NLRB GC Declares Secret Recordings in Bargaining a Per Se NLRA Violation

On June 26, 2025, the Acting General Counsel of the NLRB, William B. Cowen, issued GC Memorandum 25-07 (“Memorandum”) asserting that secretly recording collective-bargaining sessions – without the knowledge or consent of the other party – constitutes a per se violation of the National Labor Relations Act (NLRA), specifically Sections 8(a)(5) and 8(b)(3).

The memorandum states the “prevalence of personal recording devices” and other electronic devices prompted the need for a new “brightline rule.” It noted, without a clear prohibition on “surreptitious recordings of bargaining sessions,” parties will be unable to speak freely and bargain in good faith, as required by the NLRA. The Memorandum states that the “presence of a recording device may have a tendency to inhibit free and open discussions,” and “open and honest dialogue may be replaced by a formalistic monologue of posturing and speechmaking.” And recording sessions in secret demonstrates bad faith and a “brazen disregard” for professionalism and the collective bargaining process.

The NLRB has addressed recordings of bargaining sessions and other meetings in the past, but never secret recordings. The Memorandum cites to Bartlett-Collins Co., 237 NLRB 770 (1978) in which the Board held that insisting on the presence of a court reporter during contract negotiations was a violation of the NLRA and could “stifle negotiations in their inception.” It lists several other NLRB decisions that have reached a similar conclusion, prohibiting parties from insisting on reporters or recording devices at the bargaining table. See Bakery Workers Local 455, 272 NLRB 1362 (1984); Pennsylvania Telephone Guild, 277 NLRB 501 (1985); Local Union No. 29, International Chemical Workers Union, 228 NLRB 1101 (1977).

Based on these prior decisions, the Memorandum describes it as a natural and logical extension to prohibit the surreptitious recording of bargaining sessions:

“Treating surreptitious recordings of collective-bargaining sessions as a per se violation is a logical extension of Bartlett-Collins. It would be incongruous indeed if one could avoid the illegality of insisting on recording bargaining sessions simply by secretly recording the same sessions.”

While the Memorandum only discusses secretive recordings of bargaining sessions, the reasoning seems to apply equally to other contractually required meetings. In Pennsylvania Telephone Guild, for example, the Board extended the rule from Bartlett-Collins Co. to grievance meetings. And in Bakery Workers Local 455, the Board required the union to cease and desist from “insisting on tape-recording … other contractually required meetings.” If prohibiting secret recordings of bargaining sessions is a “logical extension of Bartlett-Collins,” then prohibiting secret recordings of other contractually required meetings must be a logical extension of Pennsylvania Telephone Guild and Bakery Workers Local 455.

Therefore, going forward, employers should not record any bargaining sessions or other contractually required meetings without obtaining explicit consent from all parties at the table. Employers should also ensure that all other parties, including the union, comply with the requirements of this Memorandum as well. Although this memorandum is not binding precedent, it signals an enforcement priority of the Acting General Counsel, and it may be referred to by administrative law judges, and possibly the Board itself whenever a quorum is established. Therefore, employers should treat this guidance seriously and ensure compliance to avoid unfair labor practice charges.

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