As many employers recall with chagrin, the National Labor Relations Board and its General Counsel were very active during the Obama administration, overturning long-established precedent, changing rules in a way that favored unions over employers, and inserting itself into employment issues where the Board traditionally had not acted.
The NLRB, now with a majority of seats held by Republicans, has just this month issued a number of new rules and rulings rolling back some of the more aggressive changes that occurred when Democratic appointees held the majority of Board seats, as well as other changes that return the Board to its traditional role as a neutral arbiter of the labor laws.
Some of the significant changes include:
- Confidentiality of Employment Investigations: In a 2015 decision (Banner Estrella Medical Center), the Board held it was presumptively unlawful to prohibit an employee from disclosing information relating to an internal investigation. Confidentiality was permitted only if the employer could show the specific circumstances of the investigation made it necessary. On December 16, 2019, the Board reversed that decision in Apogee Retail, LLC, making instructions about confidentiality presumptively lawful as long as the practice was facially neutral, i.e., it was not intended to prevent an employee from engaging in protected, concerted activity.
- Employers may Limit Union’s Right to use Company e-mail to Business Purposes: In the 2014 decision Purple Communications, Inc., the Board ruled that employees who have access to the employer’s e-mail for business purposes may also use the e-mail system, on non-working time, to communicate about union related matters. On December 17, 2019, in Caesar’s Entertainment, the Board reversed that decision, holding that employers may limit e-mail to business purposes so long as such a practice applies to all non-work communication; i.e., it does not discriminate against communications related to protected, concernted activity.
- The Board will Give Greater Deference to Grievance Arbitration: A decision issued December 23, 2019 (United Parcel Service, Inc.) held that the NLRB will defer to grievance arbitration decisions that also deal with labor law violations, so long as the arbitral proceedings were conducted fairly and without irregularities, the parties agreed to be bound by the result, and the arbitrator considered the labor law violations. Under prior precedent the Board was less inclined to defer to arbitration decisions that also dealt with labor law violations, meaning that employers sometimes had to contest those issues twice, once in arbitration, and a second time before the Board.
- Limits on Employee’s right to Wear Union Insignia when Customers are Present: In Wal-Mart Stores, Inc., decided December 16, 2019, the NLRB ruled a policy that employees may wear only “small, non-distracting” union insignia in the workplace did not violate the law, so long as it was applied only in customer facing areas. The rule was unlawful to the extent it applied in “employee-only” areas.
- The Right to End the Mandatory Collection of Dues when a Contract Expires: In 2015, the Board ruled in Lincoln Lutheran of Racine, that an employer must continue to recognize a “dues checkoff” in a collective bargaining agreement, even after the agreement expires. On December 17, 2019, in Valley Medical Center, the NLRB returned to the pre-2015 precedent, holding that an employer is not required to continue deducting dues or transmitting them to the union after the agreement containinig a “dues checkoff” expires.
- Board Sends Signal in Joint Employer Settlement: On December 12, 2019, the Board overruled an administrative law judge’s decision not to approve 30 settlements between McDonald’s Corp. and employees of McDonald’s franchisees. The ALJ rejected the settlements even though the employees received all of their claimed back pay, because McDonald’s did not admit liability or joint employer status. Although this case was not a definitive ruling on the joint employer question, the Board sent a signal of its view on the issue with the following: “we conclude that further litigation would imposed a substantial burden on the parties without a significant probability of prevailing on the complaint’s joint employer allegation.” (emphasis added).
- Quickie Elections Slowed Down: See this post for a discussion of the revised election rules issued December 13, 2019.
Best wishes to everyone for a Happy New Year!