In Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (February 14, 2011), the National Labor of Relations Board held that an employee’s secret tape recording of a meeting with his supervisor was protected activity; and, as a result, the employee’s termination was a violation of the National Labors Relation Act.

The basis of the Board’s decision was based, in part, on the fact that the supervisor had refused the employee’s request to bring a union representative to the meeting, a right the employee was entitled to under NLRB v. J. Weingarten, 420 U.S. 251 (1975). Under Weingarten, an employee who is represented by a union has the right to a union representative at an investigatory interview that may lead to disciplinary action. As a result, the Board viewed the employee’s recording of the meeting to be a method of documenting what the employee perceived to be a potential violation of his Weingarten rights and, as such, was protective activity.

The Board also considered whether the employee had violated any state or local law that prohibited secret tape recordings, and there was none.

While the employer had implemented a rule that generally prohibited employees from making secret recordings in the workplace, the employer had implemented that rule only after it learned that the employee had secretly tape recorded the meeting. Based on these facts, the Board found that the rule was, among other things, overly broad and ordered the employer to rescind the rule and notify all employees in writing that the rule was no longer in effect.

Employers should be mindful of this decision as it exemplifies the type of adverse consequences an employer may suffer as a result of refusing an employee’s Weingarten rights.