7/21/25 NLRB GC Memo 25-07 – Surreptitious Recording of Bargaining Sessions Per Se Violation of the Act & President Trump Board Nominations

July 21, 2025

By Nicole Elgin & Xavie Davenport 

National Labor Relations Board (“NLRB”) Acting General Counsel William Cowen published  GC Memorandum 25-07 on June 25, 2025, stating the office’s position that surreptitious recordings of a collective bargaining session are bad faith and per se violations of the National Labor Relations Act (“NLRA”).

This memorandum comes at a good time, considering technology such as AI which gives parties heightened ability to record bargaining sessions secretly. Recall that GC Memos are not binding NLRB Decisions, but rather are policy guidance documents from the prosecutorial wing of the NLRB.  

The Memo explains that the NLRA requires employers and employee representatives to “confer in good faith.” Specifically, the “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 Act.” The memo references the Board’s analysis in a case from 1978, Bartlett-Collins Co. In Bartlett-Collins, one party’s strict insistence on recording bargaining meetings was found to be an unlawful refusal to bargain.

Acting GC Cowen states that “treating surreptitious recordings of collective-bargaining sessions as a per se violation is a logical extension of Barlett-Collins” and “the brazen disregard for the reasonable expectations of professional behavior shows a disdain for the collective bargaining process itself.” The Memo directs NLRB Regions to issue a complaint against a party when the investigation shows that a party surreptitiously recorded a bargaining session.

On July 17, 2025, President Trump sent several nominations to the Senate, including Scott Mayer (Chief Labor Counsel at The Boeing Corporation) and James Murphy (former NLRB attorney) to serve on the National Labor Relations Board. Recall that the Board currently does not have quorum. If confirmed by the Senate, these two seats will put the Board back in quorum.

For labor relations advice, contact Barran Liebman attorney Nicole Elgin at nelgin@barran.com or 503-276-2109.