06/30/2025: Acting GC Outlines View That Secretly Recording Bargaining Sessions Violates NLRA
DC Circuit affirms surface bargaining case. Two regional election decisions.
Surreptitious Recordings of Collective-Bargaining Sessions as a Per Se Violation of the NLRA, GC 25-07 (GC Memo)
This June 25, 2025 memorandum from Acting General Counsel William B. Cowen addresses whether secretly recording collective-bargaining sessions constitutes a per se violation of the National Labor Relations Act (NLRA). The memorandum argues that surreptitious recordings violate the duty to bargain in good faith under Sections 8(a)(5) and 8(b)(3) of the Act.
Background and Context
The memorandum acknowledges that technological advancements have made it increasingly easy to secretly record bargaining sessions with high quality using personal devices, wearable technology, and AI-enhanced transcription capabilities. The Board has not previously addressed whether such surreptitious recording constitutes a standalone violation of the Act.
Legal Analysis
The memorandum builds its argument on several key legal principles:
Statutory Duty to Bargain in Good Faith: Section 8(d) of the NLRA requires employers and employee representatives to "confer in good faith" regarding wages, hours, and other terms and conditions of employment.
Mandatory vs. Permissive Bargaining Subjects: Based on Borg-Warner Corp., the memorandum distinguishes between mandatory subjects (wages, hours, working conditions) and permissive subjects of bargaining. Insisting on permissive subjects to the point of impasse constitutes a per se violation of the duty to bargain.
Extension of Existing Precedent: The memorandum extends the precedent established in Bartlett-Collins, which held that insistence on recording bargaining sessions is a per se violation, to surreptitious recordings. The GC argues it would be "incongruous" if parties could avoid the illegality of insisting on recording simply by doing so secretly.
Bad Faith and Erosion of Trust: Surreptitious recording is characterized as inherently deceptive, a breach of trust, and incompatible with good faith bargaining. The memorandum argues that the mere possibility of being secretly recorded would inhibit open dialogue, causing parties to be more guarded and potentially replacing honest discussion with "formalistic monologue of posturing and speechmaking."
Directive to Regional Offices
Regional Directors are instructed to issue complaints alleging violations of Section 8(a)(5) or 8(b)(3) when investigations reveal surreptitious recording of bargaining sessions. These violations should be characterized as per se violations, as the act of secretly recording is itself considered bad faith. While Regional Directors retain settlement authority, they are directed to contact the Division of Operations-Management with questions about particular settlements.
Significant Cases Cited
NLRB v. Borg-Warner Corp., Wooster Division, 356 U.S. 342 (1958): Established the distinction between mandatory and permissive subjects of bargaining.
Bartlett-Collins Co., 237 NLRB 770 (1978): Held that insistence on recording bargaining sessions constitutes a per se violation of the duty to bargain in good faith.
NLRB v. Katz, 369 U.S. 736 (1962): Established that unilateral changes to mandatory subjects absent impasse constitute violations that "frustrate the objectives of § 8(a)(5)."
H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970): Clarified that the Board's role is to ensure the bargaining process remains consistent with NLRA requirements, not to compel specific agreements.
Latrobe Steel Co., 244 NLRB 528 (1979): Reinforced that insistence on a court reporter's presence violates the duty to bargain in good faith.
District Hospital Partners, L.P. V. NLRB, 24-1134 (DC Circuit)
The D.C. Circuit Court denied a hospital's petition for review and upheld the NLRB's finding that the hospital engaged in bad faith "surface bargaining" in violation of the National Labor Relations Act. The dispute centered on negotiations between George Washington University Hospital and a healthcare workers union.
The court found substantial evidence supported the NLRB's conclusion that three hospital proposals, when considered together, demonstrated bad faith: (1) an expansive management rights clause granting unilateral authority over work assignments, discipline, and benefits; (2) a no-strike provision prohibiting all concerted economic activity; and (3) elimination of binding arbitration in favor of non-binding mediation. The combination of these proposals would have left union employees with fewer rights than they would have without a contract.
The court ruled that the hospital's persistent adherence to these proposals over fourteen months of negotiations indicated an intent to frustrate agreement rather than engage in good faith bargaining. The court also upheld the NLRB's decision to vacate an earlier ruling due to a Board member's financial conflict of interest, and found no abuse of discretion in allowing a different Board member with past union experience to participate.
Significant Cases Cited
Teamsters Local Union No. 515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990): Established that "rigid adherence to disadvantageous proposals may provide a basis for inferring bad faith."
NLRB v. Wright Motors, Inc., 603 F.2d 604 (D.C. Cir. 1979): Held that a union "should not be compelled to continue the charade" when an employer signals further bargaining would be fruitless.
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009): Established that due process is violated when an adjudicator's financial interest creates a "possible temptation" to rule for one party.
Public Service Co. of Oklahoma, 334 NLRB 487 (2001): Recognized that proposals leaving employees with fewer rights than without a contract may indicate bad faith bargaining.
Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957): Established that arbitration agreements are the quid pro quo for no-strike provisions in labor contracts.
MultiCare D/B/a Capital Medical Center, 19-RC-365924 (Regional Election Decision)
The NLRB Region 19 Director ruled that six registered nurse case managers at MultiCare's Capital Medical Center can participate in a self-determination election to join an existing bargaining unit of registered nurses. The key findings were:
The employer failed to prove the nurse case managers were supervisors under Section 2(11) of the Act. The record showed no evidence they had authority to hire, fire, discipline, or direct other employees.
The nurse case managers share a community of interest with the existing unit of registered nurses because:
All require active RN licenses
Case managers need at least five years of RN experience
They collaborate regularly with nurses on patient care
They receive the same benefits as registered nurses
Their work is functionally integrated with nursing staff
The Director directed an election to be held on July 8, 2025, where the case managers will vote on whether to join the existing unit represented by United Food and Commercial Workers Local 3000.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarifies supervisory status requires independent judgment.
Golden Crest Healthcare Center, 348 NLRB 727 (2006): Requires specific evidence to establish supervisory authority.
United Operations, Inc., 338 NLRB 123 (2002): Sets factors for determining community of interest
SWCA, Incorporated D/B/a SWCA Environmental Consultants, 27-RM-359491 (Regional Election Decision)
The NLRB issued a Supplemental Decision amending a previously defined bargaining unit for SWCA Environmental Consultants. After voter lists revealed no employees in the non-professional voting group or in the "Archaeologist" classification, the Regional Director amended the appropriate unit to include only professional archaeological staff. The election will proceed on July 2, 2025, but as a single-unit election rather than the previously ordered two-group election with separate professional and non-professional ballots.
The amended unit includes Assistant Project Archaeologists, Staff Archaeologists, and Assistant Staff Archaeologists, while excluding various managerial positions and non-professional employees. The decision cites Board precedent requiring each voting group to have a "substantial and representative complement of employees" at the time of election.
Significant Cases Cited
St. John Hosp., Inc., 260 NLRB 905 (1982): Established the requirement that each voting group must have a substantial and representative complement of employees at election time.