Recent NLRB Rules and Decisions Reverse Standards Set by Obama-era Board

Author: Robert S. Teachout, XpertHR Legal Editor

December 20, 2019

The National Labor Relations Board (NLRB) is ending 2019 with a flurry of activity, releasing a long-awaited rule on union elections as well as issuing new rulings affecting:

• Dues checkoff requirements;
• Use of employer email systems for organizing; and
• Work rules requiring confidentiality during workplace investigations.

As anticipated, the rules and decisions reverse standards that were issued during the Obama administration that were more favorable to unions.

"Ambush Election Rules" Rolled Back

On December 18, the NLRB published final rules governing representation elections. The new rules allow more time between when an NLRB regional director orders that there be an organizing election and the election itself.

The NLRB changed its union election procedures in 2014, and significantly reduced the timeline between an election order and the election from 25-30 days to elections being held as soon as possible. In some instances, elections were held within a matter of days and decisions from pre-election hearings on employers' objections could not be issued until after the election. Employers and critics often referred to the 2014 changes as the "ambush election rules."

Under the new rule, effective April 16, 2020, an NLRB regional director generally will not schedule an election before the 20th business day following the issuance of any pre-election hearing decisions and the date the union election was ordered.

Critics of the new rule point out that the NLRB did not provide the notice and opportunity for public comment as required by the Administrative Procedure Act. But in the Federal Register notice, the Board states that it considers this a procedural rule exempt from notice and public comment requirements.

Email for Union Organizing

In its 2014 Purple Communications ruling, the NLRB held that employees who have been given access to their employer's email system for work-related purposes have the right to use that system, on nonworking time, for communications regarding union organizing or other concerted employee activities for mutual aid under Section 7 of the National Labor Relations Act (NLRA).

But in Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, the NLRB reestablished the right of employers to restrict employees' use of its email and other IT systems for non-work-related communications. The Board held that employees do not have a statutory right to the use of such systems and that employers may lawfully restrict how their equipment and systems are used, provided those restrictions do not discriminate against union or other NLRA-protected concerted communications.

The Caesars Entertainment decision creates an exception where using employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.

Work Rules on Confidentiality

Work rules that require employees to maintain confidentiality during the course of a workplace investigation are presumptively lawful, according to the NLRB's ruling in Apogee Retail LLC d/b/a Unique Thrift Store. The holding overturns the 2015 Banner Estrella Medical Center decision requiring employers to show on a case-by-case basis that confidentiality was required to maintain the integrity of a workplace investigation.

In its decision, the Board applied the test for facially neutral workplace rules established in The Boeing Company, and determined that rules on investigative confidentiality limited to the duration of the investigation are generally lawful. The ruling also points out that this standard is more aligned with other federal guidance, including EEOC enforcement guidance.

Withholding Union Dues

Finally, in Valley Hospital Medical Center, the NLRB held that an employer's statutory obligation to check off union dues ends when the collective bargaining agreement containing the checkoff provision expires. The ruling reversed changes made in 2015 that govern when dues checkoff obligations end.

The Valley Hospital Medical Center decision declared that dues checkoff provisions belong in the limited category of mandatory subjects of bargaining that are created by the contract and are thus enforceable only for the duration of the contractual obligation agreed to by the parties. The Board stated that there is no independent statutory obligation to check off and remit employees' union dues after the collective bargaining agreement expiration, even when there is no union security clause.