Christmas Comes Early for Employers with Big NLRB Wins

By Andrew Adams - Skoler, Abbott & Presser, P.C.

December 20, 2019

It’s been a winning season for businesses, with employers garnering some big NLRB wins.  In our last Unions @ Work update, we discussed a recent National Labor Relations Board (NLRB) decision enhancing employee privacy during union drives, which would have been a strange way to end the year for what is considered a pretty labor-friendly Board. Not one to disappoint, the NLRB has recently released a spate of employer-friendly decisions to close out the year that you’ll want to know about.

It’s Almost Poetic

Almost five years to the day, the NRLB has overruled its decision in Purple Communications, Inc. Purple Communications held that employee use of company email to discuss terms and conditions of employment, including organizing activity, must be permitted during nonworking time.

Reasonably, many employers were upset about their lack of control over what they considered to be their private property. The Board was persuaded by this logic and, as of December 17, 2019, that is no longer the status quo.

Caesars Entertainment overrules this previous stance by allowing employers to restrict employee email use to certain purposes (i.e. work-related only), as long as they don’t single out union-related communication.  There is an important exception to this holding in situations where the employer’s email system furnishes the only reasonable means for employees to communicate with one another, but the Board cautioned that this would only apply in rare circumstances.

The Quickie Election Rule

In another reversal, the NLRB scaled back the controversial “quickie election rule” that had allowed workers to vote about whether to join a union before resolving disputes over which workers should be included in the bargaining unit and eligible to vote. The new rule requires that these disputes must be litigated and eligibility determined before an election. This gives employers a say about who is eligible to vote before the vote (if the challenges are successful) and extends the time period for campaigning.

You Can’t Talk About That

The Board also overruled a 2015 decision where they had stated that policies requiring confidentiality about workplace investigations infringed upon workers’ rights and required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.

The new decision in Apogee Retail LLC states that “[i]nvestigative confidentiality rules are lawful . . . whereby their terms and rules apply for the duration of any investigation.” This decision allows employers to require confidentiality from employees during the active period of a workplace investigation without having to provide specific case-by-case reasoning.

Union Dues Checkoff

The NLRB also held this month that an employer’s statutory obligation to check off union dues ends when the collective bargaining agreement (CBA) containing the checkoff provision expires unless the CBA contains a union-security provision. This decision re-establishes the Board’s precedent established in 1962. That decision is Valley Hospital Medical Center.

Merry Christmas

Employers have a lot to be happy about as 2019 comes to a close and can look forward to more good times on the horizon in 2020 (given the makeup of the current Board). However, before everyone gets too excited, employers need to ensure that their policies are updated to address these issues. Employers often have language in their handbooks addressing one, if not all, of these topics, which will need to be reviewed prior to implementing these changes. With a new decade approaching, now is a good time to review your handbook for compliance.