Can Employees Really Arm Themselves with Recording Devices as They Go About Their Daily Work?

by BakerHostetler

The Progression of Cases Involving Handbook Rules Continues Unabated—

Over the last months, we have traced the Board’s and Administrative Law Judges’ rulings on the legality of handbook rules and conduct in the workplace. We have learned that an employer will often have a better opportunity of winning in a casino than under the National Labor Relations Act as currently construed.

Rules providing that insubordination to a manager or lack of respect to fellow employees or guests are too broad and subjective to pass muster. A restaurant, for example, cannot have a rule against disrespect to guests. Such a rule was said to be over-broad. And, what is extremely alarming to employers is that even when the Board actually rules in favor of an employer, vast resources have been expended fighting Regional Directors and Administrative Law Judges.

A recent decision issued by Judge Raymond P. Green, Professional Electrical Contractors of Connecticut, Inc., Case no 34-CA-071532 (June 4, 2004), illustrates the difficulties an employer faces. In that case, Judge Green in his own pithy style evaluated a series of rules that the General Counsel had found unlawful and, almost in the style of Ebert and Siskel, signaled thumbs up or thumbs down.

Do not disclose the location and telephone number of your customer assignment to outsiders.

The Judge decided that insofar as the rule prohibited the disclosure of customers to outsiders of the contractor, it was too broad and potentially interfered with the ability of a union to meet and communicate with employees. Any concern for the customer was ignored. But Judge Green came to a different conclusion as to the customer’s phone number since all of the employees, he wrote, either had personal or company-provided cell phones. Otherwise perhaps the Judge would have ruled differently and customers would have had to deal daily with a barrage of union calls to employees.

To maintain this professional confidence, no associate shall disclose customer information to outsiders, including other customers or third parties and members of one’s own family.

According to the General Counsel this rule was too broad and thus a complaint issued. The Judge found the rule acceptable as he saw no interference with Section 7 rights. But, in all likelihood, the General Counsel will appeal to the Board, and the cost to the employer will continue.

Do not engage in boisterous or disruptive activity in the workplace.

The Judge looked to Board law for guidance. In 2 Sisters Food Group Inc., 357 No. 168 (2011), in a 2-1 decision, the democratic members found unlawful a rule allowing discipline for “inability or unwillingness to work harmoniously with other employees,” distinguishing the rule from those at issue in previous cases as being imprecise and ambiguous. He also looked at First Transit Inc., 360 NLRB No. 72 (2014), in which two 2-l panels first found restrictions on discourteous or inappropriate behavior toward passengers and “disorderly conduct” as being imprecise and ambiguous and unlawful, but found a prohibition of profane or abusive language where it is uncivil, insulting, contemptuous, vicious or malicious was not so patently ambiguous as to be overbroad. Distinguishing the two situations, aside from the result, requires a Ouija board.

Applying this law, Judge Green declared the rule to be unlawful “to the extent it prohibits “boisterous” activity in the workplace, but presumably not as it prohibits disruptive activity in the workplace.

Do not take photographs or make recordings in the workplace without prior authorization by management.

The Company’s witness testified at the hearing that the rules were intended to protect confidential customer matters and were related to customer privacy. The witness also testified that the recording of conversations with managers would inhibit candid conversations. Indeed, the workplace would become like a police state. It seems that the General Counsel is maintaining that surreptitious recordings should also become part of the workplace. He does not say anything about supervisors also recording conversations to protect themselves. While expressing sympathy to the employer and conceding that the rules were not adopted with any intention of inhibiting Section 7 activity, Judge Green said the legal issue was about the rule’s effect not intention.

The General Counsel argued that the rule would tend to prevent employees from recording statements or events that otherwise could later be used in NLRB cases, grievances and lawsuits. The same can be said of recordings made by supervisors to protect themselves. Of course secret recordings are not allowed to be made of bargaining sessions. And, in many states, surreptitious recording is unlawful. Two recent Administrative Law Judge decisions on this issue Whole Food Market Inc., 01-CA-096965 (October 30, 2013) and Boeing Co., 19-CA-90932 (May 16, 2014) reach different results.

Judge Green ultimately sided with the General Counsel, but his conclusion let the employer know what needed to be done. “This set of rules, except to the extent that the customer explicitly prohibits photographing or videotaping on its premises, is too broad.” However, recording the daily discourse of the workplace, even if surreptitious, is given an imprimatur. This decision is dangerous if the Board accepts it. Employees will arm themselves with recording devices. Employers will have to ask employees every time they have a meeting whether it is being recorded.

This singular decision by Judge Green demonstrates many of the pitfalls facing employers. Precision in writing rules, probably to an extent that cannot be attained, is necessary. Ambiguity is fatal. Of course, so much is in the eye of the reader.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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