter with other similarly situated workers, as the charging party:
- was the only worker with an independent contractor classification in the office in which the charging party worked; and
- was unaware of the only other individual Libra designated as an independent contractor, who worked in a different office.
For the same reasons, Advice found no evidence that the charging party intended to engage in protected concerted activity in the future. Therefore, Libra's decision to terminate the charging party was not an unlawful attempt to preclude such action. Advice acknowledged that the Board previously held that an employer committed a ULP for terminating an employee who had not yet engaged in protected concerted activity as a "preemptive strike" to preclude the employee from engaging in future concerted protected activity, but noted that:
- The investigated facts of this case would not support such a claim.
- The current General Counsel does not agree with that precedent.
While Advice found Libra's discharge of the charging party lawful in the instant case, this advice memorandum:
- Relies on highly fact-specific analysis, and does not foreclose a ULP finding for an employer's retaliation against a worker challenging a contractor versus employee classification in other circumstances.
- Highlights how Advice may apply different analyses depending on the General Counsel at the helm (see, for example, Legal Update, Misclassification of Drivers as Independent Contractors Can in Itself Violate the NLRA: NLRB General Counsel's Office).