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NLRB Revives Employer-Friendly Standards in a Flurry of Year-End Activity

The National Labor Relations Board (the Board) continued its recent trend of year-end activity by issuing seven decisions on December 16, 2019. Three of the decisions reverse Obama-era Board standards to reinstate more employer-friendly standards. These decisions change the rules on use of employers' e-mail systems for union organizing, nondisclosure of workplace investigations, and collection of dues after the expiration of a collective bargaining agreement. Another of the decisions expands employers' power to make unilateral changes in terms and conditions of employment.

Along with these significant decisions, December 16 also marked the last day of Board Member Lauren McFerran's term. As the lone Democrat on the Board, McFerran provided a dissenting voice on many of the decisions reached on Monday. With her departure, two Democratic seats will remain open with no recent news of when the seats will be filled by the current administration.

Reversal of Obama-Era Standards

Employee Use of E-mail May be Limited to "Business Only"

In a 3-1 decision, the Board held that an employer's policy of barring the use of its e-mail system for nonbusiness purposes does not violate employees' rights under the National Labor Relations Act. This decision overturns the 2014 Obama-era decision, Purple Communications, Inc., which held that work rules prohibiting employees from using employer-provided e-mail systems for union activity were presumptively invalid. Under Caesars Entertainment Corp., the Board has reaffirmed that employees do not have a statutory right to use employer-owned property, including e-mail and other information-technology resources, and may lawfully restrict e-mail systems to business usage only, so long as any such rules are implemented in a neutral and non-discriminatory manner. This decision will apply retroactively to all pending cases except where retroactive application would be unjust. 

The Board decided that Purple Communications, Inc. wrongly overturned its prior 2007 decision, Register Guard, and that the Obama-era Board failed to place enough weight on an employer's property and first amendment rights. Caesars Entertainment Corp. effectively reinstates the standard reached under Register Guard with one notable exception - employees may use an employer's e-mail system to engage in union organizing rights where an employer's e-mail system furnishes the only reasonable means for employees to communicate with one another.

Bans on Disclosures of Workplace Investigations Allowed

In Apogee Retail, the Board overturned an Obama-era rule that required an employer to justify its use of nondisclosure rules that ban employees from discussing ongoing investigations. The Obama-era rule mandated that employers make a case-by-case determination of whether an investigation would be compromised without a nondisclosure requirement. The Apogee Retail ruling allows employers to implement a blanket investigative, nondisclosure rule that requires workers to keep all open workplace investigations secret.

Although the Board acknowledged the importance of workers being able to confer with one another, the Board concluded that—during an open investigation—these considerations are outweighed by the importance of protecting the integrity of investigations, obtaining evidence while workers' memories are fresh, encouraging the prompt reporting of potential issues, and protecting workers' sensitive personal information. However, the Board held that workplace rules that extend beyond the life of an investigation do require a case-by-case determination.

Employers Can Cease Dues Collection Following Expiration of CBA

The December 16 Board ruling in Valley Hospital Medical Center makes it easier for employers to stop deducting union dues from workers' paychecks, a process known as "union dues check off." Overturning an Obama-era rule that required employers to continue to check off and remit union dues after a collective bargaining agreement expires, the Board ruled that an employer's statutory obligation to check off union dues ends when its collective bargaining agreement containing a check-off provision ends.

In this case, Valley Hospital Medical Center unilaterally ceased deducting and remitting the union employees' dues thirteen months after the parties' contract expired. The employer took this action after five days' notice and without providing the union an opportunity to bargain. The Board held that this unilateral action was permissible. In so ruling, the Board highlighted the "uniquely contractual nature" of check-off provisions, and contrasted such provisions with provisions relating to wages, hours, working conditions, and other mandatory bargaining subjects.

Unilateral Changes Made Even Easier

The Board also continued its string of decisions related to unilateral changes of the terms and conditions of employment. The Mike-Sell's Potato Chip Company decision makes it easier for employers to make such changes when the changes are consistent with "long-standing past practice." Under the facts of this decision, the popular snack food company sold off four sales routes to independent contractors. Previously, those routes had been assigned to union truck drivers.

The Board ruled that the selling of the routes was permissible as a "continuation of the status quo" because the company had unilaterally sold 51 driver routes over a 17-year time span, although some years had contained zero sales and others had contained as many as 30. Nonetheless, the Board ruled that the unilateral sale of four additional routes did not depart from the company's norm. In short, this ruling expands the legal test for what is considered a "past practice" and thereby expands employers' ability to make unilateral changes in the workplace.

© 2020 Varnum LLPNational Law Review, Volume IX, Number 353


About this Author

Luis E. Avila, Labor Employment Attorney, Varnum Law, Immigration Issues Lawyer, Grand Rapids

Luis focuses his practice on labor, employment and immigration issues. Luis has a wide range of experience in traditional labor matters, including grievances, arbitrations, collective bargaining negotiations, union drives, and matters in front of the National Labor Relations Board (NLRB) and the Michigan Employment Relations Commission (MERC). Luis has counseled employers on a number of workplace matters, including effective employee handbooks and policies, disciplinary and dispute resolution procedures, discrimination, disability accommodation, wage-hour matters, family medical leave, and...

David E. Khorey, Labor Employment Attorney, Varnum, Workplace Confidentiality Matters Lawyer

Dave’s “client-centered” practice involves a variety of labor and employment issues. He provides practical and confidential ongoing advice and consulting on a number of sensitive and complex labor and employment matters, from problem employee situations to multi-facility collective bargaining negotiations. His representative clients include diverse industries (such as automotive, printing, transportation and hospitals) throughout the nation.  

Dave has also served as chair of the firm.

Honors & Recognitions

American College of Labor & Employment Lawyers, fellow

Best Lawyers in America® since 2001

Chambers USA©: America’s Leading Lawyers for Business, Leader in the field of Labor and Employment

Leading Lawyers: Employment Law - Management; Labor Law - Management

Martindale-Hubbell® AV Preeminent™ Peer Review Rated

Michigan Super Lawyers® since 2006

Professional Affiliations

American Bar Association: Section of Labor and Employment Law, Subcommittee on Development of Law under the National Labor Relations Act

Grand Rapids Bar Association: Labor and Employment Law Section

State Bar of Michigan: Labor Relations Law Section, chair, 2004

Barbara Moore, Varnum, employment lawyer

Barbara is an associate currently working with Varnum's Labor and Employment Team. She has experience with issues related to workplace policies, discrimination in the workplace, the ADA and FMLA, and state and federal wage-hour matters. Barbara also serves the Business and Corporate Services Practice Team by providing assistance with mergers and acquisitions.

Within the community, Barbara serves as a volunteer with the Tutor Mate program and has experience working on pro bono matters.