GE Appliances, Haier (21-CA-202535)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

April 17, 2018

TO:

William B. Cowen, Regional Director

Region 21

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT:

GE Appliances, Haier

Case 21-CA-202535

512-5024-8300

530-6050-0140

530-6067-2070-6780

530-6067-2070-6785

530-8068

737-7096

The Region submitted this case for advice as to whether the Employer violated

Section 8(a)(1) by refusing to agree to the Union’s request to have its representatives

record the Employer’s monthly team meetings and investigatory interviews. We

conclude that the Employer’s refusal was lawful because it was consistent with the

Board’s long-standing policy disfavoring verbatim recording of meetings between

employers and unions for collective-bargaining purposes and the Employer’s denial

was targeted at recordings made by Union representatives and not employees.

FACTS

GE Appliances, Haier (“Employer”), headquartered in Louisville, Kentucky,

operates a nationwide business selling and repairing electronic home appliances and

parts. The Employer dispatches service technicians out of an office in Phoenix,

Arizona. Service technicians work from their homes and are dispatched to repair

assignments at customers’ homes and facilities. The International Union of Electrical

Workers, Communications Workers of America, Local 89850 (“Union”) has

represented technicians employed by the Employer since the 1960s. The Union

represents two separate bargaining units: one unit is comprised of 34 technicians who

work in Riverside County, Orange County, Los Angeles County, and San Bernardino

County, California; and the other unit is comprised of 8 technicians who work in San

Diego County, California. The Union and the Employer are parties to a collective-

bargaining agreement that covers both units

he 1960s. The Union

represents two separate bargaining units: one unit is comprised of 34 technicians who

work in Riverside County, Orange County, Los Angeles County, and San Bernardino

County, California; and the other unit is comprised of 8 technicians who work in San

Diego County, California. The Union and the Employer are parties to a collective-

bargaining agreement that covers both units. The parties’ current collective-

bargaining agreement is effective by its terms from March 2017 through March 2020.

The Union-represented service technicians are supervised by the Employer’s

Customer Service Manager, based out of

home in San Marcos, California.

(b) (6), (b

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Approximately once per month, the Customer Service Manager conducts in-person

meetings (“team meetings”) with service technicians at hotels located near where

technicians work. Under the parties’ agreement, Article XXVI, the Employer must

“notify the Union of any matter affecting technicians generally and concerning which

the Union is the certified bargaining representative and not covered by this

Agreement as soon as practicable[.]” Additionally, the Customer Service Manager will

set up meetings if an issue arises with an employee’s performance. Under Article XXV

of the agreement, employees cannot be “disciplined or discharged except for cause.”

Pursuant to the parties’ past practice and Article XXV, the Employer’s managers,

including the Customer Service Manager, contact the Union and request a

representative to attend the investigatory meetings with employees in cases where

the Employer is contemplating discipline or discharge.

In October 2016, the Customer Service Manager contacted the Union President

(a unit employee) to attend an investigatory meeting

intended to have with the

Union Steward (a unit employee) over alleged discrepancies in the Steward’s time

cards

equest a

representative to attend the investigatory meetings with employees in cases where

the Employer is contemplating discipline or discharge.

In October 2016, the Customer Service Manager contacted the Union President

(a unit employee) to attend an investigatory meeting

intended to have with the

Union Steward (a unit employee) over alleged discrepancies in the Steward’s time

cards. On October 26, 2016, the Customer Service Manager emailed the Union

Steward and Union President to confirm their meeting for the next day and informed

them that the Employer’s Dispatching Center Manager would also be present to take

notes. The Union requested that its Secretary be present to take notes as well, or in

the alternative, for the Employer’s consent to record the meeting. The Customer

Service Manager objected to both, but offered to provide the Union with a copy of the

Dispatching Center Manager’s notes. The Union agreed to the compromise.

On October 27, 2016, the Union President, the Union Steward, the Dispatching

Center Manager, and Customer Service Manager met. During the meeting, the

Dispatching Center Manager prepared type-written notes. After the meeting, the

Employer confirmed that the Union would receive a copy of the notes. On November

4, 2016, after the Union received the Employer’s notes, the Union contacted the

Customer Service Manager and asserted that the notes did not include several

questions and responses regarding the Union Steward’s personal time.

In about early December 2016, the Union and the Employer participated in a

grievance meeting. During the meeting, a dispute arose over comments that the

Customer Service Manager had made during the October 27 meeting. Also during the

meeting, the Union asserted as a separate issue that the Customer Service Manager

was verbally announcing policy changes to employees at the monthly team meetings

In about early December 2016, the Union and the Employer participated in a

grievance meeting. During the meeting, a dispute arose over comments that the

Customer Service Manager had made during the October 27 meeting. Also during the

meeting, the Union asserted as a separate issue that the Customer Service Manager

was verbally announcing policy changes to employees at the monthly team meetings.

