During the term of the Obama-era National Labor Relations Board (NLRB), we saw longstanding employer rules and policies upended. However, the current NLRB recently issued both a new rule and several decisions that revert back to those long-standing, more employer-friendly precedents. The following is a shortlist of the NLRB’s holiday gifts to employers across the nation:
- On October 29, 2019, the NLRB issued a new rule, scaling back Obama-era regulations that sped up the union election process and directing that certain disputes be resolved before voting rather than afterward. While the new rule does not eliminate the “ambush election” rule that was enacted in 2014, it does provide employers with additional time to dispute a vote by employees to join a labor union, and it also pushes back hearings on certain disputed issues. Under the new rule, it is also necessary to litigate certain disputes related to which workers should be included in a given bargaining unit, and whether proposed members qualify as “union-ineligible” supervisors.
- On December 16, 2019, in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139 (2019), the NLRB held that an employer’s statutory obligation to check off (deduct) union dues ends upon expiration of the collective-bargaining agreement containing the check-off provision. The NLRB’s decision in Valley Hospital Medical Center overturned its 2015 decision in Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), which was recently responsible for extended collective bargaining negotiations by allowing labor unions to continue receiving membership dues, even without a contract in place.
- On December 17, 2019, the NLRB held in Ceasers Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), that employees do not have a statutory right under the National Labor Relations Act (NLRA) to use an employer’s email system and/or other information technology resources to communicate with each other for non-work-related reasons. The NLRB’s decision re-establishes that employers are permitted to limit the use of its email systems and other information technology systems, provided that they do not do so on a discriminatory basis. The NLRB’s decision overturned Purple Communications, Inc., 361 NLRB 1050 (2014), in which the NLRB held that employees who are granted access to an employer’s system for work-related purposes have a “presumptive right” to use that company email system, on non-working time, to communicate with one another about issues that are protected under the NLRA.
- On December 17, 2019, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the NLRB held that employer work rules that require confidentiality during the course of internal workplace investigations are “presumptively” lawful when they are limited to the duration of a given workplace investigation. This decision overturns the Board’s previous decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015), which required employers to prove, on a case-by-case basis, that the integrity of a given workplace investigation would be compromised without confidentiality. Notably, in overturning Banner Estrella Medical Center, the NLRB reasoned that it placed an undue burden upon employers to determine whether or not the need for confidentiality outweighed employees’ rights under the NLRA.
