Say What? NLRB Rules Employees May Tape Record Others in Violation of State Law

By Elizabeth Torphy-Donzella - Shawe Rosental LLP

March 10, 2023

When I was first practicing law, I quickly learned that the answer to many legal questions under National Labor Relations Act depends on which Board’s decision you pick. If the Board has a majority of Members (the name for those people who issue decisions) appointed by a Republican President, I was likely to find an answer that would please my management clients (and the partner who asked me to do the research). By contrast, if the Board’s majority was comprised of appointees named by a Democrat President, the outcome would vex my clients. In other words, the “rules of the game” shift with administrations.

Hence, I am here today to report a recent NLRB ruling against Starbucks that concluded that, “State law be damned,” employees may lawfully commit an act unlawful under the law of their State if they do so for reasons they claim to be protected concerted activity (PCA) under the NLRA. Okay, I’m being a little flip. The Board concluded in its decision that State laws that require that both parties to a conversation consent to its recording (or else the recording violates State law) are preempted (that is, displaced) where the recording is in furtherance of PCA.

In the Starbucks case, employees who were working hard to get their coworkers to vote for union representation recorded conversations with managers. One said she did so because she was afraid management would retaliate against her and wanted or preserve a “neutral source” of what was said. Another stated that he had been advised by a union organizer to record the meeting to “preserve evidence” in case of potential retaliatory discipline.

When the recorded conversations were introduced during a hearing on unfair labor practice charges, Starbucks said managers were unaware of the recording and such recordings were a felony under Pennsylvania law (hence should not have been allowed into evidence). The Administrative Law Judge hearing the case allowed the evidence, and the NLRB affirmed the ALJ’s decision.

The NLRB opined that there was evidence managers knew that the recordings were being made, but even if they did not, Board precedent (you know which precedent) has found that surreptitious audio or video recordings are fair game when employees are engaged in PCA. Said the Board,

As relevant here, the Board has found that employees have engaged in protected workplace recordings when such recordings were made to police the parties’ collective bargaining agreement or preserve evidence for use in a future proceeding, including a possible grievance. … The Board has also found such recordings to be protected when made to document meetings held by an employer regarding unionization and in an effort to collect and compare information a union needs to respond to arguments advanced by the employer at the meeting about unionization. … In many instances, workplace recordings, often covert, have been an essential element in vindicating employees’ Section 7 rights.

The Board found in the case before it that some of the employees’ recorded evidence revealed labor law violations by Starbuck’s management and thus served to vindicate the employees’ rights. And this end justifies the means because “when a state purports to regulate conduct that is arguably protected by Section 7 or an unfair labor practice under Section 8, ‘due regard for the [NLRA] requires that state jurisdiction must yield.’”

In other words, tough luck Pennsylvania law!

So, forget everything that Fiona Ong told you in late 2018 about the Trump-appointee-dominated Board rescinding the Obama Board era rule that the Biden-Board just adopted (again).

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