In response to these disputes, the Union President advised the Employer that the

Union intended to start recording the Employer’s team and investigatory meetings.

The Employer’s regional manager responded by asking the Union to submit its

request in writing.

(b) (6), (

Case 21-CA-202535

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On January 9, 2017,1 the Union President sent a letter to the Employer

requesting to record “the actions of Local Management when the interactions threaten

the rights of each employee.” The Union went on to state that it was basing its

request on the Board’s decision in Whole Foods Market Group, Inc.2 Several weeks

later, the Employer responded that its legal department was reviewing the Union’s

request and the Employer would respond as soon as possible. According to the Union,

the Employer’s HR manager told the Union shortly after the Union’s January 9 letter

that the Employer would not consent to the recordings that the Union sought to

make.

On April 27, the Union asked the Employer for its response by May 4

mployer responded that its legal department was reviewing the Union’s

request and the Employer would respond as soon as possible. According to the Union,

the Employer’s HR manager told the Union shortly after the Union’s January 9 letter

that the Employer would not consent to the recordings that the Union sought to

make.

On April 27, the Union asked the Employer for its response by May 4. The

Employer responded that same day asking how the Union’s request to record

interactions with the Customer Service Manager could be reconciled with the Board’s

decision in Pennsylvania Telephone Guild (Bell Telephone).3

On May 1, the Union sent a formal reply to the Employer stating that the Union

was “seeking to record thru electronic means and to preserve as evidence all team

meetings and all conversations with employees where the employee would reasonably

construe that it may lead to future disciplinary actions.” The Union went on to state

that it was “requesting a written answer to the company’s verbal policy of not

allowing [Union] collective bargaining representatives of Company employees in

Southern California to record thru electronic means and to preserve as evidence for

the purpose of collective bargaining or other mutual aid or protection.”

On May 10, the Employer sent a response to the Union denying the Union’s

request to record conversations involving the Customer Service Manager. Initially,

the Employer stated that it was unsure why the Union would need to record

disciplinary interviews at which the Union was already present. The Employer

pointed out that the parties have a past practice of the Employer notifying the Union

of any interviews with employees where the Employer was contemplating disciplining

employees and that that practice was memorialized in the parties’ collective-

bargaining agreement. The Employer argued that the Union’s demand to record the

meetings amounted to a change in past practice in conflict with the contract and the

policies of the Act

past practice of the Employer notifying the Union

of any interviews with employees where the Employer was contemplating disciplining

employees and that that practice was memorialized in the parties’ collective-

bargaining agreement. The Employer argued that the Union’s demand to record the

meetings amounted to a change in past practice in conflict with the contract and the

policies of the Act. Additionally, the Employer stated that the Union did not explain

how the Union intended “to maintain the confidentiality of competitively sensitive

1 All dates hereinafter are in 2017.

2 363 NLRB No. 87 (Dec. 24, 2015) (employer violated Section 8(a)(1) by maintaining

rule prohibiting recording in the workplace without prior management approval).

3 277 NLRB 501 (1985) (union failed to bargain in good faith by insisting to impasse

on the right to record grievance meetings).

Case 21-CA-202535

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business information that may be communicated to technicians during Team

meetings.” Finally, the Employer stated it would not waive the Customer Service

Manager’s right to consent to

conversations being recorded under California Penal

Code Section 632.4

According to the Union, it needs to record team meetings and investigatory

interviews with the Customer Service Manager for use during grievances brought

challenging employee discipline. The Union alleges that the Customer Service

Manager routinely announces new policies (that the Union is not aware of) and then

disciplines employees for noncompliance with those policies. Finally, the Union

alleges that the Customer Service Manager routinely recounts untrue versions of

statements made during team meetings and investigatory interviews and that the

Employer ultimately sustains the Customer Service Manager’s version of events. The

Union asserts that it would use the recordings to impeach the Customer Service

Manager’s credibility later in the grievance process

s. Finally, the Union

alleges that the Customer Service Manager routinely recounts untrue versions of

statements made during team meetings and investigatory interviews and that the

Employer ultimately sustains the Customer Service Manager’s version of events. The

Union asserts that it would use the recordings to impeach the Customer Service

Manager’s credibility later in the grievance process.

