Whole Foods Market Group Inc. lost its appeal of an NLRB ruling that the grocer illegally prohibited employees from electronically recording communications in the workplace ( Whole Foods Mkt. Grp., Inc. v. NLRB , 2017 BL 183726, 2d Cir., 16-0002-ag, unpublished 6/1/17 ).
The Whole Foods policy prohibited employees from “record[ing] conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership.”
The Second Circuit agreed with the board’s 2015 ruling that the policy was overbroad and that the recording ban would have to be rescinded or revised. But the appeals court effectively left an opening for employers to try to redraft such rules to accommodate the rights of employees.
The National Labor Relations Act doesn’t necessarily preclude all workplace recording rules, and “it should be possible” for Whole Foods to “craft a policy that places some limits on recording audio and video,” the U.S. Court of Appeals for the Second Circuit said.
The board in 2015 said the Whole Foods policy could discourage employees from communicating about unions or engaging in concerted activities that are protected under the NLRA. The company’s stated interest in promoting “spontaneous and honest dialogue” didn’t justify a broad ban that could interfere with employee rights, the board said.
Whole Foods petitioned for review in the Second Circuit, but the court enforced the NLRB decision.
The court said the board relied on its 2004 holding in Lutheran Heritage Village-Livonia that an employment policy is unlawful if employees would reasonably understand it as prohibiting NLRA-protected activity.
Whole Foods didn’t challenge Lutheran Heritage before the NLRB, and the court declined to allow such a challenge in the Second Circuit.
Recording in the workplace can “in certain instances” be protected, but the broad policy adopted by Whole Foods prohibited all recordings without regard to their relationship to employee rights, the appeals court said.
The court said the NLRB reasonably concluded the policy was overbroad and unlawful.
Whole Foods can accommodate its business interests with the requirements of the NLRA by “narrowing the policies’ scope,” the court said. It noted the board has accepted a no-photography policy where a hospital demonstrated a need for patient privacy.
Kathleen M. McKenna and Andrew E. Rice of Proskauer Rose LLP in New York represented Whole Foods Market Group Inc. NLRB attorneys Linda Dreeben, Heather S. Beard, and Robert J. Englehart represented the board.
To contact the reporter on this story: Lawrence E. Dubé in Washington at firstname.lastname@example.org
Text of the order is available at http://www.bloomberglaw.com/public/document/Whole_Foods_Mkt_Grp_Inc_v_NLRB_No_160002ag_160346_160002ag_2017_B?doc_id=XUVTC060000N.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)