Dec. 19, 2019 The NLRB Issues a New Batch of Pro-Employer Rulings

The Trump administration’s National Labor Relations Board has, over the past two years, overturned or scaled back multiple “Obama Board” positions. This week, the Board issued another series of significant decisions and rulings strengthening employers’ rights under the National Labor Relations Act.

1. Valley Hospital Medical Center: No Required Dues-Checkoff After Contract Ends (12/16/19)

In 2015, in Lincoln Lutheran of Racine, the Obama Board overturned long-standing precedent laid out in Bethlehem Steel (1962) and held that employers who have agreed to transfer union dues taken directly from employee paychecks (known as “dues checkoff”) must continue to do so even after the collective bargaining agreement expires.  But in Valley Hospital Medical Center, the Board returned to the ruling laid out in Bethlehem Steel, holding that employers can cease union dues collection when the contract ends.  The Board noted, however, that employers are not required to stop collecting dues when a contract ends, and that employees are free to pay their unions directly.

2. Apogee Retail, LLC:  Employers May Require Confidentiality During Open Investigations (12/16/19)

In Apogee Retail, the Board gave employers more leeway to require employees to maintain confidentiality regarding workplace investigations. 

In 2015, the Obama Board’s Banner Estrella Medical Center decision required “a case-by-case determination of whether confidentiality can be required in a specific investigation.”  In Apogee Retail, the current Board decided that the Banner Estrella standard: (1) fails to consider precedent recognizing the Board’s duty to balance an employer’s legitimate business justifications and employees’ rights; (2) fails to consider the importance of confidentiality to both employer and employees during an investigation; and, (3) is inconsistent with Equal Employment Opportunity Commission recommendations.  Applying the test for facially neutral workplace rules established in Boeing Co. in 2017, the Board decided that requiring employees to maintain confidentiality during active workplace investigations is legal. 

The Board differentiated between open investigation and post-investigation situations, holding that requiring confidentiality during open investigations is generally lawful, while doing the same in post-investigation situations requires individualized scrutiny.  This decision still allows for employees to discuss the incident itself, as opposed to the investigation, and has no impact on an employee’s right to discuss workplace issues generally.

3. Caesars Entertainment:  Employers May Bar Use of Company Email For Union Activity (12/17/19)

In its 2007 Register Guard decision, the Board determined that employees had no statutory right to use employer email systems to send communications regarding wages, hours, working conditions, and union issues.  The decision swung back in favor of employees in the Obama Board’s 2014 Purple Communications decision, which held that employees with access to employer email systems for work-related purposes have a presumptive right to use such systems during non-working time to promote employees’ collective interests. 

In Caesars Entertainment, the Board overruled Purple Communications, which it said had “impermissibly discounted employers’ property rights in their IT resources while overstating the importance of those resources to Section 7 activity.”  The Board announced its return to the Register Guard standard, but recognized an exception to the rule when the employer’s email system was the only reasonable means for employees to communicate with one another.  In Caesers Entertainment, the employees had access to areas where they could engage in non-work related solicitation and distribution such as the employee cafeteria, break rooms, and other areas.  The Board found “there is no basis for concluding that a prohibition on the use of an employer’s email system for non-work purposes in the typical workplace creates an ‘unreasonable impediment to the exercise of the right to self-organization.’”  The Board justified its decision in part by citing to the low percentage of workers who telecommute, and the abundance of alternative methods of communications such as smart phones, social media, and personal email.

4. New Union Election Regulations

On December 17, 2019, the Board finalized a rule setting forth procedural changes for union elections, relaxing the 2014-issued “ambush election” deadlines, and directing that disputes over the proper bargaining unit and eligible voters must be decided prior to a union election, rather than after.

The 2014 rule significantly accelerated election dates after the filing of a petition.  The shortened time frame gave employers little time to evaluate and respond to the election petition, and reduced employers’ ability to address significant legal issues concerning the scope of the proposed bargaining unit, and supervisory status.  The quick turnaround also reduced employees’ ability to make an informed decision because they had less time to consider relevant facts and ask questions.

The new regulation tips the scale back towards a more balanced approach by changing procedures for pre-election notices and filings, pre-election hearings, and post-hearing reviews.  The new regulations increase the time to post and distribute the Notice of Petition for Election, to file and serve a Statement of Position, and extends the deadline for scheduling the pre-election hearing from 8 calendar days to 14 business days, increasing an employer’s time to campaign. In addition, an election may not be scheduled before the 20th business day after the date of the direction of election.  Further, the rule extends the time the employer has to furnish the required voter list following issuance of the direction of election, reducing the chance of error in compiling the list. This new rule goes into effect on August 16, 2020.

This E-Update was authored by attorneys Hollis Peterson, Kris Darrough, and Poline Pourmorady.  For more information, please contact Ms. Peterson or any other Paul, Plevin attorney by calling (619) 237-5200.