On June 25, 2025, NLRB Acting General Counsel William B. Cowen issued GC Memorandum 25‑07, declaring that secretly recording collective bargaining sessions constitutes a per se violation of the National Labor Relations Act (NLRA). Under Section 8(d) of the NLRA, both employers and unions have a statutory duty to bargain in good faith—a duty that Cowen argues is fundamentally undermined by clandestine recording. Cowen emphasized that the “deceptive nature” of such recordings erodes trust and chills open communication during negotiations.
Legal Backing
Cowen’s memo points to longstanding precedent. Notably, in Bartlett‑Collins Co. (1978), the Board held that parties cannot insist to impasse over the choice to include a court reporter—labeling it a permissive, not mandatory, subject of bargaining. Cowen reasons that a secret recording is worse than insisting on a court reporter without mutual consent. He also noted society’s rapidly increasing access to recording technologies—a development that demands clear guidance to prevent “a culture of suspicion and fear.” It’s a bright-line rule replacing nebulous prior norms.
Practical Impacts
- Employers now have solid legal grounds to discipline employees who record bargaining sessions secretly, as it is no longer protected concerted activity under the NLRA.
- Unions face similar risks if they engage in covert recording. The memo directs all NLRB regional offices to file complaints for secretive recordings, positioning this as a policy priority—not a hypothetical loophole.
- Parties, however, can still mutually agree to record sessions openly—just not unilaterally. This clarity is vital in a digital age where any participant might have high-definition, always-on recording through a phone or wearable.
A Shift in NLRB Strategy
The issuance of GC 25‑07 marks a broader strategic shift under Cowen’s leadership. After rescinding several Biden-era memos, Cowen is tightening enforcement—notably around secret workplace surveillance. This aligns with the NLRB’s renewed conservative posture, emphasizing employer and union duties while curtailing broad protections for tech-enabled employee activism.
What to Watch
- Pending enforcement actions: Expect the next few months to bring regional prosecutions for clandestine recordings during bargaining.
- Employer policy updates: Organizations should immediately audit their recording and privacy rules to comply with both state law and Cowen’s policy directive.
- Potential Board reversal: Future NLRB leaders (and courts) may alter or reaffirm this doctrine—but for now, surreptitious recording is legally dangerous.
For further details, please contact the lawyers at Tobia & Lovelace Esq., LLC at 201-638-0990.