ACTION

We conclude that the Employer’s refusal to permit the Union to record certain

meetings was lawful because of the Board’s long-standing policy disfavoring verbatim

recording of meetings between employers and unions where questions arising under

the collective-bargaining agreement will be discussed and the Employer’s denial of the

Union’s request was only targeted at recordings made by Union representatives and

not employees.

The Board has long recognized that audio recordings and verbatim transcriptions

have the potential to hamper open communications in collective-bargaining

relationships.5 In Bartlett-Collins Company, the Board determined that the presence

4 Cal. Penal Code § 632(a) (“A person who, intentionally and without the consent of all

parties to a confidential communication, uses an electronic amplifying or recording

device to eavesdrop upon or record the confidential communication, whether the

communication is carried on among the parties in the presence of one another or by

means of a telegraph, telephone, or other device, except a radio, shall be punished by

a fine . . . or imprisonment.”).

5 See Bartlett-Collins Co., 237 NLRB 770, 773 n. 9 (1978) (concluding that, for

purposes of collective bargaining, use of a court reporter or audio recording device

constitutes a permissive subject of bargaining under Wooster Division of Borg-Warner

Corp., 356 U.S

r or by

means of a telegraph, telephone, or other device, except a radio, shall be punished by

a fine . . . or imprisonment.”).

5 See Bartlett-Collins Co., 237 NLRB 770, 773 n. 9 (1978) (concluding that, for

purposes of collective bargaining, use of a court reporter or audio recording device

constitutes a permissive subject of bargaining under Wooster Division of Borg-Warner

Corp., 356 U.S. 349 (1958), because such recordings or transcriptions are “other

matters” that do not implicate “wages, hours, and other terms and conditions of

employment”), enforced, 639 F.2d 652 (10th Cir. 1981).

(b) (6), (b) (

Case 21-CA-202535

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of a court reporter or recording device during collective-bargaining sessions was

preliminary and subordinate to substantive negotiations over “wages, hours, and

other terms and conditions of employment” and was therefore a nonmandatory

subject of bargaining.6 In so holding, the Board recognized that the presence of a court

reporter or recording device could stifle negotiations before the parties had even

begun to bargain.7 Subsequently, in Bell Telephone, the Board extended the same

reasoning to grievance meetings.8 Because such meetings are informal mechanisms

used to address employee concerns with the ultimate goal of reaching an agreement

or settlement, one party’s insistence on recording grievance meetings “may have a

tendency to inhibit free and open discussions” and create a “chilling effect on the

expression of views.”9 For this reason, the Board has held that parties may not insist

to impasse in bargaining for the right to make audio recordings or verbatim

transcriptions of grievance meetings or collective-bargaining sessions.10 In

determining whether a particular meeting between parties to a collective-bargaining

relationship falls within this prohibition, the Board considers whether the particular

meeting is “similar to collective-bargaining negotiations in character and

methodology.”11 If the meeting is an informal mechanism used to address emplo

scriptions of grievance meetings or collective-bargaining sessions.10 In

determining whether a particular meeting between parties to a collective-bargaining

relationship falls within this prohibition, the Board considers whether the particular

meeting is “similar to collective-bargaining negotiations in character and

methodology.”11 If the meeting is an informal mechanism used to address employee

concerns where the ultimate goal is to reach an agreement or settlement, then the

recording of such meetings has the potential to “inhibit free and open discussions”

and, ultimately, may have an “adverse effect[] on the bargaining process.”12

We conclude that the Union’s request to record investigatory interviews and team

meetings implicates the same potential adverse effects on the bargaining process. In

short, the Union’s explicit purpose for making these records was for use in later

6 237 NLRB at 772–73 (1978).

7 Id. at 773 & n. 9 (observing that labor relations experts had opined that recording

negotiation sessions has “tendency to inhibit free and open discussion necessary for

conducting successful collective bargaining”).

8 See Pennsylvania Telephone Guild (Bell Telephone), 277 NLRB 501 (1985) (union’s

insistence to impasse on tape-recording grievance meetings was unlawful insistence

on nonmandatory subject of bargaining), enforced, 799 F.2d 84 (3d Cir. 1986).

9 Id. at 501–02.

10 Id.; see also Bartlett-Collins, 237 NLRB at 773 n.9.

11 Bell Telephone, 277 NLRB at 502.

12 Id. at 502.

argaining”).

8 See Pennsylvania Telephone Guild (Bell Telephone), 277 NLRB 501 (1985) (union’s

insistence to impasse on tape-recording grievance meetings was unlawful insistence

on nonmandatory subject of bargaining), enforced, 799 F.2d 84 (3d Cir. 1986).

