NLRB Continues Reversal of Obama-Era Decisions

January 08, 2020
Publication
Inside HR
Employee & Labor Relations
Read time: 5 mins

While impeachment issues continue to consume Congress and the news media, little attention is paid to the flurry of year-end cases at the National Labor Relations Board (NLRB) that continued its reversal of significant decisions issued under the Obama administration. These reversals will please employers as they restore management rights and practices that employers were accustomed to for many years prior to the Obama era. These most recent reversals include the following:

1) Employee Use of Employer Email - In Caesars Entertainment (368 NLRB No. 143) the Board reestablished the right of an employer to restrict employee use of its email system provided it does so on a nondiscriminatory basis. It overruled the controversial 2014 Purple Communications case that granted employees the right to use their employer’s email system for union organizing and other protected activity during nonworking time.

Key Takeaway

Employers once again have the right to control the use of their equipment, including their email and other IT systems. The Board did, however, maintain the limited exception that such use may be required if employer email is the only reasonable means for employees to communicate with one another on nonworking time during the workday. 

2) Confidentiality in Workplace Investigations - In Apogee Retail (368 NLRB No.144) the Board held that work rules requiring confidentiality during the course of a workplace investigation are now presumptively lawful. A 2015 NLRB decision had required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.

Key Takeaway

In overturning this prior decision, the Board removed the burden placed on the employer to prove the necessity of confidentiality and stated that the new standard better aligned with other federal agency guidance, including EEOC enforcement guidance on workplace investigations.

3) Stopping Union Dues Checkoff - In Valley Hospital Medical Center (368 NLRB No. 139) the Board overruled 2015 changes governing dues checkoff obligations when a collective bargaining agreement ends, restoring precedent that had been in place since 1962. The Board held that an employer’s statutory obligation to check-off union dues ends upon the expiration of the collective bargaining agreement containing a checkoff provision. 

Key Takeaway

Checkoff provisions, according to this decision, belong in the limited category of mandatory-bargaining subjects that are exclusively created by the contract and enforceable only during the duration of the contract. This decision restores the leverage of employers to stop dues deductions in the collective bargaining process, but it must be exercised very carefully. 

4) Arbitration Deferral Standards - As many employers are painfully aware, sometimes the issue leading to a grievance/arbitration filed under the labor agreement is also the issue in an unfair labor charge with the NLRB. In United Parcel Service Inc. (369 NLRB No. 1) the NLRB returned to its traditional standard for post-arbitral deferral. The post-arbitral deferral standard is used by the Board to decide whether to defer to an arbitrator’s prior resolution of a grievance concerning an employee’s discipline or discharge that has also been alleged to violate the NLRA. 

Key Takeaway

The Board will defer to an arbitrator’s decision where (1) the arbitral proceeding appears to have been fair and regular, (2) all parties have agreed to be bound, (3) the arbitrator considered the unfair labor practice issue, and (4) the arbitrator’s decision is not repugnant to the Act. The Board stated that this decision also restores the traditional NLRB standards for pre-arbitral deferral standards and pre-arbitral settlement agreements. This decision promotes the federal policy in favor of arbitration as the parties’ agreed-upon method for resolving employment disputes. 

5) Union Election Procedures - In 2014 the NLRB made sweeping changes to union election procedures that had employers predicting easy unionization with the so-called “quickie or ambush elections.” Those changes significantly reduced the time from petition to election and gave employers less time to campaign against the union. They also changed the opportunity for employers to challenge and appeal various issues, such as the proposed bargaining unit, before the election occurred.

Key Takeaway

While the dire predictions on union success have not come to pass, the NLRB remained under pressure by employers to modify various aspects of the 2014 procedures. These modifications are detailed in 157 pages posted in the Federal Register on December 18, 2019, that will become effective on April 16, 2020.

Major modifications include changing the pre-election conference with the NLRB to determine election issues from 8 calendar days to 14 business days, changing the Notice of Petition posting requirement on employers from 2 to 5 business days, more time for employers to prepare a statement of position after receiving a petition, resolution of scope of unit and voter eligibility issues (such as supervisor status) before an election occurs, 5 business days instead of 2 for the employer to furnish the voter eligibility list, elections will not be scheduled before the 20th business day after the date the election is ordered, unless the parties agree to an earlier date, and the restoration of various appeal procedures.

2020 will undoubtedly bring additional changes from the NLRB as the Trump-appointees continue to put their mark on the law and regulations between employers and unions, as well as the rights of individual employees not represented by a union. The Democrat candidates for the Presidency have made pro-unionization a part of their message and their rallies frequently have background banners supporting various unions. If one of these candidates is elected in the November election, employers can expect a newly constituted NLRB to once again reverse course on the above and many other issues.

MRA will continue to keep members apprised of significant developments. Please contact our Labor Relations staff if you have questions or need assistance on any of your labor relations projects.