07/02/2025: Advice Memo States That Secretly Recording Coworkers Loses Protection
DC Circuit affirms Board's dismissal of a duty-of-fair-representation claim.
Cardenas Market #7, 31-CA-316331 (Advice Memo)
This case involves an employee (the Discriminatee) who was terminated for secretly recording a conversation with a coworker. The memo concludes that while the employee was engaged in concerted activity for mutual aid and protection, their conduct lost protection under the National Labor Relations Act, making the termination lawful.
Background Facts
The Discriminatee and Coworker 1 both experienced sexual harassment from a supervisor at Cardenas Market, a supermarket chain. After they reported the harassment, the supervisor was terminated. Subsequently, they noticed harsh treatment from two managers, which they believed was retaliation for their harassment complaints.
During a dinner, the Discriminatee was present when Coworker 2 received a call from Manager 2, who was unaware of the Discriminatee's presence. Manager 2 told Coworker 2 to be careful around the Discriminatee, calling them "dangerous" despite having "the face of an innocent person," and stated that the company would bring in someone "tough" to make the Discriminatee and Coworker 1 "calm down."
Concerned about documenting evidence of retaliation but lacking proof, the Discriminatee and Coworker 1 planned to record Coworker 2 recounting Manager 2's statements. During a lunch, the Discriminatee secretly recorded Coworker 2 without consent.
The Discriminatee later disclosed the recording to HR while discussing Manager 2's conduct. The HR representative stated it would have been better to record Manager 2 directly. Shortly thereafter, the Discriminatee was terminated for violating company policy against unauthorized recordings, which also potentially violated state law.
Legal Analysis
The memo applies the NLRB's "setting-specific standards" for determining whether an employee's conduct during protected activity was "so egregious" as to lose protection. The analysis acknowledges that workplace recordings may constitute protected activity under Section 7 when employees act in concert for mutual aid and protection.
The memo concludes that while the Discriminatee and Coworker 1 were acting in concert to document workplace issues including retaliation, the Discriminatee's conduct lost protection due to several factors:
The recording targeted a coworker rather than a manager, which "weighs strongly against protection because doing so implicates another employee's rights."
The employer explicitly stated it would have been better to record Manager 2 directly, suggesting legitimate concerns about balancing employees' interests.
Coworker 2 was understandably upset about being secretly recorded, providing "some measure of its seriousness."
The recording potentially violated state law, which established Coworker 2's reasonable expectation of privacy.
The employer had an explicit rule prohibiting unauthorized recordings in the workplace.
The memo notes that such conduct "has the potential to undermine the solidarity principle underlying Section 7" and concludes that "under all the circumstances, the Discriminatee's conduct lost the protection of the Act, and the Employer was privileged to terminate for that conduct."
Significant Cases Cited
Lion Elastomers LLC, 372 NLRB No. 83 (2023): Returned to "setting-specific standards" for analyzing whether employer was privileged to discipline an employee for protected activity.
Starbucks Corp., 372 NLRB No. 50 (2023): Noted that "workplace recordings, often covert, have been an essential element in vindicating employees' Section 7 rights."
Whole Foods Market, Inc., 363 NLRB 800 (2015): Established that photography and recordings are protected if employees act in concert for mutual aid with no overriding employer interest.
Hawaii Tribune-Herald, 356 NLRB 661 (2011): Suggested factors weighing against protection include violations of state law and workplace rules.
Fresh and Easy Neighborhood Market, Inc., 361 NLRB 151 (2014): Discussed the solidarity principle underlying Section 7.
Edward Waters University, 12-CA-306753 (Advice Memo)
The NLRB Division of Advice has determined that Edward Waters University (EWU) is exempt from NLRB jurisdiction as a religious institution. Upon reviewing new jurisdictional evidence from EWU's motion to dismiss, the Division concluded that EWU meets the three-part test established in Bethany College and applied in Saint Leo University.
The Division found that EWU satisfies all three prongs of the test:
Religious Educational Environment: EWU clearly holds itself out as providing a religious educational environment. Its mission statement on its website identifies it as "a Christian, Historically Black, urban liberal arts institution" that emphasizes "high moral and spiritual values in keeping with the African Methodist Episcopal Church." Its bylaws, student handbook, and course catalog contain various references to its Christian identity, with "Christian Principles" listed as the first of ten "Core Values" in the student handbook. Additionally, EWU requires freshmen and resident hall students to attend weekly chapel.
Nonprofit Status: EWU operates as a nonprofit organization, which is undisputed.
Religious Affiliation: EWU is affiliated with the African Methodist Episcopal Church. Its predecessor institution was founded in 1866 by Church reverends. A Church bishop serves as the ex-officio member and chairman of the board, and between 6 to 18 other board members are selected by the Church. EWU is listed on the Church's website as an Institution of Higher Education and appears in the Church's 2021 "Doctrine and Discipline" book under "Organization of the AME Church." EWU also reported to the Church's Commission on Seminaries, Universities, Colleges and Schools at a 2022 conference.
