Recording Meeting In Office Protected by National Labor Relations Act

For those of us in all-party consent states like Florida, it's always an issue whether employees may record conversations with supervisors surreptitiously. Now employees have another weapon in their arsenal to support the legality of office recordings: the National Labor Relations Act (the Act).

In a recent decision, a National Labor Relations Board Administrative Judge held that a recording of a meeting where unionization was being discussed was both legal and protected by the Act, even though company policy prohibited such recordings:

Section 7 of the Act reads as follows: 

Employees shall have the right, to self-organization, to form, join, or assist labor 35 organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 40 condition of employment as authorized in section 8(a) (3). 

29 U.S.C. § 157. Thus, employees have a statutory right to engaging in union and protected concerted activities, or to refrain from any and all such activities. Cf. Stanton Industries, Inc., 313 NLRB 838, 848 (1994) (noting the Board has “pointed out over and employees have the 45 right to engage in union activities, as well as the right to refrain from engaging in union activities, which rights are guaranteed by Section 7 of the National Labor Relations Act.) JD(SF)–21–19 14 

Regarding Mansour, I find that his actions were protected by Section 7 of the Act. In the January 9 captive-audience meeting Respondent was presenting its position to employees and attempting to persuade them to vote the Union out. Mansour had never previously been in a 5 union, he is dyslexic, and English is his second language. He decided to record the meeting to listen to it more carefully later and get a better understanding of what being discussed. Mansour was simply documenting the meeting in order to study Respondent’s position, so he could make an educated choice when voting to either retain or decertify the Union. Respondent argues his actions are not protected because he did not discuss his intentions to record the meeting with 10 anyone else. However, I find Respondent’s argument misguided.

The judge also found that the recordings were legal under Washington law because the subject matter, unionization, was not private and the employer could not restrict employees from discussing what happened in the meeting. Further, the judge determined there was no expectation of privacy in the meeting.

So, while this decision only applies where the meeting is about unionization or working conditions on behalf of coworkers as well as yourself, and only if you aren't in management, and only if you work for an employer covered by the Act (which is most non-government employers), it may keep you from being fired (or prosecuted) if you get caught recording a workplace meeting.