The National Labor Relations Board (“NLRB”) has been busy this summer—issuing two significant decisions, and one advice memorandum—that tilts the scales in favor of employers. The rulings of the NLRB will have serious implications for both employers and employees. And because the recalibrated legal standards are binding, all parties in the bargaining process should be aware of these changes to avoid labor disputes.

• In Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019), the NLRB protected an employer’s ability to anticipatorily withdraw recognition of a union as the representative of a given bargaining unit. In this case, a collective bargaining agreement (“CBA”) between the respondent and a unit of production and maintenance employees was set to expire. Negotiations for a new CBA began prior to the expiration date, but the respondent was presented with a Union Decertification Petition signed by a majority of the unionized employees one day after negotiations began. That same day, the respondent notified the union that it had received the petition and would no longer recognize the union as the bargaining representative once the CBA expired. After the CBA expired, the respondent withdrew recognition of the union. The union contended that it was improper for the respondent to withdraw recognition because the union had reacquired majority support during the time between the anticipatory and actual withdrawal. The existing NLRB precedent allowed the union to reacquire majority support between the time the employer anticipatorily withdrew and actually withdrew recognition of the union without notifying the employer, all at the employer’s peril. Overruling prior precedent, the NLRB mandated that the union now must first file an election petition to reestablish majority support. In the wake of this decision, the employer can rely on the evidence it receives of union dissatisfaction and refuse to recognize the union until the union proffers evidence through the petition process that it reacquired majority support.
• In UPMC, and its Subsidiary, UPMC Presbyterian Shady Side, 368 NLRB No. 2 (June 14, 2019), the NLRB strengthened employers’ ability to control labor activities on its property, even when the area used for such activities is open to the public. The issue in UPMC was whether non-employee union members could meet with employee union members in UPMC’s cafeteria, which was generally open to the public as visitors of UPMC’s hospital facility. Formerly, non-employee union members could meet with employee union members in such public spaces. This was known as the “public space exception” to an employer’s general ability to control activities that occur on its property. The NLRB determined that the “public space exception” was incongruent with an employer’s right to control what activities could occur on its property. As such, the NLRB found UPMC could prevent non-employee union members from meeting with employee union members in its cafeterias without violating the National Labor Relations Act.
• Finally, in Coastal Industries, Inc., Case 12-CA-14162 (June 14, 2019), the NLRB provided guidance to employers on their ability to restrict employees’ use of social media on company-owned electronics and practices on social media. The NLRB held that Coastal Industries, Inc.’s policy of prohibiting employees from accessing social media on company-owned electronics was not unlawful under the National Labor Relations Act. However, its policy precluding employees from posting any disparaging remarks about Coastal Industries, Inc. on social media was unlawfully overbroad, infringing on rights provided by the National Labor Relations Act. For example, under Coastal Industries Inc.’s policy, an employee could not negatively comment on issues such as benefits, compensation, or other aspects of their employment. The NLRB found this policy unlawful, as “[s]uch criticism is often the seed that becomes protected concerted activity for improving working conditions, the core of Section 7 [of the NLRA].”

These are just a few of the decisions issued by the NLRB this summer, though perhaps with the most significant effect on collective bargaining and employer-employee relations. And they also provide certainty on some issues that have lacked clarity in recent years. Brownstein will continue to monitor these developments and provide commentary on issues as they arise.