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NLRB Issues New Rules and Several Key Precedent-Changing Decisions (US)

The National Labor Relations Board issued a slew of precedent-changing decisions this month, as well as significant changes to its rules and regulations. These new rules and decisions will change labor law in several key ways for both union and non-union employers, including during union elections, during internal investigations, when employees seek to use work email to discuss unions or group working conditions, and during CBA negotiations.

New Election Rules

The most notable change (but not necessarily the most significant) involved the NLRB finalizing its new rules for representation elections. As we have previously discussed on this blog, the NLRB had been preparing since December 2017 to change these rules from the controversial “quickie election rules” issued by the Democrat-majority NLRB in 2014. The NLRB now has finalized these new rules and, unless a court stays or voids the new rules, they will become effective on April 16, 2020.

These rules will extend the period of time for union elections in several respects. Among other changes, after a union (or other party) files a petition for election, the new rules will give employers slightly more time to post notices, inform the NLRB about issues they want to address, and circulate lists of voter information. Ultimately, these and other changes will give employers slightly more time to respond to union organizing efforts after a petition for election is filed. Although these changes should at least marginally reduce the burdens that are imposed on employers in these situations, evidence has shown that these types of small changes in election timelines do not significantly change unions’ likelihood of prevailing in elections.

Greater Confidentiality Permitted for Internal Investigations

The NLRB also issued a key decision that will help employers who wish to keep sensitive investigations confidential. In the 2015 decision titled Banner Estrella Medical Center, the NLRB had changed established precedent in this area, and held that it was presumptively unlawful for an employer to prohibit an employee from disclosing information relating to an internal investigation. The employer could not issue such an instruction unless it could show, among other facts, that the specific circumstances made this instruction necessary to maintain the integrity of the investigation.

In Apogee Retail LLC, the NLRB significantly expanded employers’ flexibility, and held that it was presumptively lawful for an employer to maintain a ‘facially neutral’ rule that requires employees to maintain confidentiality during the course of an investigation.

Employers should remember that there are other rules that can apply in this situation, and there are limits to this flexibility. An employer obviously may not issue a confidentiality instruction in a way that is designed to prevent employees from complaining about some unlawful action, seeking recourse for some unlawful action, or testifying before a legal tribunal. In many circumstances, it would be unlawful for the employer to issue such a confidentiality instruction on a “one-off” basis specific to a particular investigation. Employers also should remember that several states and localities prohibit certain types of confidentiality agreements that relate to alleged harassment or other alleged conduct. In short, while employers may not categorically require employees to maintain confidentiality concerning internal investigations, this new decision increases their flexibility to maintain a general rule that applies only while investigations are occurring.

Employers May Stop Deducting Union Dues When CBAs Expire

The NLRB also returned to established precedent in another area, with this issue being significant to unionized employers. For several decades through 2015, the NLRB recognized that, when an existing collective bargaining agreement contained a “dues checkoff” provision but then expired, the employer did not need to continue deducting union dues from employees’ pay and transferring those dues to a union. However, in a 2015 decision titled Lincoln Lutheran of Racine, the NLRB rescinded this rule.

On December 17, in Valley Medical Center, the Republican-majority NLRB returned to established precedent. Thus, even if a CBA contains a dues checkoff provision, an employer need not deduct dues or transmit them to a union after the operative CBA expires. By returning to established precedent in this area, the NLRB removed a significant restriction that impeded employers negotiating with unions for new CBAs.

NLRB Reinstates Employers’ Right to Restrict Use of Their Email Systems

Finally, in Caesars Entertainment, the NLRB overruled another controversial decision that was issued approximately five years ago by the “Obama Board.” In the 2014 Purple Communications, Inc. decision, the NLRB held that it was presumptively unlawful for an employer to bar employees from using work email to communicate about unions or group working conditions in a manner protected by Section 7 of the NLRA (i.e., to engage in “protected concerted activities”), so long as the employer let the employees use those email systems for work purposes and so long as the employees made the communications on nonworking time. This decision gave unions another tool to potentially help organize employees.

The Republican-majority NLRB overruled this decision and reverted to prior precedent. Thus, the NLRB once again permits an employer to bar employees from using an employer’s email system for non-work purposes, so long as the employer does so through a “facially neutral” rule that treats all non-work email the same. In other words, even notwithstanding this decision, an employer still may permit some types of non-work emails but prohibit others. An employer also may not issue a facially neutral rule in response to union-related communications or other protected communications. Nevertheless, this new decision once again allows employers to have their email systems used solely for work-related purposes, provided that they issue the operative rules in advance and enforce those rules consistently across all non-work communications.

© Copyright 2020 Squire Patton Boggs (US) LLP

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About this Author

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Of Counsel

Will represents employers in matters involving employees and labor unions. Will litigates a broad variety of labor and employment cases, including labor arbitrations, National Labor Relations Board (NLRB) proceedings involving unfair labor practice charges and representation issues, Section 301 lawsuits, wage and hour actions, wrongful discharge cases and lawsuits involving other labor and employment issues. Will also assists employers with collective bargaining negotiations, union avoidance, employee and supervisor training and other labor and employment counseling matters.

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