16-0002-ag
Whole Foods Mkt. Grp., Inc. v. N.L.R.B.
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “Summary Order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
1st day of June, two thousand and seventeen.

Present:
                  PETER W. HALL,
                  DENNY CHIN,
                              Circuit Judges,
                  LASHANN DEARCY HALL,
                              District Judge.*


WHOLE FOODS MARKET GROUP, INC.

            PETITIONER-CROSS-RESPONDENT,

V.
                                                                                16-0002-ag, 16-0346

NATIONAL LABOR RELATIONS BOARD,

            RESPONDENT-CROSS-PETITIONER.


For Petitioner:                    KATHLEEN M. MCKENNA (Andrew E. Rice, on the brief),
                                   Proskauer Rose LLP, New York, NY

For Respondent:                    LINDA DREEBEN (Heather S. Beard and Robert J. Englehart, on the
                                   brief) National Labor Relations Board, Washington, DC




        *
          Judge LaShann DeArcy Hall, United States District Judge for the Eastern District of New York, sitting by
designation.

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16-0002-ag
Whole Foods Mkt. Grp., Inc. v. N.L.R.B.
         Petition from the Decision and Order of the National Labor Relations Board (Pearce,

Miscimarra, and Hirozawa).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the December 24, 2015 Decision and Order of the National Labor Relations

Board is AFFIRMED, Petitioner-Cross-Respondent’s petition challenging the National Labor

Relations Board is DENIED, and the Board’s Petition for Enforcement is GRANTED.

         Petitioner-Cross-Respondent Whole Foods Market Group, Inc. (“Whole Foods”) appeals

a decision of the National Labor Relations Board (“NLRB” or “Board”) finding that Whole

Foods violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) by

maintaining overbroad no-recording policies. The Board cross-petitioned the Court to enforce its

December 24, 2015 Decision and Order. We assume the parties’ familiarity with the underlying

facts, the procedural history, the arguments presented on appeal, and the Board’s rulings.

         We consider whether the Board’s determination is supported by substantial evidence and

is in accordance with law. Cibao Meat Prods., Inc. v. N.L.R.B., 547 F.3d 336, 339 (2d Cir.

2008).

         Section 7 of the Act guarantees employees the right “to engage in . . . concerted activities

for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157;

Ewing v. N.L.R.B., 768 F.2d 51, 53 (2d Cir. 1985). It is “an unfair labor practice for an employer

. . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in

section 157 [(“Section 7”)].”      29 U.S.C. § 158(a)(1).      “In determining whether the mere

maintenance of rules such as those at issue here violates Section 8(a)(1), the appropriate inquiry

is whether the rules would reasonably tend to chill employees in the exercise of their Section 7

rights.” Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998), enforced 203 F.3d 52 (D.C. Cir.



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16-0002-ag
Whole Foods Mkt. Grp., Inc. v. N.L.R.B.
1999). “Even if a rule does not explicitly restrict protected activity, the Board has determined

that the rule will constitute a violation if: ‘(1) employees would reasonably construe the language

to prohibit [protected] activity; (2) the rule was promulgated in response to union activity; or (3)

the rule has been applied to restrict the exercise of [protected] rights.’” Int’l Union, United

Auto., Aerospace, & Agr. Implement Workers of Am., AFL-CIO v. N.L.R.B., 520 F.3d 192, 197

(2d Cir. 2008) (quoting Martin Luther Mem’l Home, Inc. dba Lutheran Heritage Vill.-Livonia,

343 N.L.R.B. 646, 647 (2004) (“Lutheran Heritage”)).

       First, because neither party challenged the legality of the Board’s Lutheran Heritage test

before the administrative law judge or the Board, we will not consider Whole Foods’ challenge

to that test for the first time on appeal. 29 U.S.C. § 160(e); Contractors’ Labor Pool, Inc. v.

N.L.R.B., 323 F.3d 1051, 1061–62 (D.C. Cir. 2003). Next, the parties agree that Whole Foods’

policies were not promulgated in response to union activity, and were not applied to restrict

Section 7 rights. See Lutheran Heritage, 343 N.L.R.B. at 647. Thus, the question is whether

“employees would reasonably construe the language to prohibit [protected] activity.” Id. at 650.

       The Board’s majority opinion considered Whole Foods’ no-recording policies under its

Lutheran Heritage framework. The Board’s finding that recording, in certain instances, can be a

protected Section 7 activity was reasonable. See N.L.R.B. v. Caval Tool Div., 262 F.3d 184, 188

(2d Cir. 2001).    So too was its finding that, because Whole Foods’ no-recording policies

prohibited all recording without management approval, “employees would reasonably construe

the language to prohibit” recording protected by Section 7. See Rio All-Suites Hotel & Casino,

362 N.L.R.B. No. 190, slip op. at 2 (Aug. 27, 2015) (“Employee photographing and videotaping

is protected by Section 7 when employees are acting in concert for their mutual aid and

protection and no overriding employer interest is present.”).



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16-0002-ag
Whole Foods Mkt. Grp., Inc. v. N.L.R.B.
        Whole Foods’ attempt to separate the act of “recording” from conduct falling within

Section 7’s protection ignores that its policies prohibit recording regardless of whether the

recording is in relation to employees’ exercise of their Section 7 rights. See Rio, 362 N.L.R.B.

No. 190, slip op. at 2. As written, those policies prevent “employees recording images of

employee picketing, documenting unsafe workplace equipment or hazardous working conditions,

documenting and publicizing discussions about terms and conditions of employment, or

documenting inconsistent application of employer rules” without management approval. Id., slip

op. at 4.

        Moreover, despite the stated purpose of Whole Foods’ policies—to promote employee

communication in the workplace—the Board reasonably concluded that the policies’ overbroad

language could “chill” an employee’s exercise of her Section 7 rights because the policies as

written are not limited to controlling those activities in which employees are not acting in

concert. See Lafayette Park Hotel, 326 N.L.R.B. at 825. The Board’s determination in that

regard was in accordance with law.1

        We have considered Whole Foods’ remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the Board’s December 24, 2015 Decision and Order, and we

GRANT the Board’s Petition for Enforcement.

                                                              FOR THE COURT:
                                                              Catherine O’Hagan Wolfe, Clerk




        1        This is not to say that every no-recording policy will infringe on employees’ Section 7 rights. It
should be possible to craft a policy that places some limits on recording audio and video in the work place that does
not violate the Act. Whole Foods’ interests in maintaining such policies can be accommodated simply by their
narrowing the policies’ scope. See Flagstaff Med. Ctr., Inc., 357 N.L.R.B. 659, 659–60, 683 (2011) (holding that
no-photography policy was lawful where hospital demonstrated patient privacy interest); Target Corp., 359
N.L.R.B. No. 103, slip op. at 2–3 (Apr. 26, 2013) (holding that reporting policy of unknown visitors in parking lot
was lawful where rule was an employee safety policy).

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