Inbox Zero: The NLRB Hits Delete on Key Obama-Era Policies

The National Labor Relations Board closed 2019 and the decade in dramatic fashion issuing four significant rulings (and publishing a new final regulation concerning representation elections) between Thanksgiving and Christmas. Following the pattern set when the five-member Trump Board first reached a Republican majority in late 2017, these decisions and rulemaking upended key precedents and rules established during the Obama administration.

Whether these Board actions have any staying power remains to be seen. That will depend largely on the courts (where these changes are sure to be challenged) and the 2020 national elections. For now, unionized and non-unionized employers in the private sector should be aware of these changes and, in particular, how they may impact current workplace rules.

Critically,  in evaluating any potential changes in policy or practice, employers are well-advised to look beyond what these new standards allow and give careful consideration to how such changes would further or hinder broader concerns about workplace culture, communication and (in the case of unionized employers) collective bargaining goals.

Employer Restrictions on Non-Business Email Use Approved

Leading this flurry of changes is yet another change to the Board's rules concerning employer limitations on non-business use of work email.

In Caesar's Entertainment (Dec. 16, 2019), the Board overturned its 2014 Purple Communications decision in which it held that employees with access to employer email systems must be permitted to use work email for union organizing and other activities protected under Section 7 of the National Labor Relations Act ("Act"). The majority in Purple Communications concluded that existing Board precedent concerning employee email use was outdated, failed to appreciate the centrality of email as a virtual meeting space and had inappropriately relied upon precedents concerning the use of employer equipment (such as VHS players) for organizing activity. 

For employers, Purple Communications meant (with very limited exceptions) that the mere maintenance of a facially nondiscriminatory policy prohibiting the use of work email for non-business purposes would constitute a violation of the Act. Under Caesar's Entertainment, employers may maintain and enforce rules limiting the use of their email systems, so long as they do so in a fashion that does not discriminate against activity protected by the Act. 

Despite this more relaxed standard, there are several reasons why employers should be circumspect about clamping down on non-business use of email. From a practical perspective, the reality in many workplaces is that work email is regularly used for non-business purposes of all types, and the enforcement of strict limitations  in a non-discriminatory fashion would be extremely challenging, if not a practical impossibility. Many employers prefer to address inappropriate email use only when it is related to a substantive disciplinary issue, such as sexual harassment or the theft of intellectual property. 

More broadly, reacting to employee dissatisfaction by attempting to stifle communication is counterproductive and almost always futile. In a healthy workplace culture, employees feel comfortable bringing their concerns to management. If they aren't, it's time for some hard self-reflection, not cracking down on dissent. Dissent will continue—in the open or otherwise—until the underlying issues are appropriately addressed. As anyone who has been involved in union election campaigns on either side can tell you, employees who choose to organize often do so because they feel like management does not listen to them or take their concerns seriously. It's almost never solely about dollars and cents. 

Confidentiality Rules, Deferral to Arbitration and the Survival of Dues-Checkoff Provisions After Contract Expiration

In addition to its high-profile ruling in Caesar's Entertainment, the Board issued three other significant decisions in December, one of which (on investigation confidentiality) is immediately applicable to both unionized and non-unionized employers, and two of which (on arbitral deferral and dues checkoff) are particularly relevant to unionized employers.
 

• Confidentiality in Workplace Investigations: In Apogee Retail (Dec. 16, 2019), the Board overturned its 2014 decision in Banner Estrella Medical Center, which had strictly limited employer confidentiality rules related to internal investigations. Banner Estrella was extremely controversial, in part due to its perceived conflict with the obligation of employers to effectively investigate complaints of harassment and discrimination and protect victims and witnesses from retaliation. Now, under Apogee Retail, confidentiality rules related to open investigations are presumptively lawful, while such rules relating to closed investigations will be analyzed on a case-by-case basis. As with the email rules discussed above, regardless of this new legal standard, employers should give thoughtful consideration to crafting and implementing rules about confidentiality in investigations. Employers must balance the need to conduct effective investigations and protect employees with the importance of maintaining an atmosphere of healthy communication, the practical challenges of attempting to enforce confidentiality rules and the necessity of avoiding retaliation claims that may arise from disciplining alleged victims and witnesses who violate confidentiality.
• Deferral to Arbitration: As unionized employers are likely aware, the Board will, in certain circumstances, defer investigation of an unfair labor practice charge where the same issue had or will be addressed through the grievance and arbitration provisions of a collective bargaining agreement ("CBA"). In many cases, this allows employers and their unions to avoid litigating the same issue in two forums and find resolution through arbitration, which is often much faster and less expensive than litigating a case before the Board. During the Obama administration, the Board significantly narrowed the circumstances it would approve deferral, all but refusing to do so in cases involving an employee's discharge. In UPS, Inc. (Dec. 23, 2019), the Board substantially broadened the range of cases eligible for deferral, both in the pre-and-post arbitration stages. Notably, because the decision applies retroactively, employers with pending ULP charges may now have a new opportunity to defer to the result of a past or upcoming arbitration.
• Dues Checkoff Obligation at Expiration of CBA: Most CBAs contain a "dues checkoff" provision, under which the employer agrees to deduct union dues and other fees from paychecks of employees who have authorized the employer to do so and remit those monies directly to the union. In a 2015 decision (Lincoln Lutheran), the Board reversed its longstanding rule that an employer's obligation to comply with a checkoff provision terminated upon a CBA's expiration. Instead, the Board held that an employer's failure to continue dues checkoff prior to the parties reaching a legal impasse in their negotiations constituted an unlawful unilateral change to the status quo ante in violation of the Act. It was a significant strategic win for unions, who no longer had to face the unwelcome prospect of directly collecting dues payments if negotiations continued beyond the expiration date of the previous agreement. But in Valley Hospital Medical Center (Dec. 23, 2019), the current Board returned to the rule that existed before Lincoln Lutheran, holding that employers may unilaterally discontinue dues checkoff once the CBA expires. This return to past precedent potentially provides employers with a valuable bargaining chip in eleventh hour negotiations. At the same time, even if lawful, unilateral discontinuation risks blowing up what is presumably an already fraught negotiation and may serve to antagonize individual employees who are inconvenienced by having to pay dues directly. 

With at least one more year of a Republican administration in the White House, similar decisions are likely to follow in 2020. Additionally, as noted briefly above, the Board has rolled out a new regulation on its conduct of union elections, which is set to take effect on April 16, 2020. More on that later.

Your Ice Miller Labor and Employment Team will keep you posted as these developments take place. Please contact Manolis Boulukos or any member of the Ice Miller Labor & Employment and Litigation Practice Groups for more information about how these changes impact your workforce.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.