Surveillance OK for Employer but not Employee?

baggerWhole Foods Market, Inc., the world’s largest retailer of natural and organic foods, has prevailed in a union  battle to overturn a store policy that prohibits employees from recording conversations.

Steven Davis, an administrative law judge for the National Labor Relations Board (NLRB), recently issued a decision dismissing a complaint filed against the store by  the United Food and Commercial Workers, Local 919, and Workers Organizing Committee of Chicago.

The union argued that the policy prevents workers from recording conversations related to protected activities, including allegedly unlawful statements made by supervisors.  Also, the union noted that recordings are valuable evidence in administrative or judicial forums in employment related matters.

“I agree,” wrote Judge Davis in his opinion, “ but the employee may present his contemporaneous, verbatim, written record of his conversation with the other party, and his own testimony concerning employment-related matters. Only electronic recordings of conversations is prohibited.”

Ironically, the policy in question also states that “many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery.”

Judge Davis said the presence of company surveillance cameras does not make the policy unlawful because employees are advised of the presence of the cameras and the cameras address a legitimate business concern – to protect customers and employees and discourage theft.

The complaint alleged the policy violates Section 8(a)(1) of the National Labor Relations Act, which makes it illegal for an employer “to interfere with, restrain, or coerce employees” in the exercise of their rights to organize collectively.

Whole Foods maintained the purpose of the policy is “to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.”  A violation of the policy, which applies to tape recorders, cell phones and any electronic device, results in “corrective action, up to and including discharge.”

Marc Ehrnstein, the global vice president for Whole Food’s team member services,  said the policy applies to employees during working time – not their break time – and extends to all areas of the store including the parking lot and the area in front of the store. He said an employee’s recording of picketing in front of the store would be a violation of the rule.

Ehrnstein testified at a hearing last summer that Whole Food’s “core values” and “culture” encourage employees  to “speak up and speak out” on many issues. For example, he said each store has a “town hall” meeting once a year where employees meet with regional management leadership without store management being present.  Ehrnstein said  workers would be reluctant to voice their opinions about store management if they knew that their comments were being recorded.

Whole Foods, which operates 351 stores and employs 76,000 workers, adopted the policy in 2001.