In a December 24 decision, a divided panel of the NLRB refused to accept the recommended decision of an administrative law judge and found that two of Whole Foods' policies restricting workplace recording by employees were unlawful. One policy prohibited workers from making video or audio recordings of meetings without approval of management or the consent of all parties to the conversation. The stated purpose of the policy was "... to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust." The second policy prohibited workers from recording conversations without management approval. Its stated purpose was "to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed."

Despite the legitimate business purpose of each of the policies, the Board panel majority found that they interfered with employees' Section 7 rights under the NLRA and violated Section 8(a)(1). According to the Board panel majority (Board Chair Mark Gaston Pearce and Member Kent Hirozawa), the policies would reasonably be interpreted by employees to restrict protected activities such as "recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions." The panel majority found that the employer had no overriding interest for interfering with the employees' Section 7 activities and it emphasized that there were many situations where covert recordings were essential to protecting employees' Section 7 rights. The Board thus found that employees have a Section 7 right to make workplace audio/video recordings in some circumstances and that Whole Foods' prohibition on recordings was overbroad and unlawful. (Member Philip Miscimarra dissented.)

This is but one of many recent Board decisions finding that a common employer policy or workplace rule is unlawful under the current Board majority's expansive view of Section 7 rights and minimalist view of employer prerogatives. Whether the decisions generate positive or negative results for employees remains to be seen and is subject to debate. Many of the decisions seem simply to reinforce the current Board majority's view of the workplace as an adversarial environment and to attack legitimate employer policies intended to make the workplace more civil and productive, in the interest of both employers and employees.