As reported in the Hunton Employment & Labor Perspectives blog, the National Labor Relations Board (“NLRB”) held that rules in Whole Foods’ General Information Guide prohibiting unapproved tape and video recording in the workplace violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”).

A rule violates Section 8(a)(1) if it would reasonably tend to chill employees’ exercise of their Section 7 rights, including the right to engage in protected concerted activity. If the rule in question explicitly restricts activity protected by Section 7, it is automatically unlawful; if it does not, the rule violates Section 8(a)(1) only if: (1) the employees would reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule was applied to restrict the exercise of Section 7 rights.

In its decision, Whole Foods Market, Inc., 363 NLRB No. 87, the NLRB considered the following related rules:

  1. “It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device…unless prior approval is received…or unless all parties to the conversation give their consent.”; and
  2. “It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device…unless prior approval is received from your store or facility leadership.”

 Read the full post.