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NLRB Issues Slate of Empoyer-Friendly Rulings in December

January 16, 2020

As the year 2019 and Member Lauren McFerran’s term were both about to expire, the National Labor Relations Board (the Board or NRLB) reversed several noteworthy actions taken by the agency during the Obama Administration.  In addition to its Dec. 13 issuance of a regulation curtailing the Obama Board’s controversial “quickie” or “ambush” election rule reported elsewhere, the Board issued decisions in some significant cases during the period, including the following:

  • On Dec. 16, the Board issued a decision in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center holding that an employer’s statutory obligation to check off union dues ends upon expiration of the collective bargaining agreement containing the checkoff provision. The ruling overturns the Obama Board’s Lincoln Lutheran of Racine decision and returns to precedent established in the 1962 Bethlehem Steel case.
     
  • On Dec. 17, the Board issued a decision in Apogee Retail LLC d/b/a Unique Thrift Store holding that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful.  The decision overturns the Obama Board’s rulings in Banner Estrella Medical Center, which placed the burden on an employer with such a work rule to establish that its interests in preserving the integrity of an investigation outweighed employees’ rights under the National Labor Relations Act (NLRA) to engage in protected concerted activity.  In Apogee, the Trump Board applied the test for facially neutral workplace rules it established in The Boeing Company and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.
     
  • Also on Dec. 17, the Board issued a decision in Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino re-establishing an employer’s right to restrict employee use of the company’s email system provided it does so on a nondiscriminatory basis.  The decision overturns the Obama Board’s ruling in Purple Communications, which held that employees 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 concerted activity.  The present ruling holds that employees do not have a statutory right to use employers’ email or other information technology resources to engage in non-work-related communications. Recognizing that employees must have adequate avenues to engage in protected communications, however, the Board provided an exception where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday. 

These decisions were welcomed news for employers, who can expect further employer-friendly rules and rulings in 2020.  However, just as the Trump Board has successfully overturned Obama Board actions, employers should keep in mind that the Trump Board’s actions may also be reversed as the political pendulum swings in the future.  To maintain positive employee relations and avoid burdensome litigation, AGC members are advised to consult with labor counsel when making changes to policies or practices that may impact employees’ NLRA rights.

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