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Upcoming NLRB Developments Should Significantly Affect Employer Property Rights and the Processing of Unfair Labor Practice Charges

Over the last week, the National Labor Relations Board has sent signals that it will significantly change how it addresses certain employer property rights and processes unfair labor practice charges. Although these developments concern relatively nuanced issues, they likely will affect both union and non-union employers in important ways.

  1. The Board Likely Will Change Employees’ Rights to Use Employer Email Systems for Protected Activities

In one of the most significant decisions from the prior “Obama Board,” the Board allowed employees in many situations to use their employers’ email systems to support labor unions, attempt to change working conditions, or otherwise engage in protected concerted activities. Specifically, in Purple Communications, Inc., this prior version of the Board held that, when an employer allows employees to use the employer’s email for work purposes, the employer also must permit the employees to use that email system to engage in protected concerted activities outside working time (with minor exceptions). Thus, this decision authorized employees in many situations to use an employer’s own email system to attempt to organize for a labor union, circulate a petition, plan a strike, or complain about management.

Last week, the Board announced that it was considering whether (or, most likely, how) to modify or overrule this prior decision. At the same time, the Board sought public comments about how it should proceed. (Any party wishing to weigh in can do so by filing an electronic brief at www.nlrb.gov, under “eFiling.”) Ultimately, this announcement shows that the Board almost certainly will modify the Purple Communications holding, and may overrule it entirely. The Board also may take other steps to make this change more permanent and to expand its scope, such as by applying any new standard to a range of other electronic systems (e.g., electronic message boards and instant messenger services). Employers should watch for this new standard, because it likely will defer more to their property rights and grant them greater flexibility to control their own systems for legitimate operational reasons.

  1. The Board Signals That it Will Significantly Reduce Staff, by Offering Voluntary Early Retirement to a Broad Range of Officials

Since early 2017, there have been signals that the Trump administration plans to significantly reduce staffing at the Board. These signals have occurred in several forms, including “leaked” Board memos and efforts by the Whitehouse and members of Congress to reduce the Board’s budget. Any staffing reduction would almost certainly reduce the resources the Board devotes to investigating and litigating questionable unfair labor practice charges.

On Tuesday, the Board took a key step toward reducing its staffing levels. The Board announced that it was offering voluntary early retirement and voluntary separation packages to a number of employees at various positions within the agency. Although the Board has not disclosed exactly which employees may accept these packages, the Board offered them to many employees over the age of 50, or with over 25 years of service. Given that the Board has signaled on other occasions that its staffing may decrease by at least 15-20%, it is reasonable to expect that these packages (and possibly other steps) will reduce the Board’s workforce by a large portion.

  1. The Board Appears Ready to Begin “Streamlining” its Casehandling Procedures

At the same time, Board employees have reportedly “leaked” other changes that will significantly affect how the Board processes unfair labor practice charges and certain other cases. Bloomberg Law recently reported that the Board’s General Counsel is starting to make changes that will give the Board more flexibility to dismiss, settle, or defer to arbitration charges that do not warrant further investigation or litigation. Although the Board has not acknowledged that this report is accurate, the Board has not disputed the report either and the report is consistent with several other public comments the Board has made recently. Given that the General Counsel has publicly expressed his desire to find ways to resolve unfair labor practice charges more efficiently, it is reasonable to expect these types of changes to begin occurring soon.

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Ultimately, these developments show that the Board will continue working to resolve cases more efficiently and to better recognize employers’ legitimate interests. Although these new staffing and casehandling developments might not categorically change how the Board decides any one particular case, they should have a significant effect in the aggregate, including by tangibly reducing the time and expense that employers must devote to addressing meritless unfair labor practice charges.

© Copyright 2018 Squire Patton Boggs (US) LLP

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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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