The National Labor Relations Board (NLRB) has not previously addressed whether the surreptitious recording of collective bargaining sessions is a standalone violation of the National Labor Relations Act (NLRA). However, with the technological advancements and prevalence of personal recording devices on phone, computers, and the increased use of AI recording and summarization of meetings, William B. Cowen, the Acting NLRB General Counsel recognized that this issue needs to be addressed.
On June 25, 2025, Cowen published NLRB Memorandum GC 25-07 to address the issue. Cowen pointed out that “[t]he use of surreptitious recordings during the collective bargaining process is inconsistent with the openness and mutual trust necessary for the process to function as contemplated by the [National Labor Relations] Act.” As a result, GC Memorandum 25-07 declares that in the collective bargaining context surreptitious recording is unlawful and is a per se stand-alone violation of the National Labor Relations Act and such conduct will by itself constitute a failure to bargain in good faith in violation of sections 8(a)(5) and 8(b)(3) of the NLRA.
It is unclear whether this reasoning will extend to other surreptitious recordings in the union/management context. However, it is now apparent that the current NLRB will find that secretly recording bargaining sessions, phone discussions, etc., whether by video and/or audio, will automatically result in a valid unfair labor practice and NLRA violation.
Management should not engage in this conduct and should consider filing a charge if it learns that the union or a member of its bargaining committee has engaged in surreptitious recording. In addition, California employers should be aware that section 632 of the California Penal Code makes it a crime for any person to intentionally record a confidential communication without the consent of all parties. A violation of this Penal Code section can result in a fine of up to $10,000 and imprisonment of up to one year.
Of course, note-taking during collective bargaining sessions remains a valid and strongly encouraged practice. In addition, video or audio recording a session with full disclosure and permission from both sides is not unlawful.
