National Labor Relations Board Reverses Significant Obama-Era Decisions
Last December, as National Labor Relations Board (the “Board”) Member Lauren McFerran’s term came to an end, the Board issued three decisions reversing significant labor policies established by the Obama-era Board.
These developments are welcome news to employers, who can now anticipate increased latitude to control the use of their IT systems and their processes for internal workplace investigations, as well as the ability to discontinue deducting union dues from employees’ paychecks upon contract expiration.
Board Restores Employers’ Right to Restrict Employee Use Of Employer Email
The Board issued its long-awaited decision in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (Dec. 17, 2019), restoring employers’ right to prohibit employees from using their employers’ email systems for non-business purposes. The decision overturns Purple Communications, Inc., 361 NLRB 1050 (2014), which established employees’ right to use employer email systems for organizing-related communications during non-working time. Purple Communications restricted employers’ right to control the use of their electronic communications systems and invalidated work rules requiring that the use of those systems be limited to business purposes.
In its Caesars Entertainment decision, the Board majority created an exception for employees whose only reasonable means to communicate with one another during the work day on nonworking time is through work email. The Board also emphasized that restrictions on employee use of employer email must be enforced on a nondiscriminatory basis – in other words, an employer cannot prohibit union-related communications while permitting other types of non-business communications.
The decision comes as welcome news to employers, who had anticipated increased flexibility in controlling their electronic resources since the Board requested briefing from the public on this issue in August 2018.
Employers May Stop Deducting Union Dues Upon Contract Expiration
In Valley Hospital Medical Center, 368 NLRB No. 139 (Dec. 16, 2019), the Board restored employers’ right to unilaterally stop deducting union dues from employees’ paychecks upon expiration of a collective bargaining agreement.
An employer and union typically memorialize the employer’s contractual obligation to deduct union dues from employee pay in a “checkoff” provision in the parties’ collective bargaining agreement. Under a longstanding precedent set in Bethlehem Steel, 136 NLRB 1500 (1962), the Board considered a dues check-off provision no longer effective upon the expiration of the collective bargaining agreement in which it appeared. In 2015, the Board overturned Bethlehem Steel in Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), holding that dues check-off provisions are matters of “administrative convenience” that remain in effect after contract expiration.
In Valley Hospital Medical Center, the Board majority overturned Lincoln Lutheran and returned to the Bethlehem Steel standard. The Board distinguished dues check-off provisions and other terms that bind the parties only upon agreement to a first contract (e.g., mandatory arbitration, no-strike clauses) from those that are already in place at the beginning of the parties’ bargaining relationship, such as wages, work schedules, and benefits. The Board held that the former types of terms are subject to mandatory bargaining only during the term of the contract in which they appear. As such, once the contract expires, the employer is no longer bound by them.
Notably, the Valley Hospital Medical Center decision does not prohibit unions from collecting dues after contract expiration. It simply holds that, at that point, the employer’s obligation to facilitate dues collection through payroll deductions ends.
Employers May Require Employee Confidentiality During Workplace Investigations
Finally, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (Dec. 17, 2019), the Board held that employers have a presumptive right to require employee confidentiality for the duration of workplace investigations.
The decision overturns Banner Estrella Medical Center, 362 NLRB 1108 (2015), enf. denied on other grounds, 851 F.3d 35 (D.C. Cir. 2017), in which the Obama-era Board ruled that the lawfulness of requiring confidentiality in investigations would be determined on a case-by-case basis, and that such a requirement would be deemed permissible only where an employer demonstrated it was necessary to protect the integrity of an investigation.
The Board majority applied its test for facially neutral rules under The Boeing Co., 365 NLRB No. 154 (2017), finding investigation confidentiality rules lawful where they are limited to the duration of an investigation.
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If you have questions about any of these issues, please feel free to reach out to one of our experienced labor attorneys, who regularly assist employers with all types of union-related and NLRA compliance issues.