NLRB Issues Three Decisions Overturning Obama-era Precedents

Recently, the National Labor Relations Board (NLRB), released three new decisions which overturned significant Obama-era precedents. The decisions establish that: (i) employers can restrict employees’ use of emails for nonbusiness purposes; (ii) workplace policies covering confidentiality during workplace investigations are lawful; and (iii) employers can stop deducting and remitting union dues after the expiration of a collective bargaining agreement. The specifics of the holdings are, as follows:

i. Employers May Restrict Employees’ Use of Emails for Non-work Reasons

In Caesars Entertainment, 368 NLRB NO. 143 (2019), the NLRB found that employees do not have a statutory right to use their employer-provided email for non-work purposes, such as discussing their wages and benefits or forming a union.

Previously, under the NLRB’s 2014 ruling in in Purple Communications, Inc., 361 NLRB 1050 (2014), an employer providing workers with access to its email system may not prohibit the workers from using the system for Section 7-protected communications on nonworking time, absent a showing of special circumstances. In Caesars, the NLRB expressly overruled the Purple Communications decision by specifically noting that an employer has a property right to control the use of its communication systems, including its email system, and reaffirmed that no Section 7 rights exist in the use of employer-owned televisions, bulletin boards, copy machines, telephones, or public-address systems.

The Caesars case dealt with the lawfulness of an employer policy prohibiting the use of its email system to send “chain letters or other forms of non-business information.” The NLRB found that workers must have only adequate avenues of communication and that employer property rights must yield to workers’ Section 7 rights only to avoid creating an unreasonable impediment to workers’ right of self-organization. In the case of employer-supplied email systems, the Board ruled that other modes of communication available to workers such as face-to-face communication, smartphones, personal email and social media were adequate for the exercise of their Section 7 rights without unreasonably impeding those rights.

Under the new holding, rules prohibiting workers from using company email systems for nonbusiness purposes, including for purposes of engaging in activities protected by Section 7 of the NLRA, are generally lawful to maintain. The NLRB noted, however, that an employer’s right to restrict employees’ use of email is not absolute. The NLRB considered situations where an employer’s email system may be the only reasonable means for employees to communicate with one another, or where enforcement of such a policy is discriminatory.

Guidance is not provided as to what situations would qualify where an employer’s email system was the “only reasonable means” for employees to communicate with one another. However, the Board noted that it expects such cases to be rare.

ii. Confidentiality Requirements During Investigations Are Presumptively Lawful

In Apogee Retail, 368 NLRB No. 144 (2019), the NLRB upheld an employer’s rule requiring employee confidentiality during workplace investigations. The NLRB overturned its previous 2015 ruling in 2015 Banner Estrella Medical, which required that employers to determine, by producing specific evidence on a case-by-case basis, whether their interests in preserving the integrity of an investigation outweighed employees’ rights under the National Labor Relations Act (NLRA) to discuss workplace concerns with coworkers.

Under the new Apogee Retail ruling, employer policies requiring workers to maintain confidentiality of investigations are presumed lawful if they are facially limited to the duration of the investigation. When a rule extends investigative confidentiality beyond the life of the investigation or when the non-disclosure rule is silent with regard to duration, the rule is subject to individualized scrutiny as to whether any post-investigation adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

iii. Union Dues Check-Off Provisions Do Not Survive the Expiration of a Collective Bargaining Agreement

In Valley Hospital Medical Center, 368 NLRB No. 139, the NLRB ruled that employers may once again unilaterally cease collecting union dues pursuant to a dues checkoff provision at the expiration of a collective bargaining agreement.

The Board returned to longstanding precedent, holding that employers have no obligation to continue deducting union dues from employee paychecks and paying them to the union pursuant to the employee’s authorization, following the expiration of the collective bargaining agreement. After a collective bargaining agreement expires the NLRB noted that unions will have to seek payments directly from employees who choose to continue their financial support to the union. The threat of ceasing dues deduction allows an employer considerable leverage in negotiations for a new collective bargaining agreement.