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The Bargaining Table

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<img class="alignright size-medium wp-image-6190" src="https://laborrelations.bakerhostetlerblogs.com/wp-content/uploads/sites/36/2021/09/Microphone-and-red-curtains-GettyImages-157677014-1200-x-630-300x158.jpg" alt="" width="300" height="158" />The U.S. Court of Appeals for the District of Columbia Circuit recently<a href="/wp-content/uploads/sites/13/2023/07/Cadillac-of-Naperville-Inc-v-NLRB-Docket-No-19-01150-DC-Cir-1.pdf"> held</a> that the National Labor Relations Board (NLRB or Board) properly considered a secret recording of an employer meeting with employees in finding that the employer committed multiple unfair labor practices.

The employer meeting followed a strike during which the striking employees loudly protested outside of the employer’s premises and interfered with customer access. Apparently, those tactics left something less than a good impression on the employer. During the post-strike meeting, the employer’s owner and president allegedly threatened to “eat the kidney” out of any employee who “f*cked with” the employer and “spit it back at [him/her],” along with various other (less colorful) threats.

Unbeknownst to the employer, one of the employees secretly recorded the meeting. In the ensuing unfair labor practice proceeding, the administrative law judge allowed the recording into evidence. Based in part on the recording, the Board found that the employer’s threats were unlawful. The employer appealed, arguing that the recording should not have been admitted into evidence because the applicable state law (Illinois) prohibited recording of private conversations without the consent of all parties to the discussion.

The D.C. Circuit quickly brushed the employer’s arguments aside. The appellate court held that “the [National Labor Relations Act] makes clear that state policy does not dictate the admissibility of evidence in Board proceedings.” On that basis, the court held that the NLRB properly considered the secret recording and sustained the Board’s holding that the employer had unlawfully threatened employees.

<strong>Bottom Line: </strong>In the view of the D.C. Circuit, state laws concerning secret recordings generally will not provide a basis to contest the admissibility of such recordings in NLRB proceedings. Employers should therefore be mindful of the possibility that workplace conversations are being recorded without their knowledge.

core/freeform

Philadelphia

New York

Counsel

Christian R. White

Cleveland

Partner

Todd A. Dawson

‘Please Speak into My Lapel’: D.C. Circuit Finds That NLRB Properly Considered Secret Recording That Arguably Violated State Law