Whole Foods Market Group, Inc. v. National Labor Relations Board
691 F. App'x 49
| 2d Cir. | 2017Background
- Whole Foods Market Group, Inc. maintained workplace policies banning all audio/video recording without management approval.
- Employees had engaged in activities (e.g., documenting conditions, discussing work terms) that potentially implicate Section 7 concerted rights.
- The NLRB found Whole Foods’ no-recording policies were overbroad and violated Section 8(a)(1) of the National Labor Relations Act by chilling Section 7 activity.
- Whole Foods petitioned the Second Circuit to set aside the NLRB Decision and Order; the Board cross-petitioned for enforcement.
- The administrative record did not show the policies were promulgated in response to union activity nor that they had been applied to restrict Section 7 rights; the dispute focused on whether employees would reasonably construe the policies to prohibit protected activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Whole Foods’ blanket no-recording policies violate §8(a)(1) by chilling Section 7 rights | The policies are lawful, serve legitimate employer interests (safety, privacy, workplace communication), and do not unlawfully restrict protected activity | The policies are overbroad because they prohibit all recording without approval and thus reasonably would be construed to bar Section 7-protected recording | The court upheld the NLRB: policies are overbroad and can chill Section 7 activity and thus violate §8(a)(1) |
| Whether recording can be concerted, Section 7-protected activity | Recording is not generally protected | Recording can be protected when done in concert for mutual aid/protection absent overriding employer interests | The court agreed with the Board that recording may be Section 7-protected in certain circumstances |
| Whether challenge to the Board’s Lutheran Heritage test may be raised for first time on appeal | Whole Foods argued the test is unlawful | NLRB relied on the test; parties did not raise its legality below | Court declined to consider the new challenge as it was not raised before the Board or ALJ (waived) |
Key Cases Cited
- Cibao Meat Prods., Inc. v. N.L.R.B., 547 F.3d 336 (2d Cir.) (standard for reviewing NLRB findings)
- Ewing v. N.L.R.B., 768 F.2d 51 (2d Cir.) (summary of Section 7 rights)
- Lafayette Park Hotel v. N.L.R.B., 203 F.3d 52 (D.C. Cir.) (test whether rules reasonably tend to chill Section 7 rights)
- Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. N.L.R.B., 520 F.3d 192 (2d Cir.) (reciting Lutheran Heritage three-part framework)
- N.L.R.B. v. Caval Tool Div., 262 F.3d 184 (2d Cir.) (recognizing that recording can be protected activity)