The National Labor Relations Board General Counsel’s Division of Advice has concluded that an employer could refuse to allow a union’s representatives to record monthly team meetings and investigatory interviews. GE Appliances, Haier, 21-CA-202535 (Div. of Advice, Apr. 17, 2018, released May 15, 2018). The Division found the refusal was lawful based upon the Board’s long-standing policy disfavoring verbatim recordings of meetings between employers and unions for collective-bargaining purposes.
GE Appliances, Haier, sells and repairs home appliances and parts nationwide. The employer’s service technicians, who are represented by a union, work from their homes and are dispatched on service calls to homes and businesses. The employees’ manager conducts monthly in-person team meetings with the technicians. In addition, union representatives are asked to attend any meetings where investigatory interviews take place that could lead to the discipline of the interviewee.
In late-2016, the employer conducted an investigatory interview with a bargaining unit member over time card discrepancies. During the subsequent grievance process, the union asserted that typewritten notes the employer’s manager had prepared during the initial meeting were incomplete. It also separately asserted that the manager regularly announced policy changes during monthly team meetings. Therefore, the union requested it be allowed to record team meetings and investigatory interview meetings because those meetings could “threaten the rights of each employee.” The employer refused the request.
The Advice Division found the refusal did not violate the NLRA. The Division explained that the Board has had a long-standing policy of prohibiting audio recordings of bargaining negotiations and grievance meetings because of the potential to hamper open communications. The Division found the request to record team meetings and investigatory interviews implicated the same adverse effects on the bargaining process. It was concerned that the union’s express purpose of recording the meetings — to preserve the manager’s statements to later impeach him — could have a chilling effect on informal resolution of workplace disputes.
Finally, the Division noted the request here did not implicate the Section 7 rights of individual employees to record conversations, which arguably could be protected under certain circumstances. Rather, the request was made by the union on behalf of its representatives. Thus, there was no need to evaluate the employer’s response under the Board’s workplace rule guidance in The Boeing Co., 365 NLRB No. 154, slip op. (Dec. 14, 2017). Accordingly, the Division advised that the charge be dismissed, absent withdrawal. Based on a review of the publicly available docket, it appears that the union withdrew the charge in April.
The Division’s advice memorandum slightly expands upon the types of meetings in which a union may not make audio recordings. Now, not only may an employer refuse to consent to such recordings during a grievance meeting, but also it may lawfully refuse the union’s request in connection with meetings that could result in a later grievance meeting, such as the investigatory meetings at issue here. Furthermore, the memorandum reminds both employers and unions that the Board’s policies reflect the view that the collective bargaining relationship works best when open, informal communication is used.
