The National Labor Relations Board certainly ended 2019 with a bang. Over the course of several weeks in December, the Board issued a handful of decisions reverting back to pre-Obama-era precedent. The Board also made several significant changes to its election rules. The following describes the most notable shifts in Board precedent.
Employers May Once Again Require Confidentiality During Workplace Investigations
Employers should be happy to hear that the Board changed course with respect to work rules requiring confidentiality during workplace investigations in a case called
Apogee Retail LLC d/b/a Unique Thrift Store.
Back in 2015, the Board, in Banner Estrella Medical Center, reversed long-standing precedent regarding confidentiality in workplace investigations. In that case, the Board found unlawful work rules and policies that prohibit employees from discussing workplace investigations unless an employer could prove that a lack of confidentiality would interfere with an investigation. The
Banner Estrella decision significantly interfered with employers’ abilities to adequately perform workplace investigations because, without confidentiality, employers struggled to ensure the integrity of workplace investigations, preserve evidence, and protect reporting employees and other participants from retaliation.
Today, employers can generally impose rules requiring confidentiality during the course of an open investigation. Additionally, employers can require confidentiality even after an investigation if it has a legitimate business interest that outweighs the impact on employees’ rights under Section 7 of the National Labor Relations Act (“the Act”). Employers should therefore review and revise their handbooks and any other investigation policies and processes accordingly. Now may also be a good time to implement training on proper investigation processes and techniques.
Dust Off Your Handbook … Employers May Now Restrict Employees’ Use of Company-Provided Email
On December 17, 2019, in Caesars Entertainment, the Board reestablished the right of an employer to restrict employees’ use of its email system if done on a nondiscriminatory basis.
In 2014, the Board stripped away such a right in Purple Communications, when it held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the Act, i.e. non-work related purposes.
The Board now holds that employees do not have a statutory right. Instead, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses of those systems so long as they do not discriminate against union or other protected concerted communications. One exception to this rule is if the use of employer-provide email is the only reasonable means for employees to communicate with one another on non-working time during the workday.
Given this change in Board law, employers should review their handbooks and consider updating their email and computer system policies.
“Quickie Election” Rules Can No Longer Be Categorized as “Quick”
On December 13, 2019, the Board announced several employer-friendly modifications to its “Quickie Election” rules which are scheduled to take effect April 16, 2020.
The modifications are definitely a win for employers as they impose more reasonable time frames with respect to pre-election filings and hearings, allow employers to litigate unit issues, such as supervisory status, before an election is held, and give employers more time to campaign against a union.
The following highlights some of the most notable modifications:
Pre-election hearings will generally be scheduled to open 14 business days from notice of the hearing instead of 8 calendar days as previously required.
Employers now have 5 business days, rather than 2, to post a “Notice of Petition for Election.”
Non-petitioning parties, typically the employer, will have 8 business days to file their Statement of Position, as opposed to 7 calendar days. Additionally, petitioning parties will now be required to file a Statement of Position at least 3 business days before the pre-election hearing. Under the prior rules, petitioning parties were not required to file a Statement of Position at all.
Parties can now litigate and resolve disputes concerning unit scope and voter eligibility, i.e. supervisory status during the pre-election hearing. Before, parties could only raise such issues post-election.
An election will typically not be scheduled to take place before the 20th business day after the issuance of a direction of election. Under the prior rules, the Regional Director was expected to schedule an election at the earliest practicable date.
The Board Reverts Back to its Less Stringent Test for Deferring to Arbitral Decisions
Back in 2014, the Board scrapped its longstanding deferral precedent in a case called Babcock & Wilcox Construction Co. and developed a new, more stringent test for deciding whether to defer to an arbitrator’s prior resolution of a union grievance concerning an employee’s discipline or discharge that also is alleged to violate the Act.
Under the Babcock standard, the Board could only defer to an arbitration decision or settlement if (1) the arbitrator was explicitly authorized to decide the unfair labor practice; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permitted the award. The party urging for deferral (most often the employer) bore the heavy burden of proving these three factors. Such a stringent standard typically resulted in employers having to defend an employment action twice, under the grievance procedure and in unfair labor practice proceedings before the Board.
Now, employers can rejoice as the Board has reverted back to its longstanding deferral precedent, which supports parties’ right to contract and encourages deferral. Today, the Board will defer to an arbitration decision and award if (1) the arbitration proceedings were fair and regular, (2) the parties agreed to be bound, (3) the contractual issue was factually parallel to the unfair labor practice issue, (4) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice, and (5) the decision was not clearly repugnant to the purposes and policies of the Act. The burden now falls back on the party urging against deferral.
Employers Once Again May Unilaterally Stop Deducting Union Dues Once a Contract Has Expired
On December 16, 2019, the Board issued its decision in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, in which the Board reverted back to precedent from 1962 by holding that employers can unilaterally stop deducting union dues once a contract has expired. The Board reasoned that because dues checkoff provisions are “rooted in the contract and not the Act, they become moot when the former lapses.”
This is a great decision for employers who can use this decision as a bargaining chip during negotiations by offering to keep a dues checkoff provision intact upon expiration of a collective bargaining agreement.
If you have any questions regarding the above changes in Board law, workplace investigations, or need assistance with any related issues, feel free to contact Jim Wilkins, Margaret Matejkovic, Olivia Hochschwender, or any other K|W|W attorney.