9 Id. at 501–02.

10 Id.; see also Bartlett-Collins, 237 NLRB at 773 n.9.

11 Bell Telephone, 277 NLRB at 502.

12 Id. at 502.

Case 21-CA-202535

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grievance meetings. As the Union explained in its May 1 letter to the Employer, it

desired to record team meetings and investigatory interviews to preserve the

statements of the Customer Service Manager “as evidence for the purpose of collective

bargaining or other mutual aid or protection.” The Union further elaborated that its

primary purpose in obtaining these recordings was to impeach the Customer Service

Manager’s testimony in grievances arising out of employee discipline. The Union’s

possession of such recordings could foreseeably hamper discussions between the

Union and the Customer Service Manager aimed at resolving workplace disputes in

an informal manner or during the initial stages of the parties’ contractual grievance

process. Accordingly, under the principles of Bartlett-Collins and Bell Telephone,

permitting the Union to record investigatory interviews and team meetings could

adversely affect the collective-bargaining process by inhibiting free and open

discussion in those forums.

Significantly, we note that this is a situation in which the Union is requesting

only that the Union be permitted to record meetings and not that individual

employees be permitted to record meetings. Thus, this case does not implicate the

Section 7 rights of individual employees to record conversations, in which different

criteria apply and which must be determined on a case-by-case basis

Significantly, we note that this is a situation in which the Union is requesting

only that the Union be permitted to record meetings and not that individual

employees be permitted to record meetings. Thus, this case does not implicate the

Section 7 rights of individual employees to record conversations, in which different

criteria apply and which must be determined on a case-by-case basis. Specifically, an

employee who records such meetings may be protected by Section 7 if the employee is

recording the conversation for purposes of mutual aid and protection.13 Here, the

Union asked the Employer to consent to its recording of team meetings and

investigatory interviews. In responding to the Union’s request, the Employer stated

that it is unclear why the Union needs to record when it is already present for such

13 See, e.g., Hawaii Tribune Herald, 356 NLRB 661, 661 (2011) (employee’s

surreptitious recording of an employer meeting where he was denied a union

representative was protected concerted activity because he acted in concert with other

employees to document what they perceived as potential violations of their rights

under Weingarten), enforced sub nom. Stephens Media, LLC v. NLRB, 677 F.3d 1241

(D.C. Cir. 2012); White Oak Manor, 353 NLRB 795, 795 n.2 (2009) (two-member

Board) (employee who was terminated for photographing another employee’s failure

to abide by the employer’s dress code was protected under Section 7 because the

photography was part of the res gestae of the employee’s efforts to induce group action

concerning the employer’s dress code; the employee’s photography and other concerted

activity remained protected by Section 7 because the employer had not established

that it disseminated an explicit rule prohibiting employees from taking photographs

of others prior to the employee’s termination), reaffirmed and incorporated by

reference, 355 NLRB 1280 (2010), enforced, 452 F. App’x 374 (4th Cir. 2011). Cf

e employer’s dress code; the employee’s photography and other concerted

activity remained protected by Section 7 because the employer had not established

that it disseminated an explicit rule prohibiting employees from taking photographs

of others prior to the employee’s termination), reaffirmed and incorporated by

reference, 355 NLRB 1280 (2010), enforced, 452 F. App’x 374 (4th Cir. 2011). Cf.

Opryland Hotel, 323 NLRB 723, 723 n.3 (1997) (in the absence of a prohibition on

recordings, employee’s surreptitious recording of employer meetings was not

misconduct sufficient to defeat reinstatement after unlawful discharge).

Case 21-CA-202535

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meetings. Thus, both the Union’s request and the Employer’s response demonstrate

that both parties viewed the request to record as applying to Union representatives

and not to employee recordings.14

Thus, the Employer did not violate the Act by refusing to permit the Union to

record the parties’ team meetings and investigatory interviews. Accordingly, the

Region should dismiss the instant charge, absent withdrawal.

/s/

J.L.S.

ADV.21-CA-202535.Response.GEHaier.

14 In light of the fact that the Employer’s response prohibited the Union from

recording meetings for labor relations purposes and was not a blanket no-recording

rule targeted to employees, it is not necessary to analyze the Employer’s response

under The Boeing Co., 365 NLRB No. 154, slip op. (Dec. 14, 2017). We note, however,

that to the extent the Union relies on Whole Foods Market, 363 NLRB No. 87 (2016),

in arguing that there was a violation here, that case was effectively overruled by the

Board in The Boeing Co., 365 NLRB No. 154 slip op at 19, n.89 (explicitly overruling

Rio All-Suites Hotel & Casino, 362 NLRB No. 190, slip op. at 4 (2015), upon which the

Board relied in finding a violation in Whole Foods Market).

(b) (6),