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The Bargaining Table

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Back in 2021, we <a href="https://www.bakerlaw.com/insights/please-speak-into-my-lapel-d-c-circuit-finds-that-nlrb-properly-considered-secret-recording-that-arguably-violated-state-law/" target="_blank" rel="noreferrer noopener">reported on a D.C. Circuit decision</a> that the National Labor Relations Board (NLRB or Board) could rely on a secret, arguably illegal, recording of an employer meeting with employees in finding that the employer committed multiple unfair labor practices. Times have indeed changed: On June 25, Acting NLRB General Counsel William Cowen issued Memorandum GC 25-07, banning secret recordings in collective bargaining as a per se violation of Sections 8(a)(5) and 8(b)(3) of the National Labor Relations Act (NLRA or the Act). Citing technological advancements such as smartphones, wireless microphones and artificial intelligence transcription services, employers and unions now have highly effective methods for discretely and accurately recording meetings. The memorandum states the use of secret recordings during collective bargaining is “inconsistent with the openness and mutual trust necessary” for successful bargaining.

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Existing NLRB Precedent Regarding Transcriptions of Bargaining Sessions

The NLRA imposes the obligation on employers and unions to bargain in good faith over mandatory subjects such as wages, hours and working conditions. To promote successful negotiations at the bargaining table, the Act also prohibits employers and unions from insisting on terms for nonmandatory subjects of bargaining (such as collection of union dues or employer decisions regarding introduction of new products or services) as a condition to reaching an agreement. Such conduct would violate (for employers) Section 8(a)(5) or (for unions) 8(b)(3) of the Act.

In Bartlett-Collins Co. the Board held that a party’s insistence to the point of impasse on another nonmandatory subject of bargaining, having a court reporter present to transcribe collective bargaining negotiations, constituted a per seviolation of Section 8(a)(5) or 8(b)(3). 237 NLRB 770, 772 (1978). Memorandum GC 25-07 builds on Bartlett-Collins by classifying surreptitious recordings of bargaining sessions as a “logical extension” of the case’s rationale about having a court reporter present to transcribe bargaining discussions. Specifically, Acting GC Cowen wrote, “It would be incongruous indeed if one could avoid the illegality of insisting on recording bargaining sessions simply by secretly recording the same sessions.” The memorandum concludes by directing NLRB regional directors to file complaints whenever investigations find evidence of secret recordings during bargaining sessions.

Although the NLRB currently <a href="https://www.bakerlaw.com/insights/what-just-happened-the-practical-impacts-of-a-quorum-less-nlrb/" target="_blank" rel="noreferrer noopener">lacks quorum</a> and therefore cannot issue decisions in union representation and unfair labor practice cases, Memorandum GC 25-07 signals one of the NLRB’s prosecutorial priorities and provides insight into how the Board may rule <a href="https://www.thebargainingtableblog.com/blogs/the-labor-board-rises-president-trump-names-two-nlrb-nominees-meaning-potential-for-quorum-in-near-future/" target="_blank" rel="noreferrer noopener">when it has the requisite number of members.</a> In the meantime, employers should proactively prevent or discourage secret recordings in collective bargaining settings. Employers at the bargaining table should also push to establish clear ground rules prohibiting recording or transcription of discussions and should consider securing explicit consent from participants regarding this rule. Even in states that permit one-party consent recordings, Memorandum GC 25-07 treats any undisclosed recording at the bargaining table as an unfair labor practice.

Denver

“Please (Don’t) Speak into My Lapel”: Secret Recordings at the Bargaining Table Are Now a Per Se Violation of the NLRA