In a case that has not been picked up by the mainstream press, but which further evidences the pro-union activism of the current National Labor Relations Board (“Board”), an employer has been found by the Board to have violated the National Labor Relations Act when it discharged an employee for secretly recording a meeting with his supervisor. Further the Board held that the employer also violated the Act by issuing a rule that prohibited employees from making secret audio recordings in the workplace. See Stevens Media, LLC, 356 NLRB No. 63 (2/14/2011)

The facts of the case were as follows: A supervisor informed an employee (newspaper reporter) that he wanted to meet with him. A colleague of the employee said that the purpose of the meeting was to give the employee a warning and suggested that he needed a witness. The employee then requested that a witness be present, but the supervisor denied the request. The employee called his union representative, who advised him to attend the meeting and to take notes. However, at the suggestion of other employees, the employee brought a recorder into the meeting and secretly recorded it. The supervisor learned of the secret recording, and discharged the employee for what the supervisor characterized as “the worst act of defiance in the news room.” Thereafter, the company issued a memo to employees prohibiting all secret recordings of meetings.

The Board decided first that the employee’s conduct constituted “protected concerted activity” because the employee had consulted with other employees. Therefore, secretly recording the meeting constituted an extension of the “concerted activity.” Noting that, while concerted activity can lose its protection under the NLRA if it is “egregious,” the employee’s secret recording was not so egregious that it lost its protection. In support of its conclusion, the Board relied on a two findings: 1) the employer did not have a rule barring such recordings, and 2) the recording did not break Hawaii law.

With respect to the employer’s subsequent rule prohibiting secret recordings in the workplace, the Board found the issuance of the rule was unlawful because it had been in response to the employees’ protected conduct. However, the Board did not stop there. The Board also, and gratuitously, held that the employer’s rule prohibiting employees from making the secret audio recording was too broad and ordered the employer to rescind the rule and to notify its employees in writing that the rule was no longer in force.

The reasoning of the Board in this case puts employers on the horns of a dilemma with respect to work rules. On the one hand, the Board cites the absence of a policy against secret recordings as one reason why the recording by this employee was not so egregious that it lost the protections of the Act. On the other hand, the Board found the employer’s subsequent rule against secret recordings was too broad and had to be rescinded because it violated the Act.

This case is just another in an increasing number of cases (with more to come) where the Labor Board has expanded the scope of activities protected by the law and critically examined rules of conduct in the workplace to determine if any may “chill” union activity. That the employee was represented by a union did not factor into the decision and, therefore, the case can be used to further the Chairman of the Board’s expressed intent to scrutinize vigorously the rules of conduct in non-union workplaces.

In this regard, the Chairman is already on record that a host of workplace rules in non-union companies will be found to be in violation of the Act because they are too broad and may “chill” union activity. Included in this list of rules the Chairman believes violate the Act are the following: divulging private or confidential information to third parties, making false statements about the employer, improper conduct, conduct that is disloyal or disruptive, use of abusive or profane language, and intimidation, interfering or otherwise acting offensively toward other employees.

Employers should review their rules/codes of conduct now to avoid an easy way for terminated employees to obtain reinstatement with back pay and/or an easy "victory" for a union seeking to organize an employer's employees and appear as the protector of employee rights. Adding to the urgency is the Labor Board's current use and threatened use of extreme and draconian remedies beyond the simple reinstatement with back pay of discharged employees for violating rules the Board believes are too broad could chill union activity. Some of these remedies include federal court injunctions requiring reinstatement and back pay of the employee prior to the final adjudication of the merits of the discharge, reading to assembled employees by the employer's senior officer of a list of employee rights to organize and to participate in union/concerted activity, permitting union organizers to be in the non-work areas of the facility to facilitate their talking to employees and obtaining authorization cards, and providing blocks of compensible time during which employees would be required to attend meetings in the facility conducted by union organizers.