The Division noted that these facts are similar to Saint Leo University, where the Board emphasized that the third prong is "disjunctive" and can be satisfied based on affiliation alone, without requiring a binding or formal commitment to a religious organization.
This advice memo supersedes all prior guidance in this case and directs NLRB Regions to no longer seek to overturn Bethany College. Instead, Regions should apply Bethany College and Saint Leo University when considering jurisdiction over learning institutions with religious affiliations.
Significant Cases Cited
Bethany College, 369 NLRB No. 98 (2020): Established the three-part test for determining whether a school is a religious institution exempt from NLRB jurisdiction.
Saint Leo University Inc., 373 NLRB No. 121 (2024): Applied the Bethany College test to find a Catholic university exempt from NLRB jurisdiction.
University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002): Established the original three-part test later adopted by the Board in Bethany College.
Thomas McLamb v. NLRB, 24-1218 (DC Circuit)
This case involves a petition for review of a National Labor Relations Board (NLRB) decision dismissing unfair labor practice charges against a union. The petitioner, Thomas McLamb, a dissident union member with a history of opposition to union leadership, was involved in a confrontation during a union election campaign that led to a physical altercation with a union official.
McLamb, who was running as an anti-incumbent candidate for union office, engaged in a heated exchange with Tiyaka Boone, an incumbent union official, while campaigning at their workplace, Transdev Services Inc. The argument escalated until Boone struck McLamb in the face. Following the incident, another union official, Alma Williams, allegedly suggested to management that if Transdev terminated Boone, it should also terminate McLamb.
McLamb filed unfair labor practice charges with the NLRB, claiming violations of Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act (NLRA). He argued that Boone's conduct was in retaliation for his protected union activities and that Williams had violated the duty of fair representation as a union official.
The NLRB dismissed both charges, finding that a reasonable employee would believe Boone was motivated by personal animosity rather than retaliation for protected activities, and that Williams' comment was seeking leniency for Boone, not punishment for McLamb.
Court's Analysis
Section 8(b)(1)(A) Claim
The D.C. Circuit applied the substantial evidence standard of review, giving significant deference to the NLRB's factual findings. Regarding the Section 8(b)(1)(A) claim, the court noted that the Board applies an objective standard that focuses on whether union conduct would reasonably tend to restrain or coerce employees in exercising their Section 7 rights.
The court found substantial evidence supported the Board's conclusion that no reasonable employee would have understood Boone's actions as related to McLamb's union activities. Multiple witnesses testified that the dispute between Boone and McLamb was personal, not motivated by union activities. The court rejected McLamb's argument that the Board erred in finding he had personally insulted Boone, noting that at least one credible witness testified that McLamb had directed personal comments toward Boone.
The court emphasized that McLamb's comments to Boone lacked the necessary nexus to union or workplace issues to qualify for NLRA protection. Although McLamb was engaged in campaigning, his specific remarks to Boone were personal in nature and unrelated to union policy or workplace conditions. The court distinguished this case from precedents where even offensive conduct retained protection because it was directly linked to workplace conditions or union activity.
Section 8(b)(2) Claim
Regarding the Section 8(b)(2) claim, the court found substantial evidence supported the Board's determination that Williams did not attempt to cause McLamb's discharge. The court noted that Williams' statement was conditional and was made in the context of seeking leniency for Boone rather than discipline for McLamb.
The court emphasized that there was no evidence beyond Williams' single conditional remark suggesting an intent to seek McLamb's discharge. Williams did not follow up on her comment, nor did any employer representative testify that they understood her to be urging McLamb's termination.
The court also addressed the Board's alternative finding that, even if Williams' statement could be construed as a request to fire McLamb, the Union did not violate its duty of fair representation. Under this duty, a union must represent its members "honestly and in good faith and without invidious discrimination or arbitrary conduct." The court found it was not unreasonable for the Board to infer that Williams' comment was insufficiently egregious to amount to a breach of duty.
Dissenting Opinion
Judge Walker dissented in part, arguing that Williams violated her duty of fair representation by attempting to cause McLamb's discharge. He emphasized the context of Williams' relationships with Boone and McLamb, noting Williams' bias against McLamb and motive to request his punishment. Judge Walker contended that Williams' "conditional" statement implied a request for McLamb's discipline, which violated the NLRA.
Conclusion
The D.C. Circuit denied McLamb's petition for review, finding that substantial evidence supported the NLRB's dismissal of both unfair labor practice charges.
Significant Cases Cited
Vaca v. Sipes, 386 U.S. 171 (1967): Established that a union breaches its duty of fair representation only when its conduct is arbitrary, discriminatory, or in bad faith.
Air Line Pilots Association v. O'Neill, 499 U.S. 65 (1991): Held that the duty of fair representation applies to all union activity, not just grievance processing.
Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976): Established that unions must represent members honestly, in good faith, and without invidious discrimination or arbitrary conduct.
Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951): Defined the substantial evidence standard for reviewing NLRB decisions as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Ruisi v. NLRB, 856 F.3d 1031 (D.C. Cir. 2017): Established a demanding standard for proving bad faith in duty of fair representation cases, requiring actions to be "sufficiently egregious" or "intentionally misleading" to be invidious.