Over the past few weeks, the National Labor Relations Board issued a series of employer-friendly decisions overturning a number of Obama-Board precedent-changing decisions. While not all of these recent decisions totally restored the law to what it was before the Obama Board’s changes, they all significantly move the pendulum back to near the center. The Board also issued its final rule regarding representation case procedures, something employers have been anxiously awaiting. The following summarizes what has occurred.
1. The Obligation to Deduct Union Dues Ends When the Collective Bargaining Agreement Expires (Again)
First, in Valley Hospital Medical Center, Inc., 368 NLRB No. 139 (2019), the Board overturned holding in its Lincoln Lutheran of Racine decision and returned the law to prior long-standing precedent established more than 50 years ago. Under Lincoln Lutheran of Racine, employers were obligated to continue to check off and remit union dues even after the expiration of collective bargaining agreements. Now, the Board has re-established that dues checkoff provisions are enforceable only for the duration of the contractual obligation created by the parties, i.e., not post-contract expiration.
2. An Employer Can Restrict an Employee’s Email Use to Business Purposes Only (Again)
Next, in Caesars Entertainment, 368 NLRB No. 143 (2019), the Board overturned its 2014 holding in Purple Communications, Inc. and effectively reinstated the law as it existed at least since 2007. Under Purple Communications, for the first time employees (whether union-represented or not) were recognized as having a presumptive right to use their employer-provided email, during non-work hours, for union organizing and other union-related communications. Under Caesars Entertainment, the Board has now significantly narrowed the scope of the Purple Communications by stating that employees do not have a statutory right to use their employer-provided email and other IT systems to engage in non-work communications unless employer-provided email is the only reasonable means for employees to communicate with one another during non-working time.
3. Employers Can Protect the Confidentially of Workplace Investigations (Again)
That very same day, the Board issued Apogee Retail LLC, 368 NLRB No. 44 (2019), which overturned the doctrine articulated in its 2015 decision in Banner Estrella Medical Center. Under Banner Estrella, in order to keep a workplace investigation confidential, an employer first had the burden to prove, on a case-by-case basis, that the investigation necessitated confidentiality. Applying the Boeing test set by the Board earlier this year regarding permissible and impermissible work rules—whether or not in a union or non-union workplace—the Board held that rules regarding keeping investigations confidential fall into the “generally lawful” category described in Boeing. This decision allows employers to carry out more effective investigations while also protecting the employees involved, at least for so long as the investigation is still active.
4. Arbitral Decisions Will Get Greater Deference
Most recently, in United Parcel Service, Inc., 369 NLRB 1 (2019), the Board overturned its 2014 holding in Babcock & Wilcox Construction Co., Inc. and reinstated precedent from the 1980s and earlier regarding when it will defer to the outcome of labor arbitrations that overlap with claims made in unfair labor practice charges. The Board held that it will give more deference to the arbitrator’s resolution of a grievance of an employee’s discipline or discharge that also implicates the employee’s rights under the NLRA than it did under its Babcock & Wilcox doctrine where the following four conditions are met: (1) the arbitral proceedings were fair and regular, (2) the parties agreed to arbitration, (3) the arbitrator considered whether the discipline or discharge was an unfair labor practice, and (4) the arbitrator’s decision is not clearly repugnant to the National Labor Relations Act. This decision is in line with the federal policy of favoring arbitration for the resolution of employment disputes.
5. New Rule Regarding Representation Case Procedures
Finally, earlier this month the Board issued its final rule regarding elections and representation case procedures. Going into effect in April 2020, the new rule largely rolls-back the Obama-Board’s “quickie election” rules by providing more time for the parties to comply with pre-election requirements, as well as allowing parties to litigate issues such as voter eligibility and unit scope before an election is held. It also slows down the timing of the election itself which will ensure adequate time for any disputes to be resolved and for informational campaigns by both parties to take place.
Coming in January?
Employers should keep their eyes peeled and their ears open in the new year; it appears the Board may have more breakthroughs coming up over the horizon. Of particular note, the NLRB appears primed to release its final joint employer rule in January (if not sooner!). The rule will overturn a 2015 decision by the Obama-Board creating a very low threshold for employers to be deemed joint employers with other companies (e.g., staffing companies, service providers, franchisor/franchisees, general contractors/subcontractors), raise the legal threshold—by regulation and not by case law—to the standard applied by the Board for many decades prior to 2015, i.e., only where the putative joint employer has exercised immediate and direct control over the other employer’s workers.
With these changes, employers (and unions) will have to rewrite significant parts of their “play-books.” They should do so only with the input of experienced counsel.