12.31.19

In a flurry of decisions issued this month, the Republican majority on the National Labor Relations Board overruled several Obama-era decisions.

The decisions concern employer rules for confidentiality in investigations, employee use of employer email systems, and ending union dues checkoff after expiration of a collective bargaining agreement that includes a checkoff provision. On each issue, the majority of the Board appointed by President Obama sided with organized labor and rejected employers’ arguments. The Trump majority has now swung the other way, largely back to previous longstanding interpretations of the National Labor Relations Act.

In all of the following decisions, the majority consisted of Chairman John F. Ring, joined by fellow Republican Members Marvin E. Kaplan and William J. Emanuel. Member Lauren McFerran, the sole Democrat on the Board until her term expired on December 16, dissented. (She dissented only in part from the Caesars Entertainment decision.)

Confidentiality of investigations. On December 17, the Board decided that work rules and policies requiring employee confidentiality in workplace investigations are presumptively lawful. That decision, Apogee Retail, LLC, overruled the 2015 decision of Banner Estrella Medical Center. In Banner Estrella, the Board majority had decided that employers could not insist on confidentiality unless they could prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.

In Apogee Retail, the Board majority concluded that the Banner Estrella standard improperly placed the burden on the employer to determine whether its interests in preserving the integrity of its investigation outweighed employees’ Section 7 rights, contrary to Supreme Court and Board precedent. The Apogee Retail majority also noted that the new standard aligned more closely with other federal agencies’ guidance, including guidance issued by the Equal Employment Opportunity Commission.

The Board noted the many good reasons for requiring confidentiality during a workplace investigation. For example, the integrity of an investigation often depends on an investigator’s ability to ensure that potential witnesses do not “coordinate” with other witnesses. Additionally, promising employees that any information they provide will be held in confidence can be crucial in obtaining information and minimizing fears of retaliation. And the Board’s own procedures recognize the need for confidentiality during investigations and provide for the right to sequester witnesses during Board hearings.

In reaching its decision, the Board applied the test for facially neutral workplace rules established in The Boeing Company. The Board determined that confidentiality rules that apply while the investigation is open are generally lawful. However, because Apogee Retail’s rules were not limited to the period of the investigation, the Board sent the case back to the Administrative Law Judge for further consideration.

Employee use of employer email systems. On the same day that the Apogee Retail decision was issued, the Board issued another 3-1 decision restoring the right of an employer to restrict employee use of its email and other communications systems as long as it does not discriminate against use associated with union or protected concerted activity. In Caesars Entertainment, the Board overruled another Obama-era decision to the contrary, Purple Communications, Inc. In Purple Communications, a Democratic Board majority had decided that employees who used their employer’s email system for work-related purposes had a right to use that system, on nonworking time, for communications protected by Section 7 of the NLRA.

In Caesars Entertainment, the Board found that an employer has the right to control the use of its equipment, including email and other systems, and may lawfully restrict employees from using it for non-business purposes, provided that it does not single out union- or Section 7-related activity. The Board essentially reinstated the rule from a 2007 decision, Register-Guard.

But the Board did recognize that employees must have adequate avenues to engage in communications protected by Section 7. For example, employees should be able to engage in solicitation and distribution during their non-working time and in non-working areas. If the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time, then the employer arguably could have to allow it.

Union dues checkoff obligation ends when contract expires. In Valley Hospital, the Board 3-1 returned to a rule that union dues checkoff ends upon expiration of a collective bargaining agreement containing a checkoff provision. The Board overruled a 2015 decision in Lincoln Lutheran of Racine, which held that dues checkoff remained in place as part of the status quo after a CBA expired. Valley Hospital returns the Board to precedent established in its 1962 decision of Bethlehem Steel. According to the Board’s reasoning, because dues checkoff provisions are created exclusively by the contract, they exist only for the duration of the contract and are not part of the status quo terms and conditions of employment that must be maintained, subject to the duty to bargain. The Board did not appear to address situations in which there is evidence of the parties’ intent in a contract to have checkoff survive the expiration of the contract.

In coming to its decision, the Board majority in Valley Hospital distinguished mandatory subjects of bargaining that arise from statutory obligations (for example, wages, pension and welfare benefits, hours, and working conditions), from obligations that arise solely from the agreement of the parties. Generally, an employer must refrain from making unilateral changes with respect to mandatory subjects of bargaining unless the parties have first bargained in good faith to impasse or there is a waiver by the other party. If the contract expires, the employer is generally required to maintain the status quo until a new agreement is reached. However, in Valley Hospital the Board found that this general rule does not apply to subjects of bargaining that arise exclusively from the collective bargaining agreement. Thus, employers are not required to “maintain the status quo” after the contract expires with respect to these subjects, including checkoff.

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