March 16, 2023

NLRB Ruling Pushes State Law Boundaries

A recent National Labor Relations Board (NLRB) decision pushes (to the extreme) the limits of existing state law privacy boundaries. In this expansive ruling the NLRB held that surreptitious recordings made by employees at a Pennsylvania Starbuck’s revealed National Labor Relations Act (NLRA) violations and as such justified the employee’s failure to disclose its recording efforts and gain consent of all parties as required under state law. The NLRB found that the recordings constituted concerted protected activity under the NLRA as they were made by employees attempting to document meetings with management regarding unionization efforts.

California, like Pennsylvania, is a two-party consent state making it a criminal offense to use any devise to record communications between parties unless all those taking part in the conversation consent. With this new decision, the NLRB justifies preemption of such privacy rights where employee recordings serve to further protection of employee protected activity under the NLRA.

Notably, the NLRB found that the Starbuck’s managers “knew or had reason to know” that they were being recorded but “failed to take any meaningful action in response.” In other words, the fact that the company failed to enforce its rights under Pennsylvania law or its own policy against surreptitious recording (at the time) rang hollow as a later defense to such actions. The panel found the company’s lack of action on the issue to be a key element in support of its preemption stance.

This ‘ends justify the means’ ruling signals (once again) a swing in NLRB policy in favor of pushing the limits of what it means to interfere with Section 7[1] and 8[2] rights under the NLRA.

The Agricultural Labor Relations Act (ALRA) is patterned on the NLRA and the ALRB will generally, with some exceptions, follow NLRB precedent. In anticipation of increased unionization efforts in California under AB 2183, employers should, as discussed here, familiarize themselves with NLRA prohibitions under Sections 7 and 8 to avoid allegations of interfering with, restraining, or coercing employees in the exercise of concerted protected activities.



[1] Section 7 of the NLRA states in part, “Employees shall have the right. . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

[2] Section 8 of the NLRA strictly prohibits employers from engaging in unfair labor practices (e.g., interfering with employees as they engage in concerted activity)